Opinion
Nos. M08-CP09-010939-A, M08-CP09-010940-A, M08-CP09-010941-A, M08-CP09-010942-A, M08-CP09-010943-A
March 12, 2010
MEMORANDUM OF DECISION ON RESPONDENT PARENTS' MOTION TO DISMISS FOR PETITIONER'S FAILURE TO PRESENT A PRIMA FACIE CASE
This memorandum of decision addresses the issues raised by the oral motions to dismiss submitted by the respondent parents, Angie M. and Jason B. at the close of evidence at a neglect trial pursuant to Practice Book Sec. 15-8. For the following reasons, the court finds that the petitioner has met the assigned burden of presenting evidence sufficient to make out a prima facie case, Accordingly, the department's objections to the motions to dismiss are hereby SUSTAINED, while the respondent parents' motion to dismiss is hereby DENIED.
I PROCEDURAL HISTORY
On April 17, 2009, the Commissioner of the Department of Children and Families (DCF or Department) filed petitions alleging that each of the above children was neglected in that she was, in the alternative, "being denied proper care and attention, physically, educationally, emotionally or morally." The respondent parents denied the allegations of the petitions. Trial of the matters was scheduled to commence on January 5, 2010.
Prior to the commencement of evidence, the court ordered bifurcation of the adjudicatory and dispositional issues raised by the petitions, pursuant to Practice Book Sec. 35a-7. In support of the adjudicatory aspect of its petitions, DCF presented its evidence at trial on January 5 and on January 19, 2010, addressing the circumstances affecting the children prior to the adjudicatory date. On the second day of trial, after DCF had rested its evidence on adjudicatory issues, the respondent mother orally moved the court to dismiss the petitions pursuant to Practice Book Sec. 15-8, asserting that the department had failed to present a prima facie case of neglect as to any of the children. The respondent father joined in this motion; the children's attorney took no position at that time.
Practice Book Sec. 35a-7(b) provides, in pertinent part, that "In the discretion of the judicial authority, evidence on adjudication and disposition may be heard in a nonbifurcated hearing, provided disposition may not be considered until the adjudicatory phase has concluded." Accordingly, in reaching its decision on the respondent parents' motions to dismiss, the court has limited its consideration to evidence of events preceding the filing of the petition, and has disregarded any evidence relating to events that were alleged to have occurred after to April 17, 2009.
See Memorandum of Decision re Motion to Open Evidence and Amend Petition filed in these matters on February 9, 2010 (denying DCF's February 2, 2010 motion, submitted after the close of evidence in its case in chief, requesting the opportunity to add evidence of events occurring after April 17, 2009 with regard to adjudicatory issues).
DCF orally objected to the motion to dismiss, contending that the evidence was sufficient to establish neglect, because during the relevant adjudicatory period each child was denied proper educational care and attention in that she did not attend their school regularly, and thus was deprived of the opportunity to access the educational opportunities scheduled for her. In support of its objection, DCF relied in part upon General Statutes 10-184. The parents responded that the children received adequate educational attention during this period as evidenced by their grades and consistent promotions, so that the department's evidence of non-attendance at school could not be sufficient to support the petitions.
Given the questions raised by the motion to dismiss, the parties were offered the opportunity to brief the issue of school attendance and any relation it may have to the department's allegations of educational neglect, within the scope of child protection law in this state. Consistent with the positions previously stated, briefs were filed by the respondent mother, the respondent father and DCF on or before February 3, 2010. Through counsel, the children filed a brief on February 3, 2010 arguing that because "the state is unable to provide any express provisions in Connecticut statutory or case law providing for a finding of neglect under the circumstances of this case where absenteeism is the primary concern, the attorney for the children has no objection to the respondent parents' motion to dismiss." On March 11, 2010, the parties' counsel declined oral argument on; on that date, however, counsel agreed to permit the court to take judicial notice of the General Assembly's Raised Bill No. 278, An Act Concerning Truancy, proposed to become effective July 1, 2010.
In its brief filed February 2, 2010, the department indicated that it was "seeking a disposition of protective supervision." As the court has bifurcated the issues of adjudication and disposition, the court paid no heed to this representation. See footnote 2, above. If, and only if, the matter is resolved in favor of DCF after completion of the adjudicatory evidence, the court will consider dispositional evidence, and will impose such dispositional orders as are necessary to meet the best interests of each of the children at issue in this case in accordance with the alternatives provided by General Statutes § 46b-129(j), which contemplates commitment to the department as well as protective supervision.
