Presented by

What You Need to Know about Truancy and Vermont Schools

9/26/2016

Nancy Breiden, Esq

Disability Law Project

Vermont Legal Aid

The Law

A person having “control” of a child between the ages of 6 and 16 must make sure the child attends school

School

Public School

Approved or recognized independent school

Approved Educational Program

Home Study Program

Exceptions

The child is mentally or physically unable to attend school

The child has completed 10th grade

The child has been excused by the superintendent Cannot be excused for more than 10 consecutive school days

Can only be excused for emergencies or for absence from town (vacation)

Excuse must be in writing

The child is enrolled in and attending an approved or accredited post-secondary school

Exceptions

Youth over the age of 16 are not required to be enrolled in school, but if they are enrolled the same attendance rules apply

Exceptions

If an enrolled student fails to attend school the school will notify the truant officer (appointed by the school board) and the superintendent

Exceptions: The child is excused or exempted from school attendance

The teacher or principal knows the student is absent due to illness

Absences

Some districts treat “excused” absences differently from “unexcused” absences

“Excused” absence may also be an absence due to: Illness

A family emergency such as a death in the family

Family vacation

Religious observances

Absences

The truant officer investigates the cause of the student’s not attending school If the truant officer finds the student’s absence to be “without

cause,” he or she will give written notice to the person “having control” of the student

Differences

There are significant differences between attendance and truancy policies of each supervisory union. Differences include: Number of absences before a student is referred to the State’s

Attorney for possible prosecution

Number of letters the school will send to a family before a student is referred to the State’s Attorney for possible prosecution

Definition of excused and unexcused absence

Availability and scope of a pre-court intervention program or protocol

Tips

Check your school’s website and student manual to see what your school’s attendance and truancy policies are

Find out how your school defines “excused” and “unexcused” absences

Find out how to submit an explanation of an unexcused absence Does the explanation need to be in writing or can you call the

school?

Truancy Report Recommendations

A 2009 Report on Truancy by the Commissioner of Education recommends: Referral to the State’s Attorney’s Office after no more than 10

“unexcused absences”

If both excused and unexcused absences are used as the basis for truancy, referral to the State’s Attorney’s Office after no more than 18-20 absences

Inconsistencies in Truancy Referrals

Despite this recommendation, the number of absences before a student is referred to the State’s Attorney’s Office for possible prosecution is inconsistent across the state and even when schools are in the same district

Differences in the number of absences before a student is referred to the State’s Attorney range from: Referral to State’s Attorney after 3-5 unexcused absences

Referral to the State’s Attorney only after more than 10 unexcused absences

Unexcused Absences

The number of unexcused absences allowed by a school before a student is referred to the State’s Attorney for being truant is important because it defines the amount of time parents have to work with the school to address attendance problems before court involvement TIP:

Check your school’s website and student manual to see how many absences are allowed before the school makes a referral to the State’s Attorney’s Office

Prevention Protocol

Different truancy prevention protocols around the state to promote school attendance before initiation of court action Protocol might include:

Phone call or visit from school or truant officer

Referral to community services to help student get to school

Letter from school describing what will happen if there are further absences

Meeting with student, parents and school to develop plan to improve attendance

Documentation of student’s mental and physical ability to attend school

Report to Department of Children and Families (DCF)

Referral to the State’s Attorney’s Office

Absenteeism

Absenteeism may be a sign that the school is not meeting your child’s unique education needs Getting the student on an IEP or 504 plan might help them achieve

better attendance

Tips

If the student has a disability (or you think the student might have a disability) that is getting in the way of them attending or learning in school, you should talk about the disability with the school early in the truancy process

If your child is already on an IEP or 504 plan, and the plan does not address your child’s absenteeism, the school may not be meeting its requirements under the law

Ask for an IEP or 504 meeting so the IEP or 504 plan can be changed to address your child’s absenteeism

CHINS

If informal efforts to address truancy are unsuccessful, the student may be referred to the State’s Attorney’s Office as a “child in need of care or supervision” or “CHINS”

TIP

The best way to avoid a CHINS proceeding is to address your child’s absences before they become habitual

Definitions

A “child in need of supervision” is defined as a child who either: Has been abandoned or abused by a parent, guardian or custodian

