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