State v. Roeper

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1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO 2 Opinion Number: ________________________ 3 Filing Date: September 4, 2018 4 STATE OF NEW MEXICO, 5 Plaintiff-Appellee, 6 v. No. A-1-CA-34496 7 JEANNE ROEPER, 8 a/k/a JEANNA ROEPER, 9 Defendant-Appellant. 10 APPEAL FROM THE DISTRICT COURT OF EDDY COUNTY 11 Jane Shuler Gray, District Judge 12 13 14 15 Hector H. Balderas, Attorney General Santa Fe, NM Jane A. Bernstein, Assistant Attorney General Albuquerque, NM 16 for Appellee 17 Bennett J. Baur, Chief Public Defender 18 Tania Shahani, Assistant Appellate Defender 19 Santa Fe, NM 20 for Appellant 1 OPINION 2 VARGAS, Judge 3 I. INTRODUCTION 4 Defendant appeals her criminal conviction for failure to enforce compulsory {1} 5 school attendance resulting from her fifteen-year-old son’s habitual truancy. We 6 conclude that the Compulsory School Attendance Law (the Act), NMSA 1978, 7 §§ 22-12-1 to -10 (1967, as amended through 2017) requires that the juvenile 8 probation office conduct an investigation into whether Defendant’s child was “a 9 neglected child or a child in a family in need of services” pursuant to Section 2210 12-7(C) and, taking the information discovered in that investigation into 11 consideration, make a determination and finding that the truancy may have been 12 caused by Defendant before prosecuting Defendant. As the evidence presented was 13 insufficient to show that the required investigation was conducted, we reverse. 14 II. BACKGROUND 15 Defendant is the mother of three children, including fifteen-year-old J.M. {2} 16 (Son). Son had a history of behavioral problems and had been diagnosed with 17 Attention Deficit Hyperactivity Disorder (ADHD). Defendant also cares for her 18 younger son, who is deaf and suffers from autism and Down syndrome. Along with 19 her own three children, Defendant also cares for her grandchild. 1 {3} In the winter of 2012, following a stay in hospice, Defendant’s husband 2 died. Defendant suffers from bipolar disorder and depression, and eight or nine 3 months after her husband’s death, in the fall of 2013, Defendant suffered a mental 4 breakdown and checked herself into a hospital for approximately three weeks. 5 {4} While Defendant was hospitalized, Son’s grandmother enrolled him at Eddy 6 Alternative School in mid-August 2013. Son began school at Eddy Alternative 7 School as an eighth grader after having been held back from high school for one 8 year. Son’s attendance at the school was “sporadic,” and he quickly accumulated 9 an impermissible number of absences. The school attempted, without success, to 10 contact Defendant regarding Son’s absences on several occasions. On September 11 19, 2013, the school mailed Defendant notice that Son had four unexcused 12 absences, following up with another letter the next day, notifying of Son’s fifth 13 unexcused absence. Both letters requested that Defendant contact the school within 14 one week to schedule a meeting with the school’s principal. On October 14, 2013, 15 the school sent Defendant written notice that Son had accumulated ten and a half 16 unexcused absences and requested that Defendant contact the principal of the 17 school within forty-eight hours. The letter further advised that the case was “being 18 referred to the [j]uvenile [p]robation & [p]arole [o]ffice for investigation and 19 potential prosecution.” 2 1 {5} The school forwarded its file on Son to Danial Schwertner, Chief Juvenile 2 Probation Officer (Schwertner). Schwertner reviewed the file and decided solely 3 from that review that Defendant may have caused Son’s habitual truancy. The 4 State filed a complaint in magistrate court, charging Defendant with one count of 5 failure to enforce compulsory school attendance, contrary to Section 22-12-7. At 6 trial, Defendant testified that Son was sometimes violent toward her and that she 7 was afraid of him. As evidence of Son’s violent behavior, Defendant introduced 8 evidence that between April 2013 and December 2013 emergency services 9 received at least five 911 calls reporting disturbances involving Son at the family 10 home. 11 {6} The magistrate court found Defendant guilty. Defendant appealed to the 12 district court, where she received a trial de novo. The district court upheld the 13 magistrate court’s judgment. 