State in the Interest of T.M.

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

17-252

STATE IN THE INTEREST OF T.M.

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APPEAL FROM THE
CITY COURT OF JEANERETTE
PARISH OF IBERIA, NO. 3176
HONORABLE CAMERON B. SIMMONS, CITY COURT JUDGE

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PHYLLIS M. KEATY
JUDGE

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Court composed of Elizabeth A. Pickett, Phyllis M. Keaty, and D. Kent Savoie,
Judges.

AFFIRMED.

Charlotte G. Bordenave
Public Defender’s Office
215 West Saint Peter Street
New Iberia, Louisiana 70560
(337) 365-4006
Counsel for Appellant:
T. M. (child)

Walter J . Senette, Jr.
Assistant District Attorney
Post Office Box 268
Jeanerette, Louisiana 70538
(337) 276-5603
Counsel for Appellee:
State of Louisiana

KEATY, Judge.

After a hearing, T.M.1 and her mother were adjudicated a Family in Need of

Services (FINS) based upon T.M.’s truancy from high school. She was placed in

the custody of the State of Louisiana for one year, suspended, with supervised

probation with the Office of Juvenile Justice (OJJ) for eighteen months with

special conditions. T.M. appeals. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

Although the issue to be decided in this appeal appears to be res nova, the

facts are generally not in dispute. On October 4, 2016, a FINS Petition was filed in

Jeanerette City Court (hereafter the trial court), under La.Ch.Code art. 730, against

E.H., the mother and caretaker of T.M., a fourteen-year-old female, because of

T.M.’s truancy with twelve absences from school, of which all but one were

unexcused. According to the petition, attempts had been made to assist and

encourage the family to remedy the problem by all appropriate and available

means, but to no avail. The petition further alleged that because T.M. was

ungovernable and could not be controlled by her parent without posing a danger to

herself or other family members, a mandatory conference was not appropriate in

the matter.

An adjudication and dispositional hearing was held on February 1, 2017,

where T.M. was represented by an attorney from the Iberia Parish Public

Defender’s Office. At the start of the hearing, the State offered into evidence, as

State’s Exhibit 1, T.M.’s record from Jeanerette Senior High School (JSH),

showing that she had missed thirty-eight days during the current school year.

While T.M.’s attorney indicated that she had no objection to the State’s exhibit,

1
The initials of the minor child and her mother are used to protect the minor’s identity.
See Uniform Rules—Courts of Appeal, Rules 5–1, 5–2.

she sought to introduce into the record a document showing that T.M.’s mother had

withdrawn her from JSH and enrolled her in an online homeschool program. Upon

the admission of its sole exhibit into evidence, the State rested its case. T.M. then

called as a witness James Russell, a school attendance officer employed by the

Iberia Parish School Board (IPSB). After Mr. Russell was sworn in, but before any

testimony was elicited from him, T.M.’s attorney made an oral motion to continue

the matter without date on the ground that the matter was moot because of T.M.

having transferred into a homeschool program. The State did not object to a

continuance given the fact that T.M. and her family were already receiving FINS

services through the district court. Nevertheless, the trial court denied the motion

to continue.

T.M.’s attorney was then allowed to present her defense to the petition.

Mr. Russell testified that Louisiana law allows a parent to remove their child from

a traditional school and to enroll them in a homeschool program whereby the

parent assumes responsibility for their child’s education. Mr. Russell explained

that homeschooled students remained subject to state-mandated testing, although

he was unfamiliar with how they were monitored by the State. He was shown a

document marked Defense Exhibit 1, which he identified as a letter dated

January 20, 2017, welcoming T.M. to the Connections Academy (CA).2

The State’s attempt to cross-examine Mr. Russell regarding T.M.’s school

performance, attendance, and how he thought she would do in homeschooling was

met by an objection from the defense regarding relevancy. The trial court

sustained the objection on the basis that such testimony would be more relevant to

the disposition if it were to adjudicate T.M. and her mom as FINS. The trial court

2
The letter was addressed to T.M. and her mother from Mr. Bruce Hoffmann, informing
them that T.M. was in his homeroom and his math class and instructing them on how to
download the software to participate in the CA.
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then questioned Mr. Russell about a December 14, 2016 letter in T.M.’s school

record. Mr. Russell identified the letter as a notification to T.M.’s mother that the

IPSB had held an administrative hearing to review T.M.’s welfare and school

attendance and that it had upheld her suspension from JSH and placed her on

probation for the remainder of the school year. When asked about the procedure

for enrolling a student into a recognized homeschool program, Mr. Russell

confirmed that the State Department of Education had to approve a student’s

entrance into such a program. Although he had no personal knowledge of whether

the request for T.M. to enroll in the CA had been approved, Mr. Russell stated that

he was unaware of any student having been denied such approval.

