Case Document
May 31, 2001

COMMONWEALTH OF KENTUCKY
SEVENTH JUDICIAL DISTRICT
LOGAN CIRCUIT COURT
CASE NO. 01-XX-00002
(DISTRICT COURT NO. 00-J-00207-

IN RE: DUKES, SARAH E.

OPINION REVERSING


This appeal is from a final disposition of the Logan District Court in a juvenile status offense case. The charge against the Appellant, Sarah Dukes, was of habitual truancy. She was adjudicated to be guilty of this charge and ordered to attend public school until age 18 against the wishes of her parents who had chosen to home school Sarah. Appellant has urged multiple legal and factual grounds for reversal including alleged errors in the factual findings of the lower court, abuse of discretion and failure of the court to enforce an agreement between defense counsel and the County Attorney.

Sarah is a 15 year old in the ninth grade at Logan County High School. She had several unexcused absences from the school in September and October of 2000. About October 7, the School Director of Pupil Personnel, Dr. Jo Orange, sent a letter to the Dukes notifying them that Sarah had three unexcused absences and stating that any additional absences would be referred to the court system.

Mrs. Dukes and her husband were already home schooling their son who was at the sixth grade level and had been doing so for more than one school year. A letter had been sent by the Dukes to the school at the beginning of each school year informing the school of their intent to home school their son and there is no controversy regarding his education. Mrs. Dukes' education consists of some high school education, her general equivalency diploma and some unspecified military training. Mr. Dukes has a 10th grade education.

Mrs. Dukes testified that a decision to home school Sarah was made because she was having headaches and was sick a lot and was taken to the doctor a lot and they couldn't seem to find out what the problem was. After the fall break (the first two weeks of October) she, her husband and Sarah discussed it and decided that with the home school curriculum they could work around Sarah's headaches so that she didn't get behind. The week of October 9 the Dukes began a home schooling program for Sarah on a trial basis using a curriculum purchased from Life Packs from Alpha omega Publishers. Around October 19, Sarah's mother mailed a letter dated October 17 to School officials informing them that she intended to home school Sarah.

On October 19, Dr. Orange visited the Dukes residence to investigate the truancy but was told by Sarah that her mother was unavailable.

The original petition, filed October 27, 2000, charged Sarah with being an habitual truant based upon a total of eight unexcused absences from school in September and October of that fall semester. All of the alleged absences occurred before the date the Dukes notified the school of their intent to home school. During telephonic settlement discussions defense counsel disclosed to the County Attorney legal authority to the effect that a habitual truancy petition could not be sustained until there were at least nine unexcused absences.

The County Attorney then filed an amended petition which added two dates of alleged absence, making the total ten. However, the new absences occurred after the date of the notice to home school given by the Dukes. On January 8, 2001, the Petition was again amended to allege six additional unexcused absences from the spring semester of 2000. No notices had been sent to the Dukes from the school regarding the alleged absences during the prior school year and it was admitted that it was not the school's practice to pursue truancies for prior years, nor were truancies for prior years currently being pursued against other children.

At the arraignment on the first Petition, Sarah's mother told the Court that she was home schooling Sarah. After inquiring into Mrs. Dukes' education, the Court concluded that home schooling was inappropriate and ordered Sarah to attend the public school. Based upon the Court's pre-adjudication statements concerning home schooling, defense counsel moved that the Judge recuse herself. This motion was overruled on January 9, 2001.

An adjudication hearing was held on February 9, and February 13, 2001. The prosecution presented the testimony of Dr. orange concerning the truancies. The Defense produced expert testimony of Dr. Brian Ray concerning the practice of home schooling and his review of the records kept by Mrs. Dukes regarding Sarah's home schooling. He also testified concerning the effect, or lack thereof, of the parents' education upon their ability to home school effectively. Mrs. Dukes testified concerning her home schooling practice and that the reasons for Sarah's absences were due to headaches and allergies.

At the conclusion of the evidence the court made findings that Sarah had committed the offense of habitual truancy and that it was in her best interest to be in public schools.

