In re Interest of Sandra I. ( 2016 )

IN THE NEBRASKA COURT OF APPEALS
MEMORANDUM OPINION AND JUDGMENT ON APPEAL
(Memorandum Web Opinion)
IN RE INTEREST OF SANDRA I.
NOTICE: THIS OPINION IS NOT DESIGNATED FOR PERMANENT PUBLICATION
AND MAY NOT BE CITED EXCEPT AS PROVIDED BY NEB. CT. R. APP. P. § 2-102(E).
IN RE INTEREST OF SANDRA I., A CHILD UNDER 18 YEARS OF AGE.
STATE OF NEBRASKA, APPELLEE,
V.
SANDRA I., APPELLANT.
Filed November 8, 2016. No. A-16-371.
Appeal from the Separate Juvenile Court of Lancaster County: REGGIE L. RYDER, Judge.
Affirmed.
Joe Nigro, Lancaster County Public Defender, and Sarah J. Safarik for appellant.
Joe Kelly, Lancaster County Attorney, and Jessica Murphy for appellee.
INBODY and PIRTLE, Judges, and MCCORMACK, Retired Justice.
PIRTLE, Judge.
I. INTRODUCTION
Sandra I. appeals the order of the separate juvenile court of Lancaster County adjudicating
her as a juvenile within the meaning of Neb. Rev. Stat. § 43-247(3)(b) (Cum. Supp. 2014) for
being habitually truant between August 12 and November 4, 2015. For the reasons that follow, we
affirm.
II. BACKGROUND
On November 24, 2015, the State of Nebraska filed a petition in the Separate Juvenile
Court for Lancaster County, alleging that Sandra was a juvenile defined by § 43-247(3)(b). The
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petition alleged Sandra was habitually truant from school between the dates of August 12 and
November 4. It alleged that on October 23, the Lancaster County Attorney’s office provided
Sandra’s mother with a letter which (1) referred the family to a guide of available resources in
Lancaster County, (2) encouraged the family to work closely with the school to access these or
other resources, and (3) provided information about how to contact the county’s Truancy Resource
Specialist if the student/family needed assistance in accessing appropriate services to overcome
any barriers to regular school attendance that the student/family was encountering.
A formal hearing was held on the petition on March 28, 2016. Nancy Willemson, an
attendance technician for Lincoln High School testified that there are various ways an absence is
marked on an attendance record. A truancy is marked with the letters TR when the student is absent
and there was no acknowledgement from the parent. Willemson marks an absence as PA when the
student’s absence is ‘parent acknowledged,’ such as when a student needs to leave school for an
appointment. The code IL is used when the parent excuses the student for illness, and MD is
marked when absences are medically documented with a doctor’s note. If the doctor indicates that
the student could not attend school, the absence is marked as MD, but if the student is simply
attending an appointment, the absence is marked as PA or IL. Absences marked TR, PA, or IL are
classified as unexcused. Absences marked MD, or absences related to school activities are
classified as excused.
An attendance report for Sandra was entered as Exhibit 1. The report showed that Sandra
missed 84.64 days of school between August 31, 2015, and March 28, 2016, of which days 76.63
were unexcused. Willemson testified that “stage letters” are sent to students who miss excessive
amounts of school. The letters are sent after 5, 10, 15, and 20 days of missed school. The letters
include an attendance report and after 10 days, the letters direct the parent to call for an
appointment with the school to discuss the absences. The fourth letter, issued after 20 days of
missed school, indicates that the student will be referred to the County Attorney for a truancy
filing. At that point, the school sets up a collaborative plan meeting for the family with school
officials to address the student’s truancy.
Jarrell Green, the attendance team leader at Lincoln High School, testified that his duties
include creating collaborative plans to help students with attendance issues to improve their
attendance. A collaborative plan meeting is a meeting with the parent, student, the student’s
counselor, an administrator, and the school nurse, if necessary. The goal is to find ways to prevent
the student from missing more school.