On redirect from the defense, Mr. Russell stated that as far as the IPSB was

concerned, T.M.’s education was in the hands of her mother and the CA, and T.M.

had the option of returning to the IPSB system regardless of how she did in the

homeschool program. He agreed that in removing T.M. from the IPSB system, her

mother “did not do anything that was not recognized by the State Education

Board.” Upon re-cross, Mr. Russell stated that the JSH administration referred

T.M. to FINS because of her lack of attendance and her unwillingness to attend

class when she was at school. Thereafter, the defense entered “a stipulation into

the record that the Iberia Parish School system took all the appropriate efforts to

try to remediate the compulsory school attendance problem and was unsuccessful.”

The defense then submitted the case for decision after insisting that there was no

need to adjudicate T.M. a truant because she was no longer in school.

Upon consideration of the record, the testimony, and the exhibits, the trial

court ruled in open court that the State had carried its burden of proving that T.M.

was “in violation of the compulsory school attendance laws,” and it adjudicated

T.M. a FINS child. Initially, the defense sought to delay the dispositional phase of
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the hearing; however, it later agreed to conclude the matter that day. The State re-

called Mr. Russell to the stand to elicit his opinion as to a proper disposition in this

case. He noted that because of T.M.’s unwillingness to attend class, her grades

were not necessarily indicative of her academic abilities. While he had not

received any information from T.M.’s mother as to her progress at the CA, based

upon her school records, Mr. Russell stated that some of the “social emotional

concerns” exhibited by T.M. in a large classroom setting might make that

environment less conducive to her ability to learn. Accordingly, he believed that a

homeschool setting might provide T.M. with the “academic nurturing” necessary

for her to be able to learn. Mr. Russell noted that if T.M. did not do well in

homeschooling, her mom could return her to the IPSB system. He further noted

that if a student enrolled in an online program did not attain the required number of

hours, that student would not be allowed to move on academically. On cross-

examination by the defense, Mr. Russell confirmed that T.M.’s mother had the

absolute choice under Louisiana law to remove her from the IPSB and enroll her in

an acceptable homeschool program such as the CA.

The next witness called by the State was Christian LaGrange, T.M.’s former

counselor at JSH who had met with her on a regular basis to discuss her grades and

attendance in order to help her with any accompanying social issues that were

affecting her school performance. She agreed with Mr. Russell’s belief that T.M.

had yet to show her true academic potential and that, given her lack of motivation

to attend school, she was unable to say how T.M. would do with homeschooling.

In response to questions posed to her by the defense, Ms. LaGrange agreed that

there were many reasons why a student might not want to attend school and that

she could not say that T.M.’s poor attendance record was due to her being lazy

and/or her unwillingness to do schoolwork. Ms. LaGrange also confirmed that
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according to her understanding of Louisiana’s educational law, T.M.’s mother had

the absolute right to withdraw her from school and enroll her in a home study

program.

Over the objection of defense counsel, the trial court sought

recommendations from Ronald Rogers of the OJJ about what type of services his

office could provide to T.M. Mr. Rogers stated that in a standard truancy case,

when a student is put on probation with the OJJ, his office would monitor the

student’s grades, attendance, and behavior, along with examining the student’s

family dynamics and providing appropriate counseling, be it Functional Family

Therapy (FFT) or Multi-Systemic Therapy (MST). Mr. Rogers was then sworn in

as a witness to give the parties an opportunity to question him under oath. In

answer to a question posed to him by T.M.’s attorney, Mr. Rogers stated that he

did not have an official recommendation regarding T.M. because this was not the

type of case normally handled by his office. On cross-examination by the State,

Mr. Rogers explained that his office would monitor T.M.’s online homeschool

activities, provide her with counseling not duplicative of that she was already

receiving, and report back to the trial court regarding her progress. On redirect,

Mr. Rogers stated that he was not aware of his office ever having monitored a

student who was adjudicated a truant and who was not on probation in a non-

criminal matter.

After referencing the dispositional guidelines set out in La.Ch.Code arts.

