In re Interest of Reality W. ( 2019 )

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www.nebraska.gov/apps-courts-epub/
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Nebraska Supreme Court A dvance Sheets
302 Nebraska R eports
IN RE INTEREST OF REALITY W.
Cite as 302 Neb. 878
In re I nterest of R eality W., a child
under 18 years of age.
State of Nebraska, appellee, v.
R eality W., appellant.
___ N.W.2d ___
Filed April 12, 2019. No. S-18-629.
1. Juvenile Courts: Appeal and Error. An appellate court reviews juve-
nile cases de novo on the record and reaches its conclusions indepen-
dently of the juvenile court’s findings.
2. Statutes: Judgments: Appeal and Error. The meaning of a statute is a
question of law, which an appellate court resolves independently of the
trial court.
3. Statutes: Appeal and Error. Appellate courts will adhere to the plain
meaning of a statute absent a statutory indication to the contrary.
4. Juvenile Courts: Parental Rights. The foremost purpose and objec-
tive of the Nebraska Juvenile Code is the protection of a juvenile’s best
interests, with preservation of the juvenile’s familial relationship with
his or her parents where the continuation of such parental relationship is
proper under the law.
5. Appeal and Error. An alleged error must be both specifically assigned
and specifically argued in the brief of the party asserting the error to be
considered by an appellate court.
Appeal from the Separate Juvenile Court of Lancaster
County: Roger J. Heideman, Judge. Affirmed.
Joe Nigro, Lancaster County Public Defender, and Margene
M. Timm for appellant.
John M. Ward, Deputy Lancaster County Attorney, and, on
brief, Julie Mruz for appellee.
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IN RE INTEREST OF REALITY W.
Cite as 302 Neb. 878
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
Papik, and Freudenberg JJ.
Funke, J.
Reality W. appeals from the order of the separate juvenile
court of Lancaster County adjudicating her as being “habitually
truant [from] school.”1 Reality argues that she has defenses to
adjudication under Neb. Rev. Stat. §§ 79-209(2)(b) (Reissue
2014) and 43-276(2) (Reissue 2016). Because we do not find
either statutory defense to be applicable based on the record,
we affirm.
BACKGROUND
On April 12, 2018, the State filed a petition alleging that
Reality, then age 15, was habitually truant from school between
September 1, 2017, and March 7, 2018. Reality, along with her
mother, Marketa S., appeared before the court on May 8, 2018,
and entered a denial of the allegations. The court held a for-
mal adjudication hearing on June 18 at which all parties were
present. Two employees of the Lincoln Public Schools were
called by the State as witnesses to testify regarding the school
district’s attendance policy and practices, Reality’s attendance
record, and the steps that were taken to address Reality’s
attend­ance issues before referring the matter to the county
attorney’s office.
School’s Policy and Practice
The State offered testimony from a school attendance tech-
nician. She explained that the school uses an administrative
computer program called Synergy, which maintains student
records, attendance records, and records of contacts made
with students and parents. Synergy also contains a registry
of addresses and telephone numbers for students and parents,
information which parents report to the school district at the
beginning of each school year.
1
See Neb. Rev. Stat. § 43-247(3)(b) (Reissue 2016).
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IN RE INTEREST OF REALITY W.
Cite as 302 Neb. 878
The teachers use Synergy to record a student’s attendance
at the beginning of each class period. The Synergy pro-
gram utilizes attendance codes for truancy, tardiness, parent-­
acknowledged absence, administrator or counselor meeting,
medical, school activity, or illness. Absences for truancy and
illness and parent-acknowledged absences are considered
unexcused absences. Synergy generates and sends automated
“[s]tage letters” to parents when a student accumulates 5, 10,
15, and 20 days of unexcused absences. In addition, Synergy
sends an automated telephone call to parents on the day a stu-
dent has an unexcused absence for one or more classes. The
call is sent to the telephone number provided by the parents
and stored by the school in Synergy.
