What is the penalty for a parent charged with truancy?

Full Question:

My 2nd grader has 17 days of unexcused absences. I notified the school when he was going to be out for vacation with family or sick. Never warned of legal action. I am now charged with truancy and have a court date. What is going to happen? This is the 1st time I have ever had legal action with the school system. I am a nurse and if I have crimal charges I can loose my license.
03/31/2009   |   Category: Education ยป Compulsory E...   |   State: West Virginia   |   #15831

Answer:

If a person is convicted of aiding or abetting truancy, it may be a misdemeanor conviction subject to a fine. A court hearing will be held and it is possible for the judge to suspend the sentence for 60 days. If attendance is uninterrupted for the 60 days, the charges may be dismissed.

Before a person may be subject to criminal charges, when there have been five consecutive or ten total unexcused absences of a child during a school year, the parent must get a written notice that within ten days of receipt of the notice the parent,guardian or custodian, accompanied by the child, shall report in person to the school the child attends for a
conference with the principal or other designated representative of the school in order to discuss and correct the circumstances causing the inexcusable absences of the
child. If the notice wasn't served so that the parent was given an opportunity to correct the problem, it may be a defense to criminal charges. I suggest you contact a local attorney who can review all the facts and documents involved.

The following are WV statutes:

§ 18-8-7. Aiding or abetting violations of compulsory
attendance; penalty.

Any person who induces or attempts to induce any child or
student unlawfully to absent himself or herself from school,
or who harbors or employs any child or student of compulsory
school age or any student over sixteen years of age who is
enrolled in a school while the school to which he or she
belongs and which he or she is required to attend is in
session, or who employs such child or student within the
term of such school on any day such school is in session
without the written permission of the county superintendent
of schools, or for a longer period than such work permit may
specify shall be guilty of a misdemeanor and, upon
conviction thereof, shall be fined not less than twenty-five
nor more than fifty dollars and may be confined in jail not
less than ten nor more than thirty days.


§ 18-8-1. Commencement and termination of compulsory
school attendance; exemptions.

(a) Compulsory school attendance shall begin with the
school year in which the sixth birthday is reached prior to
the first day of September or upon enrolling in a publicly
supported kindergarten program and continue to the sixteenth
birthday. Exemption from the foregoing requirements of
compulsory public school attendance shall be made on behalf
of any child for the causes or conditions set forth in this
section. Each cause or condition set forth in this
section shall be subject to confirmation by the attendance
authority of the county.

(b) A child shall be exempt from the compulsory school
attendance requirement set forth in subsection (a) of this
section if the requirements of this subsection, relating to
instruction in a private, parochial or other approved
school, are met. The instruction shall be in a school
approved by the county board and for a time equal to the
instructional term set forth in section forty-five,
article five of this chapter. In all private,
parochial or other schools approved pursuant to this
subsection it shall be the duty of the principal or other
person in control, upon the request of the county
superintendent, to furnish to the county board such
information and records as may be required with respect to
attendance, instruction and progress of pupils enrolled
between the entrance age and sixteen years.

(c) A child shall be exempt from the compulsory school
attendance requirement set forth in subsection (a) of this
section if the requirements of either subdivision (1) of
this subsection or the requirements of subdivision (2) of
this subsection, both relating to home instruction, are met.

(1) The instruction shall be in the home of the child or
children or at some other place approved by the county board
and for a time equal to the instructional term set forth in
section forty-five, article five of this
chapter. If the request for home instruction is denied by
the county board, good and reasonable justification for the
denial shall be furnished in writing to the applicant by the
county board. The instruction shall be conducted by a person
or persons who, in the judgment of the county superintendent
and county board, are qualified to give instruction in
subjects required to be taught in public elementary schools
in the State. The person or persons providing the
instruction, upon request of the county superintendent,
shall furnish to the county board information and records as
may be required, from time to time, with respect to
attendance, instruction and progress of pupils enrolled
between the entrance age and sixteen years receiving the
instruction. The state board shall develop guidelines for
the home schooling of special education students including
alternative assessment measures to assure that satisfactory
academic progress is achieved.

(2) The child meets the requirements set forth in this
subdivision: Provided, That the county superintendent may
seek from the circuit court of the county an order denying
home instruction of the child. The order may be granted upon
a showing of clear and convincing evidence that the child
will suffer neglect in the child's education or that there
are other compelling reasons to deny home instruction.

(A) Annually, the person or persons providing home
instruction present to the county superintendent or county
board a notice of intent to provide home instruction and the
name, address, age and grade level of any child of
compulsory school age to be instructed: Provided, That if a
child is enrolled in a public school, notice of intent to
provide home instruction shall be given at least two weeks
prior to withdrawing such child from public school;

(B) The person or persons providing home instruction submit
satisfactory evidence of a high school diploma or
equivalent;

(C) The person or persons providing home instruction outline
a plan of instruction for the ensuing school year; and

(D) On or before the thirtieth day of June of each year the
person or persons providing home instruction shall obtain an
academic assessment of the child for the previous
school year and submit the results to the county
superintendent. When the academic assessment takes place
outside of a public school, the parent or legal guardian
shall pay the cost. The requirement of an academic
assessment shall be satisfied in one of the following ways:

