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C A R O L Y N C L A E R H O U T

O A K L A N D S C H O O L S

M P A A A S P R I N G C O N F E R E N C E 2 0 1 4

Truancy: New Compulsory School Attendance Law, 6-18

Compulsory School Attendance

Age 6 to 16 if in 6th grade before 2009 or 11 before 12/1/09. (current 11th and 12th graders)

Age 6 to 18 if in 6th grade in or after 2009 or 11 on after 12/1/09 UNLESS parent/guardian provides written permission to dropout at 16. (current 10th

graders, dob 12/1/98 or after) Parent, guardian or other person in state having

control and charge of a child must send child to public school for the entire school year.

Attendance must be continuous and consecutive. MCL 380.1561(1), (5)

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Compulsory School Attendance

Age 6 before December 1 must be enrolled on first day of school year in which child 6th birthday occurs.

Age 6 on or after December 1 must be enrolled on first day of school in the next school year.

MCL 380.1561(2)

Compare to Right to Attend School in District; Right to Enroll in Kindergarten MCL 380.1147

Right to Attend School: Kindergarten

A child, resident of a school district with NO kindergarten, that is 5 years old on the first day of school, has right to attend school in district.

IF school district has kindergarten, a child resident of a school district has right to enroll in kindergarten if 5 on November 1 of 2013-14, or 5 on October 1 of 2014-15 or 5 on September 1 of 2015-16 and thereafter

Unless parent notifies of intent to enroll child who is 5 on December 1st of the school year. “Parent Notification

MCL 380.1147 & MCL 388.1606(l)(iii)

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Compulsory School Attendance - Exceptions

(a) Attending regularly and being taught in a state approved nonpublic school – comparable subjects for age/grade at public school.

(b) Child is less than 9 and doesn’t reside within 2.5 miles of public school and transportation is NOT provided.

(c) Child is 12 or 13 and is in confirmation classes for 5 months or less.

CSA Exceptions Continued

(d) Religious instruction classes for not more than 2 hours per week off public school property during public school hours BY written request of parent, guardian.

(e) High school graduate.

(f) Educated at home by parent or guardian in organized educational program in reading, spelling, math, science, history, civics, literature, writing and English grammar

MCL 380.1561(3)

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Homeschoolers

Child being educated at home by parent or legal guardian can rely on:

Exemption a – in state approved private school (registered with state)

Exemption f - by parent in organized education program (no state registration required)

Or both MCL 380.1561(4)

Nonpublic School Attendance Report

At the beginning of the school year, a nonpublic school must furnish to the ISD Supt (or the district supt. where the nonpublic school is located):

name and age of each child enrolled at school

number or name of school district and city, township, county where parent/guardian resides

name and address of parent, guardian

name and age of each child not in regular attendanceMCL 380.1578

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School District Attendance Report

School Board Secretary must provide copy of last school census to School Supt and include name and address of attendance officer.

School Supt at start of school shall compare census list with school enrollment and report to the attendance officer the names and addresses of parents of children not enrolled or in attendance at the public school. MCL 380.1577

Attendance Officers

ISD must select 1 or more persons to act as attendance officers for ISD.

Attendance officer must file with ISD Board secretary an “acceptance and oath of office” and a $1,000 surety bond.

A district having 1,000+ students may employ attendance officers. $1,000 surety bond required. If district doesn’t, ISD attendance officer covers.

Attendance Officer (AO) has power of deputy sheriff within the district or ISD. MCL 380.1571

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Attendance Officer Role - Referral

AO must investigate nonattendance when notified by a teacher, supt., ISD supt. or other person. If child is not exempt then: If child is repeatedly absent without valid excuse or

failing school work or has behavior problems AND attempts to confer with parent fail, Supt MAY request AO to notify parent by registered mail to come to school or other place at designated time to discuss child’s irregular attendance, failing work, or behavior problems with school authorities.

