Brought to you by: Vivian Burgos, Esq.
Teddi Miskulin, Esq. Graham Peper, Esq.
Philip Robert James, Esq.
And the Kind Offices of Magistrate David Furman.
Truancy Defense Attorney and GAL
(This is a general model of how some of the present truancy defense attorneys do this job. You may do it differently. This Manual is not for the purpose of setting any standard of duty or practice among truancy attorneys.)
1. Before the Magistrate Hits the Bench.
q Get there early. Start talking to families early.
q You or another attorney will be taking roll and marking families as being at court, on the school district docket. See attached 2-page docket. (Morning and afternoon.)
q Grab a Hearing Information Sheet from the pile.
q Take the child and the parent or parents to a separate spot. Grab a Spanish translator if either one of the parents doesn’t speak English.
q Start with the child, and say something like this: (If the child is ten years old or under, see Little Kids, infra.)
q “I’m the person who may be your attorney today. The judge will decide that. Did you know it’s against the law to be under 16 years and not go to school?” (Uhh, no.)(We mean no disrespect. The kids don’t talk much.)
q “You get ten days missed a year. That includes tardies and missed classes. Sometime in the next hour you are gonna have to tell the judge either that you DID break the law by missing more than ten times or that you DIDN’T break the law and want a trial. You only get two choices. Now hold on a minute while I talk to your parents.”
q Ask the parents for financial information. (The magistrate could appoint an attorney even if the parents have too much income, and bill the parents later.) Ask for the total number in the home. (Total number of related persons living together.) Get the total gross monthly income of all persons working. Write it on the Hearing Information Sheet under Financial Info. Compare it to the Federal Income Eligibility Guidelines. See attached Guidelines. Write “Eligible” or “Not Eligible” on the Hearing Information Sheet. (Always bring your Guidelines to court. Stick ‘em in the back of your calendar. ) (For the purposes of this first hearing, it doesn’t matter if the child is eligible or not. You are going to do the same things anyway.)
q Ask the parents about the child and the home. For instance:
q Why is he having problems?
q Do his siblings have trouble getting to school?
q Do you have a social worker?
q Does he have any delinquencies?
q Write that information on the Hearing Information sheet under Issues.
q Then back to the child.
q “Okay. What do you want to do? Admit to the judge you broke the law? Or have a trial?” (The child will then often say things like: “My mom’s second-cousin died.” Or “My dog was sick.” (See the attached Frequently Asked Questions, infra.)(19 times out of 20, the child will admit. No jury trials allowed.)
q If the child wants to admit, write “Admit” on the Hearing Information Sheet, and advise the child like this: (Even if the child is not eligible.)
q The judge is gonna want to know that you know your rights. You have the right to:
q Have a trial and have me (or the parents) represent you.
q Have the School district prove the case by a preponderance of the evidence.
q Have me (or your parents) cross-examine witnesses.
q Have me (or your parents) call your witnesses.
q Testify. (This is NOT a criminal case at this point, so no 5th amendment applies.)
q Appeal if you lose.
q And you give up those rights if you tell the judge you were wrong.
q Do you understand those rights? (Uhh, yeah.)
q The judge is gonna want to know that this is your decision, not your mom’s, not mine.
q You can’t be on any drugs, alcohol, or medication that causes you to not know what you are doing. :
q What do you suppose the penalty today is? (Go to jail?).
q No. The penalty for admitting the petition today is that the judge enters a court order. He will ORDER you to go to school every day, every class, no tardies, no suspensions. If you don’t follow that order to the letter, THEN you might go to jail for up to 6 months for contempt.
q So how many days did you miss? (Umm, about 14.)
q So, what do you want to do? (Umm, you know, admit.)
q Okay, let’s go back into the courtroom and you grab a seat and we’ll get you out of here as soon as possible. Here’s a form the feds require. Be sure to initial each line on the second page.
q Keep the Hearing Information sheet. You’ll need it when the case is called. Grab another Hearing Information Sheet from the pile. Start over. Repeat until your feet hurt.