14 III. DISCUSSION 15 The Act 16 {7} The Act imposes a responsibility upon parents of school-aged persons to 17 insure school attendance. Section 22-12-2(C) Included among the provisions of the 18 Act is a statutorily-created protocol for addressing habitual truancy and a parent’s 19 failure to satisfy his or her obligation to insure a child’s school attendance. See § 3 1 22-12-7. A habitually truant student is a student with ten or more unexcused 2 absences. Section 22-12-9(A)(1). 3 {8} To initiate enforcement against the parent of a habitual truant, Section 22- 4 12-7(B) requires that the local school board or its authorized representative “give 5 written notice of the habitual truancy by mail to or by personal service on the 6 parent.” If the student continues to accumulate unexcused absences after notice is 7 provided, the student “shall be reported to the probation services office . . . for an 8 investigation as to whether the student shall be considered to be a neglected child 9 or a child in a family in need of services.” Section 22-12-7(C) (emphasis added). 10 “If, after review by the juvenile probation office. . . a determination and finding is 11 made that the habitual truancy by the student may have been caused by the parent 12 of the student,” the matter will be referred “to the district attorney’s office or any 13 law enforcement agency having jurisdiction for appropriate investigation and filing 14 of charges.” Section 22-12-7(D) (emphasis added). A parent who, “after receiving 15 written notice” and “after the matter has been reviewed [by the juvenile probation 16 office] in accordance with Subsection D[,]” knowingly allows the student to 17 violate the Act commits a petty misdemeanor. Section 22-12-7(E). 18 {9} While Section 22-12-7(E) explicitly establishes the written notice and the 19 juvenile probation officer’s review as prerequisites to prosecution, it makes no 20 reference to the investigation called for in Section 22-12-7(C). Defendant contends 4 1 that, notwithstanding the omission of any reference to an investigation from 2 Section 22-12-7(E), the statute also requires the investigation as a prerequisite to 3 prosecution. Defendant argues that the State did not satisfy its burden because it 4 failed to provide substantial evidence that the probation services office properly 5 investigated whether Son was “a child in a family in need of services” before 6 making a “determination and finding . . . that the habitual truancy by the student 7 may have been caused by the parent” and referring the matter to the district 8 attorney’s office. Section 22-12-7(C), (D). In response to Defendant’s argument, 9 the State claims that the statute does not specify any mandatory steps to be taken in 10 an investigation and the probation officer’s review of Son’s file in this case was 11 sufficient to satisfy the statutory requirement. 12 Investigation Required by Section 22-12-7(C) 13 {10} We first consider the language of the statute to determine the nature and 14 scope of the investigation required by Section 22-12-7(C). When considering the 15 meaning of a statute, we note that issues of statutory interpretation are subject to a 16 de novo review. State v. Tafoya, 2012-NMSC-030, ¶ 11, 285 P.3d 604. When 17 interpreting a statute, we seek to fulfill the Legislature’s intent, taking into 18 consideration the fact that the primary indicator of that intent is the language it 19 used in creating the statute. State v. Erwin, 2016-NMCA-032, ¶ 5, 367 P.3d 905. 20 When the statute contains terms that are “clear and unambiguous, we must give 5 1 effect to that language and refrain from further statutory interpretation.” State v. 2 Rivera, 2004-NMSC-001, ¶ 10, 134 N.M. 768, 82 P.3d 939 (internal quotation 3 marks and citation omitted). In addition, statutory subsections “must be considered 4 in reference to the statute as a whole[,]” id. ¶ 13 (internal quotation marks and 5 citation omitted), and “must be construed so that no part of the statute is rendered 6 surplusage or superfluous.” State v. Javier M., 2001-NMSC-030, ¶ 32, 131 N.M. 1, 7 33 P.3d 1 (internal quotation marks and citation omitted); see State v. Jackson, 8 2010-NMSC-032, ¶ 28, 148 N.M. 452, 237 P.3d 754 (characterizing this rule as 9 fundamental, and stating it should be applied to every “word, clause, sentence 10 provision[,] or part” of a statute (internal quotation marks and citation omitted)), 11 overruled on other grounds by State v. Radosevich, 2018-NMSC-028, ¶¶ 2, 34, 12 419 P.3d 176. 