In re Interest of Mia T. ( 2019 )

IN THE NEBRASKA COURT OF APPEALS
MEMORANDUM OPINION AND JUDGMENT ON APPEAL
(Memorandum Web Opinion)
IN RE INTEREST OF MIA T.
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 MIA T., A CHILD UNDER 18 YEARS OF AGE.
STATE OF NEBRASKA, APPELLEE,
V.
MIA T., APPELLANT.
Filed June 25, 2019. No. A-18-1009.
Appeal from the Separate Juvenile Court of Douglas County: MATTHEW R. KAHLER,
Judge. Affirmed.
Thomas C. Riley, Douglas County Public Defender, and Leigh A. Ellis for appellant.
Donald W. Kleine, Douglas County Attorney, Sarah Graham, and David Ceraso, Senior
Certified Law Student, for appellee.
RIEDMANN, ARTERBURN, and WELCH, Judges.
WELCH, Judge.
INTRODUCTION
Mia T. appeals from the Douglas County Separate Juvenile Court’s order adjudicating her
as a juvenile for being habitually truant from school. On appeal, she contends that the juvenile
court erred in finding that the State proved beyond a reasonable doubt she had missed more than
20 days of school and that the school properly provided and documented the remedial measures
specifically outlined in Neb. Rev. Stat. § 79-209 (Reissue 2014) prior to referring the case to the
county attorney. For the reasons stated below, we affirm.
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STATEMENT OF FACTS
In June 2018, the State filed a truancy petition alleging that Mia was a juvenile within the
meaning of Neb. Rev. Stat. § 43-247(3)(b) (Reissue 2016) for being habitually truant from school.
Specifically, the State alleged that Mia had missed over 20 days of school in the previous school
year. Mia, born in January 2001, was 17 years old when the action commenced. She lived with her
mother, Corinna Hagberg, in Omaha, Nebraska, and attended high school at South High Magnet
School (Magnet). An adjudication hearing was held in September 2018. The State presented
testimony through two witnesses: Lori Kuhns, who served as Magnet’s School Support Liaison
during the relevant timeframe; and Kori Moran, a Community and Educational Liaison at the
Douglas County Juvenile Assessment Center.
Kuhns testified that, during the 2017-18 school year, she was responsible for monitoring
students’ attendance. According to Kuhns, the Omaha Public School system utilizes “Infinite
Campus” as its computerized system for tracking and recording attendance. She stated that
student’s classroom teachers regularly make attendance entries into the system at the beginning of
each class period and the school’s attendance secretary makes attendance entries into the system
when parents call regarding student absences or when students arrive late or leave school early.
Kuhns noted that Magnet’s attendance policy is consistent with the Omaha Public Schools’
attendance policy, that is, Magnet ordinarily sends notification letters to parents each time a student
misses 5, 10, or 15 days of school. After a student misses 10 days of school, Magnet attempts to
schedule a collaborative plan meeting with the student and the student’s parents. After a student
misses 15 days of school, the school sets a mandatory collaborative plan meeting with the student
and the student’s parent. When a student misses 20 days of school, the school sends a referral form
to the Douglas County Attorney’s Office in order to place the county attorney on notice of the
student’s habitual truancy. When the State filed the truancy petition in this case, Mia had missed
over 24 days from school from August 17, 2017, to May 3, 2018, which absences were all
unexcused. Mia’s absences were a combination of both full-day and partial-day absences.
Kuhns testified that, when Mia missed her 5-day, 10-day, and 15-day absence milestones,
the school sent absence notification letters to Hagberg in accordance with the attendance policy as
outlined above. Kuhns testified that the letters were returned as undeliverable and the school never
received proof of a changed mailing address from Hagberg. Kuhns specifically testified that
maintaining an updated address with the school is the parent’s responsibility. She testified that at
or about the time the school sent the 10-day letter to Hagberg, the school provided a separate
written letter to Mia for her to deliver to Hagberg which letter formally requested Hagberg’s proof
of address. After Mia accumulated 15 absences, Kuhns sent a letter which provided a specific time
for a meeting to create a collaborative attendance improvement plan. School employees eventually
held a collaborative plan meeting but neither Mia nor Hagberg were present. Following Mia and
Hagberg’s failure to attend the scheduled meeting, Kuhns sent an email to Hagberg. Kuhns
testified that Hagberg failed to respond to any forms of communication from Magnet. After Mia
reached 20 unexcused absences, Kuhns sent Hagberg a letter stating that she would be preparing
a county attorney referral form. On or about May 4, 2018, Kuhns prepared and sent the referral
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form to the Douglas County Attorney’s Office, along with a printout of Mia’s “Exact Daily
Attendance Detail.” Both documents were admitted into evidence at the adjudication hearing.