Possible defenses:
All the missed-school occurred before the warning letter went out.
q
q 2. Magistrate On the Bench.
q After about ½ hour of you talking to families, the magistrate will hit the bench. The magistrate will advise the families. He may say nothing, or he may say something like this:
q You are here because of the School Attendance Act, which requires everybody under the age of 16 to go to school. The school district says that you are not going to school. The purpose of your being here is to determine if that is true.
q There are other parties to the case. There is Mr. Hickman, who represents the school district, and attorneys who may be appointed as your attorney, or possibly as your GAL.
q At the first hearing, if you are found to have violated the School Attendance Act, the penalty is that a Court order will be entered against you. The Order will be that you will go to school, every day, every class, no tardies, no suspensions. If you violate that order and the school district thinks it was willful, the school district can file a contempt action against you. If that happens, you will have to come back here. You can have a hearing if you want. The penalty can include jail time.
q Usually then the magistrate will look to the attorneys to begin to call cases. (Try to get the folks who were there on time out first.)(Take turns with the other attorney’s calling up your cases.)(Call your case by name AND number.)
q When you call your case (or the magistrate does), get the child and parents (and interpreter) up to the podium and tell the court (or the magistrate will ask) if the child is eligible for court-appointed counsel. If the child is not eligible, the court may ask a couple questions and might appoint you as GAL. Or not. Regardless, stay close.
q The magistrate will ask you what the child wishes to do. Tell him if the child will admit or wants a trial. The magistrate will then advise the child, or ask you for a waiver of advisement, thus assuming you have done a good advisement already, or set a trial. The trial will usually be set for a later date, but don’t be surprised if it’s set for later that afternoon. You will be the defense attorney if the child was eligible and, of course, will not be the defense attorney and don’t have to show up, if the child was not eligible.
q The magistrate will then ask the school district for facts, and the school liaison worker will say: Billy missed 32 days of school and had 7 tardies. (These figures will usually be about three times what the child told you and his parents.)
q The magistrate will often ask you for any other comments, and you must consider at that time whether to tell the magistrate about the issues concerning the child. Remember the child is NOT going to jail at this moment. Remember the rules of confidentiality R.P.C. 1.6.
q The court will then appoint a GAL, if he is going to, (sometimes you will be GAL if the child was not eligible for appointed attorney), set a review, or set the matter on notice by the School district. Fill this information into the Hearing Information Sheet. You will forget this stuff. Really. Trust us.
q Let another attorney call a case.
q If you are appointed as GAL, scramble after the parents and 1. Get a PHONE number. 2. Try to set a home visit. (For some later day after school, of course.)(Have your calendar ready.)(Ask the court to order an interpreter to go with you to the home if the parents are both Spanish-only.)(Tell them this is NOT a court hearing and if they need to change the visit time, call more than 24 hours ahead of time, and you’ll reset it. You may have to do the same thing to them. )
q Repeat this until your feet are really tired.
q The magistrate will take a break after a while and you will NOT get a break, but will go back to interviewing families, cuz a whole new bunch showed up while the magistrate was on the bench.
(This is a general model of how some of the present truancy GALs do this job. We are just making this up as we go along. You may do it differently. This Manual is not for the purpose of setting any standard of duty or practice among truancy GALs.)
q See every child and parents in the home, soon after you get the case.
q Remember this is NOT a D&N or delinquency. These folks are often very normal people who merely have a kid who’s difficult. (On the other hand, about 25% of these cases might well be D&N’s in the making.)
q Take the home visit as an opportunity to tell the child that the magistrate will really send them to jail if they don’t got to school, every day, every class, no tardies, no suspensions. Tell them they had ten days free to miss before, but can’t miss ANY days now, that they stick out like a sore thumb now. (The one thing the kids don’t get is that jail can happen to them.)
q Have the parent sign a release (as attached to this Manual) for any therapists or probation officers. The release we use is good for Federal confidentiality laws too. Talk to the therapist or probation officer.
q Call the school social worker and check up. For phone numbers see the attached, slightly-out-of-date school social worker list.
q Call the Social Services social worker or PO or whatever.
q The order to go to school remains in effect until the child is 16 years old, or longer. You could potentially be the GAL for 8 years or so.
q If it’s a bad situation in the home, write a report, ask for a review hearing, and ask the Magistrate to require DDHS to file a D&N. If you can coerce a DDHS social worker to do sufficient services or can get services through a concurrent Juvenile case, do that instead.
q When the child is ten years old or younger, the petition is really against the parents, not the child. The admission or the trial is really as to the behavior of the parent and you need to tell them that. Usually a nine-year-old child would be perfectly happy to go to school if the parents would just get him there.
q This is an important time to ask lots of questions and write the information on the Hearing Information Sheet, as you or one of the other attorneys may well be appointed GAL. The magistrate may well also require Denver Social Services to investigate.
