In re T.M.

In re T.M. (99-351); 171 Vt. 1; 756 A.2d 793

[Filed 26-May-2000]


       NOTICE:  This opinion is subject to motions for reargument under
  V.R.A.P. 40 as well as formal  revision before publication in the Vermont
  Reports.  Readers are requested to notify the Reporter of  Decisions,
  Vermont Supreme Court, 109 State Street, Montpelier, Vermont 05609-0801 of
  any  errors in order that corrections may be made before this opinion goes
  to press.



                                 No. 99-351



In re T.M.	                                 Supreme Court

                                                 On Appeal from
    	                                         Franklin Family Court


                                                 December Term, 1999



Michael S. Kupersmith, J.

Edward G. Adrian, Franklin County Deputy State's Attorney, St. Albans, for 
  Plaintiff-Appellee.

Michael Rose, St. Albans, for Defendant-Appellant.

Eric G. Parker of Abare, Nicholls & Parker, P.C., Barre, and Michael P. Farris 
  and David E. Gordon, Purcellville, Virginia, for Amicus Curiae Home School 
  Legal Defense Association.


PRESENT:  Amestoy, C.J., Dooley, Morse, Johnson and Skoglund, JJ.


       MORSE, J.  K.M., the mother of T.M., appeals from a family court order
  adjudicating the  minor to be a child in need of care and supervision based
  on findings that he was neither attending  nor enrolled in public school,
  nor enrolled in an "approved" home-study program, and therefore was 
  habitually and without justification truant from school. Mother contends
  that: (1) the minor was  properly enrolled in a home-study program under
  the relevant statutory scheme, 

 

  and therefore could not have been found to be truant; (2) the family court
  lacked jurisdiction because  of ongoing administrative proceedings; (3) the
  finding of truancy required evidence that the minor's  absence from school
  was volitional; and (4) the court lacked subject matter jurisdiction
  because the  proceedings did not concern the best interests of the minor. 
  We agree with the  contention that the  minor was properly enrolled in a
  home-study program, and therefore reverse.  

       The material facts are undisputed.   In March 1996, mother withdrew
  T.M. from public  school and filed a home-study enrollment notice with the
  Department of  Education under the  procedures set forth in 16 V.S.A. §
  166b. Because the minor qualified for special education services,  an
  individualized education plan (IEP) provided for a tutor to supplement the
  home-study program.   Mother became dissatisfied with the tutor, however,
  and dismissed her.  Thereafter, mother  continued to home school T.M.,
  filing the statutorily required enrollment notice each year with the 
  Department. With the exception of the first notice, however, the Department
  deemed each of the  subsequent notices of enrollment "incomplete" based
  upon a determination that information  concerning the  IEP to address the
  minor's special education needs was insufficient.   	

       In February 1998, the Department of Social and Rehabilitation Services
  (SRS) sent a letter to  mother stating that it had received information
  from the Department and local school district  indicating that T.M. was
  neither attending public school nor enrolled in an "approved" home-study 
  program adequate to meet his educational needs. When no response was
  forthcoming, SRS filed a  CHINS petition, alleging that the minor was
  "habitually and without justification truant from school"  under 33 V.S.A.
  § 5502(a)(12)(C).

       Thereafter, mother and the Department entered mediation regarding the
  minor's IEP 

 

  requirements. In an April 1998 letter to mother, the Department
  acknowledged receipt of additional  information regarding T.M.'s home-study
  program, but observed that, while the curriculum outline  was otherwise
  satisfactory for the remaining two and a half months of school, it did not
  meet his  special education needs under the IEP and therefore was not
  complete.  A letter from the Department  to mother dated August 5, 1998,
  stated that the home-study enrollment notice for the next school  year had
  been reviewed and that all curriculum areas were satisfactory, but
  reiterated the  Department's position that enrollment would not be complete
  until the mediation concerning T.M.'s  special education needs was
  concluded.  SRS withdrew the CHINS petition pending the outcome of  the
  mediation.

       The parties never completed mediation, however, and T.M. ceased
  working with his  previously assigned school advisor. The Department
  informed mother by letter dated October 12,  1998, that it remained willing
  to provide a tutor to deliver IEP services to T.M., that T.M. was past  due
  for a three-year comprehensive IEP evaluation, and that, until the
  evaluation was completed, his  home-study program could not be approved. 
  Shortly thereafter, SRS filed a second CHINS petition  alleging that T.M.
  was truant.  Additional correspondence between mother and the Department
  failed  to resolve the issue.

