SH v. State

• Decision Date: 27 June 2003
• Citation: 868 So.2d 1110
• Parties: S.H. v. STATE of Alabama.
• Court: Alabama Court of Civil Appeals

868 So.2d 1110

S.H. v. STATE of Alabama.

2020400.

Court of Civil Appeals of Alabama.

June 27, 2003.

Neil Taylor, Jr., Russellville, for appellant.

Submitted on appellant's brief only.

CRAWLEY, Judge.

S.H., a student at Phil Campbell High School in Franklin County, appeals from an order of the juvenile court adjudicating her as a child in need of supervision ("CHINS") and placing her on probation. We affirm.

On December 6, 2002, Gary Williams, the truant officer of Franklin County, signed a verified complaint charging that

"[S.H.] has been tardy from Phil Campbell School, Franklin County on 10 different occasions, in violation of the Alabama School Compulsory Attendance Law (§ 16-28-3) of the Code of Alabama, against the peace and dignity of the State of Alabama.

"In the foregoing said child is in need of supervision, treatment, rehabilitation, care or the protection of the State.

"Charge: CHINS/Truancy XXX-XXX-XXX(4)."

S.H. answered the complaint and entered a plea of "not guilty." Following a bench trial, the court entered an order that states:

"The allegations in the petition ... are true beyond a reasonable doubt.

"Said child is hereby adjudged to be CHINS.

"Said child is placed on probation beginning 1/23/03. If the juvenile complies with the conditions set forth in this order, she will be considered for release at the end of the school year.

"[Listing 16 conditions of probation]."

I.

Initially, we must address Presiding Judge Yates's dissent, which states that, because the juvenile court treated this truancy/CHINS proceeding "as a criminal matter," the appeal should be transferred to the Court of Criminal Appeals. To the extent that the juvenile court did treat the proceeding as a criminal matter, that treatment was authorized—in fact, mandated—by our statutes relating to the procedure for CHINS petitions in juvenile courts.

Section 12-15-1(4), Ala.Code 1975, defines a "child in need of supervision" as one who:

"a. Being subject to compulsory school attendance, is habitually truant from school.

"b. Disobeys the reasonable and lawful demands of the child's parents, guardian, or other custodian and is beyond their control.

"c. Has committed an offense established by law but not classified as criminal or one applicable only to children.

"d. In any of the foregoing, is in need of care or rehabilitation."

(Emphasis added.) Subsections (a) and (c) of § 12-15-1(4) contemplate the kind of proceeding that occurred in this case—one initiated by a complaint charging an "offense," such as truancy, that is not classified as criminal or that is applicable only to children. The juvenile court applied a "beyond-a-reasonable-doubt" evidentiary standard for establishing the predicate "offense" because that standard is mandated by § 12-15-65(e), Ala.Code 1975. At a hearing on a CHINS petition, the State must first establish, by "proof beyond a reasonable doubt, based upon competent, material, and relevant evidence, that a child committed the acts by reason of which the child is alleged to be ... in need of supervision." § 12-15-65(e) (emphasis added). If the juvenile court determines that the child committed the acts alleged, the juvenile court "may proceed immediately to hear evidence as to whether the child is in need of care or rehabilitation." Id.

Once the predicate act or "offense" has been established by proof beyond a reasonable doubt, however, a "civil" evidentiary standard is applicable. The State must establish, by "clear and convincing evidence, competent, material, and relevant in nature, that the child is ... in need of care or rehabilitation as a ... child in need of supervision." § 12-15-65(f), Ala.Code 1975 (emphasis added).

If the juvenile court finds that the State has established the first part of its case by proof beyond a reasonable doubt, and the second part of its case by clear and convincing evidence, then it may "proceed immediately, in the absence of objection showing good cause or at a postponed hearing, to make proper disposition of the case." Id. Disposition of a CHINS proceeding is governed by § 12-15-71(c), Ala. Code 1975. That section provides, in pertinent part:

"(c) If a child is found to be ... in need of supervision, the court may make any of the following orders or dispositions for the child's supervision, care, and rehabilitation:

"(1) Permit the child to remain with the parents, guardian, or other custodian of the child, subject to the conditions and limitations the court may prescribe;

"(2) Place the child on probation under conditions and limitations the court may prescribe;

"(3) Transfer legal custody to any of the following:

"....

