C.H. v. State

945 So. 2d 463
Court of Civil Appeals of Alabama·Decided December 16, 2005·No. 2040683·Published·Cited by 2 cases

Opinion

THOMPSON, Judge.

On January 19, 2005, Jo Hollins, the attendance officer for the Birmingham City Board of Education, filed in the Jefferson Juvenile Court a verified complaint charging that C.H., a 14-year-old boy in the eighth grade, was a child in need of supervision (“CHINS”) because he had been habitually truant, accumulating 10 absences and 2 tardies from school without providing a legitimate excuse. C.H. entered a plea of “not true” and the juvenile court set the case for a final hearing. After receiving ore tenus evidence, the juvenile court entered an order finding the allegations in the complaint to be “true,” adjudicating C.H. a CHINS, and placing C.H. on probation. C.H. timely appealed.

The limited testimony presented at the final hearing consisted of the testimony of Angela Lee, an attendance officer for the Birmingham' city school system, and D.H., C.H.’s mother. It is worthy of note that D.H. consistently asserted her Fifth Amendment right against self-incrimination during her short time on the witness stand.1

The evidence presented at the hearing established that C.H. had been late to school on 2 occasions and absent from school on 10 occasions from September 2004 to December 2004. A computer printout of C.H.’s attendance record admitted into evidence at the hearing revealed that the tardies and absences on C.H.’s school record at the time the complaint was filed were all unexcused. C.H. never submitted an excuse to the school for his absences; no written excuses are contained in his school records.

Lee testified that the attendance policy adopted by the Birmingham city school system provided for the prosecution of a child over 12 years of age. Lee explained that if the child were under the age of 12, the Birmingham city school system’s policy is to hold the parent responsible.

Lee testified that the attendance of students in Birmingham city schools is monitored with the help of an “automated school map system.” According to Lee, this system allows homeroom teachers to track a student’s daily attendance using a computer program. Lee testified that the computer automatically marks the child [465]*465present and that the teacher must manually mark the child as absent. Lee testified that if a student is tardy, the student must report to the school’s office, and the absence is changed to reflect a tardy.

Lee testified that another attendance officer met with C.H. regarding his 'absences but that there was no improvement. According to Lee, C.H. was referred to an “Early Warning” program on November 18, 2004, after receiving six unexcused absences and two tardies. Lee testified that C.H. and D.H. were notified by mail and by telephone of C.H.’s referral to the “Early Warning” program but that neither C.H. nor D.H. attended the program. C.H.’s attendance record reveals that he was absent from school four more times without excuse after he and D.H. failed to attend the “Early Warning” program.

‘When ore tenus evidence is presented, a presumption of correctness exists as to the trial court’s findings on issues of fact; its judgment based on these findings of fact will not be disturbed unless it is clearly erroneous, without supporting evidence, manifestly unjust, or against the great weight of the evidence. J & M Bail Bonding Co. v. Hayes, 748 So.2d 198 (Ala.1999); Gaston v. Ames, 514 So.2d 877 (Ala.1987).... Moreover, ‘[u]nder the ore tenus rule, the trial court’s judgment and all implicit findings necessary to support it carry a presumption of correctness.’ Transamerica [Commercial Fin. Corp. v. Am-South Bank], 608 So.2d [375] at 378 [ (Ala.1992) ]. However, when the trial court improperly applies the law to facts, no presumption of correctness exists as to the trial court’s judgment. Allstate Ins. Co. v. Skelton, 675 So.2d 377 (Ala.1996); Marvin’s, Inc. v. Robertson, 608 So.2d 391 (Ala.1992); Gaston, 514 So.2d at 878; Smith v. Style Advertising, Inc., 470 So.2d 1194 (Ala.1985); League v. McDonald, 355 So.2d 695 (Ala.1978). ‘Questions of law are not subject to the ore tenus standard of review.’ Reed v. Board of Trustees for Alabama State Univ., 778 So.2d 791, 793 n. 2 (Ala.2000). A trial court’s conclusions on legal issues carry no presumption of correctness on appeal. Ex parte Cash, 624 So.2d 576, 577 (Ala.1993). This court reviews the application of law to facts de novo. Allstate, 675 So.2d at 379 (‘[Wjhere the facts before the trial court are essentially undisputed arid the controversy involves questions of law for the court to consider, the [trial] court’s judgment carries no presumption of correctness.’).”

City of Prattville v. Post, 831 So.2d 622, 627-28 (Ala.Civ.App.2002).

On appeal, C.H. contends that the State failed to produce sufficient evidence indicating that D.H., as C.H.’s parent, could not control the child, and, therefore, failed to produce sufficient evidence under § 16-28-14, Ala.Code 1975, indicating that C.H. was habitually truant. Section 16-28-14, Ala.Code 1975, provides, in its entirety, as follows: [466]*466C.H. maintains on appeal that under § 16-28-14 the State had to prove that C.H.’s parent, D.H., could not control him before he could be found to be a CHINS on the basis of habitual truancy. According to C.H., § 16-28-14 places the legal responsibility for a child’s failure to attend school on his or her parent. As best we are able to determine, C.H. asserts that the State improperly prosecuted him instead of D.H. for his failure to attend school.2

[465]*465“In case any child becomes an habitual truant, or because of irregular attendance or misconduct has become a menace to the best interest of the ’ school which he is attending or should attend, and the parent, guardian or other person files a written statement in court as provided in Section 16-28-13, stating that he is unable to control such child, the attendance officer must file a complaint before the judge of the juvenile court of the county, alleging the facts, whereupon such child must be proceeded against in the. juvenile court for the purpose of ascertaining whether such child is a dependent, neglected or delinquent child.”

[466]*466C.H. correctly notes that there is no Alabama caselaw addressing this issue, but, nevertheless, he maintains that the plain language found in § 16-28-14 mandates reversal under the circumstances of this case. Relating to the rules of statutory construction, this court, in W.L.S. v. K.S.S.V., 810 So.2d 777 (Ala.Civ.App.2001), stated:

“In construing a statute, this court looks to the plain meaning of the words used by the Legislature. Our supreme court has said:
“ ‘ “Words used in a statute must be given their natural, plain, ordinary, and commonly understood meaning, and where plain language is used a court is bound to interpret that language to mean exactly what it says. If the language of the statute is unambiguous, then there is no room for judicial construction and the clearly expressed intent of the legislature must be given effect.” ’
“Blue Cross & Blue Shield v. Nielsen, 714 So.2d 293, 296 (Ala.1998)(quoting IMED Corp. v. Systems Eng’g Assocs. Corp., 602 So.2d 344, 346 (Ala.1992)).

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C.H. v. State, 945 So. 2d 463 (Ala. Ct. App. 2005).

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