Supt must provide information on nonattendance of nonresident pupils to ISD Supt where nonresident pupil resides and ISD AO must investigate. MCL 380.1586

Attendance Officer Role - Notice

If parent or other person in parental relation fails to send child under his or her control to public school or other school listed under Section 1561, the AO, upon receiving notice from proper authority, must give written notice in person or by registered mail to parent requiring child to appear at the public school or other school on the next regular school day and continue regular and consecutive attendance.

AO notify Supt of notice and Supt notify AO if parent fails to comply with notice. MCL 380.1587

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Attendance Officer Role – Court Petition

AO determines whether parent complied with notice.

If parent fails to comply with notice, AO shall bring a legal complaint against parent in court having jurisdiction in the county of residence for refusal or neglect to send child to school.

Court shall issue a warrant and proceed to hear and determine case. MCL 380.1588

AO - School Support

“School officers, superintendents, administrators and teachers shall give assistance and furnish information to aid an attendance officer in the performance of official duties.”

MCL 380.1589

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Penalty

A parent or other person in parental relation who fails to comply with this part is guilty of a misdemeanor

Fine of $5 - $50 and/or

Jail 2 – 90 days

MCL 380.1599

Compulsory School Attendance Law typically enforced in District Court.

Probate Code – Ed Neglect

Family Court has jurisdiction over child and their parents where a parent or other person legally responsible for the care and maintenance of child under age 18 “when able to do so, neglects or refuses to provide proper or necessary support, education….”

MCL 712A.2(b)(1)

An educational neglect case is brought against the parent in Circuit Court.

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Probate Code – School Truancy

Family Court has exclusive jurisdiction over child when a child “willfully and repeatedly absents himself or herself from school or other learning program intended to meet the child’s educational needs.

Have to show child, parent, school officials have met and help sought.

MCL 712A.2(a)(4)

A school truancy case is brought against the child in Circuit Court.

Probate Code – Home or School Incorrigibility

Juvenile deserted home without sufficient cause or refused alternative placement or juvenile and parent have exhausted or refused family counseling

Juvenile repeatedly disobedient to reasonable and lawful commands of parent and court by clear and convincing evidence finds court-accessed services are necessary

Juvenile repeatedly violated school rules and regulations, court finds school, parent and juvenile have met and services sought. MCL 712A.2(a)(2),(3),(4)

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The New Compulsory School Law: 16 and 17 Year Olds

Family Court has exclusive original jurisdiction over juvenile under 17 years of age – so 16 year old covered but 17 year old? MCL 712A.2(a)

Family court has jurisdiction over juvenile under 18 years of age for abuse and neglect BUT usually school attendance becomes truancy rather than edneglect around middle school, age 11-13. MCL 6712A.2(b)(1)

Family Court has wayward youth provision but does that fit truancy???

Probate Code – Wayward Youth

Court finds voluntary services have been exhausted or refused, Family Court can take concurrent jurisdiction over juvenile between 17 and 18 if juvenile is: Repeatedly addicted to use of drugs or alcohol Repeatedly associating with criminal, dissolute or

disorderly persons Found (free will and knowledge) in house of prostitution,

assignation, or ill-fame Repeatedly associating with thieves, prostitutes, pimps,

procurers Willfully disobedient to reasonable and lawful commands

of parents and in danger of becoming morally depravedMCL 712A.2(d)

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Options for 17 year old

Family court jurisdiction not changed for school attendance – juvenile under 17

Family court has wayward youth provision for 17 year old but does it fit truancy?

Compulsory School Attendance Law enforced against parent and action brought in district court so one option for 17 year old is to bring parent into district court . . .

Has to be a better option or strategy

Parent Involvement Contracts

School districts encouraged to develop and implement.

Voluntary, not mandatory.

MDE Model Parent Involvement Contract.

Includes parent “ensure pupil gets to school each day on time, ready to learn.”

Includes child “come to school each school day and be on time.”