13 Nature and Scope of an Investigation Under Section 22-12-7(C) 14 {11} The parties do not dispute that the plain language of the statute clearly 15 requires the juvenile probation office to conduct an investigation into whether a 16 habitually truant student is “a neglected child or a child in a family in need of 17 services” if the student continues to accrue unexcused absences after written notice 18 is given to the student’s parent. Section 22-12-7(C). The State, however, argues 19 that nothing in the statute defines the investigation called for in Section 22-1220 7(C), or mandates the type of investigation that it must conduct. Because the 6 1 statute does not define the nature and scope of the investigation, the State contends 2 that the investigation conducted by the juvenile probation office regarding Son was 3 sufficient. 4 {12} While we agree that the statute contains no explicit language setting out the 5 scope and nature of the investigation the juvenile probation office must conduct, 6 the mandate of the statute requires that the juvenile probation office conduct an 7 investigation sufficient to determine whether the student is a “neglected child or a 8 child in a family in need of services.” The Children’s Code specifically defines a 9 “family in need of family services,” in relevant part, as “a family whose child’s 10 behavior endangers the child’s health, safety, education or well-being[.]” NMSA 11 1978, Section 32A-3A-2 (A)(1) (2005). “[F]amily services” are “services that 12 address specific needs of the child or family.” Section 32A-3A-2(B). The 13 Legislature unequivocally incorporates the requirements of the Children’s Code 14 into the Act, making the child subject to the provisions of the Children’s Code if, 15 after investigation, the child is found to be “a neglected child or a child in a family 16 in need of services.” Section 22-12-7(C). Included among the provisions of the 17 Children’s Code is the Family Services Act, NMSA 1978, §§ 32A-3A-1 to -11, 18 (1993, as amended through 2016), which “recognize[s] that many instances of a 19 child’s behavior are symptomatic of a family in need of family services” and 20 “provide[s] prevention, diversion and intervention services” for children or 7 1 families. Section 32A-3A-1(B); see NMSA 1978, § 32A-3B-1(B)(2) (2005) 2 (expressing legislative purpose of the Family in Need of Court-Ordered Services 3 Act “to recognize that many instances of truancy . . . by a child are symptomatic of 4 a family in need of services”); see also NMSA 1978, § 32A-3B-2(A) (2009) 5 (defining “family in need of court-ordered services” as one that has exhausted 6 available family services and requires court intervention where “child, subject to 7 compulsory school attendance, is absent from school without an authorized excuse 8 more than ten days during a school year”). By structuring the Act to incorporate 9 the provisions of the Children’s Code, the Legislature intended that the probation 10 office conduct an investigation sufficient to determine whether the student is 11 endangering his own health, safety, education, or well-being. See § 32A-3A12 2(A)(1) (defining a “family in need of family services”). 13 {13} Our interpretation is bolstered by the legislative history of the Act. See State 14 v. Lopez, 2009-NMCA-112, ¶ 5, 147 N.M. 279, 219 P.3d 1288. Considering the 15 history and background of the Act, we note that prior versions of Section 22-12-7 16 were more punitive than the current version; parents could be convicted before 17 courts or the juvenile probation office sought out the cause of and remedy for a 18 student’s habitual truancy. Over the years, Section 22-12-7 transitioned from 19 assigning automatic penalties for violating attendance policies to requiring 20 investigation into the circumstances causing those violations. Overall, the changes 8 1 made to Section 22-12-7 show the Legislature’s recognition of both the importance 2 of school attendance, and of the possibility that poor attendance may be indicative 3 of other problems with the student or in the home. Section 22-12-7 balances the 4 Legislature’s intent to hold parents accountable for their student’s poor attendance 5 while still recognizing and accounting for the difficulties families may face beyond 6 the school or classroom. 