Is without proper parental care or subsistence, education, medical or other care necessary for his or her well-being

Is without or beyond the control of his or her parent, guardian or custodian or

Is habitually and without justification truant from compulsory school attendance

Fines

The person “having control” of a student who is habitually and without justification truant may be fined up to $1000.00

A bill was introduced into legislature last year that would increase the fine to $2000.00

Prosecution

When prosecuting a truancy case, the State’s Attorney must prove that the child is: HABITUALLY absent from school and

The absences were WITHOUT JUSTIFICATION

No definition of “habitually” or “without justification” in statute

Prosecution

Courts have interpreted “habitually” as: 6 ½ days of unjustified absences in a four month period (plus other

excused absences)

14 days of unjustified absences in a 2 month period

28 unjustified absences in 62 school days

Tips

Provide a justification for any absences you can

Phone call from parent or guardian-documented at the school

Provide a written note from home or a doctor explaining the absence

Question

If a student is in school, and the school requests that the parent remove the student from the school before the end of the school day due to disability-related behavior, is this an “unexcused absence without justification”?

Answer

One Vermont court has ruled that it is NOT an unexcused absence without justification finding: “The school’s dismissal of a…..student before completion of the

school day due to the child’s conduct, when the conduct was due in substantial part to a documented disability, cannot properly be considered an unexcused absence, without justification”

Suspension

A school suspension should not be considered an unexcused absence

What to Expect

Once there has been a referral to the State’s Attorney’s Office: You are entitled to a notice and an opportunity to tell the judge your

side of the story

The court will automatically appoint a lawyer to represent the student; the lawyer will be appointed through the Public Defender’s Office

Parents have the right to have a lawyer appointed to represent them, but the court might not automatically appoint them one; parents who want to have a lawyer represent them should ask the court to appoint a lawyer to represent them

The court will appoint a “guardian ad litem” to look out for the student’s best interest

Truancy Lawyer

If your child has or may have a disability that is getting in the way of their attending school, be sure to tell your lawyer about it

Lawyers in truancy cases may not be familiar with the laws relating to education for students with disabilities

The truancy lawyer can contact the Disability Law Project of Vermont Legal Aid for help in explaining to the court how the student’s disability is getting in the way of their attending school and how to make sure the school meets its requirements under the law

TIPS

Tips for working with your lawyer: Be honest and open with your lawyer

What you say to your lawyer is confidential; your lawyer may not tell others what you say to him or her without your permission

Sometimes you are not able to meet with your lawyer until shortly before a hearing

If you don’t understand something, just ask

Make sure your lawyer knows how to contact you

Hearings

Court hearings in truancy cases: Preliminary Hearing

Status Conferences

Merits Hearing

Disposition Hearing

Preliminary Hearing

This is the first hearing: the judge will ask whether you agree or disagree that the student has been habitually and without justification absent from school

Status Conference

There may be many status conferences; these are held to keep the court informed of how attempts to resolve the case are proceeding

Merits Hearing

At the merits hearing the State’s Attorney must prove that the student was habitually and without justification absent from school

Witnesses may be called to testify and other evidence may be presented to the judge

The judge will decide whether your child is a child in need of supervision based on the evidence presented at the merits hearing

TIP

Very few truancy cases go to a merits hearing; most truancy cases are resolved through agreements worked out before the hearing

Disposition Hearing

If the judge decides your child is in need of supervision, the Department for Children and Families (DCF) prepares a plan of services called a Disposition Case Plan

The plan describes what needs to happen to address the truancy issues that brought the case to court in the first place

At the disposition hearing, you let the court know whether you agree or disagree with the Disposition Case Plan

If you disagree with the Disposition Case Plan, another hearing will be set to contest the plan

TIP

Once a Disposition Case Plan is in place, it is important that you follow it

Disability Law Project

The Disability Law Project at Vermont Legal Aid may be able to assist in truancy proceedings involving students with disabilities

People who want to talk to a Disability Law Project advocate can: Call the Vermont Legal Aid toll free number at 800-889-2047

Go to Vermont Legal Aid’s website at www.vtlawhelp.org

Visit the Vermont Legal Aid office in the area where you live