By David Rangaviz
In re J.H., 2013 VT 31
When I was in grade school, I hinged a lot of my actions on the difference between the Rules and the Laws.
Rules—school rules, house rules, any rules really—were made to be broken. I walked the halls during free period. I went to gym during other people’s gym classes. I skipped the occasional school day. I was a rebel, and flouting rules was my cause.
Laws were different. You didn’t mess with laws. Breaking rules might earn me some punishment, but it was punishment I could understand. I didn’t even know how one was punished when a law was broken. I just knew it was bad and that I wanted no part of it.
Thankfully, when I was younger I didn’t know anything about juvenile law or Vermont state truancy laws. It would’ve thrown my entire values system out of whack—school rules with the potential to have the force of law. How can that be??
I’ll tell you.
In today’s case, thirteen year old JH was adjudicated a “child in need of care and supervision” (referred to as “CHINS”) on the basis of her truancy. A CHINS finding results in the formation of a case plan that can call for anything from removal from the home and placement in the custody of the Vermont Department of Children and Families to family changes to correct the problem while leaving the child in parent custody.
According to Vermont statutes, a juvenile can be adjudicated a CHINS, for, among other reasons (primarily neglect or abuse), being “habitually and without justification truant from compulsory school attendance.”
At the trial, the only witness was the Bennington County deputy sheriff who served as the county’s truancy officer. The officer described the protocol applicable to truancy complaints: “usually” the attendance clerk at the school calls the sheriff’s department, and the dispatcher then initiates a truancy complaint and sends the officer to the residence, where he speaks to the parents and then transports the child to school.
The officer testified that he had been to JH’s residence to respond to truancy complaints on five separate occasions during the month of January 2012. The first three times, JH was home and the sheriff brought her to school. Notably, the sheriff “could not recall” whether JH or her father offered a valid reason for JH’s absence on any of these occasions. Two times after that, on the fourth and fifth visits, the sheriff knocked, but no one was home.
On the basis of this evidence, the trial court adjudicated JH a CHINS for her habitual absence from school without justification. JH appealed to the SCOV, arguing that the evidence against her was insufficient to support the CHINS adjudication.
In a unanimous opinion, the SCOV agreed and reversed the decision.
According to the SCOV, the “without justification” portion of the CHINS statute establishes an element that the State must prove by a preponderance of the evidence. It is not enough for the State to show that the juvenile habitually missed school. Justifications do not act as affirmative defenses that students can raise in response to the State’s proof; the State itself must prove the absence of a justification in its own case. Given the difficulty of proving a negative, the SCOV was sure to add that the State meets this burden simply by admitting school records “showing the child’s unexcused absence.”
In JH’s case, no school records were forthcoming. In the SCOV’s words:
There was no evidence from the school … as to its routine practice, and thus no basis to infer anything about what the school may have told the dispatcher on the days in question. The State called no witnesses from JH’s school to testify as to its policies and procedures governing whether, when, and how it reports a student truant, and adduced no school records to show that JH was actually absent without justification on the days in question.
Because of this lack of evidence, the State failed to meets its burden to prove the elements necessary for a CHINS adjudication. All we know is that the officer went to JH’s home five times because of a truancy report from the department dispatcher. But, technically, don’t know whether JH’s absences were unexcused.
This distinction might sound like the height of formalism—after all, why would the school have called the sheriff’s department five times in one month if JH was home with a valid excuse?—but, under the text of the statute, the State simply failed in its offer of proof. Courts cannot ease the State’s burden by assuming a necessary element of the State’s case. Going forward, for CHINS adjudication based on truancy, the State must put forward school records to show lack of justification for the absences.
In addition to forcing the State to meets its burden, this legal requirement also has the practical benefit of ensuring a measure of cooperation in CHINS cases between the sheriff’s department, state’s attorney office, and the school itself. After all, the school has the most contact with the minor and his or her family. As a result, school officials are perhaps in the best position to know whether state involvement, in the form of the initiation of the CHINS process, is called for in individual cases. Requiring the concurrence of schools officials will be a step toward ensuring that only necessary cases of neglect and truancy result in a CHINS adjudication. If the State could meet its burden solely by the testimony of a sheriff, that school input might be lacking, and the system would suffer for it.
So formalism, in this case, at least serves a function.
The implications for my past self, however, are troubling. If school records reflect that a minor habitually misses school, those record are now a critical part of CHINS proceedings. In some cases, truancy can even lead to criminal charges. Of course, those criminal charges are against the child’s guardian—I guess my parents should be thankful that I never let truancy become a habit.
So, kids of Vermont, do as I say and not as I did: Follow the law and the rules.