In re Interest of Samantha C.

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644 287 NEBRASKA REPORTS
In re I nterest of
Samantha C., a child
under18 years of age.
State of Nebraska, appellee, v.
Samantha C., appellant.
___ N.W.2d ___
Filed March 7, 2014. No. S-13-533.
1. Juvenile Courts: Appeal and Error. An appellate court reviews juvenile cases
de novo on the record and reaches its conclusions independently of the juvenile
court’s findings.
2. Statutes. The meaning of a statute is a question of law.
3. Juvenile Courts: Parental Rights. The foremost purpose and objective of the
Nebraska Juvenile Code is the protection of a juvenile’s best interests, with pres-
ervation of the juvenile’s familial relationship with his or her parents where the
continuation of such parental relationship is proper under the law. The goal of
juvenile proceedings is not to punish parents, but to protect children and promote
their best interests.
4. Juvenile Courts: Minors. The Nebraska Juvenile Code must be construed to
assure the rights of all juveniles to care and protection.
5. Legislature: Intent. The intent of the Legislature is expressed by omission as
well as by inclusion.
Appeal from the County Court for Dodge County: K enneth
Vampola, Judge. Affirmed.
Shane J. Placek, of Sidner Law, for appellant.
Sara VanBrandwijk, Deputy Dodge County Attorney, for
appellee.
Wright, Connolly, Stephan, McCormack, Miller-Lerman,
and Cassel, JJ.
Cassel, J.
INTRODUCTION
Samantha C. appeals from a juvenile court order adjudicat-
ing her as being “habitually truant from . . . school.”1 She
primarily argues that the State was required to first prove her
school’s compliance with the remedial measures set forth in
a compulsory education statute.2 Because (1) the Nebraska
1
Neb. Rev. Stat. § 43-247(3)(b) (Reissue 2008).
2
See Neb. Rev. Stat. § 79-209 (Cum. Supp. 2012).
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Juvenile Code and the compulsory education statutes are sepa-
rate statutory enactments with distinct purposes and goals and
(2) the State met its burden of proving that Samantha was
habitually truant from school, we affirm the court’s order.
BACKGROUND
By filing a petition with the county court for Dodge County,
Nebraska, sitting as a juvenile court, the State invoked the
court’s “exclusive original jurisdiction”3 of Samantha. The
State’s petition alleged that Samantha was a juvenile as defined
by § 43-247(3)(b) for being habitually truant from school. The
petition, filed on March 11, 2013, specifically alleged that as of
February 28 of the 2012-13 school year, Samantha had missed
48.14 days of school.
At the juvenile court’s hearing on the State’s petition,
the guidance director for Samantha’s school explained the
circumstances of a referral she made to the county attorney
regarding Samantha’s school attendance. She testified that
she made the referral on February 28, 2013. As of that date,
Samantha had accumulated 48.14 days of absences from
school. According to the guidance director, absences were
classified as excused if the school received a doctor’s note.
If no doctor’s note was provided, the absence was unexcused.
She testified that 27 days of Samantha’s absences were unex-
cused for that reason.
The guidance director revealed that she first became con-
cerned regarding Samantha’s attendance in September 2012.
She testified that the school sent Samantha’s parents several
letters informing them of her current number of absences and
warning them that the school was required to address excessive
absences and make a report to the proper authorities. The let-
ters advised Samantha and her parents that state law provides
that “students cannot miss more than 5 days per quarter or 20
days in a school year for any reason.” They further explained
that absences caused by serious illness qualified as “excused”
absences and requested that Samantha’s parents provide the
school with doctors’ notes for her absences.
3
§ 43-247.
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The record shows that five of these letters were sent to
Samantha’s parents. The first was sent on September 19, 2012,
when Samantha had missed 9 days of school. Others fol-
lowed on November 13, when she had missed 16.429 days; on
January 7, 2013, when she had missed 27.571 days; on January
11, when she had missed 31.5 days; and on February 12, when
she had missed 43.142 days.
The record also shows that the county attorney’s office sent
a letter to Samantha’s parents on January 18, 2013, warn-
ing them that it would consider filing a petition in juvenile
court and charges against them if there was not a significant
improvement in Samantha’s attendance.