The State also offered testimony from Lucas Varley, a
school counselor who works with attendance issues. He testi-
fied that once a student accumulates 5 to 10 days of unexcused
absences, Varley will make personal telephone calls to the stu-
dent’s parent for the purpose of scheduling a collaborative plan
meeting. He calls the telephone number from Synergy that the
parent has provided. He testified that when he calls a student’s
home, he identifies himself, explains that he is calling to set
up a meeting to address the student’s attendance issues, and
leaves his contact information.
He testified that he makes three attempts to call a student’s
home to schedule a collaborative plan meeting with a parent.
If a meeting has not been scheduled with a parent after the
third telephone call, Varley attempts to schedule a meeting by
preparing a letter that the school attendance technician sends to
the home. If a parent is unwilling to answer or respond to the
efforts to schedule a meeting, Varley will hold a collaborative
plan meeting without the parent or guardian present.
During a collaborative plan meeting, the attendees discuss
the student’s barriers to attendance and possible resources
to address the barriers. They do so while utilizing a collab-
orative plan report prepared by Lincoln Public Schools and a
community resource letter provided by the Lancaster County
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IN RE INTEREST OF REALITY W.
Cite as 302 Neb. 878
Attorney’s office. If a parent or guardian attends the meeting,
he or she will sign the collaborative plan report and receive a
copy of the community resource letter. If a parent or guardian
does not attend the meeting, the collaborative plan report and
community resource letter are mailed to the parent or guardian.
Varley will then again attempt to contact the parent or guard-
ian after the meeting is held by sending a letter which explains
that he would like to hold a meeting at the school and asks the
parent or guardian to contact him immediately. Varley records
his efforts to contact parents and guardians on a Synergy con-
tact log, which was received into evidence; in addition, he
records his efforts on a separate county contact log, which was
received into evidence as a separate exhibit.
R eality’s Attendance R ecord
According to the Synergy attendance report received into
evidence, between September 1, 2017, and March 7, 2018,
Reality had unexcused absences in 274 class periods. Synergy
converts periods into days by dividing the number of unex-
cused absences by the number of classes in which the student
is enrolled. Reality was enrolled in 4 class periods per day dur-
ing this time, and therefore, the 274 class periods of unexcused
absences equated to 681⁄2 days of unexcused absences. From
this total, 671⁄2 days were classified as truancies and 1 day was
classified as a parent-acknowledged absence.
The court received into evidence additional Synergy records
which indicated that “Stage one, two, three, [and] four letters”
were sent to Reality’s home on September 25, October 5 and
24, and November 1, 2017, respectively. In addition, Varley
testified that he called Reality’s home on December 5 and
left a message; that he called Reality’s home on December
19 and spoke with Marketa, confirming that the school had
the correct telephone number for Reality’s home, but Varley
was unable to address the attendance issue with Marketa;
and that he called Reality’s home on December 21 and left
another message.
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IN RE INTEREST OF REALITY W.
Cite as 302 Neb. 878
After these attempts to schedule a meeting with Marketa
were unsuccessful, Varley held a collaborative plan meeting
with Reality on January 9, 2018, when he observed Reality in
the school hallway attempting to skip class. Varley acknowl-
edged that the meeting was spontaneous and that he did not
attempt to call Marketa prior to the meeting. During the
meeting, Varley and Reality discussed barriers contributing
to Reality’s unexcused absences, which included her schedule
and transportation issues. Prior to the meeting, Reality already
had her daily school schedule shortened from a full day of 7
periods to 4 periods and had an individual education plan in
place. The school also provided Reality a bus pass to assist
with her transportation issues. Varley offered Reality family
and individual therapy, which she declined. Varley and Reality
also discussed available community resources set forth in the
community resource letter. Though Varley could not remember
if he gave Reality a copy of the community resource letter at
the meeting, he assumed that he did so. Varley and Reality
signed the collaborative plan report.
The following day, January 10, 2018, the collaborative plan
report and community resource letter were mailed to Marketa.
