Dear Friends:

On Wednesday, May 18, 2016, the Adoptive Families for Children Foundation — a non-profit organization and friend of Bianco Professional Association — will hold its Spring Social to raise funds for children in need of adoption. The event, which is open to the public, will take place from 6-8pm at Banks Chevrolet in Concord (137 Manchester St., Concord, NH 03301), and will be a fun evening featuring a beer and wine sampling, highlighted by a special guest speaker. It will give families and individuals the chance to learn more about adoption and the importance of finding permanent homes for all children.

Contributions in any amount are much needed and greatly appreciated, and anyone interested in learning more about this important cause is encouraged to attend. Please RSVP to Lisa Bianco at lisa@adoptivefamiliesforchildren.com, Kristine Pries at kristine@adoptivefamiliesforchildren.com, or by calling AFFC directly 603-228-6712.

For more information, please visit the AFFC Foundation’s website at www.affcfoundation.org.

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The limit that a school district can impose upon free speech in public schools is in the news again, this time in a case from Morgan Hill, California. Morgan Hill is a city about an hour south of San Francisco, and is home to the Morgan Hill Unified School District and Live Oak High School. This distant California school made national news in 2010 when the administration required a handful of students to change out of clothing depicting the American Flag or risk punishment. Sensational headlines followed, condemning the “extreme” California school culture and the insult to Old Glory. Surely, this could not be the state of the law in the United States. Surely, banning the American Flag in an American school is a step too far, right?

Five years after Live Oak High School required these students to change clothes or face discipline, the case has finally reached conclusion in the court system. Procedurally, the case made it all the way to the Federal Court of Appeals for the 9th Circuit. In March 2015, the United States Supreme Court declined to accept further appeal of the case, thereby rendering the 9th Circuit’s decision the final word. Live Oak High School prevailed and the policy effectively banning clothing with the American Flag was upheld. Here’s the rest of the story.

On May 5, 2010, four high school boys went to school wearing t-shirts that many American students might own. One was an Old Navy brand t-shirt with an American Flag graphic on the front. Two were made by TapOut, a popular brand loosely associated with mixed martial arts. The TapOut shirts did not include a flag, but rather a logo for the company that stylistically uses red and white stripes, as well as white stars on a blue field. The fourth was a shirt that resembled the stars and stripes from sleeve to sleeve.

Before we delve into the logic behind the decision by Live Oak High School’s administrators to ban the shirts, a brief review of free speech in schools is in order. The review begins with the First Amendment itself, which provides that:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

Although free speech is a very broad and well-defended civil right, it has never been regarded as an unlimited license to say anything that comes to mind. The classic example of a limitation on free speech is the admonition that one cannot yell “fire” in a crowded theatre, potentially causing injury in an attempt to escape the perceived danger. Defamation, libel, and slander — statements that injure a person’s reputation — are also not protected by the right of free speech in many circumstances. False advertising, perjury under oath, and misleading a police investigation are also understood to be speech that is not protected by the First Amendment. These are but a few examples of the limits that exist on free speech, especially free speech in public schools.

Within the walls of a schoolhouse, the limitations on free speech are unique. Of course, students do enjoy First Amendment free speech rights in schools. Dating back to the 1960s, the United States Supreme Court consistently held that “students do not ‘shed their constitutional rights’ at the schoolhouse door.” However, the Supreme Court has also noted that “the constitutional rights of students in public school are not automatically coextensive with the rights of adults in other settings.” Although these foundational legal principals are important to the court, they don’t necessarily give guidance to school administrators.

The practical legal principals governing free speech in public schools emerge in a line of cases beginning 50 years ago. In 1965, high school students in Iowa chose to wear black armbands as a symbolic protest of the Vietnam War and supporting the “Christmas Truce.” Protesting a policy of government that is highly important to the public, and important to these students, would seem to be exactly the kind of free speech the First Amendment protects. However, school administrators developed a policy banning the armbands in order to prevent the protest. The students deliberately violated the policy and were suspended. Four years later, in 1969, the Supreme Court ruled that schools cannot prohibit this expression of free speech, even if it is provocative or controversial, unless the speech “materially and substantially interferes” with school operation. The armbands were allowed and the Court, for the first time, established the standard for when a student’s free speech could be limited.

