On Appeal from Superior Court, Bennington Unit, Family Division February Term, 2013 Karen R. Carroll, J.
The opinion of the court was delivered by: Dooley, J.
In re J. H., Juvenile (2012-316)
PRESENT: Reiber, C.J., Dooley, Burgess and Robinson, JJ., and Zonay, Supr. J.,
¶ 1. This is an appeal from an adjudication that the minor J.H. was a child in need of care and supervision (CHINS) for being "habitually and without justification truant from compulsory school attendance," pursuant to 33 V.S.A. § 5102(3)(D). J.H. contends: (1) the evidence was insufficient to support the findings; and (2) the court improperly shifted the burden of proof on the question of whether she was habitually truant "without justification." For the reasons set for below, we reverse the judgment.
¶ 2. The record evidence may be summarized as follows. On February 17, 2012, the State filed a petition in the superior court, family division, alleging that J.H., then thirteen years old, was a child in need of care and supervision as a result of being "habitually and without justification truant from compulsory school attendance" under 33 V.S.A. § 5102(3)(D). The trial court held a merits hearing on June 21, 2012. Both parents and the minor were present and represented by counsel.
¶ 3. The only witness was a Bennington County deputy sheriff who testified that he served as the County's truancy officer. He recalled that he "responded to [J.H.'s] residence around five times for truancy complaints" during the month of January 2012. He testified that the first time he went to the residence, J.H.'s father answered the door, admitted the officer, and woke up J.H., who was sleeping on a mattress in the living room. J.H.'s father informed her that the officer said he "was there to bring her to school," and the officer proceeded to do so. The officer could not recall whether J.H. or her father offered any reason for J.H.'s absence.
¶ 4. The officer testified that he ended up transporting J.H. to school on two subsequent days in January. Again, he could not recall whether J.H. or her father gave any reason for her absence. On the third occasion, the officer served a "truancy notice," the purpose of which is to warn a parent or guardian that a truancy case could be brought if their child is continually absent. The officer went to the home twice more in January (the fourth and fifth visits that month) but there was no response from anyone at the residence.
¶ 5. The officer described the general protocol governing truancy reports to the Sheriff's Department, explaining that "usually the process works when the attendance clerk from [the] school . . . call[s] the sheriff's department" and the dispatcher, in response, "start[s] a truancy complaint . . . . and then she'll dispatch me to the residence." Once there, the officer generally attempts to "speak with the parent or guardian" and "if everything works out . . . ends up transporting the child to school."
¶ 6. At the conclusion of the officer's testimony, J.H.'s counsel moved to dismiss the petition, asserting that the evidence was insufficient to establish that J.H. was habitually truant. The trial court denied the motion, finding that five truancy reports within "a matter of weeks . . . meet[s] the definition of being habitually not at school." The court also observed it had "no evidence . . . of justification for [J.H.] not being in school."
¶ 7. J.H. declined to present any evidence, and renewed the motion to dismiss. After additional argument, the court again denied the motion, finding that, based on the officer's description of his truancy "protocol," a "reasonable inference can be drawn that he went to [J.H.'s] home because he was dispatched there for a reported truancy." The court thus ruled that the State had met its burden of proving by a preponderance of the evidence "that between the beginning or middle of January until the end of January, the juvenile was habitually . . . without justification . . . truant from school." This appeal by J.H. followed.*fn1
¶ 8. J.H. contends that the evidence was insufficient to prove the essential elements of a CHINS adjudication based on truancy. "On review of the court's CHINS decision, we will uphold the court's findings of fact unless they are clearly erroneous; we will uphold the court's legal conclusions if supported by its findings." In re M.L., 2010 VT 5, ¶ 8, 187 Vt. 291, 993 A.2d 400. It is the State's burden to prove that a child is CHINS by a preponderance of the evidence. Id. ¶ 6.
¶ 9. We agree that the record evidence was fundamentally insufficient to establish that J.H. was truant on the days alleged. The officer's description of the Sheriff's Department's general protocol may well have been sufficient to prove that he went to J.H.'s residence on each of the five days in question pursuant to a truancy report from the department dispatcher, although he did not specifically so testify. See V.R.E. 406 ("Evidence of . . . the routine practice of a person or organization . . . is relevant to prove that the conduct of the person or organization on a particular occasion was in conformity with the . . . routine practice."). There was no evidence from the school, however, as to its routine practice, and thus no basis to infer anything about what the school may have told the dispatcher on the days in question. The State called no witnesses from J.H.'s ...