Includes teacher “keep accurate attendance and inform parent promptly if an attendance problem starts to develop. MCL 380.1295

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Parent Involvement MDE Info

Parent Involvement = Student Achievement webpage

http://www.michigan.gov/mde/0,1607,7-140-5233-23090--,00.html

MDE Model Parent Involvement Contracts

http://www.michigan.gov/documents/parentinvolvement_26059_7.pdf

Consequences – Work Permits for Minors

Minor is person under 18 years of age. MCL 409.102

Work permit: can suspend and then revoke based on poor school attendance – repeated erratic or unexcused absences which result in lower school performance than before had job. MCL 409.107(1)(a)

Minors under 16 not employed more than combined school and work week of 48 hours when school in session. MCL 409.110

Minors 16 years or older can work 48 hours/week. MCL 409.111

Not Apply if minor is 16 years of age or older and high school graduate or 17 years of age or older with GED or emancipated.

MCL 409.116 & MCL 409.117

Not Apply if minor is 14 years of age or older and WBE MCL 409.118

If required by law to attend school, then work can only be outside school hours unless part of work-based education. MCL 409.119(2)

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Consequences – Family Independence Aid

Each family receiving family independence assistance must have a family self-sufficiency plan and plan must include: Each adult and child age 16 or older who is not attending

elementary or secondary school full-time must participate in the work first program.

Each minor parent who has not completed secondary school to attend school.

The recipient must enroll in a GED prep program, a high school completion program or a literacy training program IF department determines necessary to meet self-sufficiency plan.

DHS must monitor each family’s compliance with the family self-sufficiency plan. Social Welfare Act MCL 400.57e

School Attendance And Student Status - DHS

Family Independence Program (FIP) Dependent children are expected to attend school full time and graduate

from high school or a high school equivalency program Children ages 6 - 17 must attend school full-time

Children between 6-15 not attending school full-time, entire family not eligible for FIP Children 16 or 17 not attending high school full-time, not counted for FIP

Child age 18 must attend high school full-time until graduates or turns 19 Minor parents under age 18 must attend high school full-time; after

graduates referred PATH (Partnership, Accountability, Traning, Hope). If not, minor parent and minor parent’s children not eligible for FIP

Minor parents under age 16 must attend school full-time “High School” includes adult basic ed., alt ed., charter school, GED,

homeschool, nonpublic school, vocational/technical training “School” public school, registered nonpublic school, homeschoolDHS Bridges Eligibility Manual http://www.mfia.state.mi.us/olmweb/ex/bem/245.pdfFederal Social Security Act, Section 419, Michigan Social Welfare Act) 400.57 et seq

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School Attendance and Student Status - DHS

DHS verifies school enrollment/attendance at application and redetermination for 7-17 year olds

DHS requests schools verify on DHS-3380 for 16 and 17 year olds on birthday; DHS calls school; DHS requests something on school letterhead http://www.michigan.gov/documents/dhs/VerificaitonOfStudentInformation_DHS-3380_384550_7.pdf

Under DHS Policy schools determine: Level of enrollment (full-, half-, or part-time), Attendance Compliance Suspensions (reasons for/duration)

If 6-17 not enrolled/attending school, DHS must make truancy referral to ISD Attendance Officer

To regain FIP Eligibility need 21 consecutive calendar days of full-time school attendance

Options 16-18 year old

GED Exam Waiver of 1 year wait requirement if child is between 16-18 (see GED testing procedure requirements and modification doc)

http://www.michigan.gov/mdcd/0,1607,7-122-1680_2798_46108---,00.html Consent to Withdrawal from School Form, one example

on Oakland Schools’ Truancy Dept. website Consent to Withdraw from School Form

Whatever it Takes Graduate Whatever It Takes Graduate Alternative Ed/Adult Ed Programs Seat Time Waiver Programs, Cyber Schools Section 23a Dropout Recovery Programs

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Ungraded School for Certain Juveniles

School Board may create ungraded school for juvenile disorderly persons defined as a . . .