The mailing of the plan and letter to Marketa was documented
in both the Synergy contact log and the county contact log.
Thereafter, Reality continued to amass unexcused absences. On
January 17 and 29, Varley attempted to again meet with Reality
during scheduled class periods, but his attempts were unsuc-
cessful because she was truant.
A djudication and Order
On June 18, 2018, the court held a formal adjudication hear-
ing on the State’s petition. Following the hearing, the court
entered an order adjudicating Reality under § 43-247(3)(b). The
court found that the “[e]vidence establishes by proof beyond a
reasonable doubt that [Reality] has been habitually truant.” The
court further found that “multiple attempts to schedule a col-
laborative plan meeting as required by [§] 79-209(2)(b) were
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IN RE INTEREST OF REALITY W.
Cite as 302 Neb. 878
made by authorized school personnel with [Marketa] with no
response from [her].” The court found that although the col-
laborative plan meeting took place without Marketa’s presence,
the school had fulfilled its requirements to document its efforts
to conduct the meeting under § 79-209(3). The court concluded
that Reality had no defense under § 79-209(3) to adjudica-
tion for habitual truancy. Lastly, the court found the evidence
established that the county attorney made reasonable efforts to
refer Reality and her family to community-based resources and
that as a result, Reality had no defense to adjudication under
§ 43-276(2).
Reality perfected an appeal to this court.
ASSIGNMENTS OF ERROR
Reality assigns that there is insufficient evidence the school
met the requirements under § 70-209(2)(b) and that there
is insufficient evidence the county attorney made reasonable
efforts to refer her and her family to community-based resources
prior to filing a petition, as required under § 43-276(2).
STANDARD OF REVIEW
[1,2] An appellate court reviews juvenile cases de novo on
the record and reaches its conclusions independently of the
juvenile court’s findings.2 The meaning of a statute is a ques-
tion of law, which an appellate court resolves independently of
the trial court.3
ANALYSIS
Under the Nebraska Juvenile Code, a juvenile court may
exercise jurisdiction over a juvenile who is habitually tru-
ant from school under § 43-247(3)(b). Although the juvenile
code does not define “habitually truant,” we have previously
said that “truancy” is a word of common knowledge, and we
2
In re Interest of Samantha C., 287 Neb. 644, 843 N.W.2d 665 (2014); In
re Interest of Hla H., 25 Neb. Ct. App. 118, 903 N.W.2d 664 (2017).
3
In re Interest of Hla H., supra note 2.
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IN RE INTEREST OF REALITY W.
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have referred to the dictionary definition of “‘truant’” as being
“‘a pupil who stays away from school without permission.’”4
We qualified this definition by stating that under Nebraska’s
compulsory attendance law, only school authorities have the
authority to grant a juvenile permission to be absent from
school.5 We have held that the mere fact that a juvenile is not
complying with the compulsory education statutes without
being first excused by school authorities establishes truancy
and grants the juvenile court jurisdiction under § 43-247(3)(b).6
In In re Interest of Samantha C.,7 we found that the fact that a
juvenile had accrued 27 days of unexcused absences was suf-
ficient to show that the juvenile was not compliant with com-
pulsory education statutes and thereby established beyond a
reasonable doubt the juvenile’s status as being habitually truant
under § 43-247(3)(b).
Reality’s appeal does not challenge the sufficiency of
the evidence to adjudicate her as habitually truant under
§ 43-247(3)(b). Instead, her appeal focuses on the availability
of defenses to adjudication, whether the school had fulfilled
the requirements under § 79-209(2) and (3), and whether the
county attorney fulfilled the requirements under § 43-276(2)
before filing the petition. We address each of Reality’s claimed
statutory defenses in turn.