The court announced that Sarah was sentenced to seven days in detention probated upon the condition that she attend public school every day. Her parents were ordered to have her in school every day. The Court ruled that this order would be in effect until Sarah was 18 years old. The request for stay upon appeal was denied.

After this ruling, some discussion occurred concerning whether the defense would waive the separate disposition hearing required by KRS 610.080. A recess was taken but no waiver of this hearing appears in the transcript. If such a waiver were made off the record, it may have been influenced by the fact that a specific disposition had already been made.

The Judge acknowledged the right of parents to choose home schooling for their children if it were done appropriately but found that once a child is found to be truant it became the court's duty to make educational decisions based upon the best interest of the child.

Significantly, no findings were made concerning any misconduct on the part of the parents. Nor were any findings made concerning the quality of home schooling being provided to Sarah. The sole issue as stated by the trial court was whether Sarah was an habitual truant- With the exception of the evidence concerning the educational level of Mrs. Dukes and a portion of the testimony of Dr. Brian Ray, the testimony at the hearing and the truancy investigation and prosecution focused exclusively on this issue.

Appellant questions the factual conclusions of the Juvenile Court and argues strenuously that the truancies from the Spring of 2000 are unreliable and that those occurring after the notice to home school was mailed should not be considered unexcused.

KRS 600.020 was amended in 2000 so that subsection 28 now makes it clear that in order to adjudicate a child guilty of truancy the court must find that a child has been "reported" as a truant as defined in KRS 159.150 three or more times within a one year period. KRS 1S9.150 defines a truant as any child who has been absent from school without valid excuse for three or more days. It is now clear that nine unexcused absences are required prior to a finding of habitual truancy. Unfortunately, the statute does not specify to whom the required reports are to be made.

The District Court found in this case that a report made by the school to the Board of Education without any notice to the parents sufficed and thus counted the alleged truancies occurring in the Spring of 2000 against Sarah. It is doubtful that the Legislature intended that the "report" be made by the school system to itself. This would serve no legitimate purpose. Had this been the intent there would be no need to divide the reports of unexcused absences into groups of three. It would only be necessary that attendance records reflect nine unexcused absences within one year. Interpreted thus, the language of the statute requiring three separate reports would be entirely arbitrary and thus unconstitutional under Section 2 of the Kentucky Constitution. It is highly unlikely that the Legislature was concerned about the internal paperwork of the school system.

It is more likely that the Legislature intended that reports of truancy were to be transmitted to the parents of the child. This would logically act to address the problem and prevent further truancies. This is the only interpretation which provides a legitimate purpose to this language and is also more consistent with concepts of fundamental fairness.

Appellant also argues that the disposition was inappropriate. A review of the appropriateness of the disposition is difficult due to the lack of a dispositional hearing. The statutory requirement of a separate dispositional hearing is to encourage investigation or inquiry which allows the court to fashion a remedy which specifically addresses the problem. In this case such inquiry might include: Were Sarah's truancies really caused by physical ailments?; How was Sarah doing in public school prior to becoming truant?; How is Sarah's education progressing now that she is being home schooled? The Court had stated during the adjudication hearing on February 9 that it would require a report from Community Based Services with recommendations regarding the truancy prior to making a disposition but this was not done.

Regardless of the problems mentioned above, this case turns upon a more glaring issue. That is whether the conduct of a child in being truant from school, without any showing of misconduct on the part of the parents, triggers a forfeiture of the parents, fundamental right to make decisions concerning their child's education - to the State.

It was acknowledged by the trial judge that, had Sarah not been truant before the notice of home schooling was sent, the court would have no authority to order that she attend public school. The Judge specifically concluded that where a finding of habitual truancy was made that decisions concerning the child's education would thereafter be made by the Court based upon the best interest of the child and that this judicial oversight continues until the child's 18th birthday.

