A-1-CA-34496 | Omnilex

Testo completo

Filed
Court of Appeals of New Mexico
9/4/2018 12:02 PM
Office of the Clerk
Mark Reynolds

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Filed

Court of Appeals of New Mexico
9/4/2018 12:02 PM
Offige of the Clerk

IN THE COURT OF APPEALS OF THE STATE OF NEW mexico//.

Opinion Number:

Filing Date:_September 4, 2018

STATE OF NEW MEXICO,
Plaintiff-Appellee,

V. No. A-1-CA-34496

JEANNE ROEPER,
a/k/a JEANNA ROEPER,

Defendant-Appellant.

APPEAL FROM THE DISTRICT COURT OF EDDY COUNTY
Jane Shuler Gray, District Judge

Hector H. Balderas, Attorney General

Santa Fe, NM

Jane A. Bernstein, Assistant Attorney General
Albuquerque, NM

for Appellee

Bennett J. Baur, Chief Public Defender
Tania Shahani, Assistant Appellate Defender
Santa Fe, NM

for Appellant

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ark Reynolds

OPINION
VARGAS, Judge

I. INTRODUCTION

43 Defendant appeals her criminal conviction for failure to enforce compulsory
school attendance resulting from her fifteen-year-old son’s habitual truancy. We
conclude that the Compulsory School Attendance Law (the Act), NMSA 1978,
§§ 22-12-1 to -10 (1967, as amended through 2017) requires that the juvenile
probation office conduct an investigation into whether Defendant’s child was “a
neglected child or a child in a family in need of services” pursuant to Section 22-12-
7(C) and, taking the information discovered in that investigation into consideration,
make a determination and finding that the truancy may have been caused by
Defendant before prosecuting Defendant. As the evidence presented was insufficient
to show that the required investigation was conducted, we reverse.

II. BACKGROUND

03; Defendant is the mother of three children, including fifteen-year-old J.M.
(Son). Son had a history of behavioral problems and had been diagnosed with
Attention Deficit Hyperactivity Disorder (ADHD). Defendant also cares for her
younger son, who is deaf and suffers from autism and Down syndrome. Along with

her own three children, Defendant also cares for her grandchild.

3} Inthe winter of 2012, following a stay in hospice, Defendant’s husband died.
Defendant suffers from bipolar disorder and depression, and eight or nine months
after her husband’s death, in the fall of 2013, Defendant suffered a mental
breakdown and checked herself into a hospital for approximately three weeks.

444 While Defendant was hospitalized, Son’s grandmother enrolled him at Eddy
Alternative School in mid-August 2013. Son began school at Eddy Alternative
School as an eighth grader after having been held back from high school for one
year. Son’s attendance at the school was “sporadic,” and he quickly accumulated an
impermissible number of absences. The school attempted, without success, to
contact Defendant regarding Son’s absences on several occasions. On September 19,
2013, the school mailed Defendant notice that Son had four unexcused absences,
following up with another letter the next day, notifying of Son’s fifth unexcused
absence. Both letters requested that Defendant contact the school within one week
to schedule a meeting with the school’s principal. On October 14, 2013, the school
sent Defendant written notice that Son had accumulated ten and a half unexcused
absences and requested that Defendant contact the principal of the school within
forty-eight hours. The letter further advised that the case was “being referred to the
[jJuvenile [p]robation & [p]arole [o]ffice for investigation and potential

prosecution.”

453} The school forwarded its file on Son to Danial Schwertner, Chief Juvenile
Probation Officer (Schwertner). Schwertner reviewed the file and decided solely
from that review that Defendant may have caused Son’s habitual truancy. The State
filed a complaint in magistrate court, charging Defendant with one count of failure
to enforce compulsory school attendance, contrary to Section 22-12-7. At trial,
Defendant testified that Son was sometimes violent toward her and that she was
afraid of him. As evidence of Son’s violent behavior, Defendant introduced evidence
that between April 2013 and December 2013 emergency services received at least
five 911 calls reporting disturbances involving Son at the family home.

6} The magistrate court found Defendant guilty. Defendant appealed to the
district court, where she received a trial de novo. The district court upheld the
magistrate court’s judgment.