While cross-examining Kuhns, Mia’s counsel attempted to impeach the reliability of the
attendance records. In response to Mia’s counsel, Kuhns testified that each time Mia was late to
school, late to a class, or left class early, she was marked absent for a partial day. Kuhn
acknowledged that within the comment section of the document entitled Mia’s “Exact Daily
Attendance Detail,” the attendance secretary made notes documenting the reasons for Mia’s partial
attendance, such as noting late arrival times, but the calculated partial-day absences did not always
match other calculated partial-day absences with similar entries. Nevertheless, Kuhns testified that
she found the system that recorded absences and calculated the total number of absences to be
trustworthy and she had no doubt as to its reliability.
Moran testified that, in connection with her job responsibilities as Community and
Educational Liaison at the Douglas County Juvenile Assessment Center, she works with the county
attorney and reviews truancy referrals to determine if truant juveniles are eligible for diversion.
When a juvenile is eligible, Moran helps to set up diversion services. When provided with Mia’s
truancy referral form, Moran determined that Mia was not eligible for diversion due to her prior
failure to complete truancy diversion and because she had recently ended probation for truancy.
Following the trial, the juvenile court found that the State had proven beyond a reasonable
doubt that Mia had missed over 20 days of school and was habitually truant within the meaning of
§ 43-247(3)(b). Mia timely appeals.
ASSIGNMENTS OF ERROR
Mia contends that the juvenile court erred in finding that the State proved beyond a
reasonable doubt that she had missed more than 20 days of school and that the school had provided
and documented the required remedial measures outlined in § 79-209 prior to referring the case to
the county attorney.
STANDARD OF REVIEW
An appellate court reviews juvenile cases de novo on the record and reaches a conclusion
independently of the juvenile court’s findings. In re Interest of Kane L. & Carter L., 299 Neb. 834,
910 N.W.2d 789 (2018). When the evidence is in conflict, however, an appellate court may give
weight to the fact that the lower court observed the witnesses and accepted one version of the facts
over the other. Id.
The meaning of a statute is a question of law, which an appellate court resolves
independently of the trial court. In re Interest of Reality W., 302 Neb. 878, 925 N.W.2d 355 (2019).
ANALYSIS
Mia contends that the State failed to meet its burden of proof in two ways. She first argues
that there was insufficient evidence to establish Mia missed more than 20 days of school and was
habitually truant. Specifically, Mia claims that the inconsistencies in the calculation of missed
partial days in the document entitled “Exact Daily Attendance Detail” attached to the County
Attorney Referral Form demonstrate that the attendance record is unreliable. Second, she claims
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that Magnet failed to document and provide Mia and Hagberg with the required remedial measures
outlined in § 79-209(2).
The juvenile court has jurisdiction over any juvenile “who is habitually truant from home
or school.” § 43-247(3)(b). At the adjudication stage, in order for a juvenile court to assume
jurisdiction of a minor under § 43-247(3)(b), the State must prove the allegations of the petition
beyond a reasonable doubt. In re Interest of Cole J., 26 Neb. Ct. App. 951, 925 N.W.2d 365 (2019).
According to Kuhns, and as documented in Mia’s County Attorney Referral Form and
“Exact Daily Attendance Detail,” Mia missed over 24 unexcused days of school from August 17,
2017, to May 3, 2018. Kuhns testified that she had no doubt about the reliability of the attendance
log. Mia did not provide any direct evidence that she missed less than 20 days of school. Instead,
she attempts to rely on a few entries in her “Exact Daily Attendance Detail” which show small
calculated portions of absences from different days which appear to have been calculated
differently. For instance, the detail from November 28, 2017, and February 6, 2018, indicate that
Mia checked in late to school at 7:50 a.m. both days but calculates an absence of .02 on November
28, 2017, and .11 on February 6, 2018.
Although there is no explanation for some of these small inconsistences in tracking Mia’s
absences, the juvenile court found the documents establishing that Mia had missed more than 24
unexcused days of school to be credible and explicitly found Kuhns, who testified that the evidence
was reliable, to be credible. We give weight to the juvenile court who observed the witnesses and
accepted one version of the facts over another. Although we recognize some small discrepancies
in the calculations of missed partial days of school, we find, beyond a reasonable doubt, that the
evidence supports the fact that Mia missed over 20 days of school during the 2017 to 2018 school
year and was habitually truant. Thus, this assignment of error fails.
Next, Mia contends that the school did not document and provide her with remedial
measures required under § 79-209(2), and, therefore, § 79-209(3) provides her a defense against
adjudication. Specifically, Mia argues that there was no communication by school officials with
Hagberg regarding Mia’s lack of attendance and that school officials failed to hold a collaborative
plan meeting with Hagberg.
