2008 WI App 73
court of appeals of
published opinion
Case No.: |
2007AP834 |
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Complete Title of Case: |
†Petition for review filed. |
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In the interest of a person under the age of 18:
Petitioner-Respondent, v. Brandon L. Y.,
Respondent-Appellant. † |
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Opinion Filed: |
April 24, 2008 |
Submitted on Briefs: |
November 28, 2007 |
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JUDGES: |
Higginbotham, P.J., Dykman and Lundsten, JJ. |
Concurred: |
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Dissented: |
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Appellant |
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ATTORNEYS: |
On behalf of the respondent-appellant, the cause was submitted on the briefs of Suzanne Edwards, Law Office of Suzanne Edwards, Dodgeville. |
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Respondent |
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ATTORNEYS: |
On behalf of the petitioner-respondent, the cause was
submitted on the brief of Wm. Andrew Sharp, district attorney,
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2008 WI App 73
COURT OF APPEALS DECISION DATED AND FILED April 24, 2008 David R. Schanker Clerk of Court of Appeals |
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NOTICE |
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This opinion is subject to further editing. If published, the official version will appear in the bound volume of the Official Reports. A party may file with the Supreme Court a petition to review an adverse decision by the Court of Appeals. See Wis. Stat. § 808.10 and Rule 809.62. |
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Appeal No. |
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STATE OF |
IN COURT OF APPEALS |
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In the interest of Brandon L.Y., a person under the age of 18:
Petitioner-Respondent, v. Brandon L. Y.,
Respondent-Appellant. |
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APPEAL
from an order of the circuit court for
Before Higginbotham, P.J., Dykman and Lundsten, JJ.
¶1 DYKMAN, J. Brandon L.Y. appeals from an order finding him a juvenile in need of protection and services (JIPS). Brandon contends that the trial court erred by finding that Riverdale Elementary Middle School provided evidence that it complied with the required statutes to support a JIPS order. We conclude that the record establishes that Riverdale provided evidence of all of the requirements for a JIPS order, and therefore affirm.
Background
¶2 The following facts are taken from the hearing testimony and
exhibits and the trial court’s findings.[1] Additional facts will be provided as
necessary in the discussion section.
¶3 On March 14, 2006, Hougan and
¶4 HHS filed a JIPS petition for
Standard of Review
¶5 The construction of a statute is a question of law. Minuteman, Inc. v. Alexander, 147
Discussion
¶6
¶7 To resolve whether Riverdale provided evidence that it had
conducted all the required activities to support a JIPS order, we must construe
Wis. Stat. §§ 938.13(6) and
118.16. We begin statutory construction
with the language of a statute. State
ex rel. Kalal v. Circuit Court, 2004 WI 58, ¶45, 271 Wis. 2d 633, 681
N.W.2d 110. “If the meaning of the
statute is plain, we ordinarily stop the inquiry.”
¶8
¶9 We turn, then, to Wis. Stat. § 118.16(5) to determine what activities are required by a school to support a JIPS order on the basis of habitual truancy.[4] Section 118.16(5) provides:
Except as provided in sub. (5m), before any proceeding may be brought against a child under s. 938.13(6) for habitual truancy[,] … the school attendance officer shall provide evidence that appropriate school personnel in the school or school district in which the child is enrolled have, within the school year during which the truancy occurred, done all of the following:
(a) Met with the child’s parent or guardian to discuss the child’s truancy or attempted to meet with the child’s parent or guardian and received no response or were refused.
(b) Provided an opportunity for educational counseling to the child to determine whether a change in the child’s curriculum would resolve the child’s truancy and have considered curriculum modifications under s. 118.15(1)(d).
(c) Evaluated the child to determine whether learning problems may be a cause of the child’s truancy and, if so, have taken steps to overcome the learning problems, except that the child need not be evaluated if tests administered to the child within the previous year indicate that the child is performing at his or her grade level.
(d) Conducted an evaluation to determine whether social problems may be a cause of the child’s truancy and, if so, have taken appropriate action or made appropriate referrals.
¶10
(2) The school attendance officer:
….
(cg) Shall notify the parent or guardian of a child who is a habitual truant, by registered or certified mail, when the child initially becomes a habitual truant. The notice shall include all of the following:
….