No Defense Under § 79-209
Reality contends that the school failed in its obligation to
address barriers to attendance under § 79-209. Specifically, she
argues that, pursuant to § 79-209(2)(b), as amended by 2014
Neb. Laws, L.B. 464, § 34, the school is required to hold a
4
In re Interest of K.S., 216 Neb. 926, 929, 346 N.W.2d 417, 419 (1984)
(superseded by statute as stated in In re Interest of Kevin K., 274 Neb. 678,
742 N.W.2d 767 (2007)).
5
Id. See Neb. Rev. Stat. § 79-201(2) (Reissue 2014).
6
In re Interest of Samantha C., supra note 2.
7
Id.
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IN RE INTEREST OF REALITY W.
Cite as 302 Neb. 878
collaborative plan meeting with at least a parent or guardian
before referring the case to the county attorney. Because only
Varley and Reality participated in the collaborative plan meet-
ing and because Varley did not call Marketa on the date of the
meeting to have her attend or participate by telephone, Reality
suggests the school district did not meet its statutory duty.
Section 79-209 provides, as pertinent here:
(2) All school boards shall have a written policy
. . . to address barriers to attendance. Such services shall
include . . . :
(b) One or more meetings between, at a minimum, a
school attendance officer, a school social worker, or a
school administrator or his or her designee, the person
who has legal or actual charge or control of the child, and
the child, when appropriate . . . .
....
(3) The school may report to the county attorney . . .
when the school has documented the efforts it has made
as required by subsection (2) of this section that the col-
laborative plan to reduce barriers identified to improve
regular attendance has not been successful and that the
child has been absent more than twenty days per year. . . .
Failure by the school to document the efforts required by
subsection (2) of this section is a defense to . . . adjudica-
tion for . . . habitual truancy under subdivision (3)(b) of
section 43-247.
(Emphasis supplied.)
It is true that the plain language of § 79-209(2)(b) requires
that the school hold a meeting between a school official and
a parent or guardian to address a juvenile’s barriers to attend­
ance. Section 79-209(2)(b) indicates that it may be appropri-
ate to hold “[o]ne or more meetings.” Here, it is undisputed
that only one collaborative plan meeting took place and that
Reality’s parent or guardian did not attend the meeting. In
addition, Varley testified that if a parent does not respond after
he has made three attempts to contact the parent by telephone,
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IN RE INTEREST OF REALITY W.
Cite as 302 Neb. 878
he typically makes another attempt to schedule a collaborative
meeting with the parent by sending a letter. There is no evi-
dence that the school sent Marketa a letter after the third tele-
phone call prior to the meeting. Further, although the school
attendance technician and Varley testified that Synergy sends
an automated telephone call home on the evening that a student
has had an unexcused class period, there was no specific testi-
mony that these calls were in fact made to Marketa.
[3] Having acknowledged these evidentiary shortcomings,
it is clear that Reality lacks a defense to adjudication under
§ 79-209, because the plain language of the statute does not
provide that a parent’s absence at the collaborative plan meet-
ing is a defense to adjudication. Instead, § 79-209(3) provides
that “[f]ailure by the school to document the efforts required
by subsection (2) of this section is a defense to . . . adjudica-
tion for . . . habitual truancy under subdivision (3)(b) of sec-
tion 43-247.” We will adhere to the plain meaning of a statute
absent a statutory indication to the contrary.8 Therefore, a
defense to adjudication under § 79-209 is available only if the
school failed to document its efforts to address her barriers
to attendance and improve her regular attendance, consistent
with the school’s attendance policy. In addition, § 79-209(3)
requires the school to document that its efforts to improve
regular attendance have been unsuccessful and that the child
has been absent more than 20 days per year.
The record is replete with evidence that the school district
documented its efforts to comply with § 79-209(2), reduce
Reality’s barriers to attendance, and improve her regular
attend­ance. In addition, the school documented the fact that
its efforts had not successfully improved Reality’s regular
attendance and that Reality had been absent more than 20 days
per year.
The attendance report generated by Synergy shows that
Reality’s truancies began on September 1, 2017. According to
8
In re Interest of LeVanta S., 295 Neb. 151, 887 N.W.2d 502 (2016).