Fast forward to 2007 in Juneau, Alaska. A high school student hangs a banner across the street from the school during the procession of the Olympic Torch relay, which was to pass in front of the school. The banner read “BONG HITS 4 JESUS.” When the student refused to take down the banner, he was suspended for four days and the banner was confiscated by the school principal. The Supreme Court upheld the principal’s actions in suspending the student by applying the standard it developed in the 1969 armband case. In the Alaska case, a message directed to students during a school event, and which advocated illegal drug use, amounted to a material and substantial interference with school operations.

With these two cases setting the precedent for free speech in public schools, why would the courts believe that the students wearing American Flag t-shirts at Live Oak High School were more like the boy in Alaska advocating drugs and less like the 1960s Vietnam War protests? How could American Flags amount to a material and substantial interference with school operations? If you noticed the date that the boys wore the shirts, you may have spotted a clue that unlocks the answer. The date was May 5, 2010, or that year’s Cinco de Mayo, the celebration of the Mexican army’s unlikely victory over French forces at the Battle of Puebla, which occurred on May 5, 1862. For persons of Mexican heritage, the holiday is a source of cultural pride and importance.

Live Oak High School, as a part of its academic program, recognized the significance of Cinco de Mayo and organized activities on May 5th, 2010 to observe the historic and cultural significance of the day. The handful of boys wearing American Flag shirts on this particular day, as an expression of free speech, was a source of friction. To the extent that the Flag t-shirts represented free speech, the message conveyed by the shirts was a protest of the school’s acknowledgement of the importance of Cinco de Mayo to the school’s Mexican students. Administrators learned of actual fights, as well as threats of violence, as a result of the American Flag shirts. That message, on that particular day, rendered the American Flag shirts a substantial and material disruption to the school’s operations. For that reason, the school district acted within the law to limit free speech in public schools when it required the students to change clothes or face discipline.

What is significant about the Live Oak High School case is that the courts never questioned the school’s discretion to recognize Cinco de Mayo, or the fact that the speech at issue consisted of the American Flag. Those facts, while important to the public perception of the case, played no role in the legal outcome. Restriction on free speech in public schools is permissible when the speech materially and substantially interferes with the school operation. As a post-script, Live Oak High School never sought to impose a general ban on the American Flag at school. All that the school ever attempted to do was to maintain order in its school, and the Court vindicated its limitation on free speech when (and only when) the speech materially and substantially disrupted the school’s operation.

To speak with an attorney regarding an education or school law matter, contact the New Hampshire education attorneys at Bianco Professional Association by calling 603-225-7170 or toll-free at 800-262-8112. You may also send a message using our contact form.

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Congratulations to Kelly Smith, LICSW, Bianco Professional Association’s Adoption Clinical Consultant, on receiving the 2015 Therapist of the Year award from NAMI New Hampshire. NAMI, the National Alliance on Mental Illness, presents the award to practitioners known for their exemplary work and to honor “individuals who have made outstanding contributions to improving the lives of people affected by mental illness and emotional disorders.”

Kelly is a Licensed Clinical Social Worker (LICSW) who has been providing services to adoptive families, birth mothers, and foster families for over 25 years. She collaborates with the adoption professionals at Bianco Professional Association and is a valuable colleague and friend to the Bianco P.A. team. Kelly’s Concord, New Hampshire practice specializes in issues relating to adoption and foster care, and the topics of attachment, trauma, and loss.

To contact the adoption professionals at Bianco Professional Association, please call 603-225-7170, toll-free at 800-262-8112, or send a message using our contact form. To read more about Kelly and her adoption-related practice, please visit her website at www.kellylynsmith-licsw.com.