Ii. DISCUSSION

The Act

{3 The Act imposes a responsibility upon parents of school-aged persons to
insure school attendance. Section 22-12-2(C) Included among the provisions of the
Act is a statutorily-created protocol for addressing habitual truancy and a parent’s
failure to satisfy his or her obligation to insure a child’s school attendance. See § 22-
12-7. A habitually truant student is a student with ten or more unexcused absences.

Section 22-12-9(A)(1).

‘33 To initiate enforcement against the parent of a habitual truant, Section 22-12-
7(B) requires that the local school board or its authorized representative “give
written notice of the habitual truancy by mail to or by personal service on the parent.”
If the student continues to accumulate unexcused absences after notice is provided,
the student “shall be reported to the probation services office . . . for an investigation
as to whether the student shall be considered to be a neglected child or a child in a
family in need of services.” Section 22-12-7(C) (emphasis added). “If, after review
by the juvenile probation office. . . a determination and finding is made that the
habitual truancy by the student may have been caused by the parent of the student,”
the matter will be referred “to the district attorney’s office or any law enforcement
agency having jurisdiction for appropriate investigation and filing of charges.”
Section 22-12-7(D) (emphasis added). A parent who, “after receiving written notice”
and “after the matter has been reviewed [by the juvenile probation office] in
accordance with Subsection DJ,]” knowingly allows the student to violate the Act
commits a petty misdemeanor. Section 22-12-7(E).

993 While Section 22-12-7(E) explicitly establishes the written notice and the
juvenile probation officer’s review as prerequisites to prosecution, it makes no
reference to, the investigation called for in Section 22-12-7(C). Defendant contends
that, notwithstanding the omission of any reference to an investigation from Section

22-12-7(E), the statute also requires the investigation as a prerequisite to

prosecution. Defendant argues that the State did not satisfy its burden because it
failed to provide substantial evidence that the probation services office properly
investigated whether Son was “a child in a family in need of services” before making
a “determination and finding... that the habitual truancy by the student may have
been caused by the parent” and referring the matter to the district attorney’s office.
Section 22-12-7(C), (D). In response to Defendant’s argument, the State claims that
the statute does not specify any mandatory steps to be taken in an investigation and
the probation officer’s review of Son’s file in this case was sufficient to satisfy the
statutory requirement.

Investigation Required by Section 22-12-7(C)

40} We first consider the language of the statute to determine the nature and scope
of the investigation required by Section 22-12-7(C). When considering the meaning
of a statute, we note that issues of statutory interpretation are subject to a de novo
review. State v. Tafoya, 2012-NMSC-030, § 11, 285 P.3d 604. When interpreting a
statute, we seek to fulfill the Legislature’s intent, taking into consideration the fact
that the primary indicator of that intent is the language it used in creating the statute.
State v. Erwin, 2016-NMCA-032, 9 5, 367 P.3d 905. When the statute contains terms
that are “clear and unambiguous, we must give effect to that language and refrain
from further statutory interpretation.” State v. Rivera, 2004-NMSC-001, 4 10, 134

N.M. 768, 82 P.3d 939 (internal quotation marks and citation omitted). In addition,

statutory subsections “must be considered in reference to the statute as a whole[,|”
id. § 13 (internal quotation marks and citation omitted), and “must be construed so
that no part of the statute is rendered surplusage or superfluous.” State v. Javier M.,
2001-NMSC-030, 4 32, 131 N.M. 1, 33 P.3d 1 (internal quotation marks and citation
omitted); see State v. Jackson, 2010-NMSC-032, § 28, 148 N.M. 452, 237 P.3d 754
(characterizing this rule as fundamental, and stating it should be applied to every
“word, clause, sentence provision[,| or part” of a statute (internal quotation marks
and citation omitted)), overruled on other grounds by State v. Radosevich, 2018-
NMSC-028, {ff 2, 34, 419 P.3d 176.

Nature and Scope of an Investigation Under Section 22-12-7(C)

13. The parties do not dispute that the plain language of the statute clearly requires
the juvenile probation office to conduct an investigation into whether a habitually
truant student is “a neglected child or a child in a family in need of services” if the
student continues to accrue unexcused absences after written notice is given to the
student’s parent. Section 22-12-7(C). The State, however, argues that nothing in the
statute defines the investigation called for in Section 22-12-7(C), or mandates the
type of investigation that it must conduct. Because the statute does not define the
nature and scope of the investigation, the State contends that the investigation

conducted by the juvenile probation office regarding Son was sufficient.

