Monnig, In re, WD

• Decision Date: 24 August 1982
• Docket Number: No. WD,WD
• Citation: 638 S.W.2d 782
• Parties: 6 Ed. Law Rep. 1156 In re Stanley MONNIG, Susanne Monnig, and Tammy Monnig, Juveniles. 32420.
• Court: Missouri Court of Appeals

Page 782

638 S.W.2d 782

6 Ed. Law Rep. 1156

In re Stanley MONNIG, Susanne Monnig, and Tammy Monnig, Juveniles.

No. WD 32420.

Missouri Court of Appeals Western District.

Aug. 24, 1982.

Daniel S. Ochstein, Holts Summit, for Aaron Monnig and Mildred Monnig, Parents.

D. Eric Sowers, Pros.Atty., for Chariton County, Keytesville, for Chariton County Juvenile Officer.

Before SHANGLER, P. J., and PRITCHARD and DIXON, JJ.

SHANGLER, Presiding Judge.

The parents Monnig appeal an adjudication of the juvenile court that three minor children were in need of care and treatment because of the neglect of the parents Monnig to provide the education required by law.The order decreed the children wards of the court, placed custody with the juvenile officer, directed that the children be enrolled in the public school but retained placement in the parents so long as the three children attend public school.The parents understood the proceeding in the juvenile court as a criminal prosecution against them, refused to give testimony, and now contend the adjudication was void for want of proof beyond a reasonable doubt.

The proceeding was brought by a petition in the juvenile court in the terms of § 211.091, RSMo 1978 and Rule 128.10.The petition was brought by the juvenile officer in the interest of Stanley, Susanne and Tammy, children of the Monnigs and invoked the jurisdiction of the court by the recitation that the children

are not attending a day school, either public, private or parochial, and as a result may be in violation of the compulsory attendance statute of the State of Missouri, to-wit: Statute [sic] 167.031, RSMo.

The terms of § 167.031 enjoin upon every parent, guardian or other person in charge, custody or control of a child between the ages of seven and sixteen years to cause the infant to attend regularly some day school, public, private, parochial or parish ... or shall provide the child at home with regular daily instructions during the usual school hours which shall, in the judgment of a court of competent jurisdiction, be at least substantially equivalent to the instruction given children of like age in the day schools in the locality in which the child resides.The parent [among the others in charge of the child] is liable under § 167.061 for criminal penalty for violation of the compulsory attendance law.The petition in the juvenile court against the parents Monnig neither alleges nor adjudicates any criminal liability under § 167.061--nor could it--but merely cites the noncompliance with the compulsory school attendance § 167.031 to invoke the exclusive jurisdiction accorded the juvenile court by § 211.031 as to a child in need of care and treatment because of the neglect of the parent "to provide [the] proper ... education ... required by law."

The parental neglect to provide the child with the educational need not only suffices to divest temporary custody [§ 211.131.2] but also, if prolonged, suffices to terminate the parental right to the child [§ 211.447.2(2)(a)b, (b) ].In either event, the intervention of the state for the protection of the child in default of the duty of the natural parent [Prince v. Massachusetts, 321 U.S. 158, 166, 64 S.Ct. 438, 442, 88 L.Ed. 645(1944) ]--and not as the sovereign executor of the criminal law against the parent for violation of compulsory school attendance § 167.061[State v. Pilkinton, 310 S.W.2d 304(Mo.App.1958) ].In the one case, the jurisdiction of the court is engaged by a petition in the interest of the child served upon the parent as a necessary party in interest [§ 211.101andRule 115.01] and the proof of the petition is by clear and convincing evidence [Rule 117.05(b) ].In the other case, the jurisdiction of the court to render a sanction of conviction against the parent is engaged, as in all criminal judgments, by formal accusation [Rules 21.01and22.01] and proof of the offense by evidence beyond a reasonable doubt [State v. Davis, 598 S.W.2d 189, 191[1-4](Mo.App.1980) ].

The petition adjudicated against the Monnigs was for the neglect of the parental duty to educate the children--a subject matter within the exclusive jurisdiction of the juvenile court under § 211.031.1(1)(a).The rules of evidence applicable to such a proceeding are those which govern cases in equity.Rule 117.04;State ex rel. R. L. W. v. Billings, 451 S.W.2d 125, 126(Mo. banc 1970).The standard which appertains to prove the facts of such a petition is evidence clear and convincing, and not, as the parents Monnig contend, beyond a reasonable doubt.Rules 117.04and117.05(b).