These are some of the questions from parents or kids that come up all the time. (You probably won’t get to talk to the school social worker before you talk to the family, so you don’t know how many days the child missed, or if it was days missed, classes missed, suspensions or tardies. You can comfortably assume it was more than about 20 times during the last six months, or the child wouldn’t be at court for a truancy.)
q I was sick. Did you bring a note from your doctor saying that it was okay to miss each day of that time?
q My grandpa died. Okay. I’m sorry. But you still have to go to school. So you took one-half day for the funeral. What about the other days?
q My mom said I didn’t have to go. Your mom can’t excuse you from school.
q I was working in my parent’s business. Your mom can’t excuse you from school.
q I was suspended. Suspensions count as truancies. The magistrate will likely figure it was your responsibility to not get into trouble.
q I was out of the country with my mom. Did you bring school records from the school you attended in that other country? Your mom can’t excuse you from school.
q How long does this go on? Every order lasts till you’re 16 years old. Not just this year. It can last past 16 years if you mess up.
q I want to home school my child. The school district has to sign off on that. They almost never do if the child has truancies.
q Denver truancies are not contract at this time though some other counties are contract. Bill the cases on Form 207. They have their own check boxes on the 207 forms.
q You will work 3-4 hours in a half-day. Consider spreading the new cases you are assigned to and the old cases you appear on across the hours you work. In four or five months you will be billing many $52.90 cases.
q The dollar cap on defense of truancy cases is $500. :-) You will sometimes go over that for truancy defense cases, and rarely fall under that for GAL cases. Do a motion for fees in excess in the cases where you do go over the $500 cap.
q The child shall attend public school a certain number of hours a year.
q The court can issue orders to compel compliance.
q Excuses include only:
a) Temporarily illness. (Usually requires a doctor’s excuse for each day missed.)
b) Excuse by school.
c) Enrolled in parochial school.
d) Physical, emotional or mental disability causing extended absence.
e) In jail.
f) Already graduated from 12th grade
g) Being home-schooled. (Usually can’t do that if truant.)
h) (A suspension seems to be an excuse in Section 104(2)(d), but then is clearly not an excuse in 104(4)(a).)
q The schools make the attendance policy, setting the maximum days that may be missed. (In Denver that’s 10 days.) Calculation includes either the school year OR the calendar year. Either one.
q Parents are required to get the kids to school
CRS §22-33-104. Compulsory school attendance.
(1) Every child who has attained the age of seven years and is under the age of sixteen years, except as provided by this section, shall attend public school for at least one thousand fifty-six hours if a secondary school pupil or nine hundred sixty-eight hours if an elementary school pupil during each school year; except that in no case shall a school or schools be in session for fewer than one hundred sixty days without the specific prior approval of the commissioner of education.
(1.5) Notwithstanding the provisions of subsection (1) of this section and any other provision of this article relating to compulsory school attendance, the compulsory school attendance laws apply to a six-year-old child who has been enrolled in a public school in the first grade or in a higher grade level. In such circumstances, the courts may issue orders to compel compliance with the compulsory school attendance requirements of this article. However, this subsection (1.5) shall not apply to a six-year-old child whose parent or legal guardian chooses to withdraw such child.
(2) The provisions of subsection (1) of this section shall not apply to a child:
(a) Who is temporarily ill or injured or whose absence is approved by the administrator of the school of attendance;
(b) Who is enrolled for a minimum of one hundred seventy-two days in an independent
or parochial school which provides a basic academic education. "Basic academic education" for the purpose of this article means the sequential program of instruction provided by an independent or parochial school. Such program shall include, but not be limited to, communication skills of reading, writing, and speaking, mathematics, history, civics, literature, and science.