{12}. While we agree that the statute contains no explicit language setting out the
scope and nature of the investigation the juvenile probation office must conduct, the
mandate of the statute requires that the juvenile probation office conduct an
investigation sufficient to determine whether the student is a “neglected child or a
child in a family in need of services.” The Children’s Code specifically defines a
“family in need of family services,” in relevant part, as “a family whose child’s
behavior endangers the child’s health, safety, education or well-being[.]” NMSA
1978, Section 32A-3A-2 (A)(1) (2005). “[Flamily services” are “services that
address specific needs of the child or family.” Section 32A-3A-2(B). The Legislature
unequivocally incorporates the requirements of the Children’s Code into the Act,
making the child subject to the provisions of the Children’s Code if, after
investigation, the child is found to be “a neglected child or a child in a family in need
of services.” Section 22-12-7(C). Included among the provisions of the Children’s
Code is the Family Services Act, NMSA 1978, §§ 32A-3A-1 to -11, (1993, as
amended through 2016), which “recognize[s] that many instances of a child’s
behavior are symptomatic of a family in need of family services” and “provide[s]
prevention, diversion and intervention services” for children or families. Section
32A-3A-1(B); see NMSA 1978, § 32A-3B-1(B)(2) (2005) (expressing legislative
purpose of the Family in Need of Court-Ordered Services Act “to recognize that

many instances of truancy... by a child are symptomatic of a family in need of

services”); see also NMSA 1978, § 32A-3B-2(A) (2009) (defining “family in need
of court-ordered services” as one that has exhausted available family services and
requires court intervention where “child, subject to compulsory school attendance,
is absent from school without an authorized excuse more than ten days during a
school year”). By structuring the Act to incorporate the provisions of the Children’s
Code, the Legislature intended that the probation office conduct an investigation
sufficient to determine whether the student is endangering his own health, safety,
education, or well-being. See § 32A-3A-2(A)(1) (defining a “family in need of
family services”).

13} Our interpretation is bolstered by the legislative history of the Act. See State
v. Lopez, 2009-NMCA-112, § 5, 147 N.M. 279, 219 P.3d 1288. Considering the
history and background of the Act, we note that prior versions of Section 22-12-7
were more punitive than the current version; parents could be convicted before
courts or the juvenile probation office sought out the cause of and remedy for a
student’s habitual truancy. Over the years, Section 22-12-7 transitioned from
assigning automatic penalties for violating attendance policies to requiring
investigation into the circumstances causing those violations. Overall, the changes
made to Section 22-12-7 show the Legislature’s recognition of both the importance
of school attendance, and of the possibility that poor attendance may be indicative

of other problems with the student or in the home. Section 22-12-7 balances the

Legislature’s intent to hold parents accountable for their student’s poor attendance
while still recognizing and accounting for the difficulties families may face beyond
the school or classroom.

4} The 1986 version of Section 22-12-7 allowed an adjudication and assignment
of penalties to precede any investigation into the circumstances of the family or the
student. It required that notice of the student’s absences be given to the parent, much
like the current version, but mandated that continued absences following delivery of
written notices be reported to magistrate or metropolitan court. If the court found
that the parent knowingly allowed the continued absences, he or she was subject to
a penalty under the statute. If absences continued after the court imposed a penalty,
the matter was reported to the children’s court, and the statute required that the
student be considered “a neglected child or a child in need of supervision” under the
Children’s Code. Section 22-12-7(B) (1986). The 1986 version made no provision
for investigation into the circumstances causing the absences, instead making it
mandatory that courts find a child to be neglected or in need of supervision upon
accrual of any additional absences.