7 {14} The 1986 version of Section 22-12-7 allowed an adjudication and 8 assignment of penalties to precede any investigation into the circumstances of the 9 family or the student. It required that notice of the student’s absences be given to 10 the parent, much like the current version, but mandated that continued absences 11 following delivery of written notices be reported to magistrate or metropolitan 12 court. If the court found that the parent knowingly allowed the continued absences, 13 he or she was subject to a penalty under the statute. If absences continued after the 14 court imposed a penalty, the matter was reported to the children’s court, and the 15 statute required that the student be considered “a neglected child or a child in need 16 of supervision” under the Children’s Code. Section 22-12-7(B) (1986). The 1986 17 version made no provision for investigation into the circumstances causing the 18 absences, instead making it mandatory that courts find a child to be neglected or in 19 need of supervision upon accrual of any additional absences. 9 1 {15} The following year, the Legislature restructured Section 22-12-7 to resemble 2 the current statute we use today by requiring an investigation into the need for 3 children’s court services upon additional absences following notice of habitual 4 truancy, and prior to an adjudication under the statute. It also removed the 5 provision that made an adjudication under the Children’s Code the automatic result 6 of additional absences. See § 22-12-7(C) (1987). Under this later version, and as 7 with the current version, the Legislature required the student’s accumulating excess 8 absences to be reported to the local probation services office “for an investigation 9 as to whether the student shall be considered to be a neglected child or a child in 10 need of supervision” under the Children’s Code. Id. The juvenile probation office 11 or local children’s court judge then would make a determination of whether “the 12 nonattendance by the student may have been caused by the parent,” in which case 13 the matter was referred to an appropriate law enforcement agency “for appropriate 14 investigation and filing of charges.” Section 22-12-7(D) (1987). In 2004, the 15 Legislature shifted the responsibility for investigating the student’s circumstances 16 from the children’s court and probation offices to the probation offices alone, but 17 left in place the other requirements, including notice, an investigation into the need 18 for children’s court services, and a finding that the parent may have caused the 19 absences, contained in the current version. See § 22-12-7(C),(D) (2004). 10 1 {16} The changes between the 1986 and 1987 versions of Section 22-12-7 are 2 clearly indicative of a shift in the legislative intent from a punitive focus to one 3 intended to assess and address the causes underlying a student’s habitual truancy 4 before a parent is charged with a violation of the statute. By shifting from a post5 adjudication investigation to a pre-adjudication investigation, the Legislature 6 explicitly recognized that continuous school absences may be a symptom of deeper 7 issues in the child’s family or personal life requiring family services to remedy 8 those issues. The restructuring of the statute to allow for a more meaningful 9 evaluation of whether the family is in need of services prior to the filing of 10 criminal charges and a possible conviction further evidences the Legislature’s 11 intent that an investigation serve as a prerequisite to prosecution under Section 2212 12-7. 13 {17} While we decline to define what specifically must be done to comply with 14 the statutory mandate, unless the student’s file itself demonstrates that a child is 15 neglected or a child in a family in need of services, simply reviewing the file is not 16 sufficient. Instead, we expect that in most instances, an investigation will include, 17 at the very least, interviews with the student’s teachers to determine whether they 18 have any information about the student’s family life that would assist the juvenile 19 probation office in making its determination. We further anticipate that the juvenile 20 probation office would attempt to speak with the student and student’s parent, 11 1 guardian, or other caretaker, seeking similar information. Absent such interviews, 2 we find it difficult to see how the juvenile probation office could properly 3 determine whether the student was “a neglected child or a child in a family in need 4 of services.” Section 22-12-7(C). 