In re Interest of Laticia S.

Decisions of the Nebraska Court of Appeals
IN RE INTEREST OF LATICIA S. 921
Cite as 21 Neb. App. 921In re I nterest of Laticia S., a child
under 18 years of age.
State ofNebraska, appellee and cross-appellee,
v. Stacy S., appellant, and Michael S.,
appellee and cross-appellant.
___ N.W.2d ___
Filed April 8, 2014. No. A-13-461.
1. Rules of the Supreme Court: Appeal and Error. Headings in the argu-
ment section of a brief do not satisfy the requirements of Neb. Ct. R. App. P.
§ 2-109(D)(1) (rev. 2012). Under that rule, a party is required to set forth the
assignments of error in a separate section of the brief, with an appropriate head-
ing, following the statement of the case and preceding the propositions of law,
and to include in the assignments of error section a separate and concise state-
ment of each error the party contends was made by the trial court.
2. ____: ____. Where a brief of a party fails to comply with the mandate of Neb. Ct.
R. App. P. § 2-109(D)(1)(e) (rev. 2012), an appellate court may proceed as though
the party failed to file a brief or, alterna­ively, may examine the proceedings for
t
plain error.
3. Juvenile Courts: Judgments: Appeal and Error. Cases arising under the
Nebraska Juvenile Code are reviewed de novo on the record, and an appellate
court is required to reach a conclusion independent of the trial court’s findings.
However, when the evidence is in conflict, the appellate court will consider and
give weight to the fact that the lower court observed the witnesses and accepted
one version of the facts over the other.
4. Appeal and Error. Plain error is error plainly evident from the record and of
such a nature that to leave it uncorrected would result in damage to the integrity,
reputation, or fairness of the judicial process.
5. Juvenile Courts: Schools and School Districts: Statutes. Compulsory educa-
tion statutes and juvenile code statutes regarding the neglect of children gener-
ally do not pertain to the same subject matter and should not be construed in
pari materia.
6. Juvenile Courts: Jurisdiction. Under Neb. Rev. Stat. § 43-247(3)(a) (Reissue
2008) of the juvenile code, the juvenile court in each county has jurisdiction of
any juvenile whose parent neglects or refuses to provide proper or necessary sub-
sistence, education, or other care necessary for the health, morals, or well-being
of such juvenile.
7. Schools and School Districts: Parent and Child. Neb. Rev. Stat. § 79-201(Cum. Supp. 2010) of the compulsory education laws generally provides that
every person residing in a Nebraska school district who has legal or actual
charge or control of any child who is of mandatory attendance age or is enrolled
in a public school shall cause such child to regularly attend a public, private,
denominational, or parochial day school which meets the legal operation require-
ments each day that such school is open and in session, except when excused by
school authorities.
Decisions of the Nebraska Court of Appeals
922 21 NEBRASKA APPELLATE REPORTS
8. Schools and School Districts: Criminal Law. Neb. Rev. Stat. § 79-210 (Reissue
2008) makes a violation of Neb. Rev. Stat. § 79-201 (Cum. Supp. 2010) a
Class III misdemeanor.
9. Juvenile Courts: Jurisdiction: Schools and School Districts: Parent and
Child. Essentially, Neb. Rev. Stat. § 43-247(3)(a) (Reissue 2008) establishes the
juvenile court’s jurisdiction over a minor child, while Neb. Rev. Stat. §§ 79-201(Cum. Supp. 2010) and 79-210 (Reissue 2008) make the minor child’s parents
or legal guardians culpable for the child’s truancy. The county attorney is free to
decide whether to proceed utilizing the juvenile code or the compulsory educa-
tion laws.
10. Juvenile Courts: Jurisdiction. The purpose of the adjudication phase is to pro-
tect the interests of the child.
11. Juvenile Courts: Jurisdiction: Proof. At the adjudication stage, in order for
a juvenile court to assume jurisdiction of a minor child under Neb. Rev. Stat.
§ 43-247(3)(a) (Reissue 2008), the State must prove the allegations of the petition
by a preponderance of the evidence, and the court’s only concern is whether the
conditions in which the juvenile presently finds himself or herself fit within the
asserted subsection of § 43-247.
12. Schools and School Districts: Criminal Law: Juvenile Courts: Jurisdiction.
The school’s duty to provide services in an attempt to address excessive absentee-
ism comes from Neb. Rev. Stat. § 79-209 (Supp. 2011), relating to compulsory
attendance and the possibility of a parent’s being subjected to a criminal sanction.