Raised Bill No. 278, An Act Concerning Truancy, contemplates the legislature's enactment of a legal requirement for school districts schedule timely meetings with parents or persons having control of children who are truant to discuss truancy problems. The provision would direct those school districts to refer such truancy problems to the court for attention to such issues within fifteen days after a designated parent or person has failed to attend such meeting. See discussion of court services available for Families With Service Needs in footnote 6, below.
II APPLICABLE LEGAL PRINCIPLES
Pursuant to Practice Book § 32a-3(a), "[t]he standard of proof applied in a neglect, uncared-for or dependency proceeding is a fair preponderance of the evidence." Thus, in this matter, DCF bears the burden of proving the petition's allegations by a fair preponderance of the evidence. The respondents claim that DCF's evidence, as presented in its case in chief, is insufficient to meet the burden assigned by Practice Book § 32a-3(a); the childrens' attorney has no objection to the granting of this motion to dismiss. DCF objects, arguing that it has met its designated burden by both direct and circumstantial evidence.
This motion to dismiss is governed by our rules of practice. "Practice Book Sec. 15-8 provides in relevant part: `If, on the trial of any issue of fact in a civil matter tried to the court, the [petitioner] has produced evidence and rested, a [respondent] may move for judgment of dismissal, and the judicial authority may grant such motion if the [petitioner] has failed to make out a prima facie case . . ." Our courts have established that "`[a] prima facie case . . . is one sufficient to raise an issue to go to the trier of fact . . . In order to establish a prima facie case, the proponent must submit evidence which, if credited, is sufficient to establish the fact or facts which it is adduced to prove . . . In evaluating [the trial court's decision on] a motion to dismiss, [t]he evidence offered by the plaintiff is to be taken as true and interpreted in the light most favorable to [the plaintiff], and every reasonable inference is to be drawn in [the plaintiffs] favor.' (Internal quotation marks omitted.) Winn v. Posades, 281 Conn. 50, 54-55, 913 A.2d 407 (2007); Thomas v. West Haven, 249 Conn. 385, 392, 734 A.2d 535 (1999), cert. denied, 528 U.S. 1187, 120 S.Ct. 1239, 146 L.Ed.2d 99 (2000)." Sullivan v. Thorndike, 104 Conn.App. 297, 302, 934 A.2d 827 (2007). See also Lapointe v. Commissioner of Correction, 113 Conn.App. 378, 388, 966 A.2d 780 (2009).
Defining neglect for matters arising prior to January 1, 2010, § 46b-120(9) provides, in relevant part, that: "a child or youth may be found `neglected' who . . . (B) is being denied proper care and attention . . . educationally . . ." (Emphasis added.) As the Department has correctly observed, "[o]ur courts have not specifically addressed what constitutes educational neglect." Department's Memorandum filed February 2, 2010. Therefore, to assess the respondents' motion to dismiss in the context of the department's allegations of neglect, the court turns to the statutory and common law establishing Connecticut's expectations for the education of children of school age. In this state, education has long been recognized as being fundamental to the well-being of a child. "`Connecticut has for centuries recognized it as her right and duty to provide for the proper education of the young.' State ex rel. Huntington v. Huntington School Committee, 82 Conn. 563, 566, 74 A. 882. Education is so important that the state has made it compulsory through a requirement of attendance. General Statutes 10-184." Horton v. Meskill, 172 Conn. 615, 647, 376 A.2d 359 (1977). As a matter of public policy, General Statutes § 10-184 provides that "All parents and those who have the care of children shall bring them up in some lawful and honest employment and instruct them or cause them to be instructed in reading, writing, spelling, English grammar, geography, arithmetic and United States history and in citizenship, including a study of the town, state and federal governments." To implement this policy, § 10-184 further establishes that " each parent or other person having control of a child five years of age and over and under eighteen years of age shall cause such child to attend a public school regularly during the hours and terms the public school in the district in which such child resides is in session, unless such child is a high school graduate or the parent or person having control of such child is able to show that the child is elsewhere receiving equivalent instruction in the studies taught in the public schools." (Emphasis added. Accordingly, a parent who fails to comply with the legislation implementing the public policy favoring education becomes subject to prosecution for violation of § 10-184 and imposition of the penalty established by General Statutes § 10-185, which provides: "Each day's failure on the part of a person to comply with any provision of section 10-184 shall be a distinct offense, punishable by a fine not exceeding twenty-five dollars." The significance of this public policy promoting school attendance is manifest in the General Assembly's current consideration of Raised Bill No. 278, An Act Concerning Truancy. If enacted, the Bill would remove discretion from school districts who might choose to refrain, for whatever reason, from effectively dealing with truant children; as previously discussed, the proposed legislation would require the school district to hold through mandatory meetings with the parents or others having control over truant children, and would require that such children be brought before the court if truancy problems are not effectively resolved through the school's efforts alone.