Green testified that Exhibit 2 is a copy of Sandra’s collaborative plan from a meeting held
on October 23, 2015. Green testified that Sandra, her mother, an administrator, Sandra’s counselor,
and the school nurse attended the meeting. The collaborative plan indicated that Sandra’s physical
or behavioral health poses a barrier to her regular attendance, and that the family was “working on
getting tests to find out what is happening as far a [sic] health issues.” Green testified that at that
time, Terri I., Sandra’s mother, was trying to get medical documentation to the school nurse to
help with Sandra’s attendance or to excuse Sandra’s absences. They also planned to reduce
Sandra’s schedule to periods 5 through 8 to allow Sandra to earn some credit by focusing her
attention on certain classes.
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Green testified that at collaborative plan meetings, the school provides a letter to parents
or guardians from the County Attorney that contains information regarding community assistance
agencies in Lincoln and Lancaster County. The letter refers families to a website for a guide of
available resources and encourages families to work with the school to access those or other
resources. The letter also provides the contact information for the County Truancy Resource
Specialist. The parents are always asked to initial the collaborative plan to indicate their receipt of
the community resource letter. Green identified Exhibit 3 as the letter the school provides to the
parents. Exhibit 3 was entered into evidence over Sandra’s hearsay and foundation objections.
Terri testified that she received the community based resources letter, and that she did not
attempt to use any of the resources provided. She said that she assumed the resources provided
were for “things like transportation, like gas vouchers -- and free food,” which would not address
her “issues.” She said her “issues” were getting a diagnosis for Sandra and finding appropriate
medical care.
Terri said that even with the decrease in Sandra’s school schedule, she continued to miss
school. Terri testified that she is familiar with Sandra’s health issues, and that she transports Sandra
and attends all doctor appointments. The symptoms Sandra exhibits include fatigue, paleness,
insomnia or difficulty sleeping at night, sleeping during the day, and having difficulty waking up.
These symptoms appear on weekdays as well as weekends. At the time of the hearing, Sandra was
undergoing going occupational and physical therapy every Wednesday and her primary care doctor
recommended Melatonin to help her sleep at night. The doctor recommended that Sandra see a
therapist or psychiatrist once per month for cognitive behavioral therapy.
Terri testified that she made the decisions regarding whether Sandra would attend school
based on her evaluation of Sandra’s health. When Sandra does not attend school due to her illness,
she lays in her room and listens to music. Terri testified that she did not notify the school when
Sandra would be absent, and she provided no medical documentation related to Sandra’s absences
after the collaborative plan meeting on October 23, 2015. She said she did not know that it made
a difference whether she called the school, because she was told the absences would all be marked
as truant. Terri testified that Sandra missed four periods of school on the day of the hearing, March
28, 2016, because Sandra experienced insomnia the night before.
Jared Gavin, a social worker for the Lancaster County Public Defender’s Office was called
to testify. The juvenile court found that Gavin’s testimony, regarding the accessibility and ease of
use of the community resources website, was not relevant because Terri had never attempted to
use these resources.
The court found that the County Attorney’s office provided adequate notice of the
community resources available to Sandra and her family. The court concluded that there was
sufficient evidence to show that the allegations that Sandra was habitually truant were true, beyond
a reasonable doubt. Sandra timely appealed.
III. ASSIGNMENTS OF ERROR
Sandra asserts the juvenile court erred in (1) finding there was sufficient evidence that the
County Attorney complied with notice requirements prior to filing the petition; (2) overruling her
objections to Exhibit 3 and allowing it into evidence; (3) excluding the testimony of Jared Gavin
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at the adjudication hearing; and, (4) finding there was sufficient evidence to adjudicate Sandra as
a child within the meaning of § 43-247.
IV. STANDARD OF REVIEW
An appellate court reviews cases de novo on the record and reaches its conclusions
independently of the juvenile court’s findings. In re Interest of Zanaya W. et. al., 291 Neb. 20, 863
N.W.2d 803 (2015). However, when the evidence is in conflict, an appellate court may consider
and give weight to the fact that the trial court observed the witness and accepted on version of the
facts over the other. Id.