779-781, the trial court made the following disposition from the bench:

I am persuaded from the educational records that exist on the child, as
far as the function within the home is not able to receive an education
as mandated an[d] required pursuant to Louisiana Law if the child
remains in the home, and I am of the belief that disposition or removal
of the child is necessary relative to same, I would place the juvenile in
the custody of the State of Louisiana for a period of one (1) year in
non-secure placement. However, for purposes of the Dispositional
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Hearing, the defense is suggesting that the child has withdrawn from
the Iberia Parish Educational system and has entered into Connections
Academy which is apparently a home school online virtual school
program in an attempt to be able to provide this child with an
education as required and mandated pursuant to State law. Um, the
Court, for purposes of considering dispositional guidelines in the
programs that are offered is going to therefore suspend the placement
of the juvenile for the period one (1) year with the Office of Juvenile
Justice in a non-secure placement and place the juvenile on probation,
supervised probation, with the Office of Juvenile Justice for a year
and a half (1 1/2), subject to the following terms and conditions of the
supervised probation, number one, I’m going to want the Office of
Juvenile Justice to meet with the family weekly and obtain reports
from the online educational institution which show that the juvenile is
in fact matriculating successfully within the online educational
program, in the event that you are not able to meet with the juvenile
on a weekly basis or provide those or obtain that information on a
weekly basis, then I’m going [to] want the Court to be notified within
fifteen (15) days if there are any potential violation of that specific
condition of its probation.

In addition to that, I also believe that it’s necessary for the Office of
Juvenile Justice to provide MST counseling services in the home.

The trial court ordered the OJJ to supply a probation officer to meet with T.M. and

her family, in person, on a weekly basis. It also imposed a dusk-to-dawn curfew

on T.M., and ordered her mother to ensure that T.M. was supervised by an adult if

she left their home during her curfew.

T.M. appealed and is before this court alleging that the trial court erred: 1)

in adjudicating her delinquent on the basis of truancy because she had been

removed from the Louisiana public school system and enrolled in a state-

sanctioned home study program and 2) in placing her under the supervision of the

Office of Juvenile Justice (OJJ) for monitoring her school attendance when she

was no longer attending school.

DISCUSSION

Louisiana law requires parents of children between the ages of seven and

eighteen to send their children to school and to assure that their children regularly

attend classes and refrain from being habitually tardy. La.R.S. 17:221. “Solely for
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purposes of compulsory attendance in a nonpublic school, a child who participates

in a home study program approved by the State Board of Elementary and

Secondary Education shall be considered in attendance at a day school.” La.R.S.

17:236(A).

Louisiana Children’s Code Article 730(1) provides that a family can be

adjudicated in need of services when “a child is truant or has willfully and

repeatedly violated lawful school rules.” The allegation of a FINS petition must be

proven by a preponderance of evidence. La.Ch.Code art. 770. Although we have

found no cases which directly state the appellate standard of review of a trial

court’s ruling on a FINS petition, we find the following case instructive. In State

in the Interest of D.M.G., 579 So.2d 525, 527 (La.App. 4 Cir. 1991) (footnotes

omitted but substance of footnotes included in brackets), the fourth circuit stated:

The appellate standard of review, when a petition for
delinquency is filed and a determination of delinquency is found, is
the Jackson v. Virginia, [443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560
(1979)] standard of “in the light most favorable to the prosecution”.
State in the Interest of Rowland, 509 So.2d 779 (La.App. 2nd
Cir.1987). However, when a petition for delinquency is filed but a
determination of a CINS is found, the more rational standard of
review would be that imposed by Arceneaux v. Domingue[, 365 So.2d
1330 (La.1978)] of clearly wrong or manifestly erroneous. We reach
this conclusion based upon La.C.J.P. article 71 which mandates that
nondelinquent proceedings be conducted according to the rules of
Civil Procedure and article 73 which establishes the burden of proof
in such cases to be by a preponderance of evidence.[3]

Accordingly, we hold that the manifestly erroneous or clearly wrong standard of

review is the appropriate appellate standard of review to apply in this matter.

After a family has been adjudicated in need of services, La.Ch.Code art.

779(A) gives a trial court authority to impose the following dispositional

alternatives:

3
The Code of Juvenile Procedure was repealed effective January 1, 1992. See now
generally the Children’s Code.
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(1) Order the child to submit to counseling or to psychiatric or
psychological examination or treatment.

(2) Order the child to cooperate in accepting particular services
from any public institution or agency or from any private institution or
agency willing and able to provide him with needed services.

(3) Place the child in the custody of a caretaker or other suitable
person on such terms and conditions as deemed in the best interests of
the child and the public.

(4) Place the child on probation on such terms and conditions as
deemed in the best interests of the child and the public.

(5) Assign the child to the custody of a private or public
institution or agency, except that the child shall not be placed in a
correctional facility designed and operated exclusively for delinquent
children, nor shall such facility accept the child.