The court notes that our "[s]tatutes also describe the responsibilities of school children to attend school." Burns v. Board of Education, 228 Conn. 640, 649, 638 A.2d 1 (1994). The Department is clearly aware of the availability of support for truant children that is available to Families with Service Needs (FWSN) petitions. See Department's memorandum filed February 2, 2010, citing General Statutes § 10-198a ("truant" means a child age five to eighteen . . . who is enrolled in a public . . . school and has four unexcused absences from school in any one month or ten unexcused absences from school in any school year) and referencing both FWSN and Youth in Crisis petitions. The evidence in DCF's case in chief was void, however, of any effort on DCF's behalf to pursue FWSN petitions for some or all of the children relevant to attendance during the 2007-2008 and/or 2008/2009 school years. See General Statutes § 46b-149 (establishing protocol for filing complaints to support a child from a family with service needs) and Practice Book Sec. 27-9 (court protocol for family with service needs referrals).
As Judge Christine Keller, Chief Administrative Judge for Juvenile Matters, recently stated during testimony before the General Assembly's Education Committee's Public Hearing on S.B. 278, An Act Concerning Truancy, the Bill as proposed would have a significant prophylactic effect with regard to truancy and concomitant negative effect upon children who do not attend school regularly: "In the past, the local schools often waited until the end of the year to refer any truants to [the Juvenile Court], and even now, nothing is done about the extensive truancy of children who are under 12 . . . I think [S.B. 278] would catch a lot of truancy problems long before the child's education has been severely compromised due to excessive absence, and it would call for intervention in an earlier, essential stage of a child's school career. I recently read that if you do not teach children to read before the 3rd grade, it is extremely difficult to do that afterward. If a young child misses a great deal of school, you have prepared that child for a lifetime of failure."
Connecticut's appellate courts have not yet opined as to whether a finding that children did not attend school, inferentially due to parents' failure to cause them to attend school in violation of General Statutes § 10-184, coupled with direct evidence that the children have to "catch up" with the rest of the class when they do attend school, is competent to establish a prima facie case of neglect, even where the children are performing on an average level academically and socially. However, the foregoing principles guide the court's application of General Statute § 46b-120(9), to the facts of this case, and support the conclusion that, if credited and the inferences remain unrebutted, such evidence would be legally sufficient to achieve the department's goal.
The reasoning employed by other Juvenile Courts in Connecticut which have considered the subject of whether a child's nonattendance at school is competent to establish educational neglect, albeit under circumstances different from those here presented, and without attention to the implications of § 10-184, supports this court's present determination. For example, in In re Brad S., Superior Court, judicial district of New Haven (November 6, 1991, Downey, J.), the court found that a parent had educationally neglected her child because he was regularly absent from school. That conclusion appears to be grounded upon the factual finding that although the nonattending child graduated from middle school, he was affected by severe cognitive limitations which were not sufficiently addressed by his care taking parent outside the school setting. In In re Chloe W., Superior Court, judicial district of New London, Docket No. K09 CP 06 010253 (July 5, 2007, Mack, J.T.R.), the court found that a child with identified special educational was neglected because, inter alia, the parent, who suffered from her own designated mental health problems was unable or unwilling to cause the child to attend school regularly; as a result, the child suffered academically. Again, in In re Shannon K., judicial district of Tolland, Docket No. T11 CP 06012623 (May 14, 2007, Graziani, J.), the court adjudicated a fifteen-year-old child with social and emotionally arrested development and a poor level of functioning, who refused to attend school, was educationally neglected in the face of a history indicating that she had not regularly attended school for a number of years.