5} The following year, the Legislature restructured Section 22-12-7 to resemble
the current statute we use today by requiring an investigation into the need for
children’s court services upon additional absences following notice of habitual

truancy, and prior to an adjudication under the statute. It also removed the provision

that made an adjudication under the Children’s Code the automatic result of
additional absences. See § 22-12-7(C) (1987). Under this later version, and as with
the current version, the Legislature required the student’s accumulating excess
absences to be reported to the local probation services office “for an investigation as
to whether the student shall be considered to be a neglected child or a child in need
of supervision” under the Children’s Code. Jd. The juvenile probation office or local
children’s court judge then would make a determination of whether “the
nonattendance by the student may have been caused by the parent,” in which case
the matter was referred to an appropriate law enforcement agency “for appropriate
investigation and filing of charges.” Section 22-12-7(D) (1987). In 2004, the
Legislature shifted the responsibility for investigating the student’s circumstances
from the children’s court and probation offices to the probation offices alone, but
left in place the other requirements, including notice, an investigation into the need
for children’s court services, and a finding that the parent may have caused the
absences, contained in the current version. See § 22-12-7(C),(D) (2004).

416} The changes between the 1986 and 1987 versions of Section 22-12-7 are
clearly indicative of a shift in the legislative intent from a punitive focus to one
intended to assess and address the causes underlying a student’s habitual truancy
before a parent is charged with a violation of the statute. By shifting from a post-

adjudication investigation to a pre-adjudication investigation, the Legislature

explicitly recognized that continuous school absences may be a symptom of deeper
issues in the child’s family or personal life requiring family services to remedy those
issues. The restructuring of the statute to allow for a more meaningful evaluation of
whether the family is in need of services prior to the filing of criminal charges and
a possible conviction further evidences the Legislature’s intent that an investigation
serve as a prerequisite to prosecution under Section 22-12-7.

73 While we decline to define what specifically must be done to comply with the
statutory mandate, unless the student’s file itself demonstrates that a child is
neglected or a child in a family in need of services, simply reviewing the file is not
sufficient. Instead, we expect that in most instances, an investigation will include, at
the very least, interviews with the student’s teachers to determine whether they have
any information about the student’s family life that would assist the juvenile
probation office in making its determination. We further anticipate that the juvenile
probation office would attempt to speak with the student and student’s parent,
guardian, or other caretaker, seeking similar information. Absent such interviews,
we find it difficult to see how the juvenile probation office could properly determine
whether the student was “a neglected child or a child in a family in need of services.”

Section 22-12-7(C).

Schwertner’s Investigation

1183 Wenow consider whether there was sufficient evidence in the record that the
juvenile probation office conducted a proper investigation as to whether Son was “a
neglected child or a child in a family in need of services.” A challenge to the
sufficiency of the evidence requires consideration of “whether substantial evidence
of either a direct or circumstantial nature exists to support a verdict of guilt beyond
a reasonable doubt.” State v. Sutphin, 1988-NMSC-031, § 21, 107 N.M. 126, 753
P.2d 1314; see State v. Dowling, 2011-NMSC-016, § 20, 150 N.M. 110, 257 P.3d
930 (“[T]he Court must scrutinize the evidence and review the jury’s fact-finding
function to ensure that a rational jury could have found the facts required for each
element of the conviction beyond a reasonable doubt.”). That evidence is to be
viewed in the light most favorable to the State, and we “indulge all reasonable
inferences in support of the verdict[] and disregard all evidence and inferences to the
contrary.” State v. Cobrera, 2013-NMSC-012, 9 7, 300 P.3d 729 (internal quotation
marks and citation omitted). The question is whether the district court’s “decision is
supported by substantial evidence, not whether the [district] court could have
reached a different conclusion.” In re Ernesto M.,, Jr., 1996-NMCA-039, 4 15, 121
N.M. 562, 915 P.2d 318. Substantial evidence is “such relevant evidence as a

reasonable mind might accept as adequate to support a conclusion[.]” State v.

Salgado, 1999-NMSC-008, § 25, 126 N.M. 691, 974 P.2d 661 (internal quotation
marks and citation omitted).

4193 Schwertner testified that when evaluating whether a child is neglected or in a
family in need of services, he reviews the student’s file, reading the documents
therein to see if the school had reported seeing any signs of abuse or neglect. Files
typically include letters, attendance records, a cover sheet with student’s personal
information, behavioral records, notes documenting any contact with the student’s
family, and occasionally, teacher’s notes regarding the student’s behavior.
Schwertner testified that he never contacts parents when determining whether a child
is part of a family in need of services, and instead relies on a review of the
information in the file. He explained that no further efforts are necessary because his
role involved only a review of the information regarding attendance that the school
collected, and it was “not a situation where [he is] involved in the proof of it.”