       In letters dated November 25, 1998, and December 23, 1998, the
  Department informed  mother of its intent to request a due process hearing
  under the home-schooling statute.  See 16  V.S.A. § 166b(e) & (f).  In
  fact, mother requested such a hearing on January 4, 1999, and the  
  Department followed with a similar request several days later.  The hearing
  process had apparently  not commenced at the time of these proceedings, and
  the record does not indicate whether such a  hearing occurred, or its
  outcome.   

 

       Mother appeared pro se at the initial merits hearing on the CHINS
  petition in February 1999.  At the hearing, the court inquired of mother as
  to whether T.M. was enrolled in an "approved"  home-study program. Mother
  responded that it was "all approved [and] . . . completed" except for the 
  issue of T.M.'s need to participate in special education services, and
  explained that a due process  hearing had been requested to resolve that
  question.  Unsatisfied, the court pressed mother further,  stating: "Okay. 
  I understand that, but it's a yes or no question as to whether or not the
  Department of  Education has approved your program."  Mother responded,
  "I'm not quite sure if they have or not." 

       The court thereupon reviewed the home-study statute on the record,
  questioning the State's  counsel as to the basis of the petition and the
  meaning of the statute as follows: "I am sorry, Mr.  Adrian, let me clarify
  something.  Is there anything more to this case than [T.M] not attending an 
  approved school?" Counsel responded: "No, your Honor."  The court
  continued: "He's not attending  public school, he's not attending private
  school, he's being schooled at home but the plan isn't  approved.  Am I
  missing something?"  Counsel responded: "No, you're not missing anything."  
  Mother thereupon interjected, "All approved except for that IEP," to which
  the court stated:  "Well,  you either have approval or you don't ma'am, at
  least that's what I gather."     

       The merits hearing continued on April 12, 1999, at which time both
  mother and T.M.  appeared with appointed counsel.  The tenor of the hearing
  continued in much the same vein as the  initial proceeding, with court and
  counsel focusing on whether T.M. was properly enrolled in an  "approved"
  home-study program. Counsel for the State defined the issue as "whether or
  not there is  an educational program in place and whether or not he's
  enrolled in a program at this time," and  asserted that the minor was not
  currently enrolled.  The court agreed that the issue was 

 

  narrow, observing that "the question is whether she has an approved
  home-school plan."  Mother's  counsel responded, "I believe she does,"and
  mother testified that she believed the program had been  approved
  notwithstanding the State's concern about the lack of special education
  services.    

       The colloquy between court and counsel over the meaning of enrollment
  under the home-study statute continued.  The court  pressed mother's
  counsel to acknowledge that enrollment was not  "approved" until the
  Department determined that an application was "complete."  Counsel
  resisted,  observing: "I don't agree with that because I believe once the
  curriculum is approved . . .  the home  schooling can begin."  At the
  conclusion of the hearing, the court  interpreted the statute to mean that 
  "the home-school program needs to be approved," and that a child "needs to
  attend an approved  school or approved home-school program . . .  and if
  they are not enrolled in that program, then  essentially they are truant." 
  Based on this conclusion, the court ordered a new evaluation of T.M. to 
  determine his current special education needs.  

       The CHINS hearing recommenced in July to discuss the results of the
  evaluation.  The court  observed that the report indicated there were
  educational needs that were not being met, and  reiterated its earlier
  conclusion that T.M. was "not enrolled in an approved home-school program,  
  that's the bottom line." Although mother's counsel continued to contest
  that conclusion, the  court  pronounced the minor to be CHINS based upon a
  finding of truancy.  The court issued a brief written  decision several
  days later, finding that the minor was not enrolled in or attending school,
  was not  enrolled in an approved home-study program, and therefore was
  CHINS under 33 V.S.A. §  5502(a)(12)(c) (defining CHINS as a child who "is
  habitually and without justification truant from  school").  This appeal
  followed.