To the extent an appeal calls for statutory interpretation or presents questions of law, an
appellate court must reach an independent conclusion irrespective of the determination made by
the court below. In re Interest of Katrina R., 281 Neb. 907, 799 N.W.2d 673 (2011).
V. ANALYSIS
1. NOTICE REQUIREMENTS
Sandra asserts evidence presented at the adjudication hearing was insufficient to find that
the County Attorney complied with the requirements of Neb. Rev. Stat. § 43-276 (Cum. Supp.
2015), which states:
Prior to filing a petition alleging that a juvenile is a juvenile 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 subsection shall be a defense to adjudication.
Green testified that students at Lincoln High School who struggle with regular attendance
are invited to a collaborative plan meeting to address their individual barriers to attendance. The
meeting involves the student, their parent(s), administrators, counselors, and sometimes the school
nurse. The attendees work together to identify the student’s needs and create a plan for addressing
these needs. Green said the goal of this meeting is to “prevent having to send [the student] to the
County Attorney” for truancy.
At the collaborative plan meetings, the school provides a letter prepared by the County
Attorney and the Lincoln Public Schools. This letter specifically requests that the family “review
the ‘Lancaster County Resource Guide’ found under the ‘Community Resources’ on LPS’s Parent
Page at http://www.lps.org/parents/.” The letter advises the families to follow up with programs
listed in the guide that may help address the student’s specific issues. The letter also states “if you
need help accessing 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
collaborative planning process.” The letter advises that there is a person on staff at the
Lincoln/Lancaster County Human Services Office who can assist families in accessing resources
or determining whether other resources are available to address the barriers to the student’s regular
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attendance at school. The phone number and office hours of the Truancy Resource Specialist are
provided.
Green testified that this letter was provided to Sandra’s mother, Terri on October 23, 2015.
Terri initialed Sandra’s collaborative plan confirming her receipt of the letter. Her initials appear
next to this statement:
7. Provided a copy of the County Attorney Community-Based Resources Referral Letter
to the family, as indicated by their initials. Parent/Guardian initials ____.
Terri testified that she received “a community based resources letter” and that she did not make
any attempt to access or utilize any of the listed resources. She did not visit the website to access
the county resource guide or call the phone number of the Truancy Resource Specialist.
Sandra asserts the letter was insufficient to fulfill the requirements of the statute because it
did not give her information about how to address her specific barriers to regular school attendance.
She argues the letter, given to all families of students struggling with attendance, is too generic as
it did not directly refer her and her mother to community based resources designed to assist
students who miss school for health-related reasons.
Statutory language is to be given its plain and ordinary meaning; an appellate court will
not resort to interpretation to ascertain the meaning of statutory words which are plain, direct, and
unambiguous. In re Interest of Danajah G., 23 Neb. Ct. App. 244, 870 N.W.2d 432 (2015). The statute
requires the County Attorney to 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’s safety in the home. The statute requires the County
Attorney to address a broad range of issues, thus the letter is broad as well. The letter advises
families that there are two ways to gain information; by browsing the available programs listed on
the LPS website, or by contacting the specialist who assists families with determining what specific
resources are best for them.
To require the County Attorney to refer each student to the specific services relevant to
their individual circumstances would be adding a requirement to the statute which does not exist.
Additionally, the County Attorney is not the person who is most familiar with the services available
to the students. The truancy resources specialist, and the school employees who work closely with
the student are the most familiar with the student, and with the resources available that best address
that individual’s needs. Upon our de novo review, we find there was sufficient evidence that the
County Attorney complied with the requirements of § 43-276(2).
2. EXHIBIT 3
Sandra asserts the juvenile court erred in overruling her objections to Exhibit 3, and
admitting the community-based resources referral letter as evidence. The letter dated October 23,
2015, was addressed to Sandra from the Chief Deputy County Attorney, Alicia B. Henderson. For
the reasons set forth below, we conclude the juvenile court did not err in determining the
appropriate foundation was provided and that Sandra was not prejudiced by the admission of
Exhibit 3 over her hearsay objection.