5 Schwertner’s Investigation 6 {18} We now consider whether there was sufficient evidence in the record that 7 the juvenile probation office conducted a proper investigation as to whether Son 8 was “a neglected child or a child in a family in need of services.” A challenge to 9 the sufficiency of the evidence requires consideration of “whether substantial 10 evidence of either a direct or circumstantial nature exists to support a verdict of 11 guilt beyond a reasonable doubt.” State v. Sutphin, 1988-NMSC-031, ¶ 21, 107 12 N.M. 126, 753 P.2d 1314; see State v. Dowling, 2011-NMSC-016, ¶ 20, 150 N.M. 13 110, 257 P.3d 930 (“[T]he Court must scrutinize the evidence and review the jury’s 14 fact-finding function to ensure that a rational jury could have found the facts 15 required for each element of the conviction beyond a reasonable doubt.”). That 16 evidence is to be viewed in the light most favorable to the State, and we “indulge 17 all reasonable inferences in support of the verdict[] and disregard all evidence and 18 inferences to the contrary.” State v. Cobrera, 2013-NMSC-012, ¶ 7, 300 P.3d 729 12 1 (internal quotation marks and citation omitted). The question is whether the district 2 court’s “decision is supported by substantial evidence, not whether the [district] 3 court could have reached a different conclusion.” In re Ernesto M., Jr., 19964 NMCA-039, ¶ 15, 121 N.M. 562, 915 P.2d 318. Substantial evidence is “such 5 relevant evidence as a reasonable mind might accept as adequate to support a 6 conclusion[.]” State v. Salgado, 1999-NMSC-008, ¶ 25, 126 N.M. 691, 974 P.2d 7 661 (internal quotation marks and citation omitted). 8 {19} Schwertner testified that when evaluating whether a child is neglected or in a 9 family in need of services, he reviews the student’s file, reading the documents 10 therein to see if the school had reported seeing any signs of abuse or neglect. Files 11 typically include letters, attendance records, a cover sheet with student’s personal 12 information, behavioral records, notes documenting any contact with the student’s 13 family, and occasionally, teacher’s notes regarding the student’s behavior. 14 Schwertner testified that he never contacts parents when determining whether a 15 child is part of a family in need of services, and instead relies on a review of the 16 information in the file. He explained that no further efforts are necessary because 17 his role involved only a review of the information regarding attendance that the 18 school collected, and it was “not a situation where [he is] involved in the proof of 19 it.” 13 1 {20} Son’s file included a cover letter, attendance record, disciplinary report, and 2 copies of the letters sent to Defendant regarding Son’s absences. Our record on 3 appeal contains nothing detailing the information set out in the disciplinary report, 4 and we are therefore unable to consider that information. Schwertner testified that 5 he “reviewed” Son’s file and concluded that Son “did not meet the criteria for any 6 abuse and neglect,” that there was no evidence of abuse, and that he did not feel 7 that Defendant’s family was a family in need of services. Schwertner also testified 8 that his department acted under an assumption that when a student is “under ninth 9 grade, parents have a lot more control and authority over the child than they do 10 once [the student] get[s] up into the high school.” Son was fifteen at the time in 11 question—at least one year older than an average eighth grader. Although 12 Schwertner testified that he considered Son’s grade level in making his 13 determination regarding abuse and family services, he also claimed that the 14 determination was “pretty much” based on the age of the student. Additionally, 15 there is evidence Schwertner knew Son through prior referrals to probation not 16 related to this case. There is not, however, any evidence regarding Schwertner’s 17 involvement with those referrals or the extent of his knowledge of the 18 circumstances of those referrals. There is also no evidence that Schwertner 19 considered or used his knowledge of Son’s referrals in assessing whether Son was 20 part of a family in need of services. Ultimately, Schwertner believed reviewing 14 1 Son’s file for signs that the family was in need of services was sufficient to 2 determine whether Defendant may have been the cause of Son’s absences. 