 

       Mother contends the court erred in concluding that T.M. was not
  enrolled in a home-study  program. (FN1)  The issue required the court to
  construe and apply the home-study statute in light of  the record evidence.
  The home-study statute, 16 V.S.A. § 166b, has several components.  First,
  it sets  forth a process for enrollment in a home-study program.  This is
  accomplished  by sending a written  enrollment notice to the Commissioner
  of Education.  See id. § 166b(a).  Enrollments  expire on July  1, and new
  notices may be filed after March 1 for the new school year. See id.   Next,
  the statute  prescribes the information to be included in the enrollment
  notice.  This includes the name and age  of the child; names, addresses,
  and telephone numbers of the parents or guardians; an annual  assessment of
  the student's progress during the preceding school year; an evaluation as
  to whether the  child is handicapped if not previously enrolled in public
  school or a home-study program, and, if  ordered by a hearing officer after
  a hearing under the statute, a comprehensive evaluation to  determine
  eligibility for special education; a detailed outline of the  content to be
  provided in each  subject area of study, including any special services to
  accommodate any handicapping condition in  accordance with state or federal
  law; the school district in which the program is located; the names, 
  addresses, telephone numbers, and signatures 

 

  of the persons providing instruction; and the signatures of all custodial
  parents or guardians. See id. §  166b(a)(1) - (8).

       Within fourteen days of receiving an enrollment notice, the
  Commissioner or designee is  required to send an acknowledgment of receipt,
  which must include a determination:

     (1) either that the enrollment notice is complete and no further 
     information is needed, or specifically identifying the information 
     required under subsection (a) which is missing.  If information is 
     missing the home study program shall provide the additional 
     information in writing within 14 days; and
     (2) either that the child may be enrolled immediately or that the child 
     may be enrolled 45 days after the enrollment notice was received.  At 
     any time before the child may be enrolled, the commissioner may 
     order that a hearing be held.  After notice of such a hearing is 
     received, the child shall not be enrolled until after an order has been 
     issued by the hearing officer to that effect.

  Id. § 166b(b).  The statute goes on to delineate in separate sections the
  procedures for hearings to  determine whether a home-study program meets
  the statutory requirements. Subsection (e) provides  that the Commissioner
  may call for a hearing to determine the adequacy of a home-study program 
  "for a student who has not yet enrolled."   Subsection (f) provides that
  the Commissioner may also  call a hearing "after enrollment" to determine
  whether the program has failed to comply with  minimum statutory
  requirements or a minimum course of study.  Subsection (g) states that the 
  hearing must occur within thirty days of notice, and further provides: "If
  a notice concerns a child not  yet enrolled in a home study program,
  enrollment shall not occur until an order has been issued after  the
  hearing."  If a child is already enrolled, an order terminating enrollment
  takes effect immediately.  See id. § 166b(h).  

       Notwithstanding the frequent references by the court - and
  occasionally the parties - to the  Commissioner's ostensible discretion to
  "approve" a home-study program, the statute plainly 

 

  confers no such authority.  Under subsection (b), enrollment occurs either
  immediately or within 45  days after receipt of the enrollment notice,
  unless the Commissioner orders a hearing, in which case  "the child shall
  not be enrolled until after an order has been issued by the hearing officer
  to that  effect." Id. § 166b(b)(2). There is no provision, however,
  authorizing or empowering the  Commissioner to defer enrollment
  indefinitely merely by virtue of a letter to the parent or guardian 
  indicating that the information provided is "incomplete." Where the
  Commissioner  has requested  additional information under subsection (b)(1)
  and the home-school program has not provided that  information within the
  prescribed fourteen-day period,  the Commissioner may prevent enrollment 
  by calling a hearing to establish whether the program complies with the
  statute and will provide a  minimum course of study. Id. § 166b(e). If the
  Commissioner fails to call for a hearing within forty-five days of receipt
  of the enrollment notice, the child is enrolled.  Any doubts about the
  adequacy of  the program that arise thereafter may be resolved by noticing
  a hearing under subsection (f), but such  notice does not affect the
  child's enrollment status, which remains in effect pending the outcome of 
  the hearing.  See id. § 166b(g), (h).

       The enrollment process outlined above is plainly designed to expedite
  the enrollment of  children in home-study programs, and to place the burden
  on the State to preclude enrollment solely  by means of a noticed hearing,
  which must occur within thirty days of the notice. This conclusion is 
  readily apparent not only from the statutory provisions discussed above,
  see State v. O'Neill, 165 Vt.  270, 275, 682 A.2d 943, 946 (1996) (first
  step in determining legislative intent "is to look at the  language of the
  statute itself" and to "presume the Legislature intended the plain,
  ordinary meaning  of the language"), but also from the legislative history. 
  The legislation that resulted in Vermont's  first home-study statute in
  1987 also amended 16 V.S.A. 