The guidance director explained that the school had
requested Samantha’s medical records in order to determine
that her absences were not excused by serious illness. The
school received records covering Samantha’s medical visits
from March 22, 2012, to January 23, 2013. The medical
records detail instances of sickness characterized by cough,
sore throat, vomiting, or fever, and chronic abdominal pain.
However, according to the guidance director, two statements
in the medical records showed that Samantha’s absences
were not excused by serious illness. The February 12, 2013,
medical summary contained the statement, “Get her back to
school as soon as possible.” The February 25 summary stated,
“School tomorrow.”
Samantha’s attorney questioned the guidance director
regarding the school’s definition of truancy. The director tes-
tified that the school defined truancy as “skipping school or
not being in school for a reason.” She also explained that if
a parent or guardian grants a child permission to miss school,
the school does not consider the child to be truant. She further
admitted that it appeared Samantha’s parents had consented to
her absences from school.
The guidance director also acknowledged that to her knowl-
edge, no meeting between the school attendance officer, school
social worker, or the school principal and Samantha’s parents
had ever taken place to discuss an attendance plan. She fur-
ther stated that she was unaware if any of the other measures
the school had in place for chronically ill children, such as
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providing a home tutor or arranging for parents to pick up
homework, had been offered to Samantha. She also admitted
that she did not know if an educational evaluation had been
performed for Samantha during 2012 and that she was unaware
if Samantha had ever seen the school psychologist.
Based upon the guidance director’s testimony, Samantha
argued that the juvenile court could not adjudicate her under
§ 43-247(3)(b), because the school had failed to provide her
with the services outlined in § 79-209 to address excessive
absenteeism. Section 79-209(2) requires school districts to
develop a written policy on excessive absenteeism stating “the
number of absences or the hourly equivalent upon the occur-
rence of which the school shall render all services in its power
to compel such child to attend some public, private, denomina-
tional, or parochial school.” Section 79-209(2) further provides
that such services shall include one or more meetings between
school officials and the child’s parent or guardian to report
and solve excessive absenteeism, educational counseling to
address possible curriculum changes, educational evaluation
to diagnose and treat any conditions contributing to excessive
absenteeism, and investigation by the school social worker.
Thus, because the State did not present any evidence that the
school had provided her with these services before making
the attendance referral, Samantha argued that the State did not
meet its burden of proof and could not adjudicate her under
§ 43-247(3)(b).
The juvenile court entered an order finding that Samantha
was a juvenile as defined by § 43-247(3)(b) for being habit­
ually truant from school. The court found that as of February
28, 2013, Samantha had been truant with 27 unexcused
absences from school. The court also rejected Samantha’s argu-
ment that in order to adjudicate her under § 43-247(3)(b), the
State was first required to prove her school’s compliance with
the compulsory education statutes. The court opined that the
compulsory education statutes and the juvenile code are nei-
ther mutually inclusive nor mutually exclusive. Relying upon
§ 79-209(4), which states that “[n]othing in this section shall
preclude a county attorney from being involved at any stage
in the process to address excessive absenteeism,” the court
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found that the school’s failure to comply with the compulsory
education statutes did not preclude the county attorney from
proceeding in juvenile court.
Samantha timely appealed the juvenile court’s order. We
moved the case to our docket pursuant to statutory authority.4
ASSIGNMENTS OF ERROR
Samantha assigns that the juvenile court erred in (1) deter-
mining that the State proved the allegations of the petition
“by a preponderance of the evidence” and (2) concluding that
Samantha’s school and the State were not required to “attempt
remedial measures specifically outlined under [§] 79-209 prior
to pursuing court intervention.”
STANDARD OF REVIEW
[1] An appellate court reviews juvenile cases de novo on the
record and reaches its conclusions independently of the juve-
nile court’s findings.5
[2] The meaning of a statute is a question of law.6
ANALYSIS
At oral argument, Samantha’s counsel conceded that the cor-
rect burden of proof was proof beyond a reasonable doubt. The
State’s counsel agreed, and so do we. This is clear both in stat-
ute7 and in case law.8 And the juvenile court made the requisite
finding using the correct standard. With that understanding, we
turn to Samantha’s specific arguments.