Similarly, this court's finding that DCF has met its burden of establishing a prima facie case of educational neglect is consistent with rulings from other jurisdictions in which similar facts have been considered, albeit often in the context of differing legislative schemes, with like result. For instance, in In re Welfare of B.A.B., 572 N.W.2d 776, 779 (Minn.App. 1998), the court held that a parent's persistent failure to secure a child's regular attendance at school supported an adjudication that the child was in need of protective services. The court rejected the argument that as a matter of law, it could not conclude that the parent was educationally neglectful because the absences had not met the threshold requirement for a finding of habitual truancy. Id. Similarly, in Matter of J.W., 226 Mont. 491, 499, 736 P.2d 960 (1987), the court held that the parent's failure to ensure that the child attended school regularly constituted educational neglect. Although the Montana court made no findings that poor school attendance affected the child's academic performance, it rejected the parent's argument that the child's poor school attendance was a matter for the school authorities, and not for child protection services, and based its determination that the child was subject to educational neglect based on the fact that the mother was responsible for the child's excessive absences. In In re Dareth O., 304 App. Div.2d 667, 668, 758 N.Y.S.2d 372 (2003), the court held that unrebutted evidence of excessive school absences was sufficient to establish the mother's educational neglect in the child protective proceeding, without discussing any adverse impact caused by the child's excessive absences upon her school performance. In In re Ashley X., 50 App. Div.3d 1194, 1195, 854 N.Y.S.2d 794 (2008), however, the court properly identified educationally neglected when the child had multiple absences and the teacher indicated that the child's learning could improve through regular attendance. Addressing the subject of a causal effect upon the child due to nonattendance at school, the Ashley X. court reasoned that in New York, educational neglect "may be premised upon proof that a child has a significant rate of unexcused absences from school which detrimentally affects the child's education, and that the requisite education was not provided from a source other than the public school . . ." (Citations omitted.) Id. Even the reasoning used by the court In re D.H., 178 Ga.App. 119, 342 S.E.2d 367 (1986), cited by the respondent mother, is consistent with this court's conclusion that because § 10-184 effectively requires school attendance by the children who are the subject of the pending petition, the department may prove neglect through evidence allowing the inference that the respondent parents did not cause Amurah, Kayla, Mylin, Jada and/or Soleil "to attend a public school regularly during the hours and terms the public school in the district in which such child resides is in session.
The court notes the respondent mother's argument that Georgia "criminalizes the conduct of failure to ensure [school] attendance as a misdemeanor punishable by fine, incarceration or both. There is no similar provision under the Connecticut Statutes." Mother's Memorandum of Law, filed February 1, 2010. The court declines to accept this argument in view of the implications of the offense established by General Statutes § 10-185, as discussed above. Section § 10-185 expressly provides for punishment "by a fine not exceeding twenty-five dollars" for each day's failure on the respondent parents' part to cause each child to attend school in compliance with § 10-184. Thus, Connecticut has effectively criminalized a parent's conduct in failing to ensure school attendance.
A finding that the petitioner has presented prima facie evidence of educational neglect does not eliminate the opportunity for a respondent parent to present explanatory or even exculpatory evidence, or to attack the quality and impact of the direct and circumstantial evidence submitted during the case in chief. To the contrary, in this case, DCF's evidence of educational neglect may properly be subject to rebuttal by other evidence of events relating the relevant period preceding April 17, 2009 the adjudicatory date. For instance, in In re Jamol F., 24 Misc.3d 772, 784, 878 N.Y.S.2d 581 (2009), the New York family court held that the parent had rebutted the protective services' prima facie case of educational neglect. In New York, "[p]roof that a minor child is not attending public or parochial school in the district in which the parent resides makes out a prima facie case of educational neglect . . . Proof of a prima facie case does not, however, create a conclusive presumption of parental culpability or risk of impairment. It simply creates a permissible inference that the finder-of-fact may choose to draw upon all the evidence in the record. It does not compel a finding in accordance with that inference . . ." (Citations omitted.) Id., 781-82. Thus, the court found that the child's excessive unexcused absences from school did not constitute educational neglect because they were not caused by the parent's behavior, but rather that the mother was making reasonable efforts to discipline her son for not attending school, attempting to obtain an appropriate alternate placement, and maintaining contact with school officials. Id., 785.
The respondent father has argued that "more than a mere per se violation of [§ 10-184] or an arbitrary number of absences must be shown to establish that a child has been neglected. The state must provide evidence of a detrimental effect on a child based upon the conduct alleged to be neglectful to sustain its burden." Father's Memorandum of Law, filed February 2, 2010. In view of the clear and explicit mandate of § 10-184, and in recognition of § 10-185's criminal penalties as contemplated for a parent's violation of the statute requiring that a child be caused to attend school, the court finds that the element of "detrimental effect" is not essential to a finding of neglect at the adjudicatory stage. Even if a finding of detrimental effect is, however, a mandatory element of a finding of educational neglect in this state, as discussed in Part III, the department's evidence thus far, if credited, is competent to establish that each child has in fact been subjected to a negative impact as a result of nonattendance and/or tardiness at school. Accordingly, this aspect of the respondents' argument cannot support the motion to dismiss.
In reaching this determination, the court fully credits the aspect of the respondent father's causation argument that would be relevant to the subject of disposition upon a finding of educational neglect; in the dispositional phase, the court would be required to assess, among other things, the effect if any of educational neglect upon his or her status qua commitment, placement, protective disposition or service implementation through the issuance of the specific steps contemplated by § 46b-129(j).
