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State ex rel. T.M.

Court of Appeals of Louisiana, Third Circuit

June 1, 2017

STATE IN THE INTEREST OF T.M.

         APPEAL FROM THE CITY COURT OF JEANERETTE PARISH OF IBERIA, NO. 3176 HONORABLE CAMERON B. SIMMONS, CITY COURT JUDGE

         Court composed of Elizabeth A. Pickett, Phyllis M. Keaty, and D. Kent Savoie, Judges.

          Charlotte G. Bordenave Counsel for Appellant: T. M. (child)

          Walter J . Senette, Jr. Assistant District Attorney Counsel for Appellee: State of Louisiana

          PHYLLIS M. KEATY JUDGE.

         After a hearing, T.M.[1] and her mother were adjudicated a Family in Need of Services (FINS) based upon T.M.'s truancy from high school. She was placed in the custody of the State of Louisiana for one year, suspended, with supervised probation with the Office of Juvenile Justice (OJJ) for eighteen months with special conditions. T.M. appeals. For the following reasons, we affirm.

         FACTS AND PROCEDURAL HISTORY

         Although the issue to be decided in this appeal appears to be res nova, the facts are generally not in dispute. On October 4, 2016, a FINS Petition was filed in Jeanerette City Court (hereafter the trial court), under La.Ch.Code art. 730, against E.H., the mother and caretaker of T.M., a fourteen-year-old female, because of T.M.'s truancy with twelve absences from school, of which all but one were unexcused. According to the petition, attempts had been made to assist and encourage the family to remedy the problem by all appropriate and available means, but to no avail. The petition further alleged that because T.M. was ungovernable and could not be controlled by her parent without posing a danger to herself or other family members, a mandatory conference was not appropriate in the matter.

         An adjudication and dispositional hearing was held on February 1, 2017, where T.M. was represented by an attorney from the Iberia Parish Public Defender's Office. At the start of the hearing, the State offered into evidence, as State's Exhibit 1, T.M.'s record from Jeanerette Senior High School (JSH), showing that she had missed thirty-eight days during the current school year. While T.M.'s attorney indicated that she had no objection to the State's exhibit, she sought to introduce into the record a document showing that T.M.'s mother had withdrawn her from JSH and enrolled her in an online homeschool program. Upon the admission of its sole exhibit into evidence, the State rested its case. T.M. then called as a witness James Russell, a school attendance officer employed by the Iberia Parish School Board (IPSB). After Mr. Russell was sworn in, but before any testimony was elicited from him, T.M.'s attorney made an oral motion to continue the matter without date on the ground that the matter was moot because of T.M. having transferred into a homeschool program. The State did not object to a continuance given the fact that T.M. and her family were already receiving FINS services through the district court. Nevertheless, the trial court denied the motion to continue.

         T.M.'s attorney was then allowed to present her defense to the petition. Mr. Russell testified that Louisiana law allows a parent to remove their child from a traditional school and to enroll them in a homeschool program whereby the parent assumes responsibility for their child's education. Mr. Russell explained that homeschooled students remained subject to state-mandated testing, although he was unfamiliar with how they were monitored by the State. He was shown a document marked Defense Exhibit 1, which he identified as a letter dated January 20, 2017, welcoming T.M. to the Connections Academy (CA).[2]

         The State's attempt to cross-examine Mr. Russell regarding T.M.'s school performance, attendance, and how he thought she would do in homeschooling was met by an objection from the defense regarding relevancy. The trial court sustained the objection on the basis that such testimony would be more relevant to the disposition if it were to adjudicate T.M. and her mom as FINS. The trial court then questioned Mr. Russell about a December 14, 2016 letter in T.M.'s school record. Mr. Russell identified the letter as a notification to T.M.'s mother that the IPSB had held an administrative hearing to review T.M.'s welfare and school attendance and that it had upheld her suspension from JSH and placed her on probation for the remainder of the school year. When asked about the procedure for enrolling a student into a recognized homeschool program, Mr. Russell confirmed that the State Department of Education had to approve a student's entrance into such a program. Although he had no personal knowledge of whether the request for T.M. to enroll in the CA had been approved, Mr. Russell stated that he was unaware of any student having been denied such approval.

         On redirect from the defense, Mr. Russell stated that as far as the IPSB was concerned, T.M.'s education was in the hands of her mother and the CA, and T.M. had the option of returning to the IPSB system regardless of how she did in the homeschool program. He agreed that in removing T.M. from the IPSB system, her mother "did not do anything that was not recognized by the State Education Board." Upon re-cross, Mr. Russell stated that the JSH administration referred T.M. to FINS because of her lack of attendance and her unwillingness to attend class when she was at school. Thereafter, the defense entered "a stipulation into the record that the Iberia Parish School system took all the appropriate efforts to try to remediate the compulsory school attendance problem and was unsuccessful." The defense then submitted the case for decision after insisting that there was no need to adjudicate T.M. a truant because she was no longer in school.

         Upon consideration of the record, the testimony, and the exhibits, the trial court ruled in open court that the State had carried its burden of proving that T.M. was "in violation of the compulsory school attendance laws, " and it adjudicated T.M. a FINS child. Initially, the defense sought to delay the dispositional phase of the hearing; however, it later agreed to conclude the matter that day. The State recalled Mr. Russell to the stand to elicit his opinion as to a proper disposition in this case. He noted that because of T.M.'s unwillingness to attend class, her grades were not necessarily indicative of her academic abilities. While he had not received any information from T.M.'s mother as to her progress at the CA, based upon her school records, Mr. Russell stated that some of the "social emotional concerns" exhibited by T.M. in a large classroom setting might make that environment less conducive to her ability to learn. Accordingly, he believed that a homeschool setting might provide T.M. with the "academic nurturing" necessary for her to be able to learn. Mr. Russell noted that if T.M. did not do well in homeschooling, her mom could return her to the IPSB system. He further noted that if a student enrolled in an online program did not attain the required number of hours, that student would not be allowed to move on academically. On cross-examination by the defense, Mr. Russell confirmed that T.M.'s mother had the absolute choice under Louisiana law to remove her from the IPSB and enroll her in an acceptable homeschool program such as the CA.

         The next witness called by the State was Christian LaGrange, T.M.'s former counselor at JSH who had met with her on a regular basis to discuss her grades and attendance in order to help her with any accompanying social issues that were affecting her school performance. She agreed with Mr. Russell's belief that T.M. had yet to show her true academic potential and that, given her lack of motivation to attend school, she was unable to say how T.M. would do with homeschooling. In response to questions posed to her by the defense, Ms. LaGrange agreed that there were many reasons why a student might not want to attend school and that she could not say that T.M.'s poor attendance record was due to her being lazy and/or her unwillingness to do schoolwork. Ms. ...


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