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(a) Foundation
Exhibit 3 was admitted into evidence based on the testimony of Lincoln High School
Attendance Team Leader, Green. Sandra asserts that Exhibit 3 should not have been admitted
“because insufficient foundation was laid to authenticate the exhibit.” Specifically, she argues that
Green’s testimony was insufficient to authenticate the signature of the “author” of the letter.
Neb. Rev. Stat. § 27-901(1) (Reissue 2008) states, “The requirement of authentication or
identification as a condition precedent to admissibility is satisfied by evidence sufficient to support
a finding that the matter in question is what its proponent claims.”
Green testified that his job duties include attending collaborative plan meetings, and that
he provides a letter from the office of the Lancaster County Attorney to the parents at these
meetings. Green testified that the document identified as Exhibit 3 is the letter that was drafted by
Lincoln Public Schools and the County Attorney’s office, and that it was a fair and accurate copy
of the letter provided to Sandra and her family on October 23, 2015. Green’s testimony confirmed
the source of the letter, and satisfied the requirement to show the letter was what it claimed to be;
a letter from the County Attorney that was provided to the family of a child struggling with
attendance at school, referring them to available community resources. Thus, the juvenile court
did not err receiving the letter over Sandra’s foundation objection.
(b) Hearsay
Sandra asserts Exhibit 3 is hearsay and it is not admissible under any applicable hearsay
exception. She asserts the State offered Exhibit 3 to show that the County Attorney referred Sandra
and her family to community based resources prior to the filing of the Petition, as required by
§ 43-276(2).
Neb. Rev. Stat. § 27-801(3) (Reissue 2008) defines hearsay as a statement other than one
made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth
of the matter asserted. One definition of “statement,” for the purposes of the Nebraska Evidence
Rules, is “an oral or written assertion.” § 27-801(1). The Nebraska Supreme Court has stated “If
an out-of-court statement is not offered for proving the truth of the facts asserted, it is not hearsay.”
State v. McCave, 282 Neb. 500, 805 N.W.2d 290 (2011).
The State contends that the letter was offered for a permissible, nonhearsay purpose.
Specifically, that the letter had legal significance, independent of the truth of the matter asserted,
because it qualified as a “verbal act.” See State v. McCave, 282 Neb. 500, 805 N.W.2d 290 (2011)
(a nonhearsay purpose for offering a statement exists when a statement has legal significance
because it was spoken, independent of the truth of the matter asserted).
We do not decide whether the letter Sandra characterizes as hearsay was properly admitted
because the erroneous admission of evidence is harmless error and does not require reversal if such
evidence is cumulative and other relevant evidence, properly admitted, supports the finding by the
trier of fact. Eisenhart v. Lobb, 11 Neb. Ct. App. 124, 647 N.W.2d 96 (2002).
The letter was offered by the State to show that the County Attorney complied with the
requirements of § 43-276(2). As discussed in detail, above, Green testified that the county
attorney’s letter, provided to Sandra’s family, contained a referral to numerous resources available
to families struggling with attendance issues. He said the letter encourages families to work with
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the school to access the appropriate resources, and provides the contact information for the
County’s Truancy Resources Specialist. There was no objection to Green’s testimony.
Further, Terri testified that she received a “community based resources letter,” and
acknowledged that the letter was from the County Attorney. She was asked “Did you attempt to
access or utilize any of those resources” and she replied, “No.” One could, therefore, conclude that
Sandra’s family received a letter from the County Attorney with referrals to community based
services, even without consideration of the letter itself.
We find the information contained in the letter was cumulative and Sandra was not
prejudiced by its admission. Thus, we decline to address whether the court erred in admitting
Exhibit 3 over Sandra’s hearsay objection. An appellate court is not obligated to engage in an
analysis which is not necessary to adjudicate the case and controversy before it. Eisenhart v. Lobb,
supra.