For the foregoing reasons, the court concludes that in Connecticut, a determination that educational neglect can be proved by competent direct and/or circumstantial evidence that a child failed to attend a public school regularly during the hours and terms of that public school because a parent failed to cause that child to so attend school. With or without a resultant adverse impact upon the child's educational experience, such a determination would be fully consistent with the edict of § 10-184 and with the fundamental elements of our state's child protection legislation as a whole.
Our legislative history fails to reflect a specific discussion of the public policy underlying § 10-184. Such policy basis is found, instead, in the legislative history of Public Acts 2000, No. 00-157, §§ 1 and 8, which amended § 10-184; that history reveals a focused discussion upon the importance of ensuring that children in this state obtain a high school diploma. Conn. Joint Standing Committee Hearings, Education, Pt. 1, 2000 Sess., pp. 205-08, 216-18, 230-31. This discussion centered around the serious financial and social impact of a child's failure to obtain a high school diploma, and included reference to the correlation between not obtaining a high school diploma and the potential for a child's future incarceration. Id., pp. 216-18. See also discussion of S.B. No. 278, An Act Concerning Truancy, at footnote 5 and Part II herein.
III RESOLUTION OF THE PARTIES' CLAIMS
In its case in chief the department presented numerous documents reflecting records maintained by the various schools in which the children were enrolled during the 2007-2008 and the 2008-2009 school years. The department presented testimonial evidence consisting of testimony from school personnel and a DCF social worker.
To the extent that these school records may have reflected information related to the children prior to the 2007-2008 school year, the court found that evidence to be largely remote and thus of little or no weight on the present issue. To the extent that the court did find such evidence relevant, specific factual findings have been referenced herein.
In assessing the credibility of the witness employed by the department, the court acknowledges the parties history of litigation. That history, reflected in the court file, reflects: that DCF had previously filed neglect petitions concerning four of the children at issue in the present case; that those petitions had raised issues similar to those pending in the present matter; that the previous petitions related to three of the children at issue were tried to the court; and that on March 23, 2004, the court (Baldwin, J.) issued its Decision which stated: "Because the Court has no basis upon which to determine whether the absentee rate of the two older children was due to Parents' neglect or a persistent lice infestation, the Court find that DCF has failed to prove Parental neglect by a fair preponderance of the evidence. The Petition sounding in neglect is DENIED as to each and all remaining Counts."
In resolving the issues raised by the parents' motion to dismiss, the court has examined the evidence adduced in DCF's case in chief to determine whether that evidence, if credited, is sufficient to establish, by direct evidence or reasonable inference, that any of the children were "denied proper care and attention, educationally, emotionally or morally," as alleged in the April 17, 2009 petitions. In so doing, the court has assumed the accepted evidence to be true, and has interpreted it in the light most favorable to the department, and with every reasonable inference drawn in the department's favor, as is required by law. Sullivan v. Thorndike, supra, 104 Conn.App. 302; Lapointe v. Commissioner of Correction, supra, 113 Conn.App. 388.
The court has utilized the applicable legal standards for assessing the evidence pertinent to the motion to dismiss. "It is an abiding principle of our jurisprudence that `[t]he sifting and weighing of evidence is peculiarly the function of the trier [of fact]. [N]othing in our law is more elementary than that the trier [of fact] is the final judge of the credibility of witnesses and of the weight to be accorded to their testimony . . . The trier has the witnesses before it and is in the position to analyze all the evidence. The trier is free to accept or reject, in whole or in part, the testimony offered by either party.' (Citations omitted; internal quotation marks omitted.) Smith v. Smith, 183 Conn. 121, 123, 438 A.2d 842 (1981)." Welsch v. Groat, 95 Conn.App. 658, 664, 897 A.2d 710 (2006). In sum, "[t]he determination of the credibility of the witnesses is a function of the trial court . . ." Id. "The [fact-finding] function is vested in the trial court with its unique opportunity to view the evidence presented in a totality of circumstances, i.e., including its observations of the demeanor and conduct of the witnesses and parties . . . `[i]t is the right and the duty of the [trier of fact] to draw reasonable and logical inferences from the evidence.' (Internal quotation marks omitted.) Russell v. Russell, 91 Conn.App. 619, 642, 882 A.2d 98, cert. denied, 276 Conn. 924, 925, 888 A.2d 92 (2005). `In considering the evidence introduced in a case, [triers of fact] are not required to leave common sense at the courtroom door . . . nor are they expected to lay aside matters of common knowledge or their own observations and experience of the affairs of life, but, on the contrary, to apply them to the facts in hand, to the end that their action may be intelligent and their conclusions correct.' (Internal quotation marks omitted.) In re Kristy A., 83 Conn.App. 298, 316, 848 A.2d 1276, cert. denied, 271 Conn. 921, 859 A.2d 579 (2004)." Welsch v. Groat, supra, 95 Conn.App. 666-67.
