In re A.V., S.T., A.C. & E.V.

In re A.V., S.T., A.C. & E.V. (2003-301); 176 Vt. 568; 844 A.2d 739

2003 VT 113

[Filed 19-Dec-2003]

                                 ENTRY ORDER

                                 2003 VT 113

                      SUPREME COURT DOCKET NO. 2003-301

                             DECEMBER TERM, 2003

  In re A.V., S.T., A.C. and 	      }	    APPEALED FROM:
  E.V., Juveniles                     }
                                      }
                                      }
      	                              }	    Bennington Family Court
                                      }	
                                      }	    DOCKET NO. 154/155/156/157-9-02 Bnjv

                                            Trial Judge: Ellen H. Maloney

             In the above-entitled cause, the Clerk will enter:

       ¶  1.  The parents of four juveniles - A.V., born in March 1987;
  S.T., born in May 1988; A.C., born in July 1991; and E.V., born in February
  1994 - appeal the family court's adjudication of the juveniles as children
  in need of care and supervision (CHINS) based on educational neglect and
  truancy.  The juveniles, through their appointed counsel, join the State in
  opposing the parents' appeal.  We affirm.

       ¶  2.  The three oldest children attended public school during the
  1998-1999 school year after mother's application for home school enrollment
  was rejected because of her failure to provide for the children's special
  needs.  The children were partially home-schooled during the 1999-2000
  school year, with the public school providing special education services to
  A.V. and A.C. and additional instruction in reading, math, and language
  arts to the three oldest children.  In response to mother's home schooling
  notice of enrollment for the 2000-2001 school year, the Department of
  Education informed mother that her plan was inadequate and set a hearing
  date before a hearing officer.  See 16 V.S.A. § 166b(e) (commissioner may
  call hearing if she or he has information that creates significant doubt
  about whether proposed home study program can or will provide minimum
  course of study for student who has not yet enrolled).  In November 2001, a
  hearing officer took evidence and concluded that mother (1) had not filed
  progress assessments with respect to her four children; (2) had failed to
  present a curriculum adapted for her special needs children; and (3) had
  failed to show that her proposal would provide even a minimal level of
  study.  Consequently, mother's home schooling program was disallowed for
  both the 2001-2002 and 2002-2003 school years.  See In re S.M., 2003 VT 41, 
  11, 824 A.2d 593 ("The Commissioner is empowered to determine whether a
  home study program complies with statute in providing minimum course of
  study, and to prevent enrollment through a noticed hearing if the program
  is not in compliance.").  Nevertheless, the children did not attend public
  school during the 2001-2002 school year.  Nor did either parent ever seek
  to appeal the hearing officer's decision or file a notice of home school
  enrollment for the 2002-2003 school year.
   
       ¶  3.  At the beginning of the 2002 school year, A.V.'s biological
  father telephoned the Department of Social and Rehabilitation Services
  (SRS) and expressed concern that A.V. was not in school.  During the
  ensuing investigation, SRS found evidence that the children had been
  exposed to unacceptable living conditions.  Because none of the children
  were properly enrolled in either a home-study program or a public or
  approved independent school, SRS filed a petition alleging that the
  children were CHINS due to educational neglect and truancy.  In September
  2002, the family court issued an emergency detention order and placed the
  children in SRS custody based on a preliminary finding of educational
  neglect and truancy.  Four days of hearing on the CHINS petition were held
  between February and May 2003.  On May 28, 2003, after the merits hearing
  was concluded, the family court found all four juveniles to be CHINS on the
  grounds that they were (1) without proper parental care as the result of
  educational neglect, and (2) truant.  The parents appeal, arguing that (1)
  the CHINS petition should be dismissed with respect to A.V. because, at the
  time of the merits hearing, he had reached the age of sixteen and thus was
  no longer required to attend school; (2) the trial court's findings of
  educational neglect were not supported by the record; and (3) the children
  were not habitually truant because their absence from school was not the
  result of any volitional conduct on their part.

       ¶  4.  We first address the parents' argument that the CHINS petition
  against A.V. should be dismissed because he reached the age of sixteen
  before the merits hearing was held.  The family court may make a CHINS
  adjudication upon finding that a child is "without proper . . . education .
  . . necessary for his well-being," 33 V.S.A. § 5502(a)(12)(B), or "being
  subject to compulsory school attendance, is habitually and without
  justification truant from school."  § 5502(a)(12)(C).  Here, the court
  adjudicated each of the children as CHINS based upon both educational
  neglect and truancy.  Section 1121 of Title 16 requires persons having
  control of children ages six to sixteen to cause them to attend school. 
  The parties agree that A.V. reached sixteen years of age after the CHINS
  petition was filed but before the merits hearing on the petition was held. 
  The State relies on two statutory provisions to counter the parents'
  contention that the CHINS petition is now moot with respect to A.V.  The
  first one is 33 V.S.A. § 5502(a)(1)(E), which permits an adjudication of
  CHINS based on truancy as long as the petition is filed before the child
  turns sixteen.  The second is 16 V.S.A. § 1122, which provides that "[a]
  person having the control of a child over sixteen years of age who allows
  such child to become enrolled in a public school, shall cause such child to
  attend such school continually for the full number of the school days of
  the term in which he is so enrolled."  (Emphasis added).  According to the
  State, because SRS filed its petition before A.V. turned sixteen, obtained
  custody of A.V., and enrolled him in public school first for the 2002-2003
  school year and later for the 2003-2004 school year, A.V. could be
  adjudicated CHINS for failure to attend school, even though he had turned
  sixteen before the CHINS merits hearing.  In response, the parents argue
  that A.V. cannot be CHINS because of what SRS did. 
 