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Information regarding the 2015 adoption tax credit has been released and there’s good news for adoptive parents — the tax credit has increased.

According to the IRS, the adoption tax credit “offsets qualified adoption expenses, making adoption possible for some families who could not otherwise afford it.” For adoptions finalized in 2015, the federal adoption tax credit may provide assistance with qualified adoption expenses of up to $13,400 per adopted child (up from $13,190 in 2014). The credit is non-refundable meaning taxpayers are only eligible for the credit if they have federal income tax liability.

To be eligible for this year’s tax credit, the adoptive parent(s) must:

• Adopt a child other than a stepchild. The adopted child cannot be a child of the taxpayer’s spouse.

• Adopt a child that is either under the age of 18 or that is physically or mentally incapable of self-care.

• Fall within applicable income and dollar limitations (eligibility is affected by income). The income limit is based on modified adjusted gross income (MAGI). If your MAGI for 2015 is less than $201,010, you are eligible for the full credit. If your MAGI falls between $201,010 and $240,010, your credit is subject to a phase-out and will be reduced. Should your MAGI be above $240,010, you are not eligible for the adoption credit.

Qualified adoption expenses include reasonable attorney or agency fees, court costs, travel expenses (including meals and lodging while away from home), and other expenses that are directly related to the legal adoption of an eligible child. If the adoptive parent(s) do not have enough qualifying expenses to claim the entire credit in one year, it may be possible to carry the unused portion of the credit forward for up to five tax years. Please speak with a licensed tax professional for additional information.

Families that finalize that adoption of a U.S. child with special needs are eligible for the maximum $13,400 credit regardless of qualified adoption expenses. However, please note that the definition of “special needs” for adoption credit purposes does not necessarily mean a child with disabilities. A child has special needs for the purpose of the credit if:

• The child is a citizen or resident of the United States or its possessions when the adoption effort began;

• A state determines that the child cannot or should not be returned to his or her parent’s home; and

• The state determines that the child probably will not be adoptable without assistance provided to the adoptive family.

According to the IRS, “Generally, ‘special needs’ adoptions are the adoptions of children whom the state’s child welfare considers difficult to place for adoption.”

If you finalized your adoption in 2014, the adoption tax credit still applies as Congress and the Obama administration made it a permanent part of the tax code when they passed the American Taxpayer Relief Act of 2012. Details of the 2014 credit can be found by visiting the IRS’ website and may differ slightly from the specifics of the 2015 credit.

For more information regarding how an adoption tax credit could help you this year and for answers to other adoption-related questions, please contact the adoption attorneys and specialists at Bianco P.A. by calling 603-225-7170, toll-free at 800-262-8112, or by sending a message using our contact form.

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For individuals and couples, especially those in the LGBTQ community, who wish to become parents but are physically unable for whatever reason, gestational surrogacy can be life changing. It helps people achieve the reality of having the family and parenthood that they could only once dream about. Legislation signed by New Hampshire Governor Maggie Hassan on Monday, July 21, 2014 recognizes this reality and places New Hampshire at the forefront of surrogacy law.

New Hampshire is a surrogacy-friendly state and the recently enacted Senate Bill 353 continues to help make gestational surrogacy a realistic and attractive option for families in New Hampshire, New England, and even throughout the United States and Europe. The Bill reflects the advances in assisted reproduction technologies and establishes up-to-date and consistent standards and procedural safeguards for the protection of all parties. Bianco Professional Association, as one of the authors of the new law, serves clients interested in becoming parents through gestational surrogacy, gestational carriers, and donors, and is committed to making the process an enriching and successful one for everyone involved.

If you or someone you know would like to learn more about gestational surrogacy and the options it provides to both prospective parents and carriers, please contact Bianco P.A. toll-free at 800-262-8112, locally at 603-225-7170, or by using our contact form. Our team of attorneys and surrogacy specialists are prepared to answer your questions.