Child age 7-16 (or 18 if turned 11 on or after 12/1/2009 or in 6th grade in 2009 or later) who resides in the district if:

Habitually truant from school OR

Incorrigibly turbulent, disobedient, and insubordinate or immoral in conduct OR

Not attending school and habitually frequents streets and other public places with no lawful business, employment occupation MCL 380.1596

FYI: MDE/CEPI Tracking Truancy in SID

MDE/CEPI tracks truancy in EOY SID where districts report # of students with 10 or more unexcused absences in a school year http://www.michigan.gov/cepi/0,4546,7-113-986_10482---,00.html

MDE/CEPI intend to track truancy better in the future with corresponding state aid penalty. MCL 388.1694a(9) but statute says each district defines unexcused absences.

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Attendance Works: Chronic Absenteeism

Chronic Absenteeism is the new buzz = missing 10% of the School Year, 2 days per month, is too much

Attendance Works website with resources http://www.attendanceworks.org/

Boost Up website and attendance tracker http://www.boostup.org/

MDE looking at this 10% standard

State Aid Act intent language to look at truancy in 14-15 school year. MCL 388.1694a(9)

Questions ???

Oakland School Truancy webpage

www.oakland.k12.mi.us

Department: Government and Community Services

Offices: Truancy

Direct Link:

http://www.oakland.k12.mi.us/Services/GovernmentCommunityServices/Truancy/tabid/267/Default.aspx

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S T A T E O F M I C H I G A N

C O U R T O F A P P E A L S In the Matter of AREK NAPIERAJ, Minor. PEOPLE OF THE STATE OF MICHIGAN, Petitioner-Appellee,

FOR PUBLICATION April 15, 2014 9:05 a.m.

v No. 314305 Oakland Circuit Court

AREK NAPIERAJ,

Family Division LC No. 2012-796045-DL

Respondent-Appellant.

Before: BORRELLO, P.J., and WHITBECK and K. F. KELLY, JJ. PER CURIAM.

Respondent, Arek Napieraj, appeals as of right an order of disposition following his adjudication of guilt on one count of school truancy, MCL 712A.2(a)(4). Finding insufficient evidence that respondent’s absences were “willful,” we reverse.

I. BASIC FACTS

Respondent had a history of frequent absences from school and in September 2011, school officials met with respondent’s mother and respondent to discuss the fact that respondent had already missed four days of school and the school year was just underway. Respondent’s mother explained “I told them that it was an ongoing problem . . . from bullying, he felt he was being bullied in school and he would actually be physically ill in the morning for several hours. He would get up to start his day at like 6:00 a.m. and he would get sick.” School officials responded that “[i]t wasn’t an excuse and that he needed to come to school and tell them if he was being bullied and they would take care of it.”

Respondent and his mother were called for another meeting in February 2012 to discuss respondent’s continued absences. They discussed the parameters of legitimate, excused absences. Respondent’s mother was advised that respondent needed to improve his attendance and that there was “zero tolerance” for unexcused absences. School officials told respondent’s mother that all absences had to be accompanied with a doctor’s note. Respondent missed three days of school following the February meeting, prompting school officials to request the prosecutor’s office to send its standard warning letter, and ultimately, file a formal petition.

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At the hearing on the petition, school officials testified that respondent’s absences persisted and were deemed unexcused because they were not accompanied by a doctor’s note. Respondent’s mother testified that respondent’s attendance had improved and that he only missed two days in March 2012 because he was competing at a dog show in Kentucky—an activity recommended by respondent’s therapist. Respondent missed two or three days after that due to “a stomach bug” and when he had a migraine headache, a symptom of his Asperger’s disease. Respondent’s mother testified that she was hesitant to take him to the doctor’s office because it cost between $50 and $200 per visit. She believed that only “cluster absences” – those greater than two days – needed a doctor’s note.

The trial court adopted the referee’s conclusion that respondent was guilty of truancy.1 Respondent now appeals as of right.

II. ANALYSIS

On appeal, respondent argues that the trial court should have granted his motion for a directed verdict at the close of petitioner’s proofs and that there was insufficient evidence to support the resulting adjudication of guilt under MCL 712A.2(a)(4). We agree.

