STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT
17-252
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
PHYLLIS M. KEATY JUDGE
Court composed of Elizabeth A. Pickett, Phyllis M. Keaty, and D. Kent Savoie, Judges.
AFFIRMED.
Charlotte G. Bordenave Public Defender’s Office 215 West Saint Peter Street New Iberia, Louisiana 70560 (337) 365-4006 Counsel for Appellant: T. M. (child)
Walter J . Senette, Jr. Assistant District Attorney Post Office Box 268 Jeanerette, Louisiana 70538 (337) 276-5603 Counsel for Appellee: State of Louisiana 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,
1 The initials of the minor child and her mother are used to protect the minor’s identity. See Uniform Rules—Courts of Appeal, Rules 5–1, 5–2. 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
2 The letter was addressed to T.M. and her mother from Mr. Bruce Hoffmann, informing them that T.M. was in his homeroom and his math class and instructing them on how to download the software to participate in the CA. 2 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 3 the hearing; however, it later agreed to conclude the matter that day. The State re-
called 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.
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STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT
17-252
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
PHYLLIS M. KEATY JUDGE
Court composed of Elizabeth A. Pickett, Phyllis M. Keaty, and D. Kent Savoie, Judges.
AFFIRMED.
Charlotte G. Bordenave Public Defender’s Office 215 West Saint Peter Street New Iberia, Louisiana 70560 (337) 365-4006 Counsel for Appellant: T. M. (child)
Walter J . Senette, Jr. Assistant District Attorney Post Office Box 268 Jeanerette, Louisiana 70538 (337) 276-5603 Counsel for Appellee: State of Louisiana 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,
1 The initials of the minor child and her mother are used to protect the minor’s identity. See Uniform Rules—Courts of Appeal, Rules 5–1, 5–2. 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
2 The letter was addressed to T.M. and her mother from Mr. Bruce Hoffmann, informing them that T.M. was in his homeroom and his math class and instructing them on how to download the software to participate in the CA. 2 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 3 the hearing; however, it later agreed to conclude the matter that day. The State re-
called 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. LaGrange also confirmed that 4 according to her understanding of Louisiana’s educational law, T.M.’s mother had
the absolute right to withdraw her from school and enroll her in a home study
program.
Over the objection of defense counsel, the trial court sought
recommendations from Ronald Rogers of the OJJ about what type of services his
office could provide to T.M. Mr. Rogers stated that in a standard truancy case,
when a student is put on probation with the OJJ, his office would monitor the
student’s grades, attendance, and behavior, along with examining the student’s
family dynamics and providing appropriate counseling, be it Functional Family
Therapy (FFT) or Multi-Systemic Therapy (MST). Mr. Rogers was then sworn in
as a witness to give the parties an opportunity to question him under oath. In
answer to a question posed to him by T.M.’s attorney, Mr. Rogers stated that he
did not have an official recommendation regarding T.M. because this was not the
type of case normally handled by his office. On cross-examination by the State,
Mr. Rogers explained that his office would monitor T.M.’s online homeschool
activities, provide her with counseling not duplicative of that she was already
receiving, and report back to the trial court regarding her progress. On redirect,
Mr. Rogers stated that he was not aware of his office ever having monitored a
student who was adjudicated a truant and who was not on probation in a non-
criminal matter.
After referencing the dispositional guidelines set out in La.Ch.Code arts.
779-781, the trial court made the following disposition from the bench:
I am persuaded from the educational records that exist on the child, as far as the function within the home is not able to receive an education as mandated an[d] required pursuant to Louisiana Law if the child remains in the home, and I am of the belief that disposition or removal of the child is necessary relative to same, I would place the juvenile in the custody of the State of Louisiana for a period of one (1) year in non-secure placement. However, for purposes of the Dispositional 5 Hearing, the defense is suggesting that the child has withdrawn from the Iberia Parish Educational system and has entered into Connections Academy which is apparently a home school online virtual school program in an attempt to be able to provide this child with an education as required and mandated pursuant to State law. Um, the Court, for purposes of considering dispositional guidelines in the programs that are offered is going to therefore suspend the placement of the juvenile for the period one (1) year with the Office of Juvenile Justice in a non-secure placement and place the juvenile on probation, supervised probation, with the Office of Juvenile Justice for a year and a half (1 1/2), subject to the following terms and conditions of the supervised probation, number one, I’m going to want the Office of Juvenile Justice to meet with the family weekly and obtain reports from the online educational institution which show that the juvenile is in fact matriculating successfully within the online educational program, in the event that you are not able to meet with the juvenile on a weekly basis or provide those or obtain that information on a weekly basis, then I’m going [to] want the Court to be notified within fifteen (15) days if there are any potential violation of that specific condition of its probation.
