In re Interest of Laticia S.

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In re Interest of Laticia S.

Caselaw No.
21 Neb. App. 921
Filed on
Tuesday, April 8, 2014


SUMMARY: Evidence was sufficient to establish educational neglect under the juvenile code. A school has no duty to provide reasonable efforts to ensure child attendance when the filing is done as educational neglect under N.R.S. 43-247(3)(a).
 

Laticia was 6 years old during the 2011-12 school year and is the child of Stacy and Michael. In April 2011, Laticia had appeared on the school’s list of children who had missed more than 20 days of school. Between August 2011 and February 2012, she missed 22 out of 117 school days, none of which were medically excused. On several occasions, the school secretary would have to contact the parent about the absence. On January 23, 2012, it was learned there was a fire at the family home and the school made contact with the grandmother and made arrangements for transportation to begin on February 8th. The transportation was not utilized. Laticia was absent for 13 full or partial days in March and April 2012, and then transferred to another school in April. On September 25, 2012, the State filed a petition alleging educational neglect under N.R.S. 43-247(3)(a). An adjudication hearing was held on April 17, 2013, where the student personnel assistant in charge of students’ attendance testified. In addition to the above facts, the witness testified that she had attempted a home visit prior to the fire, and had made several attempts to contact the parents by phone. On April 19, 2013, the juvenile court adjudicated Laticia within the meaning of N.R.S. 43-247(3)(a). Stacy and Michael appealed.

The Nebraska Court of Appeals affirmed the ruling. Reviewing Stacy’s arguments only for plain error, the Court of Appeals first found that the witness’ testimony regarding missed days had sufficient foundation to be admitted. It then compared educational neglect under the juvenile code in N.R.S. 43-247(3)(a) and the compulsory attendance law under N.R.S. 79-201, noting that the former establishes juvenile court jurisdiction while the latter makes legal guardians criminal culpable for the truancy. Because the county attorney chose to file under 43-247(3)(a), it only need show by a preponderance of the evidence that the parent “neglects or refuses to provide proper or necessary subsistence, education, or other care necessary for the health, morals or well-being of the such juvenile.” (Emphasis added). The Court of Appeals concluded as to Michael that based on the evidence the State proved by a preponderance that Laticia comes within the meaning of N.R.S> 43-247(3)(a) and as to Stacy that there was no plain error. As for reasonable efforts, the Court noted that although N.R.S. 79-209 imposes a duty on the school to address absences with the family, there is no such duty under N.R.S. 43-247(3)(a). The school has no duty to provide reasonable efforts before adjudication under the juvenile code.