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IN RE INTEREST OF REALITY W.
Cite as 302 Neb. 878
the normal practice described by the school employees, since
Reality had three truancies on September 1, Marketa would
have received an automated telephone call that day indicating
that Reality had been truant. Even if we disregard the evidence
concerning the automated calls, Marketa would have been
aware of Reality’s attendance issues as early as September 25,
when she received the “Stage one” attendance letter. Reality
then accumulated numerous truancies in a short amount of
time; Marketa received “Stage one, two, three, [and] four let-
ters” all within a 6-week period.
In addition, the school documented Varley’s attempts to
hold a collaborative plan meeting with Marketa. Varley first
called Marketa on December 5, 2017, and left a message
about setting up a meeting. Varley made two other related
telephone calls to Marketa that month. Varley spoke with
Marketa on the second call and left a message on the third
call, but he was not successful in getting Marketa to partici-
pate in the meeting. Varley held the meeting with Reality on
January 9, 2018. The record therefore shows that Marketa was
aware of Reality’s attendance issues 3 months in advance of
the meeting and that Marketa had more than 1 month to return
Varley’s first call about setting up a meeting. Varley again
sought Marketa’s participation after he held the meeting with
Reality. Both contact logs show that the collaborative plan
report and community resource letter were mailed to Marketa
on January 10. Reality continued to accumulate unexcused
absences after the January 9 collaborative meeting. Varley
twice attempted to again meet with Reality at a time he knew
she should have been in class, but his attempts were unsuc-
cessful because she was truant. By March, Reality had 681⁄2
days of unexcused absences. The petition was not filed by the
county attorney until April.
[4] In addition, the foremost purpose and objective of the
juvenile code is the protection of a juvenile’s best interests,
with preservation of the juvenile’s familial relationship with
his or her parents where the continuation of such parental
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relationship is proper under the law.9 The goal of juvenile pro-
ceedings is not to punish parents, but to protect children and
promote their best interests.10 With these purposes and objec-
tives in mind, we must reject Reality’s position that a parent’s
refusal to participate can forestall the processes designed to
improve a juvenile’s attendance under § 79-209(2). A par-
ent’s absenteeism cannot defeat the juvenile court’s author-
ity to promote and protect a juvenile’s best interests under
§ 43-247(3)(b).
As indicated, the language of the defense that Reality asserts
under § 79-209(3) states that “[f]ailure by the school to docu-
ment the efforts required by subsection (2) of this section is
a defense . . . .” Section 79-209(2) requires efforts to identify
barriers to attendance and to improve regular attendance. The
contact logs and consistent testimony from school employees
prove that the school documented its efforts to hold a collab-
orative plan meeting to fulfill requirements under § 79-209(2)
and to secure Marketa’s attendance at that meeting. The school
documented the facts that its efforts to meet with Marketa were
not successful and that Reality had over 20 days of unexcused
absences. Marketa’s decision not to participate does not negate
the conclusion that the school documented the efforts required
under § 79-209(2). Upon our de novo review, we agree with
the juvenile court’s conclusion that Reality does not have a
defense to adjudication under § 79-209(3).
No Defense Under § 43-276(2)
[5] Next, Reality argues she has a defense to adjudication
under § 43-276(2), because there is insufficient evidence that
the county attorney made reasonable efforts to refer her to
community-based resources. In her argument, she asserts that
the community resources letter provided by the county attorney
should not have been received into evidence. However, Reality
9
In re Interest of Samantha C., supra note 2.
10
Id.
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IN RE INTEREST OF REALITY W.
