Welfare of L.Z., Matter of

• Decision Date: 21 November 1986
• Docket Number: Nos. C7-85-1357,C7-85-1665 and C9-85-1666,s. C7-85-1357
• Citation: 396 N.W.2d 214
• Parties: In the Matter of the WELFARE OF L.Z., C.R.P. and S.L.P.
• Court: Minnesota Supreme Court

Page 214

396 N.W.2d 214

In the Matter of the WELFARE OF L.Z., C.R.P. and S.L.P.

Nos. C7-85-1357, C7-85-1665 and C9-85-1666.

Supreme Court of Minnesota.

Nov. 21, 1986.

Syllabus by the Court

1. For the offense of habitual truancy, the child must (1) be absent from school for the requisite number of days, (2) without a lawful excuse, and (3) by his or her own choice or neglect.

2. School attendance records are admissible as a business records exception, over hearsay and confrontation clause objections, to show the child was absent on a particular day, what excuse, if any, was offered by the parent, or if no parental excuse was offered; the records are not admissible to show the child was "absenting himself" but this can be shown by other evidence such as by the child's admission to school authorities.

3. The evidence in two of the cases is sufficient to sustain the finding of habitual truancy; in the case of the third juvenile, the evidence is insufficient.

Beverly J. Wolfe, Ross Quaintance, Minneapolis, for appellant.

William R. Kennedy, David Knutson, Philip D. Bush, Minneapolis, for respondent.

Heard, considered, and decided by the court en banc

SIMONETT, Justice.

This appeal raises issues of what constitutes the juvenile offense of habitual truancy ¹ and how it may be proved. The court of appeals ruled school attendance records were inadmissible to prove the offense and reversed the determinations of truancy in three cases for insufficiency of the evidence. We reverse the court of appeals in two of the juvenile cases and affirm in the third case.

Respondent L.Z., age 15, was found by the trial court to be a habitual truant and fined $25. Using the school attendance records, which were received in evidence over objection, Blanch Gravlun, the school attendance clerk for Minnetonka High School, testified that while L.Z. had many excused absences, she was also absent 17 days during the fall of 1984 without lawful excuse. Testifying in her own defense, L.Z. said she had been sick (she claimed a doctor diagnosed mononucleosis in mid-November). She said "probably most" of the days her mother had excused her, but the school refused to accept the excuses because "I'm gone a lot, or like if I miss the bus or something they tell me that it's not all right for my mom to excuse me." L.Z. admitted she worked part time 5 days a week throughout the fall and continuing through the time of the hearing. In rebuttal, Ms. Gravlun testified that if an excuse is accepted it is so noted on the student's record. She said she never disregarded notes from L.Z.'s mother; several times she called the mother for verification of the excuse and the mother indicated the child was not excused. On three of the truant days and on one other occasion, said Ms. Gravlun, L.Z. was referred to the principal because of her many absences. Neither parent testified but L.Z.'s father was present during the hearing.

Respondent C.R.P., age 12, was also adjudged a habitual truant. He was placed on probation, required to attend school, and, with his family, to undergo counseling. Again testifying from school attendance records admitted over objection, Florence Finnicum, social worker at Jefferson Elementary School, stated C.R.P. had been absent 3 days in the fall of 1984 and in each instance the father, when called by phone, said the boy should have been in school. The social worker further stated the boy was absent from January 15, 1985, through February 7, 1985, and no excuse was received from either parent during this time. On January 15 C.R.P. was seen off the school premises by the social worker, and the father, when contacted, said the boy should have been in school. Apparently at this time the boy had moved to live with his mother, who lived in the attendance district for the Waite Park School. C.R.P. remained enrolled at Jefferson until he was officially transferred to Waite Park on February 7, 1985. During this time there was no showing he attended school at Waite Park. After January 16 when the school spoke with the mother and learned the boy had moved, it did not attempt to contact either the father or the mother about the boy's absence. (In late January, Ms. Finnicum filed a neglect charge against the parents.) C.R.P. offered no evidence in his defense, but his counsel contended the boy could not be found a truant because the state had not shown it was the boy's fault in not attending school after moving to a new attendance area.