The school has no duty to provide reasonable efforts before an adjudication under
Neb. Rev. Stat. § 43-247(3)(a) (Reissue 2008) of the juvenile code.
Appeal from the Separate Juvenile Court of Douglas County:
Elizabeth Crnkovich, Judge. Affirmed.
Jane M. McNeil, of McNeil Law Office, for appellant.
Donald W. Kleine, Douglas County Attorney, Sarah Graham,
and Mary Stiles, Senior Certified Law Student, for appellee
State of Nebraska.
Rita L. Melgares for appellee Michael S.
Irwin, Moore, and Bishop, Judges.
Bishop, Judge.
Stacy S. appeals, and Michael S. cross-appeals, from the
decision of the separate juvenile court of Douglas County
which adjudicated their minor child, Laticia S., pursuant to
Neb. Rev. Stat. § 43-247(3)(a) (Reissue 2008), after find-
ing that Stacy and Michael neglected Laticia’s education.
We affirm.
Decisions of the Nebraska Court of Appeals
IN RE INTEREST OF LATICIA S. 923
Cite as 21 Neb. App. 921BACKGROUND
Stacy and Michael are the biological parents of Laticia, born
in August 2005. Laticia was 6 years old during the 2011-12
school year.
On September 25, 2012, the State filed a petition with the
juvenile court, alleging that Laticia was a child within the
meaning of § 43-247(3)(a) by reason of the faults or habits of
her parents. The State alleged that (1) Laticia did not attend
school 22.2 school days out of 117 possible school days while
enrolled at Edward Babe Gomez Heritage Elementary School
(Gomez Elementary) between August 2011 and February 2012,
(2) the parents failed to actively assist Laticia in attending
school and failed to work with school authorities, and (3) due
to the above allegations, Laticia was at risk for harm.
An adjudication hearing was held on April 17, 2013. The
only witness at the adjudication hearing was Anne MacFarland,
a student personnel assistant with Omaha Public Schools.
MacFarland monitors students’ attendance and is responsible
for working with families to improve attendance. She said:
Attendance is gathered in a variety of ways. Certainly
the daily attendance is monitored by the direct staff in
[the] school building. However, we also have a process
in place where there’s an automatic generation in five
days of attendance to the school personnel and then also
at 12 days to me as the student personnel assistant and
then at 20 days to me in communication and collabora-
tion with the school, and then at that point I refer it to the
County Attorney.
MacFarland is the recordkeeper for attendance records. The
school secretary documents information in the data manage-
ment system, which MacFarland has access to and relies on in
carrying out her duties.
MacFarland took over the position of student personnel
assistant for Gomez Elementary in April 2011. Approximately
1 week later, Laticia’s name appeared on a “20-day” list for
absences. MacFarland stated that at that time, the school
believed that Laticia was “too young” for a referral to the
county attorney’s office. MacFarland continued to monitor
Laticia’s absences for the 2011-12 school year.
Decisions of the Nebraska Court of Appeals
924 21 NEBRASKA APPELLATE REPORTS
MacFarland testified that Laticia had over 22 absences
between August 2011 and February 2012, none of which were
medically excused. MacFarland said that on several occasions,
the school secretary was able to contact either Stacy or Michael
about the absence, and then the parent would report the reason
for the absence.
On January 23, 2012, MacFarland learned from the school
counselor that there had been a fire at Laticia’s home;
MacFarland did not know when the fire actually occurred.
MacFarland testified that it was Laticia’s grandmother who
notified the school about the fire. Laticia and her parents
moved in with the grandmother after the fire. MacFarland
spoke with the grandmother about transportation issues.
Neither Stacy nor Michael contacted the school regarding
transportation for Laticia; rather, it was the grandmother who
worked with school officials. A request for transportation was
made on January 24, and transportation was set to begin on
February 8. The transportation was never utilized, and the
absences continued.
MacFarland testified that she contacted the grandmother
and was informed that transportation was no longer needed
because the family was moving to the Millard Public Schools
district. Again, neither Stacy nor Michael contacted the school
about a move. MacFarland testified that a student must con-
tinue to attend his or her current school until the records have
been requested by the new school district. Millard Public
Schools never requested Laticia’s records. Thus, Laticia was
required to continue attending Gomez Elementary.
Laticia missed 14 days of school between January 5 and
February 27, 2012, 5 days of which were between January 24
and February 8, when transportation arrangements were being
made. In total, Laticia had over 22 absences between August
2011 and February 2012. Laticia was also absent for 13 full
or partial days in March and April 2012. In April, Laticia
transferred to another elementary school in the Omaha Public
Schools district.