“In reviewing the denial of a motion for a directed verdict of acquittal, this Court reviews the evidence in a light most favorable to the prosecution in order to determine whether a rational trier of fact could have found that the essential elements of the crime were proved beyond a reasonable doubt.” People v Gillis, 474 Mich 105, 113; 712 NW2d 419 (2006) (internal quotation marks omitted). Similarly, a defendant’s challenge to the sufficiency of the evidence is reviewed de novo, viewing the evidence in the light most favorable to the prosecution to determine whether a rational trier of fact could have found the essential elements of the crime to have been proved beyond a reasonable doubt. People v Meissner, 294 Mich App 438, 452; 812 NW2d 37 (2011). Finally, issues of statutory interpretation are likewise reviewed de novo on appeal. People v Yamat, 475 Mich 49, 52; 714 NW2d 335 (2006).

The truancy statute, MCL 712A.2(a)(4), provides that a trial court may exercise jurisdiction over a juvenile when the juvenile “willfully and repeatedly absents himself or herself from school . . .” Respondent argues that his absences were not “willful” because they should have been deemed excused.

“Willful” is not defined in the statute. “The fundamental rule of statutory construction is to discern and give effect to the intent of the Legislature. If statutory language is clear and unambiguous, the Legislature must have intended the meaning it expressed, and the statute must be enforced as written.” People v Venticinque, 459 Mich 90, 99-100; 586 NW2d 732 (1998) (internal citation omitted). “Undefined words are to be given meaning as understood in common

1 When the dispositional hearing was held, the referee, noting respondent’s improved grades, placed respondent on probation. Respondent ultimately moved to Texas and the trial court terminated jurisdiction in April 2013.

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language, considering the text and the subject matter in which they are used.” People v Lanzo Const Co, 272 Mich App 470, 473-474; 726 NW2d 746 (2006). However,

The Legislature has instructed that any “technical words and phrases” that “have acquired a peculiar and appropriate meaning in the law, shall be construed and understood according to such peculiar and appropriate meaning.” [MCL 8.3a; see also Const. 1963, art. 3, § 7 (“The common law and the statute laws now in force, not repugnant to this constitution, shall remain in force until they expire by their own limitations, or are changed, amended or repealed.”).] And in the criminal-law context, common-law doctrine informs the meaning of a statute when the Legislature uses common-law terms. [People v Smith-Anthony, 494 Mich 669, 676-677; 837 NW2d 415 (2013).]

Black’s Law Dictionary (9th ed) defines “willful” as “[v]oluntary and intentional, but not necessarily malicious.” “[W]ilful involves design and purpose” and “means intentional.” Jennings v Southwood, 446 Mich 125; 139–140; 521 NW2d 230 (1994). However, “[a] thing may be done wilfully without bad faith.” Peters v Gunnell, Inc, 253 Mich App 211, 220 n 8; 655 NW2d 582 (2002). Importantly, “when a statute prohibits the willful doing of an act, the act must be done with the specific intent to bring about the particular result the statute seeks to prohibit.” People v Janes, 302 Mich App 34; 836 NW2d 883 (2013) (internal quotation marks omitted).

At the conclusion of respondent’s case and in the face of the evidence presented by each side, the referee announced its verdict:

THE COURT: Okay, I taught for ten years, you’re found guilty.

MR. TOMALA: I’m sorry?

THE COURT: He’s guilty.

MR. TOMALA: No, what—

THE COURT: He was—he’s found guilty, he had more than one unexcused absence. There was a petition filed, I don’t have any re—just because his attendance improved is –get me a case that says if attendance has improved I don’t take jurisdiction. There is none cause [sic] that’s not the law. They may have wanted his attendance to improve but I wanted him to be in school all the time. He didn’t do it, he is guilty of school truancy.

MR. TOMALA: Just so I’m clear then, your—your statement is that any absence, we’re talking strict liability, any absence results—

THE COURT: Any absence—

MR. TOMALA: —in a truancy?