The parents Monnig contend the cognate argument that the evidence failed to prove all the elements of the cause of action under § 167.031--that is, that the parents did not cause the children to a regular attendance at some school or alternatively to provide them with daily home instructions during the usual school hours of a quality [in the judgment of a court of competent jurisdiction] equivalent to school instructions.¹They argue in express effect that the adjudication lacked due process because they were entitled to the presumption of innocence which stands until every element of the proof is met beyond a reasonable doubt.That contention iterates the rationales of State v. Cheney, 305 S.W.2d 892(Mo.App.1957), State v. Pilkinton, 310 S.W.2d 304(Mo.App.1958)andState v. Davis, 598 S.W.2d 189(Mo.App.1980) that in a criminal prosecution against the parents for violation of § 167.031, the information must allege and the evidence must prove that the accused parents not only failed to enroll the children in a school but also failed to provide an equivalent home instruction as essential elements of the integral offense.That contention merely renews the misconception that the proceeding was a criminal prosecution under the compulsory school attendance law.The adjudication [as we note] rather was on a petition in the juvenile court under § 211.031--a proceeding without criminal consequences--which alleged the neglect of the parents to educate the children as required by § 167.031.

The question nevertheless persists as to the nature of the proof necessary to sustain a petition for neglect of the parental duty to educate the children under § 167.031.The argument of the Monnigs, transposed from a criminal prosecution to a proceeding under § 211.031, contends that where the juvenile court acts to assert jurisdiction in the interest of the children because of the neglect of the parents to educate them according to the strictures of § 167.031 the burden of proof encompasses [as in a criminal prosecution, albeit by the lesser clear and convincing standard], not only that the children were not enrolled in a formal school, but also that the parents failed to provide home instruction equivalent to that of the day schools in the locale.

The children were not enrolled in a public or other formal school--that much was stipulated evidence.The home study was not adjudged equivalent to school instruction by a court of competent jurisdiction--that also was stipulated.There was other evidence in support of the petition.The local school principal testified that the three Monnig children were not matriculated in the district.They enrolled but then discontinued attendance.That witness also described the normal curriculum for each of the children according to grade.The principal had no inkling what study program the Monnigs employed at home or [by ready inference] whether that activity was equivalent to formal school instruction.In an initiative to elaborate that proof, the court summoned first Mr. Monnig and then Mrs. Monnig to the witness stand.The counsel for the parents [insistent that the proceeding was a criminal prosecution] intervened, advised the parents to refuse testimony, and moved for a judgment of acquittal.The counsel asserted the authority of Cheney, Pilkinton and Davis, supra, [all criminal prosecutions] that § 167.031 requires the proponent to prove both the failure of the parent to enroll the child in a school and the failure of an equivalent course of study at home.The motion for a judgment of acquittal was premised on the absence of any evidence of the nature and quality of the Monnig home study instruction.The court did not insist upon the testimony of the parents Monnig, but instead received the testimony of the juvenile officer.When the truancy of the Monnig children was reported, he visited the home.The mother told him that the children were in the process of enrollment in the Christian Liberty Academy for instruction by correspondence.The children were tested for grade placement and the Monnigs then awaited delivery of the educational materials.The text books then arrived, and the Monnigs notified the juvenile officer.He perused the texts, consulted with Mrs. Monnig as to the instruction schedule and the subjects instructed--which the mother herself conducted as teacher.The daily regimen consisted of Prayer, Pledge to the Flag, Scripture, Mathematics, Reading, Spelling, Science, Bible, Geography, Physical Education, Economics--among several others.Neither the juvenile officer, nor any other witness, undertook to assess an equivalence or disparity between the home study course and the instruction offered in the schools of the locale.

The court thereupon overruled the motion for a judgment of acquittal and adjudged the three children in need of the care and treatment of the juvenile court under § 211.031 for failure of the parents to educate the children as required by law.The custody was placed with the juvenile officer, but the children were allowed to remain with the parents at home "as long as they are enrolled and attend a public school."

The validity of the standard of proof a state imposes upon a given judicial proceeding depends upon whether the quantum satisfies the constitutional minimum of fundamental fairness.Addington v. Texas, 441 U.S. 418,...