MacFarland testified that prior to the fire, the school coun-
selor attempted a home visit, but no one was home. After
being notified of the fire, MacFarland made several attempts
Decisions of the Nebraska Court of Appeals
IN RE INTEREST OF LATICIA S. 925
Cite as 21 Neb. App. 921to contact Stacy and Michael, via Michael’s cell phone number
that had been provided to the school, but those attempts were
unsuccessful. MacFarland testified that attendance letters had
been “generated” from the school. And although MacFarland
typically sends out a “12-day” letter, she did not do so in
this case, because she had been in communication with the
grandmother and accomplished the letter’s purpose (to notify
the family of the attendance policy and absences, schedule a
conference to discuss the absences, and see how the school can
assist). MacFarland eventually filed a report with the county
attorney regarding Laticia’s absences.
MacFarland testified that Laticia is at risk of harm due to the
number of school days missed and the consistency of absences
over a 2-year period.
In its order filed on April 19, 2013, the juvenile court
found the allegations in the petition to be true by a prepon-
derance of the evidence and adjudicated Laticia to be within
the meaning of § 43-247(3)(a) due to the faults or habits of
Stacy and Michael. The juvenile court placed Laticia in the
temporary custody of the Nebraska Department of Health and
Human Services for appropriate care and placement, which
may include the parental home. Stacy has timely appealed, and
Michael cross-appealed.
ASSIGNMENTS OF ERROR
[1,2] Stacy’s brief does not contain a separate “assignments
of error” section stating the assigned errors completely apart
from the arguments in her brief. The Nebraska Supreme Court
recently emphasized that headings in the argument section of
a brief do not satisfy the requirements of Neb. Ct. R. App. P.
§ 2-109(D)(1) (rev. 2012). Under that rule, a party is required
to set forth the assignments of error in a separate section of
the brief, with an appropriate heading, following the state-
ment of the case and preceding the propositions of law, and
to include in the assignments of error section a separate and
concise statement of each error the party contends was made
by the trial court. In re Interest of Samantha L. & Jasmine
L., 286 Neb. 778, 839 N.W.2d 265 (2013). Where a brief of
a party fails to comply with the mandate of § 2-109(D)(1)(e),
Decisions of the Nebraska Court of Appeals
926 21 NEBRASKA APPELLATE REPORTS
we may proceed as though the party failed to file a brief or,
alterna­ively, may examine the proceedings for plain error. In
t
re Interest of Samantha L. & Jasmine L., supra.
On cross-appeal, Michael assigns that the juvenile court
erred in determining that (1) he had failed or refused to pro-
vide proper or necessary subsistence, education, or other care
necessary for the health, morals, or well-being of Laticia and
(2) reasonable efforts were provided by the school to cure
deficiencies leading to the alleged insufficient subsistence,
education, or other care necessary for the health, morals, or
well-being of Laticia.
STANDARD OF REVIEW
[3] Cases arising under the Nebraska Juvenile Code are
reviewed de novo on the record, and an appellate court is
required to reach a conclusion independent of the trial court’s
findings. However, when the evidence is in conflict, the appel-
late court will consider and give weight to the fact that the
lower court observed the witnesses and accepted one version
of the facts over the other. In re Interest of Rylee S., 285 Neb.
774, 829 N.W.2d 445 (2013).
[4] Plain error is error plainly evident from the record and
of such a nature that to leave it uncorrected would result in
damage to the integrity, reputation, or fairness of the judicial
process. In re Interest of Samantha L. & Jasmine L., supra.
ANALYSIS
Testimony of MacFarland.
Stacy argues in her brief that the State failed to lay proper
foundation as to MacFarland’s knowledge of “missed days.”
Brief for appellant at 11. Because Stacy failed to comply with
§ 2-109(D)(1) regarding assignments of error, our review is
limited to an examination of the record for plain error. See In
re Interest of Samantha L. & Jasmine L., supra. MacFarland
was the student personnel assistant assigned to Gomez
Elementary, where Laticia was enrolled. MacFarland testified
that she monitors students’ attendance and is the recordkeeper
for attend­nce records. She stated that the school secretary
a
documents attendance information in the data management
Decisions of the Nebraska Court of Appeals
IN RE INTEREST OF LATICIA S. 927
Cite as 21 Neb. App. 921system, which MacFarland has access to and relies on in car-
rying out her duties. MacFarland testified that she monitored
Laticia’s absences for the 2011-12 school year. Under our
plain error review, MacFarland’s testimony regarding “missed
days” had sufficient foundation to be admitted.