Adhering to these stated principles of law, the following general findings could be made from the evidence adduced in DCF's case in chief, relevant to the motion to dismiss, and/or through reasonable inferences drawn therefrom: that the children have been enrolled in public elementary and middle schools in their city of residence; that there were many days during the 2008-2009 year, prior to the April 2009 adjudicatory date, when children at issue did not attend school and/or were tardy; that as a result of their tardiness or missing school days, the children were impacted as they were not exposed to the information and/or skill development that had been taught in their absence and were obligated to "catch up" with their classmates; that the children did not consistently demonstrate their full academic potential and failed to reach this goal because their tardiness and/or absences interfered with their academic progress; and that the children were consistently promoted to the next grade notwithstanding these factors.
As to Amurah, specific evidence is sufficient to support the further conclusion that she was enrolled in 8th grade during the 2008-2009 school year. During the first three quarters of that year, Amurah missed approximately 19 days of school, representing 12 absences, six days of suspension, and one dismissal by the nurse; in addition, she was tardy on 24 days. (Exs. Q, R.) During the second quarter of 8th grade, during which Amurah missed at least 7 days of school, her average in Integrated Language Arts fell from a B+ to a C-; her grade in music fell from an A to an F. (Ex. Q.) If credited, then, through the evidence applicable to Amurah's status, DCF has met its burden of proving that because this child did not attend school regularly during the hours and terms the school in which she was enrolled was in session, she was adversely impacted from an educational perspective, and did not receive adequate educational attention. Thus, the evidence is sufficient to support the determination that the petitioner has made out a prima facie case of educational neglect as to Amurah according to the standard of review established by Sullivan v. Thorndike, supra, 104 Conn.App. 302; Lapointe v. Commissioner of Correction, supra, 113 Conn.App. 388. See Part II, above.
The court notes that for the 2008-2009 school year, which includes time extending beyond the adjudicatory period, Amurah was awarded a C+ in Integrated Language Arts. Despite A's awarded in the first, third and fourth quarters of this school year, Amurah's final grade in Music was a D+, demonstrating the marked impact of the F earned in the second quarter. (Ex. Q.)
The evidence does not permit the inference that any of the childrens's grades were lowered as a disciplinary measure in response to her repeated absences. See, e.g., Campbell v. Board of Education, CT Page 6888 193 Conn. 93, 475 A.2d 289 (1984) (defendant's policy, which allowed students' course grades to be lowered in response to unapproved absences, was not shown to be disciplinary in nature and thus did not conflict with public policy mandating school attendance).
As to Kayla, specific evidence is sufficient to support the further conclusion that during the 2007-2008 school, when she was enrolled in 6th grade, Kayla missed approximately 32 days of school, representing 31 absences and 1 day of suspension. In addition, she was tardy on at least 47 days. (Ex. M, P.) Although she received A's in some of her 6th grade classes, and improved her social studies grades over the school year, her absences interfered with her progress in science; Kayla received a C+ for the first quarter of 6th grade science, but received a final grade of D-. Kayla's Integrated Language Arts quarterly grades included 3 Cs and a C+; Kayla was capable of better work, but that her attendance needed to improve to achieve the goal of improved performance in school. (Ex. M.)
Kayla was enrolled in 7th grade during the 2008-2009 school year. During the first three quarters of this school year, she missed approximately 19 days of school, representing 19 absences, and she was tardy on 26 days. (Ex. N, O.) During the second quarter, during which Kayla was absent at least 6 days, her average in Integrated Language Arts fell from a B to a C+; her grade in Music fell from an A to an F; and her grade in Science fell from an A to a C-. (Ex. N.) Despite the laudatory comments concerning Kayla's effort and class participation in 7th grade, if credited, through the totality of the evidence applicable to Kayla's status in a reasonable time period prior to the adjudicatory date, DCF has met its burden of proving that because this child did not attend school regularly during the hours and terms the school in which she was enrolled was in session, she was adversely impacted from an educational perspective, and did not receive adequate educational attention. (Ex. N.) Thus, the evidence is sufficient to support the determination that the petitioner has made out a prima facie case of educational neglect as to Kayla according to the standard of review established by Sullivan v. Thorndike, supra, 104 Conn.App. 302; Lapointe v. Commissioner of Correction, supra, 113 Conn.App. 388. See Part II, above.