Adjudication Under § 43-247
Samantha argues that she was not truant under her school’s
definition of truancy. We do not have the school’s written
policy in our record. Samantha relies on the guidance director’s
4
See Neb. Rev. Stat. § 24-1106(3) (Reissue 2008).
5
In re Interest of Candice H., 284 Neb. 935, 824 N.W.2d 34 (2012).
6
Holdsworth v. Greenwood Farmers Co-op, 286 Neb. 49, 835 N.W.2d 30
(2013).
7
See Neb. Rev. Stat. § 43-279(2) (Reissue 2008).
8
See, e.g., In re Interest of Joseph S., 13 Neb. Ct. App. 636, 698 N.W.2d 212
(2005).
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testimony that if a parent or guardian granted a child permis-
sion to miss school, the school did not consider the child to be
truant. Samantha also asserts that the school’s policy regard-
ing unexcused absences was unclear. While we agree that
Samantha’s parents apparently consented to her absences, we
reject her assertion that the school’s policy determined whether
she was “habitually truant” under § 43-247(3)(b).
Section 79-209(3) permits a school attendance officer to
make a report to the county attorney if a child is absent more
than 20 days per year or the hourly equivalent, even if all of
the absences are excused due to illness or otherwise. It man-
dates such a report if the child exceeds the 20-day absence
limitation and “any of such absences are not excused.”9 The
evidence presented at the adjudication hearing was uncon-
troverted that Samantha’s school had determined that she
had accumulated 48.14 days of absences during the school
year, of which 27 days were unexcused absences. Thus,
Samantha’s unexcused absences exceeded the 20-day thresh-
old for all absences.
We have held that the mere fact that a juvenile is not com-
plying 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).10
Clearly, 27 days of Samantha’s absences were not excused by
school authorities. She had not yet reached the age of 16, the
age at which a parent may elect to withdraw his or her child
from school.11 There was no evidence that she was attend-
ing any other public, private, denominational, or parochial
day school or a school electing not to meet accreditation or
approval requirements. The State demonstrated her noncompli-
ance with the compulsory education statutes and thereby estab-
lished beyond a reasonable doubt her status as being habitually
truant under § 43-247(3)(b).
9
§ 79-209(3) (emphasis supplied).
10
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)).
11
See Neb. Rev. Stat. § 79-202 (Cum. Supp. 2012).
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The record disproves Samantha’s argument that the use of
the compulsory education statutes to establish her status as
being habitually truant within the meaning of § 43-247(3)(b)
violated due process. She argues that she and her parents were
unaware of the effect of unexcused absences within the con-
text of § 79-209(3). But this argument clearly fails in light of
the letters sent by the school to Samantha and her parents on
multiple occasions. The letters notified them of Samantha’s
absences. The letters warned that the school was required to
make an attendance referral to the county attorney when a
child was absent more than 20 days of school per year and
1 or more of those absences was unexcused. The letters also
explained that the school determined whether an absence was
excused or unexcused based upon whether it was caused by
serious illness and requested doctors’ notes for Samantha’s
absences. Moreover, the county attorney’s letter warned them
that Samantha’s excessive absences could result in a petition
being filed in juvenile court. Thus, Samantha and her parents
were given ample notice that the accumulation of more than 20
days of absences with 1 day being unexcused could result in
the filing of a petition in juvenile court to adjudicate her under
§ 43-247(3)(b). We therefore find no due process concern in
the juvenile court’s determination that, with 27 unexcused
absences, Samantha was habitually truant from school under
§ 43-247(3)(b). Upon our de novo review, we likewise find
beyond a reasonable doubt that Samantha was habitually truant
from school under § 43-247(3)(b).
Compliance With § 79-209
Perhaps anticipating our conclusion on her first assignment
of error, Samantha next argues that the State could not meet its
burden of proof, because it did not first present evidence that
her school provided her with the services outlined in § 79-209
to address excessive absenteeism. She claims that the legisla-
tive intent of the compulsory education statutes and § 79-209
was to require remedial measures in order to avoid potential
court involvement. Thus, she argues that a school’s failure to
attempt such remedial measures prohibits an adjudication for
truancy under the juvenile code. We disagree.