In addition to that, I also believe that it’s necessary for the Office of Juvenile Justice to provide MST counseling services in the home.
The trial court ordered the OJJ to supply a probation officer to meet with T.M. and
her family, in person, on a weekly basis. It also imposed a dusk-to-dawn curfew
on T.M., and ordered her mother to ensure that T.M. was supervised by an adult if
she left their home during her curfew.
T.M. appealed and is before this court alleging that the trial court erred: 1)
in adjudicating her delinquent on the basis of truancy because she had been
removed from the Louisiana public school system and enrolled in a state-
sanctioned home study program and 2) in placing her under the supervision of the
Office of Juvenile Justice (OJJ) for monitoring her school attendance when she
was no longer attending school.
DISCUSSION
Louisiana law requires parents of children between the ages of seven and
eighteen to send their children to school and to assure that their children regularly
attend classes and refrain from being habitually tardy. La.R.S. 17:221. “Solely for 6 purposes of compulsory attendance in a nonpublic school, a child who participates
in a home study program approved by the State Board of Elementary and
Secondary Education shall be considered in attendance at a day school.” La.R.S.
17:236(A).
Louisiana Children’s Code Article 730(1) provides that a family can be
adjudicated in need of services when “a child is truant or has willfully and
repeatedly violated lawful school rules.” The allegation of a FINS petition must be
proven by a preponderance of evidence. La.Ch.Code art. 770. Although we have
found no cases which directly state the appellate standard of review of a trial
court’s ruling on a FINS petition, we find the following case instructive. In State
in the Interest of D.M.G., 579 So.2d 525, 527 (La.App. 4 Cir. 1991) (footnotes
omitted but substance of footnotes included in brackets), the fourth circuit stated:
The appellate standard of review, when a petition for delinquency is filed and a determination of delinquency is found, is the Jackson v. Virginia, [443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)] standard of “in the light most favorable to the prosecution”. State in the Interest of Rowland, 509 So.2d 779 (La.App. 2nd Cir.1987). However, when a petition for delinquency is filed but a determination of a CINS is found, the more rational standard of review would be that imposed by Arceneaux v. Domingue[, 365 So.2d 1330 (La.1978)] of clearly wrong or manifestly erroneous. We reach this conclusion based upon La.C.J.P. article 71 which mandates that nondelinquent proceedings be conducted according to the rules of Civil Procedure and article 73 which establishes the burden of proof in such cases to be by a preponderance of evidence.[3]
Accordingly, we hold that the manifestly erroneous or clearly wrong standard of
review is the appropriate appellate standard of review to apply in this matter.
After a family has been adjudicated in need of services, La.Ch.Code art.
779(A) gives a trial court authority to impose the following dispositional
alternatives:
3 The Code of Juvenile Procedure was repealed effective January 1, 1992. See now generally the Children’s Code. 7 (1) Order the child to submit to counseling or to psychiatric or psychological examination or treatment.
(2) Order the child to cooperate in accepting particular services from any public institution or agency or from any private institution or agency willing and able to provide him with needed services.
(3) Place the child in the custody of a caretaker or other suitable person on such terms and conditions as deemed in the best interests of the child and the public.
(4) Place the child on probation on such terms and conditions as deemed in the best interests of the child and the public.
(5) Assign the child to the custody of a private or public institution or agency, except that the child shall not be placed in a correctional facility designed and operated exclusively for delinquent children, nor shall such facility accept the child.
In addition to the aforementioned dispositions, La.Ch.Code art. 779(A)(6) allows
the trial court to “[m]ake such other disposition or combination of the above
dispositions as the court deems to be in the best interests of the child and the
public.”