Respondent S.L.P., age 10 (and C.R.P.'s sister), was adjudged a habitual truant for her absences from the Waite Park Intermediate School. She received the same sentence as her brother. Dale Heffron, a school social worker, testified, on the basis of the child's school attendance card received in evidence over objection, that S.L.P. was absent 18 days. On 2 of those days, the parent was not reached. On 2 days the parent wrote a note saying the child overslept. On 4 other days, S.L.P. had been suspended from riding the school bus. On 8 days, the mother called or wrote a note saying her daughter (who lived 8 miles from the school) had missed the bus. On the remaining 2 days, the child missed school because the mother was in the process of transferring to a shelter home. The state called S.L.P.'s mother as a witness, but, because she might have incriminated herself in a pending dependency and neglect proceeding, she did not testify. Neither did the child testify. The court excluded the 4 days S.L.P. was absent because of her bus suspension, but found she was a truant for the other 14 days.

On appeal to the court of appeals, the determinations of truancy in all three cases were reversed. The court of appeals held the state had the burden of proving the child was at "fault" in being absent from school; that the school attendance records, at least to the extent they reflected evaluations of the student's excuses for being absent, denied the child the right to confront the witnesses who made those evaluations; and that the evidence was insufficient to prove habitual truancy as a matter of law. Matter of Welfare of L.Z., 380 N.W.2d 898 (Minn.App.1986). We granted the state's motion to stay implementation of the court of appeals' decision and granted the state's petition for further review.

Three main issues are presented: (1) What are the elements of the offense of habitual truancy? Specifically, must the student "be at fault" in not attending school? (2) Are the school attendance records admissible to prove a case of truancy over an objection based on the confrontation clause? and (3) In each of the three cases, was the evidence sufficient to prove truancy beyond a reasonable doubt?

I.

Under Minn.Stat. Sec. 260.015, subd. 19 (1984) (see footnote 1), a habitual truant is a child "absenting himself from attendance at school without lawful excuse" for the requisite number of days. (Emphasis added.)

The statute does not speak of the child being simply physically absent without lawful excuse but instead speaks of truancy which is "habitual" and of the child "absenting himself," which implies volitional conduct on the part of the child for which the child is responsible. To argue otherwise would be to say that a child who must obey a parent's wrongful command to stay home from school is a truant. Cf. In Interest of C.S., 382 N.W.2d 381, 385-86 (N.D.1986) (child who stays out of school pursuant to a parent's wishes is not a truant). In other words, to be a truant, we hold the child must (1) be absent from school for the requisite number of days, (2) without a lawful excuse, and (3) by his or her own choice or neglect. The classic case of truancy is the child sent to school by his parents, who then skips. A lawful excuse, as defined under the compulsory attendance law, is an excuse applied for by a parent, guardian or other person "having control" of the child. If "demonstrated to the satisfaction" of the school, an excuse will be granted for a child's bodily or mental condition that prevents attendance, or for religious instruction, or if the child has completed the requisite schooling through the 10th grade. See Minn.Stat. Sec. 120.10, subd. 3 (1984).

The state argues, however, it is extremely difficult to prove why a child is absent from school, i.e., to prove the elements of "absenting himself" and no lawful excuse. Parents cannot be required to testify if their testimony might later be used against them in a dependency and neglect proceeding. Nor can the child be required to testify, and parents cannot be made to testify about privileged communications from the child. Thus the state contends it should be entitled to use school attendance records to make out its case, and that the court of appeals erred in refusing to permit their use.

II.

In all three cases, the child's attendance record was received in evidence over an objection that receipt of the record violated the child's right to confront opposing witnesses. The sixth amendment to the federal constitution guarantees that "[i]n all criminal prosecutions the accused shall enjoy the right * * * to be confronted with the witnesses against him." Our state constitution, article 1, section 6, says the same.

The parties spend a great deal of time arguing whether habitual truancy is a criminal offense so that the constitutional right of confrontation attaches. Does a child cited for truancy risk the kind of loss of liberty that is involved in a juvenile delinquency proceeding where the confrontation clause applies? See Allen v. Illinois, --- U.S. ----, 106 S.Ct. 2988, 2994, 92 L.Ed.2d 296 (1986); see also In re Gault, 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967). While we have doubts the confrontation clause is constitutionally mandated here, ² we need not decide the question. The issue is settled for us by the Minnesota Rules for Juvenile Courts. Rule 27.04 provides: "The court shall admit only such evidence as would be admissible in a criminal trial."...