(c) Who is absent for an extended period due to physical, mental, or emotional disability;
(d) Who has been suspended, expelled, or denied admission in accordance with the provisions of this article; except that, when a pupil is expelled for the remainder of the school year, the parent, guardian, or legal custodian is responsible for seeing that the provisions of subsection (1) of this section are complied with during the period of expulsion from the school district;
(e) To whom a current age and school certificate or work permit has been issued pursuant to the "Colorado Youth Employment Opportunity Act of 1971", article 12 of title 8, C.R.S.;
(f) Who is in the custody of a court or law enforcement authorities;
(g) Who is pursuing a work-study program under the supervision of a public school;
(h) Who has graduated from the twelfth grade;
(i) Who is being instructed at home:
(I) By a teacher certified pursuant to article 60 or 61 of this title; or
(II) Under a non-public home-based educational program pursuant to section 22-33-104.5; or
(j) Who is enrolled in a school where the state board of education has approved a lesser number of days.
(3) Unless within one of the exceptions listed in subsection (2) of this section, a child who is deaf or blind, and who has attained the age of six years and is under the age of seventeen, shall attend, for at least one hundred seventy-two days during the school year, a school which provides suitable specialized instruction. The provisions of this subsection (3) shall not apply to a child if the Colorado school for the deaf and the blind refuses him admission and it is impractical to arrange for attendance at a special education class, as provided in article 20 of this title, within daily commuting distance of the child's home. If any school providing instruction for deaf or blind children offers fewer than the necessary one hundred seventy-two days of instruction, the school shall file with the school district in which it is located a report showing the number of days classes were held and the names and ages of the children enrolled.
(4) (a) The board of education shall adopt a written policy setting forth the district's attendance requirements. Said policy shall provide for excused absences, including those listed as exclusions from compulsory school attendance in accordance with subsection (2) of this section; except that paragraph (d) of said subsection (2), relating to suspension and expulsion, shall be considered an unexcused absence for purposes of the attendance policy. An attendance policy developed pursuant to this section may include appropriate penalties for nonattendance due to unexcused absence, including, but not limited to, the imposition of academic penalty for classes missed while unexcused.
(b) The attendance policy adopted pursuant to this subsection (4) shall specify the maximum number of unexcused absences a child may incur before the attorney for the school district, the attendance officer, or the local board of education may initiate judicial proceedings pursuant to section 22-33-108. Calculation of the number of unexcused absences a child has incurred includes all unexcused absences occurring during any calendar year or during any school year.
(5) (a) The general assembly hereby declares that two of the most important factors in ensuring a child's educational development are parental involvement and parental responsibility. The general assembly further declares that it is the obligation of every parent to ensure that every child under such parent's care and supervision receives adequate education and training. Therefore, every parent of a child who has attained the age of seven years and is under the age of sixteen years shall ensure that such child attends the public school in which such child is enrolled in compliance with this section.
(b) Parents whose children are enrolled in an independent or parochial school or a non-public home-based educational program pursuant to the provisions of subsection (2) of this section shall be exempt from the requirement.
q For Contempt hearings the defense counsel should advise the child just like for the original petition, except the child does not have to testify, because of the Fifth Amendment, and the burden is “beyond a reasonable doubt,” both because any consequence is likely to be punitive, not remedial. Read C.R.C.P. 107. See the Contempt Section on this web site
q Sentencing creates a challenge for the Magistrate. As always, the idea is to use contempt to NOT throw kids in jail. But the child, and the other kids in the courtroom, have to know the orders are real and enforceable. .And kids seem to respond positively to a short jail sentence, and seeing other kids get a jail sentence. “Jail” is kid’s jail, of course. Alternatives include the sheriff’s work program on Saturdays and a variety of ankle bracelet and tracking programs.
q Another challenge is interpreting Rule 107. Can the Magistrate hold a sentence to jail over the child’s head? Can the Magistrate creatively mix punitive and remedial sentencing. Can the tracking program place the child in detention without a hearing?
This site was last updated 03/01/03