Baker Act Overused to Handcuff a 7-Year-Old, Forcing Involuntary Psychiatric Examby Kyra Gurney, Miami Herald/TNS February 9, 2018
MIAMI — The Florida Mental Health Act, also known as the Baker Act, is supposed to help people with mental illness get a psychiatric evaluation if they’re unwilling or unable to get one on their own. It’s not supposed to be used on the basis of a developmental or intellectual disability or anti-social behavior.
The families of children with special needs, and the lawyers and activists who support them, say the Baker Act is being overused, leaving children traumatized and parents afraid to send their kids back to school.
A 7-year-old at Miami’s Coral Way K-8 Center was handcuffed, put in the back of a police car and taken to a hospital for an involuntary psychiatric exam after he hit and kicked a teacher during lunch.
This incident was the second time he had been handcuffed and taken for an involuntary psychiatric exam in two months.
The child got upset during lunch when his teacher told him not to play with his food, according to the incident report. He then punched the teacher in the back and kicked her, causing her to fall to the ground, the report states.
The child’s mother, Mercy Álvarez, said her son has not been diagnosed with a mental illness and that she considers the response disproportionate. She said the child does not have a developmental disability.
“This is police abuse; a whim of the officer, because my son was calm when they came to look for him,” she told el Nuevo Herald a few days after the incident. “The principal, the counselor, and two other people tried to prevent that action, and the officer took the child anyway.”
The Miami-Dade schools police have a policy that instructs officers to handcuff the person they’re transporting “for the safety and security of the officer and the person involved.” In a statement, the Fraternal Order of Police said the officer who transported Álvarez’s son followed department policies.
10-year-old Kevin Bowles
On the same day, 15 miles south at Gulfstream Elementary, 10-year-old Kevin Bowles was begging his teachers not to call the police.
The fourth-grader had gotten upset when a teacher told him to make up some schoolwork during recess. As Kevin grew increasingly agitated, one of his teachers told the other to call the Baker Act number, Kevin later told his mother.
Kevin knew what “Baker Act” meant. Two years earlier, during another meltdown, teachers at his old school had invoked the Florida law, which instructs police to take people who appear to be mentally ill and pose a danger to themselves or others for an involuntary psychiatric exam. On that occasion, Kevin’s parents had shown up just in time, before police could handcuff him.
“Please, please don’t call Baker Act, don’t call Baker Act,” Kevin begged his teachers at Gulfstream Elementary.
A teacher’s aide took Kevin into the hallway to calm him down, but he bolted toward the front door. The assistant principal caught the 10-year-old before he made it outside. By the time Kevin’s mother arrived, Kevin had scratched his stomach, back and chest in distress. A few minutes later, police showed up.
“I was trying to keep myself from crying. I was trying to be strong for him, but I was scared,” Orietta Fombellida said. “I was scared of the fact that I’m putting my trust in a school system that’s broken. I’m putting my child in their hands to guard and to teach and to keep safe and they’re not doing that.”
To prevent her son from being handcuffed, Fombellida took him to a clinic for a psychiatric evaluation. There, the doctor told her what she already knew: Kevin was on the autism spectrum, had ADHD and was not a threat to himself or to anyone else.
Now, Kevin is scared to go back to school. He has a behavior intervention plan that’s supposed to serve as a guide for school staff when he gets upset, but instead of following the plan, his mother said, the school called police. She’s afraid it could happen again.
Kevin isn’t alone. State data show that the Baker Act is used on students in Miami-Dade’s public, private and charter schools at a rate of more than three times every school day. Some South Florida families, like Kevin’s, say their children have been Baker Acted, threatened with the Baker Act or suspended for behavior that stems from a developmental disability, such as autism.
“In Florida, the definition of mental illness is very clearly defined to exclude developmental disabilities and anti-social behavior. A child having a tantrum, a teenager having a meltdown, some drama, that’s anti-social behavior,” said Diane Stein, president of the Citizens Commission on Human Rights of Florida, a mental health watchdog group. “The majority of these kids don’t meet the definition of mental illness in the first place.” Stein said the group gets dozens of calls a week from Florida parents whose children have been Baker Acted and estimates that as many as 70 percent don’t meet the criteria.
“What I’m seeing is that rather than trying to implement these programs to help these kids learn better, they’re just saying, ‘We’ll Baker Act them and then we don’t have to deal with them,’” Fombellida said.
Baker Act an difficult decisions
A school’s decision about whether or not to Baker Act a child is a complex one. And it’s an issue that has sparked heated debate recently, after video of a schools police officer putting a first-grader at Coral Way K-8 Center into the back of a patrol car made the national news, drawing both condemnation from parents and support from teachers who say they’ve been hit, kicked and injured by students.