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Bianco P.A. attorney Thomas Colantuono recently obtained a $95,000 settlement for a New Hampshire resident who was injured as a pedestrian in Philadelphia, Pennsylvania. The client was crossing the street in a marked crosswalk when the defendant driver ran her over, breaking her foot and leaving her with a concussion. The client, who was a student at the time, had to delay the completion of her studies for about six months because of her injuries. The insurance company for the Philadelphia driver paid the maximum amount available under the policy of $15,000. The client made a claim under her family’s underinsured motorist policy and the insurance company agreed to pay an additional $80,000 to settle the claim. This case showcases the importance of having adequate coverage to protect you and your loved ones from being injured by an uninsured or an underinsured motorist.

To contact Attorney Colantuono and the attorneys at Bianco Professional Association to discuss your potential injury case, please call us toll-free at 800-262-8112 or locally at 603-225-7170. You may also contact us by sending a message through our contact form.

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Angel in Adoption 

Concord, NH – Senator Jeanne Shaheen selected James J. Bianco, Jr. as a 2013 Angels in Adoption awardee for his outstanding advocacy of adoption. The Congressional Coalition on Adoption Institute (CCAI), which orchestrates the Angels in Adoption program, honored Attorney Bianco at an awards ceremony on October 8 and gala on October 9 in Washington, DC.

Attorney Bianco has been working in the adoption arena for over 40 years. In 1973, he co-authored New Hampshire’s adoption law while serving as counsel to the Governor’s Commission on Laws Affecting Children. He founded Bianco Professional Association in 1981 and began the firm’s nationwide adoption practice. Over the past three decades, Attorney Bianco has been involved in hundreds of adoptions, representing both birth parents and adoptive parents.

In 2011, Attorney Bianco acquired Adoptive Families for Children, a licensed NH Child Placing Agency. Through the agency, Attorney Bianco and AFFC Board Members are establishing a foundation to help create more permanent homes for children and to increase awareness of adoption opportunities. The foundation will provide grants to support the financial needs of adoptive and foster children and will work to heighten recruitment efforts to expand the pool of adoptive parents in New Hampshire.

“I am honored and humbled to receive this award,” said Bianco. “Working to match children with families is one of the most rewarding parts of my job. However, so much of my respect goes to the adoptive and foster parents who taken children into their care and provide them with permanent, loving homes. They are the true angels in adoption and foster care.”

The Angels in Adoption program is CCAI’s signature public awareness campaign and provides an opportunity for all members of the U.S. Congress to honor the good work of their constituents who have enriched the lives of foster children and orphans in the United States and abroad. Each year, more than 140 Angels are honored through the Angels in Adoption program.

In addition to the more than 140 local angels from around the country, several “National Angels” were recognized at the ceremony and gala for their dedication and commitment nationally and internationally to child welfare on a grand scale. This year’s honorees were Korie and Willie Robertson of the popular A&E reality show Duck Dynasty and internationally acclaimed actress, director and producer Deborra-Lee Furness Jackman. Former National Angels include First Lady Laura Bush, Patti LaBelle, Jane Seymour, Muhammad Ali, the late Dave Thomas, Steven Curtis Chapman, Bruce Willis, Alonzo Mourning, Rhea Perlman and Kristin Chenoweth.

The Congressional Coalition on Adoption Institute (CCAI) is a 501(c)3 nonpartisan organization dedicated to raising awareness about the tens of thousands of orphans and foster children in the United States and the millions of orphans around the world in need of permanent, safe and loving homes through adoption. CCAI’s goal is the elimination of the barriers that hinder these children from realizing their basic right of a family.

CCAI was created in 2001 by the active co-chairs of the bicameral, bipartisan Congressional Coalition on Adoption to more effectively raise Congressional and public awareness about adoption.