"(4) Make any other order as the court in its discretion shall deem to be for the welfare and best interests of the child....

"(5) Direct the parent or custodian of the child to perform such reasonable acts as are deemed necessary to promote the best interest of the child."

(Emphasis added.)

Although some of the procedural aspects of this CHINS proceeding may have had the trappings of a "criminal" case, it is clear that the juvenile court was following the procedure mandated by our statutes and that this court, pursuant to Rule 28(A)(2), Ala. R. Juv. P., has subject-matter jurisdiction of the appeal. That rule provides:

"If the appeal provided in this subsection is taken from a final order, judgment, or decree in a case or proceeding arising out of the jurisdiction of the juvenile court over a child, as that term is defined in § 12-15-1(3), Ala.Code 1975, the appropriate appellate court for purposes of the appeal shall be (a) the Court of Criminal Appeals in proceedings in which a child is adjudicated delinquent and proceedings in which a motion seeking an order to transfer a child to the adult court for criminal prosecution is either granted or denied, and (b) the Court of Civil Appeals in any other case or proceeding."

(Emphasis added.)

At trial, the evidence established that S.H. had been late to school on 10 occasions totaling 40 minutes. William R. Smith, the principal of Phil Campbell High School, explained that the morning tardy bell rings at 7:53 a.m. and that any student who arrives after that time is tardy. He testified that his records indicated the following late arrival times for S.H.:

September 9........7:56 September 26.......7:56 September 13........7:55 November 1.......7:57 September 17........8:00 November 8.......7:55 September 19........8:04 November 14.......7:57 September 25........7:55 November 15.......7:55

The record contains portions of the Student Code of Conduct/Handbook ("the Handbook") approved by the Franklin County Board of Education. Article 4 of the Handbook states that student misconduct is "grouped into three classes (Class I, Class II, and Class III), which range from the least to the most serious." Article 4, § 1.05, categorizes "excessive tardiness and repeatedly reporting late to school or class" as a Class I violation. Article 4, § 2b. sets out the following "disciplinary actions" for "minor" or Class I violations:

"b. Secondary students in grades 7-12

"1) First Offense for grades 7-12

"In-school conference and parental contact when warranted. Special circumstances may warrant disciplinary action as outlined under subsequent offenses.

"2) Subsequent Offenses for grades 7-12

"In-school disciplinary action, such as probation, detention, completion of extra academic assignments, work assignments before or after school, in-school suspension, corporal punishment, or suspension at the discretion of the principal or his/her designated person(s). Special circumstances may warrant a recommendation to the School Board's hearing officer for an alternative educational program apart from the normal setting."

"Truancy" is defined at page 21 of the Handbook as "the habitual and unlawful absence from school." Another section of the Handbook, entitled "Early Warning Program," states:

"EARLY WARNING PROGRAM (Grades K-12)

"The Alabama Compulsory School Attendance Law, Code of Alabama, Section 16-28-03 (1975) requires children between the ages of seven and sixteen to enroll and attend school. Additionally, the Code of Alabama, Section 16-28-12 (1975), as amended May 17, 1993, requires that any parent/guardian who enrolls a student in school be responsible for the child's regular attendance in school and proper conduct there.

"... It is the parents and/or guardian's responsibility to assure that any absence of the student is considered an `excused absence' pursuant to the policy of the school system. If the parent or guardian fails to provide the necessary information to assure the absence is excused and it is recorded as unexcused, court intervention may result.

"....

"To implement the requirements of the Code of Alabama, Section 16-28-03 et seq (1975) your school system, district attorney and juvenile court have implemented an Early Warning Program. Please be advised that all students in grades kindergarten through twelve are subject to the provisions of this program.

"The following procedures for handling truancy and/or conduct problems shall be administered throughout the Franklin County School System.

"1. First truancy per semester (unexcused absence): Teacher shall caution student about truancy and subsequent action to be taken by the school and courts should there be other unexcused absences.

"2. Second truancy per semester (unexcused absence): The school authorities shall notify the parent of the date that the student was truant.

Students who have consecutive unexcused absences, which make their total unexcused absences three or more, will receive a letter from the principal and a `Notice to Appear' in the Early Warning Program at the same time.

"3. Third truancy per semester (unexcused absence):

"a. The parent/guardian or person within control of the said child shall participate in the Early Warning Program provided by the juvenile court.

"b. Attendance at this conference shall be mandatory.

"c.

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