In Re the Welfare of B.A.B.

572 N.W.2d 776, 1998 Minn. App. LEXIS 32, 1998 WL 7434
CourtCourt of Appeals of Minnesota
DecidedJanuary 13, 1998
DocketC7-97-1140
StatusPublished
Cited by10 cases

This text of 572 N.W.2d 776 (In Re the Welfare of B.A.B.) is published on Counsel Stack Legal Research, covering Court of Appeals of Minnesota primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In Re the Welfare of B.A.B., 572 N.W.2d 776, 1998 Minn. App. LEXIS 32, 1998 WL 7434 (Mich. Ct. App. 1998).

Opinion

OPINION

LANSING, Judge.

A parent challenges the district court’s determination that her child is in need of protective services (CHIPS) as lacking necessary education under Minn.Stat. § 260.015, subd. 2a(3) (1996). The parent primarily challenges the legal adequacy of a finding of educational neglect when the child’s absences do not meet the statutory definition of habitual truancy. We affirm.

FACTS

Seven-year-old B.A.B. and her siblings live with appellant, their mother. B.A.B. attends a public elementary school. The family service coordinator for B.A.B.’s school filed a CHIPS petition alleging that B.A.B. is without necessary education because her parent is unable or unwilling to provide that care and that B.A.B. is an habitual truant. The parent denied the allegations of the petition, and an adjudication hearing was held.

The evidence at the hearing demonstrated B.A.B. began the 1996-97 school year as a first-grade student, but was returned to kindergarten in November 1996 because of poor academic performance. She continues to struggle academically and receives special services in reading and math. By mid-September 1996 B.A.B. already had several absences. The family services coordinator made multiple visits to B.A.B.’s home to discuss school attendance. Various explanations were provided for B.A.B.’s absences, including illness and oversleeping. The meetings with B.A.B.’s parent did not result in any improvement in B.A.B.’s attendance. The coordinator testified that on at least five occasions during the current school year, she had personally gone to B.A.B.’s home to pick her up when B.A.B. did not arrive at school. A parenting aide who works with the family through a county human services program also stated that she had often given B.A.B. a ride to school because she had missed the bus.

The school attendance records show that B.A.B. was absent (excused and unexcused) for 20 full days of school between September 3,1996, and April 2,1997, that she was tardy nine times, and missed an additional morning session. The computer system for the kindergarten stddents tracks their attendance only every other day and thus the recorded absences do not register BAJB.’s total absences.

B.A.B.’s parent testified that health problems, including earaches, asthma, and head lice, were the primary reason for B.A.B.’s absences from school. On some days B.A.B.’s parent contacted the school to explain why B.A.B. was absent, but on other days the family just overslept.

B.A.B.’s medical records show that she was seen by a doctor on seven of the days when the school records show she was absent from school. The entries for five of these visits *778 indicate that B.A.B. was seen because of ear infections and was prescribed medication. But the entries for two other visits do not indicate that B.A.B. was unable to attend school. The entry for one visit indicates that B.A.B. “does not seem ill” and the entry for the other visit states that B.A.B. is able to participate in activities at school. A school summary of absences indicated that B.A.B. missed three full days of school without any reason and that B.AB.’s parent reported illness and head lice as the explanation for the other absences.

The district court adjudicated B.A.B. to be in need of protection or services on the ground that B.A.B. is without necessary education because her parent is unable or unwilling to provide that care under Minn.Stat. § 260.015, subd. 2a(3) (1996). The court directed B.A.B.’s parent to ensure that B.A.B. attends school, specifying that the only valid excuse for missing school would be illness, verified by a physician’s statement. The order also provided that absent an emergency, B.A.B.’s doctor appointments must be made after school hours.

ISSUE

Does clear and convincing evidence support the district court’s determination that B.A.B. is in need of protection or services because she is without necessary education due to appellant’s neglect?

ANALYSIS

Findings in a CHIPS proceeding will not be reversed unless clearly erroneous or unsupported by substantial evidence. In re Welfare of D.N., 523 N.W.2d 11, 13 (Minn.App.1994), review denied (Minn. Nov. 29, 1994). Under the “clearly erroneous” portion of this court’s review of the district court’s findings, a district court’s individual fact-findings will not be set aside unless the review of the entire record leaves the court “with the definite and firm conviction that a mistake has been made.” In re Welfare of D.T.J., 554 N.W.2d 104, 107 (Minn.App.1996) (quoting In re Estate of Beecham, 378 N.W.2d 800,802 (Minn.1985)).

In juvenile protection proceedings, this court determines whether the record contains substantial evidence to support the district court’s decision, taking into account that the burden of proof in the district court is “clear and convincing” evidence. D.T.J., 554 N.W.2d at 108 (citing Minn. R. Juv. P. 59.05 and In re Welfare of Rosenbloom, 266 N.W.2d 888, 889-90 (Minn.1978)). The reviewing court will “closely inquire into the sufficiency of the evidence to determine whether the evidence is clear and convincing.” In re Welfare of Clausen, 289 N.W.2d 153,156 (Minn.1980).

The CHIPS petition alleged both educational neglect under Minn.Stat. § 260.015, subd. 2a(3), and that B.A.B. is an “habitual truant” under subsection 12 of the same statute. The district court determined that there was educational neglect under Minn. Stat. § 260.015, subd. 2a(3), but did not address the allegation that B.A.B. is an habitual truant.

A child is in need of protection or services when the child

is without necessary food, clothing, shelter, education, or other required care for the child’s physical or mental health or morals because the child’s parent, guardian or custodian is unable or unwilling to provide that care.

Minn.Stat. § 260.015, subd. 2a(3) (1996) (emphasis added).

An “habitual truant,” defined in a separate subsection, is

a child under the age of 16 years who is absent from attendance at school without lawful excuse for seven school days if the child is in elementary school or for one or more class periods on seven school days if the child is in middle school, junior high school, or high school.

Minn.Stat. § 260.015, subd. 19 (1996). B.AJB.’s parent contends that the record does not show more than seven unexcused absences which is necessary to sustain a finding of habitual truancy, and therefore the evidence is insufficient to support a finding of educational neglect. We disagree.

Statutes “in pari materia” are those “relating to the same person or thing or *779 having a common purpose.”

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