This Court disagrees with this legal conclusion. Parents have a fundamental right to direct the education and upbringing of their children. Pierce v. Society of Sisters, 268 U.S. 510 (1925); Meyer v. Nebraska, 262 U.S. 390 (1923); Wisconsin v. Yoder, 406 U.S. 205 (1972); M.L.B. V. S.L.J., 519 U.S. 102 (1966); Troxel v. Granville, 530 U.S. 57 (2000) This right includes the right of parents to choose an alternate education in lieu of public schools. Pierce v. Society of Sisters, 268 U.S. 510 (1925). Kentucky courts have recognized this right by law and in practice. See, e.g., Kentucky State Board v. Rudasill, 589 S.W.2d 877 (Ky. 1979); KRS159. 030 (1) and Kentucky Home School Requirements and Information published by Kentucky Department of Education (http://www.kde.state.ky.us/osis/resources/np/homeschool_reqs.rtf).

Absent a showing of some form of misconduct on behalf of the parent, this fundamental parental right should not be confiscated by the State because a status offense was committed by the child. First, penalizing the parent for the conduct of a child usually only occurs in the case of criminal conduct by the child. Second, generally speaking, parents are in a better position to make decisions concerning their children than the courts. The assumption by the courts of decision making authority over children should only be accompanied by a specific finding that the parents are not meeting or cannot meet their obligations to their children. Notice to the parents that their rights may be taken and an opportunity to be heard on the issue is required by State and Federal concepts of due process. This means that fundamental parental rights cannot be taken away by legal action directed only at the child.

The petition in this case charging Sarah with habitual truancy is a charge against her directly as a child. Neither the allegations of the Petition nor the proof at the adjudication brought forth any direct inference of misconduct on behalf of Sarah's parents or proof that they were not capable of home schooling Sarah. The trial court clearly stated that it was only considering the issue of whether Sarah was an habitual truant.

If school officials have evidence that Mr. and Mrs. Dukes were acting in complicity with Sarah in promoting her truancy or that the home schooling is not actually being provided or that the Dukes are incapable of home schooling to the educational standards set forth in KRS Chapters 158 and 159, these allegations could be made directly against the parents through a dependency abuse or neglect action under KRS Chapter 620 or other appropriate action.

This Court is fully aware that some parents withdraw their children from school under the pretext of home schooling with no intention of doing so and that some other well intentioned parents may be incapable of providing an adequate education for the children. As a result there are many children in Kentucky who have been withdrawn from public school by their parents who are receiving little or no education. Although these factors were not directly put in issue in this case, it is clear from the record that these were the underlying concerns of the school officials who initiated the charges and of the judge. These are proper concerns. The facts of this case certainly give rise to legitimate concerns about the quality of Sarah's home schooling. These concerns may properly be addressed through investigation and, if merited, direct action against the Dukes.

The State of Kentucky, in accomplishing its constitutional purpose of compulsory education is permitted to monitor private and parochial schools (home schools are considered private schools) by appropriate standardized achievement testing programs. See, e.g. Id.; Kentucky State Board v. Rudasill, 589 S.W.2d 877 at 884 (Ky. 1979). A legal framework has long been in place which permits the State Board of Education to closely monitor home schools. This includes the ability of the State Board of Education through the Director of Pupil Personnel to demand of home schooling parents that they provide proof of curriculum, attendance, and any other records necessary to establish that compulsory education requirements are met. KRS 159.040.

This Court is not aware of any cases in this jurisdiction in which any parents, withdrawal of their child from public school under the stated purpose of home schooling has been directly challenged. This may stem from the long-standing policy of the Department of Education to discourage school personnel from exercising their authority to monitor home schools. Presently, investigations are made only where a specific complaint has been made. The fulfillment by the Department of Education of its statutory duties to monitor and investigate home schooling and truancy situations, to determine where the fault lies and to prosecute cases directly against parents where they are at fault would go far in resolving this problem.

For the foregoing reasons, the disposition of the Logan District Court is reversed with directions to dismiss the Petition against Appellant.

 
ENTER this 31st day of May, 2001.



Tyler L. Gill, Judge
7th Judicial Circuit

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