3. EXCLUSION OF WITNESS TESTIMONY
Sandra asserts the juvenile court erred in excluding the testimony of Jared Gavin, who was
called to testify about the steps required to use the website referred to in the County Attorney’s
letter. She argues Gavin’s testimony was relevant to showing whether the community based
resources Sandra was referred to actually exist, and whether those resources were sufficient to
fulfill the requirements of § 43-276.
Relevant evidence means any evidence having any tendency to make the existence of any
fact that is of consequence to the determination of the action more probable or less probable than
it would be without the evidence. Neb. Rev. Stat. § 27-401 (Reissue 2008). The State’s petition
alleged the Lancaster County Attorney’s office provided Terri with a letter referring the family to
a guide of available resources in Lancaster County, encouraged the family to work closely with
the school to access those resources, and advised Terri about how to contact the Truancy Resource
Specialist for assistance in identifying or accessing the appropriate services.
As previously discussed, the County Attorney made reasonable efforts to refer Sandra and
her family to community-based resources. Terri testified that she received the letter but did not
attempt to visit the website or contact the Truancy Resource Specialist. Gavin’s testimony
regarding the existence and ease of use of the website is irrelevant, and his testimony was properly
excluded.
4. SUFFICIENCY OF EVIDENCE
Sandra asserts the evidence presented at the adjudication hearing was insufficient to sustain
an adjudication of jurisdiction under § 43-247(3)(b).
Under § 43-247(3)(b), the juvenile court in each county has jurisdiction of any juvenile
who is habitually truant from home or school. Habitual truancy is not defined in the juvenile code,
but the Nebraska Supreme Court has accepted the dictionary definition of truant as a “pupil who
stays away from school without permission.” In In re Interest of K.S., 216 Neb. 926, 346 N.W.2d
417 (1984), the Nebraska Supreme Court stated that a child is “no less truant if permission were
obtained from one without the authority to grant permission,” and that under Nebraska compulsory
attendance law, only school authorities are authorized to grant permission to be absent.
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Sandra argues that the law now provides a specific exception “where illness or severe
weather” make attendance impossible or impracticable. As a result, she argues that the proposition
that “a juvenile is not complying with the compulsory education statutes without being first
excused by school authorities establishes truancy” is no longer good law. See In re Interest of K.S.,
216 Neb. 926, 346 N.W.2d 417 (1984), (superseded by statute as stated in In re Interest of Kevin
K., 274 Neb. 678, 742 N.W.2d 767 (2007)). Sandra asserts that when she was absent from school
it was with the knowledge and permission of her mother, or she was medically excused, thus there
is insufficient evidence of her truancy.
We acknowledge that the statutes have changed since the decision in In re Interest of K.S.,
supra. However, the Nebraska Supreme Court continues to hold 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). In
re Interest of Samantha C., 287 Neb. 644, 843 N.W.2d 655 (2014). In In re Interest of Samantha
C., the Supreme Court found that 27 days of absences, not excused by school authorities was
sufficient to show that the juvenile was not compliant with compulsory education statutes.
Evidence was presented at the adjudication hearing that Sandra missed 84 days of school
between August 31, 2015, and March 28, 2016, and 76 of those days were unexcused. Sandra’s
mother testified that, after the collaborative plan meeting on October 23, 2015, she did not provide
any medical documentation showing that Sandra suffered an illness making school attendance
impossible or impracticable. She also stated that she did not regularly contact the school to excuse
Sandra. Sandra presented no medical testimony to support her assertion that illness prevented her
from attending school. The only evidence of Sandra’s illness was Terri’s testimony regarding her
observation of Sandra’s symptoms. Upon our de novo review, we find the evidence was sufficient
to find beyond a reasonable doubt that Sandra was habitually truant from school.
VI. CONCLUSION
For the reasons stated above, we find the juvenile court properly adjudicated Sandra as a
child within the meaning of § 43-247(3)(b).
AFFIRMED.
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