Pursuant to § 79-209(2), school districts are required to have an attendance policy which
provides for services to be given to assist truant students including, but not limited to:
(a) Verbal or written communication by school officials with the person or persons
who have legal or actual charge or control of any child; and
(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, to attempt to
address the barriers to attendance. The result of the meeting or meetings shall be to develop
a collaborative plan to reduce barriers identified to improve regular attendance. The plan
shall consider, but not be limited to:
(i) Illness related to physical or behavioral health of the child;
(ii) Educational counseling;
(iii) Educational evaluation;
(iv) Referral to community agencies for economic services;
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(v) Family or individual counseling; and
(vi) Assisting the family in working with other community services.
Section 79-209(3) provides:
The school may report to the county attorney of the county in which the person resides
when the school has documented the efforts it has made as required by subsection (2) of
this section that the collaborative 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. The school shall notify the child’s family in writing prior to referring the
child to the county attorney. Failure by the school to document the efforts required by
subsection (2) of this section is a defense to prosecution under section 79-201 and
adjudication for educational neglect under subdivision (3)(a) of section 43-247 and habitual
truancy under subdivision (3)(b) of section 43-247. Illness that makes attendance
impossible or impracticable shall not be the basis for referral to the county attorney.
Mia does not allege that Magnet’s attendance policy fails to conform with § 79-209(2).
Instead, Mia argues that, pursuant to § 79-209(3), Magnet’s failure to document its efforts as
required by § 79-209(2) is a defense to prosecution under § 43-247(3)(b). Specifically, Mia argues
that the 5-day, 10-day, and 15-day letters sent to Hagberg were sent to the wrong address and the
State failed to prove Magnet sent an email to Hagberg’s proper email address. The thrust of Mia’s
argument stems from a notation in the system that Hagberg called Magnet at one point to determine
whether a new address would be accessible for OPS-provided transportation. The specific entry
provides:
Mom [Hagberg] called asking if transportation would be available from where they are
moving (4905 S. 99th Street). SSL looked and address is not OPS and no OPS transportation
is available. Mom states they will be there about a month and then move back into the area.
Mom stated there was no MAT bus close. SSL suggested looking into transport service for
that time.
In her brief, Mia argues:
Despite receiving this updated contact information, [Hagberg] confirmed the letters were
sent to the family’s prior address and were subsequently returned to the school. . . . The
record establishes that the school knew that there was an issue with the minor child’s
mailing address, and yet the school made no affirmative efforts to correct this beyond
sending mail to an address that they knew was outdated.
(Citations omitted.) Brief for appellant at 12.
Despite Mia’s contention, Kuhns provided unrefuted testimony that parents are responsible
for keeping an updated address and contact information in the school’s system. Contrary to Mia’s
assertion, Hagberg’s call to Magnet was intended to inquire into transportation availability for a
future address where they would be moving for about a month. Hagberg did not request that the
address be replaced within the system, identify when they would be moving, the full duration of
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their stay, nor did she provide any further contact information. Accordingly, when Magnet began
sending notices, it had no information on where to contact Hagberg other than that which was
originally placed in the system. Additionally, neither Mia nor Hagberg provided any evidence as
to what would have been a proper address when the letters were actually sent or that the email
address the school used to email Hagberg was incorrect. In short, we find that Magnet properly
complied with § 79-209(3) by notifying Hagberg of all requirements of § 79-209(2) by sending
those notices to the street address and email address last provided by Hagberg to Magnet.
Mia next argues that, in addition to failing to provide written notices to the proper
addresses, Magnet failed to hold a collaborative meeting with Mia and her family. As previously
stated, Magnet held the collaborative meeting, but Hagberg and Mia failed to attend the meeting
which Mia’s counsel relates to inadequate notice.
The Nebraska Supreme Court has recently addressed what efforts the school is required to
document in relation to a collaborative plan meeting under § 79-209(2)(b). In In re Interest of
Reality W., 302 Neb. 878, 925 N.W.2d 355 (2019), a school counselor called the student’s parent
repeatedly and talked with her, but was unsuccessful in getting the parent to attend a collaborative
plan meeting. Eventually, the counselor held the meeting with the student without the parent
present. Notwithstanding the school conducting the meeting without the student’s parent present,
the court held that pursuant to § 79-209(3), a defense to prosecution is limited to a school’s failure
to document its efforts to address the student’s barriers to attendance in accordance with the
school’s attendance policy. In re Interest of Reality W., supra.
Here, the school documented its efforts to improve Mia’s regular attendance in strict
accordance with its attendance policy which attendance policy conforms to the relevant aspects of
§ 79-209(2). We find that Mia’s second assignment of error fails.
CONCLUSION
Having found that the State met its burden of proof on the issue of habitual truancy and
that Mia has no defense under § 79-209 to adjudication, we affirm.
AFFIRMED.
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