Juvenile Code Versus Compulsory
Education Laws.
[5] Laticia’s absences from school ostensibly fall under two
different statutory provisions: one, the juvenile code statutes
regarding neglect of children, and the other, statutes relating
to compulsory education. Compulsory education statutes and
juvenile code statutes regarding the neglect of children gener-
ally do not pertain to the same subject matter and should not be
construed in pari materia. See State v. Rice, 204 Neb. 732, 285
N.W.2d 223 (1979). See, also, In re Interest of Samantha C.,
287 Neb. 644, ___ N.W.2d ___ (2014) (reaf­irming that those
f
two statutory enactments are not pari materia and need not be
construed conjunctively).
[6-9] Under § 43-247(3)(a) of the juvenile code, the juve-
nile court in each county has jurisdiction of any juvenile
whose parent neglects or refuses to provide proper or neces-
sary subsistence, education, or other care necessary for the
health, morals, or well-being of such juvenile. The version
of Neb. Rev. Stat. § 79-201 (Cum. Supp. 2010) (compulsory
education laws) in effect during the 2011-12 school year
generally provides that every person residing in a Nebraska
school district who has legal or actual charge or control of
any child who is of mandatory attendance age or is enrolled
in a public school shall cause such child to regularly attend a
public, private, denominational, or parochial day school which
meets the legal operation requirements each day that such
school is open and in session, except when excused by school
authorities. Neb. Rev. Stat. § 79-210 (Reissue 2008) makes
a violation of § 79-201 a Class III misdemeanor. Essentially,
§ 43-247(3)(a) establishes the juvenile court’s jurisdiction over
Laticia, while §§ 79-201 and 79-210 make her parents or
legal guardians culpable for her truancy. The county attorney
was free to decide whether to proceed utilizing the juvenile
Decisions of the Nebraska Court of Appeals
928 21 NEBRASKA APPELLATE REPORTS
code or the compulsory education laws. See Neb. Rev. Stat.
§ 79-209 (Supp. 2011) (version of statute in effect during
2011-12 school year). See, also, State v. Null, 247 Neb. 192,
526 N.W.2d 220 (1995) (when single act violates more than
one statute, prosecutor is free to choose to prosecute under
any applicable statute so long as selection is not deliberately
based upon any unjustifiable standard such as race, religion, or
other arbitrary classification). Here, the county attorney opted
to proceed only under a statute which establishes the juvenile
court’s original jurisdiction over Laticia, rather than under a
statute which holds Laticia’s parents criminally responsible for
her truancy. Therefore, we turn to whether the evidence was
sufficient under the juvenile code.
Sufficiency of Evidence
Under § 43-247(3)(a).
[10,11] The purpose of the adjudication phase is to protect
the interests of the child. In re Interest of Cornelius K., 280
Neb. 291, 785 N.W.2d 849 (2010). At the adjudication stage,
in order for a juvenile court to assume jurisdiction of a minor
child under § 43-247(3)(a), the State must prove the allega-
tions of the petition by a preponderance of the evidence, and
the court’s only concern is whether the conditions in which
the juvenile presently finds himself or herself fit within the
asserted subsection of § 43-247. In re Interest of Cornelius
K., supra. Section 43-247(3)(a) states that the juvenile court
shall have jurisdiction of “[a]ny juvenile . . . whose parent
. . . neglects or refuses to provide proper or necessary sub-
sistence, education, or other care necessary for the health,
morals, or well-being of such juvenile.” (Emphasis supplied.)
This is the subsection specifically alleged by the State in
its petition.
Michael argues that the juvenile court erred in finding that
he had failed or refused to provide proper or necessary sub-
sistence, education, or other care necessary for the health,
morals, or well-being of Laticia. Stacy similarly argues that
the juvenile court erred in finding that she neglected Laticia’s
education. Again, our review of Stacy’s appeal is limited to
an examination of the record for plain error. See In re Interest
Decisions of the Nebraska Court of Appeals
IN RE INTEREST OF LATICIA S. 929
Cite as 21 Neb. App. 921of Samantha L. & Jasmine L., 286 Neb. 778, 839 N.W.2d
265 (2013).