As to Soleil, specific evidence is sufficient to support the further conclusion that during the first three quarters of the 2008-2009 school year, when she was enrolled in 4th grade, this child was absent from school on approximately 22 days; in addition, she was tardy 33 times. (Ex. G.) In 4th grade, Soleil performed at an average level in her reading group, was accepted by her peers, got along with everyone and was not ostracized, and seemed to be "on target" with regard to expectations for 4th graders at her school. Nonetheless, these absences had an impact upon her performance and grades; without the benefit of contemporaneous classroom instruction, Soleil was required to "catch up" on work the other students had performed and skills they had learned in class while she was not present. (Tes. Mary O.) Despite the positive comments concerning Soleil's effort and class participation in 7th grade, if credited, through the totality of the evidence applicable to this child's status in a reasonable time period prior to the adjudicatory date, DCF has met its burden of proving that because this child did not attend school regularly during the hours and terms the school in which she was enrolled was in session, she also was adversely impacted from an educational perspective, and did not receive adequate educational attention. (Ex. N.) Thus, the evidence is sufficient to support the determination that the petitioner has made out a prima facie case of educational neglect as to Soleil according to the standard of review established by Sullivan v. Thorndike, supra, 104 Conn.App. 302; Lapointe v. Commissioner of Correction, supra, 113 Conn.App. 388.
Soleil's 4th grade teacher wrote weekly notes to the respondent parents explaining that the child's tardiness and absences were keeping her from improving. The respondent parents receipt of the notes was apparent as Soleil returned them to school bearing the respondents' signatures. (Tes. Mary O.)
As to Jada, specific evidence is sufficient to support the further conclusion that during the first three quarters of the 2008-2009 school year, when she was enrolled in 2nd grade, this child was absent approximately 27 times; in addition, she was tardy on 36 days, and was dismissed by the nurse on 5 occasions. (Ex. H.) During that period, Jada's teacher attempted to reach the respondent parents by phone, and through the school nurse, to discuss the impact these absences and tardy arrivals were having upon the child. As those efforts were unsuccessful, the teacher frequently wrote notes home to Jada's parents during this period instructing the respondents on the importance of getting the child to school regularly, and on time. Because she was tardy and absent so often, Jada missed lessons that had been taught while she was not in class, missed morning sessions in which the students reviewed what they had learned on prior days, missed opportunities to build upon past instruction, and did not reach the academic level she otherwise could have achieved. Although some of her grades did improve during that school year, if credited, through the totality of the evidence applicable to Jada's status in a reasonable time period prior to the adjudicatory date, DCF has met its burden of proving that because this child did not attend school regularly during the hours and terms the school in which she was enrolled was in session, as she was adversely impacted from an educational perspective, she did not receive adequate educational attention. (Ex. N.) Thus, the evidence is sufficient to support the determination that the petitioner has made out a prima facie case of educational neglect as to Jada according to the standard of review established by Sullivan v. Thorndike, supra, 104 Conn.App. 302; Lapointe v. Commissioner of Correction, supra, 113 Conn.App. 388. See Part II, above.
At least two of these dismissals were related to head lice with which Jada was affected. Head lice is a not-uncommon problem affecting elementary school children; its mundane status of this condition is apparent in its status as a line item upon the form used by the school nurse to record interactions with students. (Ex. K.) The school nurse had first noted that Jada was affected by head lice on September 14, 2006. On several occasions during the 2006-2007, 2007-2008, and 2008-2009 school years, the school nurse had called Jada's parent and provided both instructions and shampoo to address the head lice and/or nits that were affecting the child. Jada was seen by the school due to her scratching or noted presence of head lice or nits on approximately three occasions during the 2007-2008 school year; and on approximately nine occasions during the 2008-2009 school year. (Ex. K.)
Finally, as to Mylin, specific evidence is sufficient to support the further conclusion that during the first three quarters of the 2008-2009 school year, when she was a kindergartener, this child missed approximately 16 days of the scheduled morning-only classes, and was tardy on 36 occasions. (Ex. I, Tes. Kara P.) Mylin's tardiness interrupted the structure of the kindergarten curriculum being taught to her; she missed between fifteen to thirty half-hour classes during this period, and did not return most homework. Although she socialized well and was chronologically young for kindergarten placement, Mylin's school performance would have improved if she had better attendance. (Tes. Kara P.) If credited, then, through the evidence applicable to Mylin's status during a reasonable time prior to the adjudicatory date, DCF has met its burden of proving that because this child did not attend school regularly during the hours and terms the school in which she was enrolled was in session, she was adversely impacted from an educational perspective, and did not receive adequate educational attention. (Ex. N.) Thus, the evidence is sufficient to support the determination that the petitioner has made out a prima facie case of educational neglect as to Mylin according to the standard of review established by Sullivan v. Thorndike, supra, 104 Conn.App. 302; Lapointe v. Commissioner of Correction, supra, 113 Conn.App. 388. See Part II, above.