03 Son’s file included a cover letter, attendance record, disciplinary report, and
copies of the letters sent to Defendant regarding Son’s absences. Our record on
appeal contains nothing detailing the information set out in the disciplinary report,
and we are therefore unable to consider that information. Schwertner testified that
he “reviewed” Son’s file and concluded that Son “did not meet the criteria for any
abuse and neglect,” that there was no evidence of abuse, and that he did not feel that

Defendant’s family was a family in need of services. Schwertner also testified that

his department acted under an assumption that when a student is “under ninth grade,
parents have a lot more control and authority over the child than they do once [the
student] get[s] up into the high school.” Son was fifteen at the time in question—at
least one year older than an average eighth grader. Although Schwertner testified
that he considered Son’s grade level in making his determination regarding abuse
and family services, he also claimed that the determination was “pretty much” based
on the age of the student. Additionally, there is evidence Schwertner knew Son
through prior referrals to probation not related to this case. There is not, however,
any evidence regarding Schwertner’s involvement with those referrals or the extent
of his knowledge of the circumstances of those referrals. There is also no evidence
that Schwertner considered or used his knowledge of Son’s referrals in assessing
whether Son was part of a family in need of services. Ultimately, Schwertner
believed reviewing Son’s file for signs that the family was in need of services was
sufficient to determine whether Defendant may have been the cause of Son’s
absences.

213 Schwertner’s testimony about his investigation is of little assistance to the
State. Initially, we note that had the Legislature intended that the investigation be
limited to the review of the student’s file, there would be no need to involve the
juvenile probation office. School officials are in just as good a position to conduct

such a review as the juvenile probation office. The Legislature’s referral of the

investigation to the juvenile probation office indicates its intent to require more than
a cursory file review before determining whether the student is a “neglected child or
a child in a family in need of services.” See § 22-12-7(C). Furthermore, Schwertner’s
testimony at trial is more akin to an assessment of the merits of the adjudication of
Son as a habitual truant rather than an investigation of whether Son’s family
circumstances merited referral to the children’s court. His testimony contains vague
references to the materials in the file that he “reviewed,” but does not indicate, with
any specificity, what information he gathered from his review. Schwertner did not
divulge what was in Son’s disciplinary report, and gave no explanation as to why
the information contained in the report satisfied him that Son was not “a neglected
child or child in a family in need of services.” Section 22-12-7(C). Schwertner’s
“review” did not include any interviews with Defendant, Son, Son’s grandmother,
other members of Son’s family, Son’s teachers, or anyone else who interacted with
Son on a regular basis who might be able to provide information about whether Son
was “a child in a family in need of services.” See id. Indeed, it is unclear from the
record whether, in making his assessment, Schwertner was aware that Son’s father
had recently died, that his mother had been hospitalized, that in addition to Son,
Defendant cared for a special needs child, or that numerous calls were made to 911
to report disturbances involving Son at the family home. Instead of seeking to verify

or supplement any of the information contained in the file, Schwertner simply sought

to confirm that Son had more than the permitted number of unexcused absences and
that Defendant had been notified of those absences. The evidence presented
regarding Schwertner’s efforts in this case was nothing more than a superficial
review of Son’s file. While a review of the student’s file is absolutely contemplated
by the language of the statute, Section 22-12-7(C) requires more. Schwertner’s
actions were insufficient to allow him to determine whether Son was “a child in a
family in need of services” and did not constitute an “investigation” as required by
Section 22-12-7(C).

Investigation as a Prerequisite to Prosecution Under Section 22-12-7(E)

22} Having determined the nature and scope of an investigation required by
Section 22-12-7(C) and concluded that Schwertner’s investigation did not satisfy the
statutory requirements, we now consider whether a proper investigation is a
prerequisite to a prosecution under Section 22-12-7(E). While at first blush, the
Legislature’s omission of any reference to the investigation from Section 22-12-7(E)
would seem to allow a prosecution of a parent without an investigation, the plain
language, structure, and legislative history of the Act make clear that the
investigation is intended to be an integral part of the juvenile probation office’s
determination as to whether the habitual truancy may have been caused by the
student’s parent. See § 22-12-7(C), (E). Section 22-12-7(D) of the statute provides

that, “[i]f, after review by the juvenile probation office ...a determination and