THE COURT: —without a doctor’s excuse is school truancy.

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This was clear error. Clear legal error occurs “[w]hen a court incorrectly chooses, interprets, or applies the law.” Daily v Kloenhamer, 291 Mich App 660, 665; 811 NW2d 501 (2011). Here, the referee distorted truancy from an act requiring repeated, willful conduct to one of strict liability. “A strict-liability crime is one for which the prosecutor need only prove that the defendant performed the act, regardless of intent or knowledge.” People v Adams, 262 Mich App 89, 91; 683 NW2d 729 (2004). However, “Michigan courts must infer a criminal intent for every offense in the absence of an express or implied Legislative intent to dispense with criminal intent.” People v Janes, 302 Mich App 34, 53; 836 NW2d 883 (2013). MCL 712A.2(a)(4) specifies that a juvenile must have willfully absented himself from school. The referee’s cryptic statement fails to discuss the willfulness of respondent’s conduct. In addition, the referee’s assumption of jurisdiction appears predicated merely on its experience as a former teacher, rather than on the facts and the law presented in this case. Respondent was entitled to individual consideration based upon the law and facts applicable to his case, not on anecdotal experiences of the hearing officer. See Brausch v Brausch, 283 Mich App 339, 354; 770 NW2d 77 (2009).

Our review of the record compels a finding that respondent’s conduct in this case was not willful as contemplated under MCL 712A.2(a)(4). Petitioner’s own witnesses admitted that certain of respondent’s absences were attributable to illness and fear of bullying. Moreover, petitioner’s own attendance record categorized many of respondent’s absences as “excused,” although the school official testified, in essence, that “excused” did not mean “excused” for purposes of the allegations made in the petition against respondent. The official testified that the designation “E-P” on the attendance record indicated “excused, parent called [in],” and the notation “E-IL” designated “excused for illness,” a circumstance where a parent called to report that the student was home sick. The official was unsure what the “E-PC” designation indicated—he speculated that it was a parent call-in—and that “R” indicated an absence due to a school-related function, which absence would not be considered as truant. When asked about the use of the word “excused” on the attendance record in light of the school’s position that, instead, the referenced absences were in fact “unexcused,” the official said, “[y]ou know, I—excused is an interesting term. It just means a parent called.” Thus, it appears that respondent’s attendance record says one thing but means another and that certain “excused” absences were in reality “unexcused.”

Respondent’s mother provided the reasons for respondent’s absences. Respondent was being bullied in school and he would periodically become physically ill and vomit in the morning for several hours; again, petitioner conceded it had received reports of bullying. Respondent’s mother also provided a doctor’s note to the school excusing certain of the disputed absences, and excused two days in March 2012 because respondent was competing at a dog show in Kentucky—an activity recommended by respondent’s therapist. Respondent missed two or three days after that due to “a stomach bug” and when he had a migraine headache, a symptom of his Asperger’s disease. Finally, respondent’s mother explained that she was hesitant to take her son to the doctor’s office because it cost between $50 and $200 per visit. This evidence was not disputed, except by the school’s position that the absences noted as excused on the attendance sheet were, in fact, apparently secretly unexcused, and that any absence needed a doctor’s note. We conclude that, under these facts, respondent’s mother exercised reasonable parental discretion and that the absences should have been deemed excused upon her request.

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On this record, and contrary to the notion that respondent’s absences were “voluntary or intentional,” the evidence militates against a conclusion that respondent’s absences were “willful” within the meaning of MCL 712A.2(a)(4). The referee failed to address the evidence presented on the record or make any reference to the “willful” element of the statute under which respondent was charged. Indeed, the referee made no findings of fact or conclusions of law of any kind and does not appear to have applied the law to the facts of the case in any way. It appears rather that the referee substituted her personal experience and bias and failed to apply the law to the facts; such a position is untenable.

Reversed and remanded for entry of an order of dismissal.

/s/ Stephen L. Borrello /s/ William C. Whitbeck /s/ Kirsten Frank Kelly