For school staff, it can be a challenge to tell the difference between behavior stemming from a child’s developmental disability and behavior that could be the sign of something else.
“There’s no direct statement or series of words put together that tells you this child should or should not be Baker Acted,” said Frank Zenere, the head of the Miami-Dade school district’s crisis management program. “Each and every situation that requires some type of assessment of mental health concerns must be taken on its own merit based on that assessment.”
The school district said it doesn’t comment on individual cases as a matter of policy, but Zenere said a school typically wouldn’t Baker Act a child for behavior that is a manifestation of a developmental or intellectual disability. “It’s only when it becomes a life safety issue and we’re truly concerned about them or others, or both, that’s when we have to go into the protection mode,” he said.
In some cases, school staff may feel that the Baker Act is the only way to ensure a child gets a psychiatric exam, said Martha Lenderman, a former state Baker Act director.
“Between 40 to 60 percent of parents who agree to take their child for a voluntary exam never get there, either because of the stigma, cost factor or transportation,” she said.
Parents are sometimes unwilling or unable to recognize that their child has a mental health issue, Lenderman added. “You know how to advise all of your friends and relatives, but when it’s your child or your parent, we’re all sort of in denial.”
Baker Act leads to kids dropping out
Parents and activists disagree with this assessment. They worry that the Baker Act is being overused in South Florida schools to push out students the school doesn’t know how to manage.
Stephanie Langer and Allison Hertog, two South Florida special education lawyers with separate practices, said they’ve had numerous clients who have been Baker Acted or suspended for behavior that stems from a disability. The lawyers said they find it hard to believe that a young elementary school student, like the child at Coral Way K-8 Center, could reasonably be considered a danger to himself or others.
“Of course you can’t excuse a child no matter what age they are who hits someone else, but certainly a child of that age should not be Baker Acted in my opinion because he couldn’t be a danger to himself or others unless he was carrying a weapon,” said Hertog. “He’s too little.”
Instead, other interventions like a behavior plan, staff training or determining the root cause of a child’s behavior — which is often an academic issue or a developmental disability — can prevent a situation from escalating, Langer said.
“There’s no behavior plan or IEP,” an Individualized Educational Program for a child with special needs, “that says anywhere on it that the proper intervention is to arrest or Baker Act the kid,” she said.
Once a child has been Baker Acted or had a close call, there’s “a threat that hangs over the family’s head,” Langer said. “The families are afraid to bring their kids back to school. A lot of kids drop out, which I think is the ultimate goal.”
A growing problem
State data show that a growing number of children are getting Baker Acted. A state task force convened last year to study the issue reported that the number of cases rose nearly 50 percent between Fiscal Year 2010-11 and Fiscal Year 2015-16, while the state’s population increased by less than 6 percent over the same period.
Between July 2015 and July 2016 alone, more than 32,000 involuntary psychiatric exams were conducted on Florida children, according to data from the Baker Act Reporting Center at the University of South Florida.
Data on the number of exams initiated at school are harder to come by. The Florida Department of Education doesn’t keep track and the data reported to the University of South Florida are incomplete, said center director Annette Christy.
Of the roughly 2,300 exams conducted on children in Miami-Dade during Fiscal Year 2015-16, roughly 700 were initiated at a public, private or charter school, the center’s data show. That’s an average of more than three times every school day. In another 667 cases involving children, however, no location was reported.
The Miami-Dade school district said that between July 2017 and January 25, 2018, 133 Baker Act exams were initiated at its schools. The district appears on track to finish the year with roughly the same number of incidents as last year, down from 439 cases reported during the 2013-2014 school year.
The countywide numbers are similar in Broward, where 2,000 children received Baker Act exams during Fiscal Year 2015-16, with 619 initiated at school.
Parents and activists say they have reason to worry about a school’s motivations for Baker Acting children. A 2012 Miami Herald investigation found that the number of Baker Act exams initiated in Miami-Dade public schools had almost doubled over five years, while the number of crime incidents and juvenile arrests fell. Meanwhile, school district and county officials had received complaints that schools police felt pressured to Baker Act misbehaving students.
Al Palacio, president of the Miami-Dade Schools Police Fraternal Order of Police, said the organization hasn’t received any recent complaints of that nature. He said the number of Baker Act exams initiated at the county’s public schools has fallen in recent years, along with the number of juvenile arrests.
Following the incident at Coral Way K-8 Center, the school district has initiated a review of the process by which children are assessed and Baker Acted, a spokeswoman said.
For the time being, Álvarez said she has taken her son out of Coral Way K-8 Center and will be sending him to another school.
© 2018 Miami Herald
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