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[3] The Nebraska Juvenile Code and the compulsory edu-
cation statutes are separate statutory enactments with distinct
purposes and goals. 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
relationship is proper under the law.12 The goal of juvenile
proceedings is not to punish parents, but to protect children
and promote their best interests.13 Compulsory education stat-
utes, however, impose reasonable regulations for the control
and duration of basic education in fulfillment of a state’s
responsibility for the education of its citizens.14 Further, our
compulsory education statutes impose criminal sanctions upon
those found to be in violation of the compulsory educa-
tion requirements.15
We have previously explored the interplay between the
Nebraska Juvenile Code and the compulsory education statutes.
In State v. Rice,16 we rejected the assertion that the compulsory
education statutes must be construed in pari materia with the
juvenile court act. We reasoned that chapter 79 of the Nebraska
Revised Statutes, relating to compulsory school attendance,
and what was then § 43-247, regarding the neglect of chil-
dren, generally do not pertain to the same subject matter. This
reasoning still applies. The purposes of the juvenile code are
distinct and separate from those of the compulsory education
statutes. The juvenile code permits rehabilitation and protec-
tion of children. Compulsory education statutes impose basic
requirements for participation in education. We therefore reaf-
firm that the two statutory enactments are not pari materia and
need not be construed conjunctively.
[4] Because the compulsory education statutes and § 43-247
need not be construed together, we conclude that § 79-209
12
In re Interest of Corey P. et al., 269 Neb. 925, 697 N.W.2d 647 (2005).
13
Id.
14
See State ex rel. Douglas v. Faith Baptist Church, 207 Neb. 802, 301
N.W.2d 571 (1981).
15
See Neb. Rev. Stat. § 79-210 (Reissue 2008).
16
State v. Rice, 204 Neb. 732, 285 N.W.2d 223 (1979).
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has no effect upon the juvenile court’s exclusive and original
jurisdiction over juveniles found to be within the meaning of
§ 43-247(3)(b). As we have already expressed, the foremost
purpose and objective of the Nebraska Juvenile Code is to pro-
mote and protect the juvenile’s best interests. Thus, the juve-
nile code must be construed to assure the rights of all juve-
niles to care and protection.17 We therefore reject Samantha’s
assertion that the authority of the juvenile court to promote
and protect a juvenile’s best interests under § 43-247(3)(b)
is premised upon a school’s compliance with § 79-209. To
accept her assertion would render the juvenile court’s jurisdic-
tion dependent upon an actor completely outside the control
of the juvenile court, the juvenile, and his or her parents
or guardians.
[5] Our conclusion also has support within § 79-209.
Section 79-209 imposes no preconditions upon the juvenile
court’s jurisdiction with respect to those services it requires
a school to provide to address excessive absenteeism. The
intent of the Legislature is expressed by omission as well
as by inclusion.18 Had the Legislature desired to impose
preconditions upon the juvenile court’s jurisdiction under
§ 43-247(3)(b) based upon whether certain services were pro-
vided by the juvenile’s school, it certainly could have done
so. Further, § 79-209(4) provides that nothing within that sec-
tion shall preclude the county attorney from being involved
at any stage of the process to address excessive absenteeism.
The Legislature’s omission of any preconditions to juvenile
court proceedings and its explicit disclaimer of any limitation
upon a county attorney’s involvement defeat Samantha’s argu-
ment. A county attorney is empowered to file a petition in the
juvenile court under § 43-247(3)(b), regardless of whether the
serv­ces outlined in § 79-209 have been provided. We there-
i
fore hold that § 79-209 does not impose any preconditions
upon the juvenile court’s exclusive and original jurisdiction
under § 43-247(3)(b).
17
See In re Interest of Veronica H., 272 Neb. 370, 721 N.W.2d 651 (2006).
18
In re Adoption of Kailynn D., 273 Neb. 849, 733 N.W.2d 856 (2007).
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CONCLUSION
The State presented sufficient evidence to establish beyond
a reasonable doubt Samantha’s status as being habitually truant
under § 43-247(3)(b). We reject her argument that the State
was first required to show that her school provided the services
contemplated by § 79-209(2), and we hold that § 79-209 does
not impose any preconditions upon the juvenile court’s exclu-
sive and original jurisdiction under § 43-247(3)(b). The judg-
ment of the juvenile court is affirmed.
Affirmed.
Heavican, C.J., participating on briefs.