3 {21} Schwertner’s testimony about his investigation is of little assistance to the 4 State. Initially, we note that had the Legislature intended that the investigation be 5 limited to the review of the student’s file, there would be no need to involve the 6 juvenile probation office. School officials are in just as good a position to conduct 7 such a review as the juvenile probation office. The Legislature’s referral of the 8 investigation to the juvenile probation office indicates its intent to require more 9 than a cursory file review before determining whether the student is a “neglected 10 child or a child in a family in need of services.” See § 22-12-7(C). Furthermore, 11 Schwertner’s testimony at trial is more akin to an assessment of the merits of the 12 adjudication of Son as a habitual truant rather than an investigation of whether 13 Son’s family circumstances merited referral to the children’s court. His testimony 14 contains vague references to the materials in the file that he “reviewed,” but does 15 not indicate, with any specificity, what information he gathered from his review. 16 Schwertner did not divulge what was in Son’s disciplinary report, and gave no 17 explanation as to why the information contained in the report satisfied him that Son 18 was not “a neglected child or child in a family in need of services.” Section 22-1219 7(C). Schwertner’s “review” did not include any interviews with Defendant, Son, 20 Son’s grandmother, other members of Son’s family, Son’s teachers, or anyone else 15 1 who interacted with Son on a regular basis who might be able to provide 2 information about whether Son was “a child in a family in need of services.” See 3 id. Indeed, it is unclear from the record whether, in making his assessment, 4 Schwertner was aware that Son’s father had recently died, that his mother had been 5 hospitalized, that in addition to Son, Defendant cared for a special needs child, or 6 that numerous calls were made to 911 to report disturbances involving Son at the 7 family home. Instead of seeking to verify or supplement any of the information 8 contained in the file, Schwertner simply sought to confirm that Son had more than 9 the permitted number of unexcused absences and that Defendant had been notified 10 of those absences. The evidence presented regarding Schwertner’s efforts in this 11 case was nothing more than a superficial review of Son’s file. While a review of 12 the student’s file is absolutely contemplated by the language of the statute, Section 13 22-12-7(C) requires more. Schwertner’s actions were insufficient to allow him to 14 determine whether Son was “a child in a family in need of services” and did not 15 constitute an “investigation” as required by Section 22-12-7(C). 16 Investigation as a Prerequisite to Prosecution Under Section 22-12-7(E) 17 {22} Having determined the nature and scope of an investigation required by 18 Section 22-12-7(C) and concluded that Schwertner’s investigation did not satisfy 19 the statutory requirements, we now consider whether a proper investigation is a 20 prerequisite to a prosecution under Section 22-12-7(E). While at first blush, the 16 1 Legislature’s omission of any reference to the investigation from Section 22-122 7(E) would seem to allow a prosecution of a parent without an investigation, the 3 plain language, structure, and legislative history of the Act make clear that the 4 investigation is intended to be an integral part of the juvenile probation office’s 5 determination as to whether the habitual truancy may have been caused by the 6 student’s parent. See § 22-12-7(C), (E). Section 22-12-7(D) of the statute provides 7 that, “[i]f, after review by the juvenile probation office . . . a determination and 8 finding is made that the habitual truancy by the student may have been caused by 9 the parent of the student, then the matter will be referred . . . to the district 10 attorney’s office or any law enforcement agency.” Section 22-12-7(D). 11 Notwithstanding that the statute requires the juvenile probation office to conduct a 12 review, it fails to define what exactly the juvenile probation office is to review in 13 making its “determination and finding” regarding the cause of the student’s 14 truancy. Again, while we will not adopt specific requirements of what must be 15 reviewed by the juvenile probation office before making any determination or 16 finding regarding the cause of student’s truancy, we expect that any such review 17 will include information collected in the statutorily mandated investigation into the 18 student’s status as a “neglected child or a child in a family in need of services” 19 required by Section 22-12-7(C), as well