Laticia was on the “20-day” list for absences during the
2010-11 school year. Her attendance continued to be monitored
during the 2011-12 school year. Laticia had over 22 absences
between August 2011 and February 2012, none of which were
medically excused. On several occasions, the school secretary
contacted the home (because neither parent called to report the
absence), spoke with a parent, and was then given a reason for
the absence. Neither Stacy nor Michael informed the school
about the house fire; it was the grandmother who notified the
school. After being informed of the fire, the school arranged
transportation for Laticia beginning February 8, 2012, yet
transportation was never utilized and Laticia continued to miss
school. Laticia was absent for 13 full or partial days in March
and April 2012. Stacy and Michael had a parental, and legal,
duty to make sure that Laticia attended school each day that
school was open, unless excused by school authorities. See
§ 79-201. They failed to do so.
Stacy argues in her brief that public policy indicates that
the school district should have excused the missed days after
the family home was destroyed by fire. Again, because Stacy
failed to comply with § 2-109(D)(1) regarding assignments of
error, our review is limited to an examination of the record
for plain error. See In re Interest of Samantha L. & Jasmine
L., supra. Because neither Stacy nor Michael informed the
school of the fire and because the transportation arranged
by the school district after the school learned of the fire was
never utilized (yet Laticia continued to miss school), we find
no plain error.
MacFarland testified that she is concerned about Laticia’s
academic achievement and that Laticia is at risk of harm due
to the number of school days missed and the consistency of
absences over a 2-year period. We agree. After our de novo
review, we find the State proved by a preponderance of the
evidence that Michael neglected or refused to provide proper
or necessary education for the health, morals, or well-being of
Laticia. And we find no plain error with regard to the juvenile
court’s finding that Stacy neglected Laticia’s education. See
Decisions of the Nebraska Court of Appeals
930 21 NEBRASKA APPELLATE REPORTS
M.C. v. Com., 347 S.W.3d 471 (Ky. App. 2011) (court not
persuaded that good grades precluded finding of educational
neglect; providing adequate education for child’s well-being
necessarily requires parent to ensure child attends school each
day to participate in educational instruction; and mother’s
repeated inability to ensure child attended school each day pre-
sented threat of harm to child’s welfare by denying child right
to educational instruction).
Reasonable Efforts.
[12] Michael also argues that the juvenile court erred in
finding that reasonable efforts were provided by the school
to cure deficiencies leading to the alleged insufficient subsist­
ence, education, or other care necessary for the health, morals
or well-being of Laticia. In his brief, Michael acknowledges
that § 79-209 is “not to be construed as having any rela-
tion to this 43-247(3)(a) filing,” but he relies on § 79-209 to
argue that the school failed to provide “reasonable efforts” to
address Laticia’s absenteeism. Brief for cross-appellant at 14.
The school’s duty to provide services in an attempt to address
excessive absenteeism comes from § 79-209, relating to com-
pulsory attendance and the possibility of a parent’s being
subjected to a criminal sanction. But Stacy and Michael are
not being prosecuted for violating the compulsory education
laws. They are alleged to have neglected Laticia or refused to
provide her with the proper or necessary education under the
juvenile code. The school had no duty to provide reasonable
efforts before an adjudication under § 43-247(3)(a) of the juve-
nile code. See, generally, In re Interest of Samantha C., 287
Neb. 644, ___ N.W.2d ___ (2014).
Stacy similarly argued that the school district failed to
assist the family with attendance issues. Again, our review
of Stacy’s appeal is limited to an examination of the record
for plain error, and we find no such error. See In re Interest
of Samantha L. & Jasmine L., 286 Neb. 778, 839 N.W.2d
265 (2013).
To clarify further on the matter of “reasonable efforts” by
the school under compulsory education laws and “reasonable
efforts” by the State under the juvenile code, we note that the
Decisions of the Nebraska Court of Appeals
IN RE INTEREST OF LATICIA S. 931
Cite as 21 Neb. App. 921juvenile code requires the State to make reasonable efforts to
preserve and reunify families prior to placement of a juvenile
in foster care to prevent or eliminate the need for removing the
juvenile from the juvenile’s home and to make it possible for
a juvenile to safely return to the juvenile’s home. Neb. Rev.
Stat. § 43-283.01 (Cum. Supp. 2012). Reasonable efforts also
come into play when termination of parental rights is sought
under Neb. Rev. Stat. § 43-292(6) (Cum. Supp. 2012). There
is no evidence in the record, and the parents do not argue, that
Laticia was removed from her home, and no motion for termi-
nation of parental rights has been filed. Thus, any discussion
of reasonable efforts under the juvenile code is not warranted
at this time.
CONCLUSION
For the reasons stated above, we find that the juvenile court
properly adjudicated Laticia as a child under § 43-247(3)(a)
because her parents neglected her education.
Affirmed.