finding is made that the habitual truancy by the student may have been caused by
the parent of the student, then the matter will be referred ... to the district attorney’s
office or any law enforcement agency.” Section 22-12-7(D). Notwithstanding that
the statute requires the juvenile probation office to conduct a review, it fails to define
what exactly the juvenile probation office is to review in making its “determination
and finding” regarding the cause of the student’s truancy. Again, while we will not
adopt specific requirements of what must be reviewed by the juvenile probation
office before making any determination or finding regarding the cause of student’s
truancy, we expect that any such review will include information collected in the
statutorily mandated investigation into the student’s status as a “neglected child or a
child in a family in need of services” required by Section 22-12-7(C), as well as any
other information available to the juvenile probation office. Indeed, to interpret
Section 22-12-7(E)’s omission of any reference to an investigation in a way that
renders an investigation unnecessary for prosecution under Section 22-12-7 would
render the investigation language of Section 22-12-7(C) superfluous. See Javier M.,
2001-NMSC-030, § 32. Finally, we expect that the information gathered during that
investigation will bear significantly on the juvenile probation office’s determination
and finding, as we anticipate it will provide the juvenile probation officer with at

least a basic understanding of the student’s home life and parent engagement.

{23} Because Section 22-12-7(C) requires an investigation into whether a student
is “a neglected child or a child in a family in need of services,” the juvenile probation
office must review the information learned from the investigation as part of its
determination and finding as to whether the student’s habitual truancy may have
been caused by the parent. No such investigation took place in this instance. We hold
that the State failed to satisfy the statutory prerequisite to prosecuting Defendant for
a violation of the Act, requiring the reversal of Defendant’s conviction.

Sufficiency of the Evidence

243 We look next to Defendant’s assertion that there was insufficient evidence to
support her convictions. See State v. Mascarenas, 2000-NMSC-017, 431, 129 N.M.
230, 4 P.3d 1221 (addressing a sufficiency argument in an effort to ensure no double
jeopardy violation). When reviewing for sufficiency, “we must view the evidence in
the light most favorable to the guilty verdict, indulging all reasonable inferences and
resolving all conflicts in the evidence in favor of the verdict.” State v. Holt, 2016-
NMSC-011, 7 20, 368 P.3d 409 (internal quotation marks and citation omitted). The
question then becomes “whether any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt.” Jd. (internal quotation
marks and citation omitted).

25} As noted previously, the information gathered during the investigation should

provide the juvenile probation officer with some understanding of parental

engagement. Here, however, Schwertner’s investigation was so deficient that it
contributed nothing to an assessment of Defendant’s parental engagement, and
provided no information to assist the district court in determining whether Defendant
“knowingly allowed” Son’s truancy to continue. See § 22-12-7(E) (providing that a
parent who, after receiving requisite notice and after investigation has occurred,
“knowingly allows the student to continue” his pattern of habitual truancy is guilty
of a petty misdemeanor). As such, the evidence proffered to support Defendant’s
conviction on that element is limited, consisting mostly of Defendant’s testimony
regarding her efforts to make Son attend school.

26} The evidence is sufficient to demonstrate Defendant knew Son had missed
school—she admitted to having received letters informing her of his absences.
Evidence of that knowledge alone, however, is insufficient to support Defendant’s
conviction here because the language of the statute requires not only that the parent
knew of, but also allowed, the student’s continued school absences. Thus, a
conviction under Section 22-12-7(E) contains an implicit requirement that the parent
either acted or failed to act in a way that authorized or ignored the child’s continued
absences. The evidence demonstrates Defendant attempted to get Son to attend
school by waking him up, making breakfast, and arranging for his transportation to
school, but that Defendant was afraid of Son, and when Defendant tried to get Son

to go to school, Son became violent. This evidence was not sufficient to support a

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conclusion that Defendant allowed Son’s absences, either by condoning his behavior

or by an apathetic failure to act.

I. CONCLUSION

27; We reverse the judgment of the district court and remand the matter to the

district court to vacate the conviction.

28} ITISSO ORDERED.

WE CONCUR:

haw’

hue Vrvogr

JULIE J. VARGAS, Mnopa

MICHAEL E. VIGIL, Judge

Y LG:

EMIL J. K(EHNE, Judge

September 4, 2018- State of New Mexico v. Jeanne Roeper, No. A-1-CA-34496

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