as any other information available to the 20 juvenile probation office. Indeed, to interpret sSection 22-12-7(E)’s omission of 17 1 any reference to an investigation in a way that renders an investigation unnecessary 2 for prosecution under Section 22-12-7 would render the investigation language of 3 sSection 22-12-7(C) superfluous. See Javier M., 2001-NMSC-030, ¶ 32. Finally, 4 we expect that the information gathered during that investigation will bear 5 significantly on the juvenile probation office’s determination and finding, as we 6 anticipate it will provide the juvenile probation officer with at least a basic 7 understanding of the student’s home life and parent engagement. 8 {23} Because Section 22-12-7(C) requires an investigation into whether a student 9 is “a neglected child or a child in a family in need of services,” the juvenile 10 probation office must review the information learned from the investigation as part 11 of its determination and finding as to whether the student’s habitual truancy may 12 have been caused by the parent. No such investigation took place in this instance. 13 We hold that the State failed to satisfy the statutory prerequisite to prosecuting 14 Defendant for a violation of the Act, requiring the reversal of Defendant’s 15 conviction. 16 Sufficiency of the Evidence 17 {24} We look next to Defendant’s assertion that there was insufficient evidence to 18 support her convictions. See State v. Mascarenas, 2000-NMSC-017, ¶ 31, 129 19 N.M. 230, 4 P.3d 1221 (addressing a sufficiency argument in an effort to ensure no 20 double jeopardy violation). When reviewing for sufficiency, “we must view the 18 1 evidence in the light most favorable to the guilty verdict, indulging all reasonable 2 inferences and resolving all conflicts in the evidence in favor of the verdict.” State 3 v. Holt, 2016-NMSC-011, ¶ 20, 368 P.3d 409 (internal quotation marks and 4 citation omitted). The question then becomes “whether any rational trier of fact 5 could have found the essential elements of the crime beyond a reasonable doubt.” 6 Id. (internal quotation marks and citation omitted). 7 {25} As noted previously, the information gathered during the investigation 8 should provide the juvenile probation officer with some understanding of parental 9 engagement. Here, however, Schwertner’s investigation was so deficient that it 10 contributed nothing to an assessment of Defendant’s parental engagement, and 11 provided no information to assist the district court in determining whether 12 Defendant “knowingly allowed” Son’s truancy to continue. See § 22-12-7(E) 13 (providing that a parent who, after receiving requisite notice and after investigation 14 has occurred, “knowingly allows the student to continue” his pattern of habitual 15 truancy is guilty of a petty misdemeanor). As such, the evidence proffered to 16 support Defendant’s conviction on that element is limited, consisting mostly of 17 Defendant’s testimony regarding her efforts to make Son attend school. 18 {26} The evidence is sufficient to demonstrate Defendant knew Son had missed 19 school—she admitted to having received letters informing her of his absences. 20 Evidence of that knowledge alone, however, is insufficient to support Defendant’s 19 1 conviction here because the language of the statute requires not only that the parent 2 knew of, but also allowed, the student’s continued school absences. Thus, a 3 conviction under Section 22-12-7(E) contains an implicit requirement that the 4 parent either acted or failed to act in a way that authorized or ignored the child’s 5 continued absences. The evidence demonstrates Defendant attempted to get Son to 6 attend school by waking him up, making breakfast, and arranging for his 7 transportation to school, but that Defendant was afraid of Son, and when 8 Defendant tried to get Son to go to school, Son became violent. This evidence was 9 not sufficient to support a conclusion that Defendant allowed Son’s absences, 10 either by condoning his behavior or by an apathetic failure to act. 11 III. CONCLUSION 12 We reverse the judgment of the district court and remand the matter to the {27} 13 district court to vacate the conviction. 14 {28} IT IS SO ORDERED. 15 16 ______________________________ JULIE J. VARGAS, Judge 17 WE CONCUR: 18 ______________________________ 19 MICHAEL E. VIGIL, Judge 20 ______________________________ 20 1 EMIL J. KIEHNE, Judge 21

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