The Angels in Adoption program was established in 1999 as a Congressional press conference to honor outstanding individuals. Since then, the program has developed into a yearlong public awareness campaign culminating in an extraordinary awards gala and celebration in Washington, DC.

CCAI does not receive any government funding and relies on the generous support of foundations, corporations, and individuals to accomplish their mission. For more information, visit www.ccainstitute.org or www.angelsinadoption.org.

To contact Attorney Bianco, please call Bianco Professional Association at 603-225-7170, toll-free at 800-262-8112, or send a message using our contact form.

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Merriam Webster says that “hazing” means “to subject (freshmen, newcomers, etc.) to abusive or humiliating tricks and ridicule.” The New Hampshire Legislature says that hazing is “any act directed toward a student, or any coercion or intimidation of a student to act or to participate in or submit to any act, when: (1) Such act is likely or would be perceived by a reasonable person as likely to cause physical or psychological injury to any person; and (2) Such act is a condition of initiation into, admission into, continued membership in or association with any organization.” (RSA 631:7)

Most of us know that hazing is wrong. Some may know that hazing is illegal. Fewer know that it is a form of criminal assault. Hardly any know that it is a crime for an individual or an educational institution not to report it to law enforcement or for an educational institution not to take reasonable steps to prevent it (RSA 631:7).

Incidents of hazing seem to capture the headlines when they occur and often exposes some of the most bizarre behaviors imaginable. Here are a few examples:

In May of 2013, in Deerfield Township, Ohio, “six Kings High School [girls] softball players were suspended after they covered teammates’ heads and made them drink an unidentified liquid as part of a hazing ritual during a weekend road trip.” (WCPO-Cincinnati)

In April 2013, the superintendent of Florence Township in New Jersey announced the suspension of members of the high school varsity baseball team for hazing. “The Trenton Times quoted two sources that say the hazing incident included holding down a player while several others on the team bit him causing marks that broke the skin. Another source told the Times this ritual has gone on for years.” (FOX-New York)

In March of 2013 in Raton, New Mexico, “Sources claim two older players took turns simulating rape on three younger players on the back of a bus – and in at least one case, the older player rubbed his genitals on the younger player’s face.” (KRQE-New Mexico)

In Chesapeake, Virginia, “Assistant Commonwealth’s Attorney Karen Brown said the victims were forced into an SUV and taken from the school to the Bowers Hill area of the city. The victims were placed in a ditch and pelted with human and animal feces and urine, vomit, fish, pickles, liquid from a portable toilet and other matter.” (Kozak, Davis, Plott & Renninger, P.C.)

One unique difficulty with hazing is that as horrific as the violent acts can be, the victim typically wants to be admitted to the group, team, club, or organization so badly that the victim invites and welcomes the hazing. This can turn dangerous or even deadly. For this reason, New Hampshire’s law actually takes the rare and unusual step to criminalize not only the perpetrator’s behavior, but also, in some cases, the behavior of the person to whom the hazing is directed.

New Hampshire’s hazing law (RSA 631:7) makes it a misdemeanor for a person to participate in hazing as an actor, to submit to hazing without reporting it, or to be present at, or have direct knowledge of hazing and fail to report it. For an educational institution, the law makes it a misdemeanor if the institution knowingly permits or condones hazing, knowingly or negligently fails to take reasonable steps within its authority to prevent hazing, or fails to report to law enforcement any incident of hazing reported to the institution or with which it otherwise has knowledge. It makes no difference under the law whether the victim of the hazing consented to it.

Most educators are familiar with mandatory reporting laws that require reporting of suspected child abuse and neglect (RSA 169-C:29), acts of theft, destruction or violence in a safe school zone (RSA 193-D:4), and incidences of bullying (RSA 193-F:4). These laws may encompass many acts of hazing and require reporting under those statutes as well. However, educators shouldn’t overlook the requirements of the hazing statute as the consequences of doing so can be severe. First and foremost is the harm inflicted upon the child or children when the hazing occurs and, in addition, it wouldn’t be surprising to learn that the severe incidences of hazing that appear on college campuses have roots that reach back into high school.

