IN RE INTEREST OF LATICIA S., A CHILD UNDER 18 YEARS OF AGE. STATE OF NEBRASKA, APPELLEE AND CROSS-APPELLEE, V. STACY S., APPELLANT, AND MICHAEL S., APPELLEE AND CROSS-APPELLANT.
No. A-13-461
Nebraska Court of Appeals
April 8, 2014
21 Neb. App. 921
- Rules of the Supreme Court: Appeal and Error. 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 statement 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. - ____: ____. 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, alternatively, may examine the proceedings for plain error. - 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.
- 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.
- Juvenile Courts: Schools and School Districts: Statutes. Compulsory education statutes and juvenile code statutes regarding the neglect of children generally do not pertain to the same subject matter and should not be construed in pari materia.
- 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 subsistence, education, or other care necessary for the health, morals, or well-being of such juvenile. - 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 requirements each day that such school is open and in session, except when excused by school authorities. - Schools and School Districts: Criminal Law.
Neb. Rev. Stat. § 79-210 (Reissue 2008) makes a violation ofNeb. Rev. Stat. § 79-201 (Cum. Supp. 2010) a Class III misdemeanor. - 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, whileNeb. Rev. Stat. §§ 79-201 (Cum. Supp. 2010) and79-210 (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 education laws. - Juvenile Courts: Jurisdiction. The purpose of the adjudication phase is to protect the interests of the child.
- 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 . - Schools and School Districts: Criminal Law: Juvenile Courts: Jurisdiction. The school‘s duty to provide services in an attempt to address excessive absenteeism 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 underNeb. 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.
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
BACKGROUND
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
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 collaboration 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 management 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.
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
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 continue 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 counselor attempted a home visit, but no one was home. After being notified of the fire, MacFarland made several attempts to 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 preponderance of the evidence and adjudicated Laticia to be within the meaning of
ASSIGNMENTS OF ERROR
12Stacy‘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
we may proceed as though the party failed to file a brief or, alternatively, may examine the proceedings for plain error. In 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 provide 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
3Cases 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. In re Interest of Rylee S., 285 Neb. 774, 829 N.W.2d 445 (2013).
4Plain 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
Juvenile Code Versus Compulsory Education Laws.
5Laticia‘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 generally 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) (reaffirming that those two statutory enactments are not pari materia and need not be construed conjunctively).
code or the compulsory education laws. See
Sufficiency of Evidence Under § 43-247(3)(a) .
1011The 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
Michael argues that the juvenile court erred in finding that he had failed or refused to provide proper or necessary subsistence, 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 of 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.
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
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 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 presented threat of harm to child‘s welfare by denying child right to educational instruction).
Reasonable Efforts.
12Michael 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 subsistence, education, or other care necessary for the health, morals or well-being of Laticia. In his brief, Michael acknowledges that
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 juvenile 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.
CONCLUSION
For the reasons stated above, we find that the juvenile court properly adjudicated Laticia as a child under
AFFIRMED.