3. A request that the parent or guardian meet with appropriate school personnel to discuss the child’s truancy. The notice shall include the name of the school personnel with whom the parent or guardian should meet, a date, time and place for the meeting and the name, address and telephone number of a person to contact to arrange a different date, time or place. The date for the meeting shall be within 5 school days after the date that the notice is sent, except that with the consent of the child’s parent or guardian the date for the meeting may be extended for an additional 5 school days.
¶11 The problem with
¶12 Next,
¶13 The parties do not directly address whether a meeting took
place so as to satisfy the meeting requirement of Wis. Stat. § 118.16(5)(a).
¶14
¶15 Under Wis. Stat. § 118.16(5)(b),
a school must provide evidence that it “[p]rovided an opportunity for
educational counseling to the child to determine whether a change in the
child’s curriculum would resolve the child’s truancy and … considered
curriculum modifications under s. 118.15(1)(d).”[9] Hougan testified that she met with
¶16 Wisconsin Stat. § 118.16(5)(c) requires the school to provide evidence that it
[e]valuated the child to determine whether learning problems may be a cause of the child’s truancy and, if so, [took] steps to overcome the learning problems, except that the child need not be evaluated if tests administered to the child within the previous year indicate that the child is performing at his or her grade level.
Hougan testified that
¶17 Finally, under Wis.
Stat. § 118.16(5)(d), the school must provide evidence that it
“[c]onducted an evaluation to determine whether social problems may be a cause
of the child’s truancy and, if so, [took] appropriate action or made
appropriate referrals.” Hougan testified
that she conducted an evaluation of
By the Court.—Order affirmed.
[1] Neither party argues that the trial court’s findings of fact are clearly erroneous. However, the parties offer slightly varied versions of the events, and each leaves out some facts that we consider significant. To the extent either party spins or omits key facts, we defer to the factual findings of the trial court, which are supported by the record.
[2] Wisconsin Stat. § 938.13 provides:
The court has exclusive original jurisdiction over a juvenile alleged to be in need of protection or services which can be ordered by the court if any of the following conditions applies:
….
(6) Habitually truant from school…. [T]he juvenile is habitually truant from school and evidence is provided by the school attendance officer that the activities under s. 118.16(5) have been completed or were not required to be completed as provided in s. 118.16(5m).
All references to the Wisconsin Statutes are to the 2005-06 version unless otherwise noted.
[3] The parties do not dispute this initial construction of the statute. Although they agree that the requirements under Wis. Stat. § 118.16(5) must be met to support a JIPS order, they dispute whether the requirements under § 118.16(5) incorporate a requirement of the notice provision in subsection (2)(cg).
[4] “Habitual
truant” is defined as “a pupil who is absent from school without an acceptable
excuse under sub. (4) and s. 118.15 for part or all of 5 or more days on which
school is held during a school semester.”
Wis. Stat. § 118.16(1)(a).
[5] We do not suggest that, absent notice under Wis. Stat. § 118.16(2)(cg), HHS could rely on the exception in § 118.16(5m) to avoid the meeting requirement in § 118.16(5).
[6] The
parties spend considerable parts of their briefs arguing over whether the
notice requirement of Wis. Stat. § 118.16(2)(cg)
is mandatory or directory, whether strict or substantial compliance is
required, and whether Riverdale’s actions provided the required notice to
[7] The
trial court found that all the evidence was met based on testimony of school
personnel.
[8]
[9] Wisconsin Stat. § 118.15(1)(d) states:
Any child’s parent or guardian, or the child if the parent or guardian is notified, may request the school board, in writing, to provide the child with program or curriculum modifications, including but not limited to:
1. Modifications within the child’s current academic program.
2. A school work training or work study program.
3. Enrollment in any alternative public school or program located in the school district in which the child resides.
4. Enrollment in any nonsectarian private school or program,
located in the school district in which the child resides, which complies with
the requirements of 42 USC 2000d. Enrollment of a child under this subdivision
shall be pursuant to a contractual agreement which provides for the payment of
the child’s tuition by the school district.
5. Homebound study, including
nonsectarian correspondence courses or other courses of study approved by the
school board or nonsectarian tutoring provided by the school in which the child
is enrolled.
6. Enrollment in any public educational program located outside the school district in which the child resides. Enrollment of a child under this subdivision may be pursuant to a contractual agreement between school districts.