In addition to the aforementioned dispositions, La.Ch.Code art. 779(A)(6) allows

the trial court to “[m]ake such other disposition or combination of the above

dispositions as the court deems to be in the best interests of the child and the

public.”

At the dispositional hearing, the trial court can consider all evidence offered

by the state, the child, and/or his caretaker, including evidence that “would not be

admissible at the adjudication hearing.” La.Ch.Code art. 778. “The court shall

impose the least restrictive disposition which the court finds is consistent with the

circumstances of the case, the needs of the child, and the best interest of society.”

La.Ch.Code art. 781. Moreover, “[t]he court shall not remove a child from the

custody of his caretakers unless his welfare cannot, in the opinion of the court, be

adequately safeguarded without such removal.” La.Ch.Code art. 780.

The Adjudication

In her first assigned error, T.M. argues that the trial court erred in

adjudicating her “delinquent on the basis of truancy” because she had been

lawfully removed from the Louisiana school system by her mother with the

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permission and approval of the State. T.M. also contends that the matter was moot

because she was no longer at risk for being truant due to her withdrawal from JSH

and her enrollment in CA, a state recognized and sanctioned homeschool program.

Initially, the State points out that this matter came before the trial court as a

FINS petition rather than as a delinquency proceeding. With regard to the merits,

the State contends that a juvenile and her family cannot escape the jurisdiction of a

FINS court by choosing to be homeschooled. In that regard, the State submits that

while Louisiana’s compulsory attendance laws recognize that a child can be

homeschooled, those laws do not allow a family to avoid being found in need of

services. The State calls this court’s attention to a December 14, 2016 Risk

Indicator Survey completed by Ms. LaGrange, T.M.’s school counselor at the time,

which showed that T.M. had excessive school absences, was not prepared,

frequently failed to complete her homework, and had no desire to learn. The

Survey also noted that T.M. was defiant, manipulative, and disruptive. More

disturbingly, however, the Survey indicated that T.M. had a history of harming

herself and that Ms. LaGrange had to perform a suicide assessment on her two

months prior because T.M. indicated that “she wanted to die.” In a FINS Referral

Report dated December 14, 2016, Ms. LaGrange noted that as of that date, T.M.

had a total of thirty-nine absences and her grades were five Fs and one D. The

report indicated that Ms. LaGrange had conducted multiple face-to-face and

telephone conferences with T.M.’s parent and that she suspected that T.M.’s

behavior might be related to a mental health issue.

One of the stated purposes of Title VII of the Louisiana Children’s Code,

which pertains to families in need of services, is “to define self-destructive

behaviors by the child and conduct by other family members which contribute to

the child’s harm and which warrant court intervention in the family’s life so that
9

appropriate services to remedy the family’s dysfunction can be secured.”

La.Ch.Code art. 726. The evidence showed that T.M. suffers from a broad range

of educational, as well as emotional and social problems. Based on the record

before us, we conclude that the State met its burden of proving that T.M. and her

mother should be adjudicated a FINS. Thus, T.M.’s first assigned error lacks

merit.

The Disposition

In her second assigned error, T.M. contends that because she was no longer

enrolled in a traditional school, the trial court’s disposition in this case should not

have included the monitoring of her school attendance by the OJJ. In that vein,

T.M. submits that the disposition imposed by the trial court was overly onerous

and burdensome and was not the least restrictive disposition available.

Conversely, the State contends that the trial court followed the dispositional

guidelines set out in the Louisiana Children’s Code. The State further points out

that T.M. failed to produce any evidence regarding how the CA operated or its

success rate. Likewise, the defense failed to present any witnesses, including

T.M., to attest to why they believed T.M. was likely to be successful in a

homeschool environment, so as to justify a less restrictive disposition.

The record is replete with T.M.’s propensities for not doing well in, much

less attending, school. It also contains evidence that T.M. is a troubled teen whose

family life needs to be monitored to protect her best interests. After having

reviewed the entire record, including the testimony and evidence presented at the

adjudication and dispositional hearing, we conclude that the trial court did not

manifestly err or abuse its discretion in carving out the least restrictive disposition

given the specific facts presented regarding the dysfunction of T.M. and her

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family. See State in the Interest of A.B., 09-870 (La.App. 3 Cir. 12/9/09), 25 So.3d

1012.

DECREE

For the foregoing reasons, the judgment adjudicating T.M. a Family In Need

of Services child and placing her on supervised probation with the Office of

Juvenile Justice is affirmed.

AFFIRMED.

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