At the dispositional hearing, the trial court can consider all evidence offered
by the state, the child, and/or his caretaker, including evidence that “would not be
admissible at the adjudication hearing.” La.Ch.Code art. 778. “The court shall
impose the least restrictive disposition which the court finds is consistent with the
circumstances of the case, the needs of the child, and the best interest of society.”
La.Ch.Code art. 781. Moreover, “[t]he court shall not remove a child from the
custody of his caretakers unless his welfare cannot, in the opinion of the court, be
adequately safeguarded without such removal.” La.Ch.Code art. 780.
The Adjudication
In her first assigned error, T.M. argues that the trial court erred in
adjudicating her “delinquent on the basis of truancy” because she had been
lawfully removed from the Louisiana school system by her mother with the
8 permission and approval of the State. T.M. also contends that the matter was moot
because she was no longer at risk for being truant due to her withdrawal from JSH
and her enrollment in CA, a state recognized and sanctioned homeschool program.
Initially, the State points out that this matter came before the trial court as a
FINS petition rather than as a delinquency proceeding. With regard to the merits,
the State contends that a juvenile and her family cannot escape the jurisdiction of a
FINS court by choosing to be homeschooled. In that regard, the State submits that
while Louisiana’s compulsory attendance laws recognize that a child can be
homeschooled, those laws do not allow a family to avoid being found in need of
services. The State calls this court’s attention to a December 14, 2016 Risk
Indicator Survey completed by Ms. LaGrange, T.M.’s school counselor at the time,
which showed that T.M. had excessive school absences, was not prepared,
frequently failed to complete her homework, and had no desire to learn. The
Survey also noted that T.M. was defiant, manipulative, and disruptive. More
disturbingly, however, the Survey indicated that T.M. had a history of harming
herself and that Ms. LaGrange had to perform a suicide assessment on her two
months prior because T.M. indicated that “she wanted to die.” In a FINS Referral
Report dated December 14, 2016, Ms. LaGrange noted that as of that date, T.M.
had a total of thirty-nine absences and her grades were five Fs and one D. The
report indicated that Ms. LaGrange had conducted multiple face-to-face and
telephone conferences with T.M.’s parent and that she suspected that T.M.’s
behavior might be related to a mental health issue.
One of the stated purposes of Title VII of the Louisiana Children’s Code,
which pertains to families in need of services, is “to define self-destructive
behaviors by the child and conduct by other family members which contribute to
the child’s harm and which warrant court intervention in the family’s life so that 9 appropriate services to remedy the family’s dysfunction can be secured.”
La.Ch.Code art. 726. The evidence showed that T.M. suffers from a broad range
of educational, as well as emotional and social problems. Based on the record
before us, we conclude that the State met its burden of proving that T.M. and her
mother should be adjudicated a FINS. Thus, T.M.’s first assigned error lacks
merit.
The Disposition
In her second assigned error, T.M. contends that because she was no longer
enrolled in a traditional school, the trial court’s disposition in this case should not
have included the monitoring of her school attendance by the OJJ. In that vein,
T.M. submits that the disposition imposed by the trial court was overly onerous
and burdensome and was not the least restrictive disposition available.
Conversely, the State contends that the trial court followed the dispositional
guidelines set out in the Louisiana Children’s Code. The State further points out
that T.M. failed to produce any evidence regarding how the CA operated or its
success rate. Likewise, the defense failed to present any witnesses, including
T.M., to attest to why they believed T.M. was likely to be successful in a
homeschool environment, so as to justify a less restrictive disposition.
The record is replete with T.M.’s propensities for not doing well in, much
less attending, school. It also contains evidence that T.M. is a troubled teen whose
family life needs to be monitored to protect her best interests. After having
reviewed the entire record, including the testimony and evidence presented at the
adjudication and dispositional hearing, we conclude that the trial court did not
manifestly err or abuse its discretion in carving out the least restrictive disposition
given the specific facts presented regarding the dysfunction of T.M. and her
10 family. See State in the Interest of A.B., 09-870 (La.App. 3 Cir. 12/9/09), 25 So.3d
1012.
DECREE
For the foregoing reasons, the judgment adjudicating T.M. a Family In Need
of Services child and placing her on supervised probation with the Office of
Juvenile Justice is affirmed.