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did not assign that the court erred in admitting the letter. An
alleged error must be both specifically assigned and specifi-
cally argued in the brief of the party asserting the error to be
considered by an appellate court.11
Reality’s remaining arguments regarding her defense under
§ 43-276(2) are that Reality and Marketa never received the
letter and that the letter by itself is not enough to establish that
reasonable efforts were made. Section 43-276(2) provides:
Prior to filing a petition alleging that a juvenile is a juve-
nile as described in subdivision (3)(b) of section 43-247,
the county attorney shall make reasonable efforts to refer
the juvenile and family to community-based resources
available to address the juvenile’s behaviors, provide
crisis intervention, and maintain the juvenile safely in the
home. Failure to describe the efforts required by this sub-
section shall be a defense to adjudication.
Statutory language is to be given its plain and ordinary
meaning, and an appellate court will not resort to interpreta-
tion to ascertain the meaning of statutory words which are
plain, direct, and unambiguous.12 Section 43-276(2) requires
the county attorney to make reasonable efforts to refer the
juvenile and family to community-based resources.
In the context of this case, the record shows that the county
attorney’s efforts are part of a coordinated effort with the
school to refer a student and her family to community-based
resources in order to improve regular attendance so that the fil-
ing of a petition in juvenile court may be avoided. The primary
evidence of the county attorney’s efforts to refer Reality and
her family to community-based resources is the community
resource letter attached to the collaborative plan report, which
the court received as an exhibit.
The typewritten letter was addressed to the “Parent(s) or
Guardian(s) of Reality [W.]” The letterhead indicated it was
11
State v. Allen, 301 Neb. 560, 919 N.W.2d 500 (2018).
12
Mays v. Midnite Dreams, 300 Neb. 485, 915 N.W.2d 71 (2018).
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from “Joe Kelly[,] Lancaster County Attorney,” and it bore
the seal of Lancaster County. The letter concluded with a
signature block again indicating it was from “Joe Kelly[,]
Lancaster County Attorney.” The letter was signed by “Bruce J.
Prenda[,] Chief Deputy/Juvenile Division[,] Lancaster County
Attorney’s Office.”
In her brief, Reality asserts “there was no evidence that the
community based resource letter was given or sent to [her] or
[Marketa].”13 However, the record disproves Reality’s asser-
tion. Although Varley could not definitively remember whether
he provided Reality a copy of the letter during the meeting
on January 9, 2018, he stated he assumed that he did, and he
testified that he sent the letter to Reality’s home the following
day. Varley testified that he prepared the letter, but mistakenly
dated it as January 10, 2017, which he acknowledged was a
typographical error on his part. As discussed above, both the
Synergy and county contact logs confirmed that the letter was
mailed to Reality’s home on January 10, 2018. In addition,
there is evidence in the record that the letter was addressed
to Reality’s parents, was mailed to Marketa’s address, and
was mailed 3 months prior to the filing of the petition. There
is no contrary evidence in the record to support Reality’s
assertion that she and Marketa did not receive the letter. As
a result, based on the record, we conclude that the argument
that Reality and her family did not receive the letter is with-
out merit.
Reality also argues the community resource letter by itself
does not satisfy the county attorney’s responsibilities under
§ 43-276(2) to make reasonable efforts to refer the juvenile
and family to community-based resources. However, the letter
provides two different resources a parent may use to obtain
information about programs to help students and families.
First, the letter directs families to community resource guides
13
Brief for appellant at 13.
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found on websites for the Department of Health and Human
Services, Lincoln Public Schools, and the Lancaster County
Attorney’s office. The letter states, “If you need help access-
ing any of those resources or determine that some other kind
of assistance would be most beneficial to your family, we ask
that you work closely with your school as part of the col-
laborative planning process.” Second, the letter encourages
the family to contact the truancy resource specialist at the
“Lincoln/Lancaster County Human Services Office” in order
to determine the best available resource to address the specific
problem at hand. The letter provides the telephone number
and office hours of the truancy resource specialist. As a result,
Reality’s argument that the letter from the county attorney
failed to notify her and Marketa of the community-based
resources is without merit.
CONCLUSION
For the reasons stated above, we find Reality does not
have a defense to adjudication under § 43-247(3)(b) for being
habitually truant from school.
A ffirmed.