Beyond the wellbeing of the children, which is paramount, failing to report hazing can end an educator’s career. Under New Hampshire law, a teacher or principal can be terminated if the school board finds the teacher or principal to be “immoral, or who has not satisfactorily maintained the competency standards established by the school district, or one who does not conform to regulations prescribed” (RSA 189:13). One could envision a school board finding that a failure to report or the condoning of hazing is both immoral and fails to conform to regulations. Furthermore, under certain circumstances, failing to act to prevent hazing could give rise to civil, financial liability as well.

Protect yourself along with your students. Review RSA 631:7, share it with your faculty and staff, make sure you have appropriate policies in place and, most importantly, follow the law.

To speak an attorney about an educational, hazing, or other issue, contact Bianco Professional Association by filling out our contact form, by calling 603-225-7170, or reaching us toll-free at 800-262-8112.

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Do you have an old criminal record that is holding you back from getting a good job or working in the field that interests you, or is otherwise affecting your life in a negative way? New Hampshire has a law that allows you to apply to the courts to annul or expunge your criminal record of arrest and/or conviction in certain circumstances. The law can be complicated and, if you make a mistake on your application, such as applying too early, and the court denies your application, you are required to wait three years before you can apply again — a costly error.

Last year, the legislature passed an amendment to the annulment statute that made a significant change in the way the law works. The new amendment states that even if the court grants you an annulment, the record of your arrest or conviction stays on the public record for anyone to see. This change has been criticized as defeating the purpose of an annulment. Currently, there is a bill working its way through the legislature (House Bill 450), which would return the law to its previous position whereby records of arrests or convictions would be permanently removed from the public record, except for certain limited purposes. This bill passed the House of Representatives on March 13, 2013 and is now awaiting consideration by the Senate. Whether this bill passes or not, Bianco Professional Association can assist you in analyzing whether you are entitled to an annulment of your criminal record and in assisting you in filing the appropriate petition with the court. Don’t let an old record hold you back if you are eligible for an annulment.

To contact Bianco Professional Association, please call 603-225-7170 or reach us toll free at 800-262-8112. You may also fill out our contact form.

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In early January, Congress passed legislation to avert the “fiscal cliff” and, in doing so, made the tax credit for adoptive families permanent.  The adoption tax credit helps thousands of families offset the costs of adoption every year, allowing children to be adopted by loving families that may otherwise be unable to afford it.

The adoption tax credit was first adopted in 1997 and, until now, was annually extended on a year-to-year basis.  The maximum 2013 adoption tax credit is set at $12,650 per child and is applicable to any reasonable and necessary adoption costs, such as travel expenses, court fees, and legal costs.  The credit is subject to income limitations and is based on a family’s modified adjusted gross income.  The credit begins to decrease for families with incomes above roughly $175,000 and does not apply to families with incomes above roughly $225,000.  Furthermore, the adoption tax credit only applies to domestic, international, and foster care adoptions – stepparent and surrogacy adoptions do not qualify.

Families who adopt a special needs child may claim the full $12,650 even if their qualified expenses do not reach the maximum amount as stated by law.  These families do not need to document adoption expenses for this purpose as long as they pay enough in taxes to claim the credit.

The 2013 adoption tax credit is non-refundable, meaning that unlike some previous years, adoptive parents will not be eligible to recover the difference if their qualified expenses exceed their tax liability.  However, if an adoptive parent or family does not have the liability to claim the entire credit at once, they may carry it forward to a future tax year (for up to five years beyond the original claim year).

For more information regarding how an adoption tax credit could help you adopt this year and answers to any other questions, please contact the attorneys and adoption specialists at Bianco P.A. by calling toll-free at 800-262-8112, locally at 603-225-7170, or by using our contact form.

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