       ¶  5.  We conclude that the CHINS petition is not moot with respect
  to A.V.  This is not a case in which SRS created the basis for the CHINS
  petition by enrolling A.V. in school, as the parents suggest.  A.V. was
  adjudicated CHINS not because of what SRS did, but rather because of what
  the parents neglected to do - see to it that he obtained an adequate
  education.  Further, the family court's findings demonstrate that the
  parents' neglect in failing to provide A.V. with an adequate education
  before he turned sixteen continued to have negative repercussions for A.V.
  beyond his sixteenth birthday.  Indeed, the court found that A.V. still
  lacked basic knowledge that would allow him to function independently in
  the community, but that there was still a window of opportunity to address
  these deficiencies.  Therefore, the case is not moot.  Cf. In re P.S., 167
  Vt. 63, 67, 702 A.2d 98, 102 (1997) ("case is not moot when negative
  collateral consequences are likely to result from the action being
  reviewed").

       ¶  6.  As noted, the family court explicitly based its CHINS
  determination on both truancy and educational neglect.  Specifically, with
  respect to A.V., the court found that A.V.'s educational needs were
  particularly complex and required expertise to address them because he was
  borderline mentally retarded.  The court noted that A.V. had a reading
  level of upper second grade, a fourth grade math level, and the
  communications skills of an eight-year old.  The court concluded that the
  parents were incapable of meeting A.V.'s special educational needs or
  teaching him the independent living skills he needed to be a functioning
  member of society.  The court stated that A.V. had only a short period of
  time to gain the necessary academic skills critical to his being able to
  function in the community, and that he was doing so within the context of a
  Life Skills Program designed to teach him functional academics, vocational
  skills, and living skills.  In the court's view, without such a program,
  A.V. would be unable to grow and develop to his potential.  These findings
  and conclusions support the court's determination of educational neglect
  with respect to A.V.

       ¶  7.  The parents argue, however, that the family  court's findings
  of educational neglect are unsupported by the record - not only with
  respect to A.V., but all the children.  The parents do not specify which
  findings are unsupported, but rather vaguely assert that the record does
  not support the findings because SRS's experts focused on the children's
  present needs and how a public education would meet those needs, rather
  than on the shortcomings of the parents' home schooling program.  We find
  no merit to this argument.  The evidence concerning the deficiencies of the
  parents as teachers and the inadequate education the children received at
  home was undeniable.  Mother, the home schooling applicant and teacher of
  record did not finish high school.  The court found that she had noticeable
  speech irregularities.  Father, who had taken responsibility for the
  education of A.C. and E.V. and who taught all of the children math and
  science, was learning disabled with an IQ of 64, did not finish high
  school, and was receiving independent living assistance from the Department
  of Vocational Rehabilitation.  The Department of Education determined that
  mother's home school plan was deficient in several respects.  The court
  found a discrepancy between the "canned" home schooling program that mother
  had submitted, which included tasks well beyond the capabilities of the
  children, and the education that the children were actually receiving at
  home.  Mother conceded that she had used a book to put "fancy" words in the
  course of study she sent to the State.  The court noted that mother had not
  read some of the books she supposedly had the children report on. 
  Moreover, there was also ample evidence that each of the children's
  learning had stagnated during the years in which they were home schooled.  
  Although, in some cases, the State's witnesses could not pinpoint what
  aspect of the mother's home schooling program had been deficient, the
  evidence as a whole entitled the court to conclude that the children's lack
  of progress was the result of the inadequate education provided to them by
  their parents at home.
   
       ¶  8.  Finally, the parents argue that the children could not have
  been habitually truant from school, as the family court found, because
  their absence from school was the result of their parents' decision to home
  school them and not their volitional conduct.  The main case cited by the
  parents in support of this argument, however, involved charges of truancy
  directed against the juveniles pursuant to a distinct statute.  See In re
  L.Z., 396 N.W.2d 214, 218 (Minn. 1986) (statute defining truant as child
  "absenting himself from attendance at school without lawful excuse" implies
  volitional conduct on part of child).  In contrast, the statutory provision
  at issue here does not imply a volitional element to truancy.  See 33
  V.S.A. § 5502(a)(12)(C) (CHINS means a child who "being subject to
  compulsory school attendance, is habitually and without justification
  truant from school").  In any event, we need not determine whether habitual
  truancy requires volitional conduct on the part of the juvenile because, as
  noted, the family court determined that educational neglect on the part of
  the parents independently supported the CHINS adjudication with respect to
  all four children.  See id. § 5502(a)(12)(B) (CHINS means a child who is
  "without proper . . . education . . . necessary for his well-being"); cf.
  In re B.K.J., 451 N.W.2d 241, 243 (Minn. Ct. App. 1990) (legislation
  concerning children in need of protection or services takes
  volitional/non-volitional distinction into account by providing, in
  addition to truancy, educational neglect as basis for protective services). 
  As we concluded above, the record supports the court's finding of
  educational neglect. 

       Affirmed.      


                                       BY THE COURT:



                                       _______________________________________
                                       Jeffrey L. Amestoy, Chief Justice

                                       _______________________________________
                                       John A. Dooley, Associate Justice

                                       _______________________________________
                                       Denise R. Johnson, Associate Justice

                                       _______________________________________
                                       Marilyn S. Skoglund, Associate Justice

                                       _______________________________________
                                       Paul L. Reiber, Associate Justice