IV CONCLUSION
It is axiomatic that the adjudicatory aspect of the neglect petition directs the court's attention to the status of the children at issue, rather than to the conduct of any adult caretaker who may or not have engaged in acts or omissions that led to the children's neglect. "`A neglect petition is sui generis and, unlike a complaint and answer in the usual civil case, does not lead to a judgment for or against the [respondent parents].' In re David L., 54 Conn.App. 185, 191, 733 A.2d 897 (1999)." In re Allison G., 276 Conn. 146, 158, 883 A.2d 1226. "The focal point of a neglect petition is not condemnation of the parents, but, rather, the status of the child. In re David L., supra, 54 Conn.App. 191-92; In re Elisabeth H., 45 Conn.App. 508, 511, 696 A.2d 1291, cert. denied, 243 Conn. 903, 701 A.2d 328 (1997), cert. denied, 523 U.S. 1137, 118 S.Ct. 1840, 140 L.Ed.2d 1091 (1998). That status, however, is determined as a result of the adjudication, not the disposition of the petition." In re Allison G., supra, 276 Conn. 164.
In addressing the issues raised by the parties concerning the subject of educational neglect, the court has examined the department's evidence within the applicable context of § 46b-120(9) and § 46b-129(j), in conjunction with Connecticut's legislative framework promoting education opportunities for children, and in the light of our caselaw affirming that "[t]he family entity is the core foundation of modern civilization. The constitutionally protected interest of parents to raise their children without interference undeniably warrants deference and, absent a powerful countervailing interest, protection of the greatest possible magnitude." (Emphasis added.) Roth v. Weston, [ 259 Conn. 202, 228, 789 A.2d 431 (2002)]. In other words, we stated, the fundamental right of a parent to make decisions concerning the care, custody and control of his or her children protects against `unwarranted intrusion[s] into family autonomy.' Id., 229." Dutkiewicz v. Dutkiewicz, 289 Conn. 362, 377, 957 A.2d 821 (2008), citing Lassiter v. Dept. of Social Services, 452 U.S. 18, 27, 101 S.Ct. 2153, 68 L.Ed.2d 640 (1981). Considering a similar case in which a parent's rights to make decisions about a child's education was placed at issue by the child's non-attendance at school, the Supreme Court in Alaska has stated, "[w]e agree that the right of parents to the care, custody and control of their children is an important and substantial right protected by, although not specifically enumerated in, both the United States and Alaska Constitutions . . . While parental rights may be of like importance, there is an additional consideration involved. The parents' constitutional right to the care and custody of their children must be balanced against the rights of their children to an adequate home and education." (Citations omitted; emphasis added.) In the Matter of S.D., Jr., 549 P.2d 1190, 1200-01 (Alaska 1976).
In the present case, neither the respondent parents nor the children have submitted, and the court is unaware of, any pertinent Connecticut authority that either would render the parent's right to make decisions concerning the care and control of his or her children superior to the children's right to education, as established by the legislation discussed above, nor that § 10-184's requirement for parents to cause their children to attend school regularly unreasonably interferes with the aforementioned constitutional rights. Accordingly, as did the Alaskan Supreme Court, this court has balanced the respondent parents' constitutional right to the care and custody of their children, and finds that this right is outweighed, under the circumstances of this case, by the children's right to such educational opportunities as are made available to them through attendance at school regularly during the hours and terms the school in the district in which the children reside is in session. See § 10-184; In the Matter of S.D., Jr., supra, 549 P.2d 1200-01.
Thus, fairly and objectively read, the pending petitions present factual circumstances based upon which the department has alleged educational neglect in response to the children's repeated school absences and/or tardiness. The department's evidence, as presented in the course of its case in chief, is competent to establish educational neglect and further sufficient to establish that the children at issue were impacted in a manner adverse to their educational needs by the afore-described pattern of absence or tardiness. Accordingly, despite the respondent parents' protests to the contrary, the court finds that DCF has submitted evidence which, if credited, is sufficient to support its allegation of educational neglect as to each child.
WHEREFORE, the respondent parents' motions to dismiss, brought pursuant to Practice Book § 15-8, are hereby DENIED, and DCF's objection is hereby SUSTAINED.