 

  § 1121, the compulsory school-attendance statute.  Prior to the amendment,
  § 1121 had required a  child between the ages of seven and sixteen "to
  attend an approved public school or an approved or  reporting private
  school" unless the child "(2) is being furnished with an approved program
  of home  instruction." (Emphasis added); see State v. DeLaBruere, 154 Vt.
  237, 241, 577 A.2d 254, 257  (1990). In conjunction with enactment of the
  home-study statute, the Legislature modified  the  compulsory-attendance
  statute by deleting the underscored language, and substituting the
  following:  "A person having the control of a child between the ages of
  seven and sixteen years shall cause the  child to attend an approved public
  school, an approved or reporting private school or a home study  program." 
  16 V.S.A. § 1121 (emphasis added); see 1987, No. 97, § 2. This
  contemporaneous  amendment to the compulsory attendance law reinforces the
  conclusion that pre-approval of a home-study program was not contemplated
  by the Legislature.  

       This conclusion is also evident from testimony concerning the
  home-study bill before the  Senate Education Committee. Minutes of the
  hearings reveal that one of the problems the  amendment was intended to
  remedy was delays in approval of home-study programs by the  Department. 
  Several witnesses testified that backlogs in processing otherwise timely
  home-school  applications had held-up approvals beyond the start of the
  school year, resulting in students  becoming technically truant. They
  observed that the 45-day automatic enrollment  provision would  prevent
  this from occurring, and place the onus on the State to act expeditiously.

       Finally, we note that the notice-enrollment provisions of the Vermont
  home-study statute are  consistent with similar home-study laws across the
  country.  Indeed, adoption of § 166b was part of a  national trend among
  the states toward adoption of home-schooling statutes or regulations. See
  N.  Devins, Fundamentalist Christian Educators v. State: An Inevitable 

 

  Compromise, 60 Geo. Wash. L. Rev. 818, 819 (1992); Comment, The
  Constitutionality of State  Home Schooling Statutes, 39 Vill. L. Rev. 1309,
  1336-39 (1994).  Although provisions vary, roughly  thirty-nine states
  require home schoolers to provide the state with notice of their intent to
  home  school, and most require various information regarding the children,
  teachers, and curriculum. See  Comment, supra, at 1341-1343 n.204 (listing
  state statutes and requirements); Brunelle v. Lynn  Public Schools, 702 N.E.2d 1182, 1185 n.7 (Mass. 1998) (noting that thirty-nine states require 
  parents to notify the state or school of their intent to home school). 
  Only six states require advance  approval as well as notification, see
  Brunelle, 702 N.E.2d  at 1185, largely because of the burden and  potential
  free exercise problems such requirements pose for parents. See Comment,
  supra, at 1343.  Thus, the enrollment process set forth in the Vermont
  home-study statute reflects a careful balance  between the interests of the
  State in ensuring that students receive an adequate education, and the 
  right of parents to direct the education of their children.   

       Thus understood, it is readily apparent that T.M was properly enrolled
  in a home-study  program under the statute.  Notwithstanding the State's
  concern about the IEP component of the   program, and its efforts to obtain
  additional information and cooperation from mother, it failed to  order a
  hearing within 45 days of receipt of mother's notice of enrollment.  Under
  the statute,  therefore, T.M. became automatically enrolled in a home-study
  program.  The State's subsequent call  for a hearing, which was apparently
  still pending at the time of these proceedings, did not operate to 
  terminate T.M.'s current enrollment.  Accordingly, the court's conclusion
  that T.M. was CHINS  based upon a finding that he was habitually truant,
  was clearly erroneous and must 

 

  be reversed. (FN2)  

       Reversed.    


                                       FOR THE COURT:


                                       ______________________________________                    
                                       Associate Justice



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                                  Footnotes


FN1.  Although the State claims that mother failed to preserve this issue
  for review, the record  summarized above demonstrates that the issue was
  vigorously contested and that mother, through her  own efforts and through
  the argument of counsel, consistently asserted that the minor was 
  legitimately enrolled in a home-study program and therefore could not be
  adjudicated CHINS on the  basis of truancy.  The State also asserts that
  mother's counsel effectively waived the issue by stating  at one point that
  T.M. was "approved, but he's not enrolled because of the IEP issue." 
  Although it  reflects the general confusion on the part of all concerned as
  to the precise meaning and requirements  of the home-study statute, we are
  not persuaded that the statement was intended to be a concession of 
  counsel's previously stated and consistently maintained position that T.M.
  was properly attending a  home-study program, and therefore could not be
  deemed to be truant.  
       
FN2.  Because our decision rests upon an interpretation of 16 V.S.A. § 166b
  finding that T.M. was  properly enrolled in a home-study program, there is
  no need to consider mother's alternative  arguments concerning exhaustion
  and jurisdiction.