(i) The child receiving home instruction takes a nationally
normed standardized achievement test to be administered
under standardized conditions as set forth by the published
instructions of the selected test in the subjects of
reading, language, mathematics, science and social studies:
Provided, That in no event may the child's parent or legal
guardian administer the test. The publication date of the
chosen test shall not be more than ten years from the date
of the administration of the test. The child shall be
considered to have made acceptable progress when the mean of
the child's test results in the required subject areas for
any single year meets or exceeds the fiftieth percentile or,
if below the fiftieth percentile, shows improvement from the
previous year's results;

(ii) The child participates in the testing program currently
in use in the State's public schools. The test shall be
administered to the child at a public school in the county
of residence. Determination of acceptable progress will be
based on current guidelines of the state testing program;

(iii) The county superintendent is provided with a written
narrative indicating that a portfolio of samples of the
child's work has been reviewed and that the child's academic
progress for the year is in accordance with the child's
abilities. If the narrative indicates that the child's
academic progress for the year is in accordance with the
child's abilities, the child shall be considered to have
made acceptable progress. This narrative shall be prepared
by a certified teacher whose certification number shall be
provided. The narrative shall include a statement about the
child's progress in the areas of reading, language,
mathematics, science and social studies and shall note any
areas which, in the professional opinion of the reviewer,
show need for improvement or remediation; or

(iv) The child completes an alternative academic assessment
of proficiency that is mutually agreed upon by the parent or
legal guardian and the county superintendent. Criteria for
acceptable progress shall be mutually agreed upon by the
same parties; and

(E) When the annual assessment fails to show acceptable
progress as defined under the appropriate assessment option
set forth in paragraph (D) of this subdivision, the person
or persons providing home instruction shall initiate a
remedial program to foster acceptable progress and the
county board shall notify the parents or legal guardian of
the child, in writing, of the services available to assist
in the assessment of the child's eligibility for special
education services: Provided, That the identification of a
disability shall not preclude the continuation of home
schooling. In the event that the child does not achieve
acceptable progress as defined under the appropriate
assessment option set forth in paragraph (D) of this
subdivision for a second consecutive year, the person or
persons providing instruction shall submit to the county
superintendent additional evidence that appropriate
instruction is being provided.

(3) This subdivision applies to both home instruction
exemptions set forth in subdivisions (1) and (2) of this
subsection. The county superintendent or a designee shall
offer such assistance, including textbooks, other teaching
materials and available resources, as may assist the person
or persons providing home instruction subject to their
availability. Any child receiving home instruction may upon
approval of the county board exercise the option to attend
any class offered by the county board as the person or
persons providing home instruction may consider appropriate
subject to normal registration and attendance requirements.

(d) A child shall be exempt from the compulsory school
attendance requirement set forth in subsection (a) of this
section if the requirements of this subsection, relating to
physical or mental incapacity, are met. Physical or mental
incapacity consists of incapacity for school attendance and
the performance of school work. In all cases of prolonged
absence from school due to incapacity of the child to
attend, the written statement of a licensed physician or
authorized school nurse shall be required under the
provisions of this article: Provided, That in all cases,
incapacity shall be narrowly defined and in no case shall
the provisions of this article allow for the exclusion of
the mentally, physically, emotionally or behaviorally
handicapped child otherwise entitled to a free appropriate
education.

(e) A child shall be exempt from the compulsory school
attendance requirement set forth in subsection (a) of this
section if conditions rendering school attendance impossible
or hazardous to the life, health or safety of the child
exist.

(f) A child shall be exempt from the compulsory school
attendance requirement set forth in subsection (a) of this
section upon regular graduation from a standard senior high
school.

(g) A child shall be exempt from the compulsory school
attendance requirement set forth in subsection (a) of this
section if the child is granted a work permit pursuant to
this subsection. The county superintendent may, after due
investigation, grant work permits to youths under
sixteen years of age, subject to state and federal labor
laws and regulations: Provided, That a work permit may not
be granted on behalf of any youth who has not completed the
eighth grade of school.

(h) A child shall be exempt from the compulsory school
attendance requirement set forth in subsection (a) of this
section if a serious illness or death in the immediate
family of the pupil has occurred. It is expected that the
county attendance director will ascertain the facts in all
cases of such absences about which information is inadequate
and report the facts to the county superintendent.

(i) A child shall be exempt from the compulsory school
attendance requirement set forth in subsection (a) of this
section if the requirements of this subsection, relating to
destitution in the home, are met. Exemption based on a
condition of extreme destitution in the home may be granted
only upon the written recommendation of the county
attendance director to the county superintendent following
careful investigation of the case. A copy of the report
confirming the condition and school exemption shall be
placed with the county director of public assistance. This
enactment contemplates every reasonable effort that may
properly be taken on the part of both school and public
assistance authorities for the relief of home conditions
officially recognized as being so destitute as to deprive
children of the privilege of school attendance. Exemption
for this cause shall not be allowed when the destitution is
relieved through public or private means.

(j) A child shall be exempt from the compulsory school
attendance requirement set forth in subsection (a) of this
section if the requirements of this subsection, relating to
church ordinances and observances of regular church
ordinances, are met. The county board may approve exemption
for religious instruction upon written request of the person
having legal or actual charge of a child or children:
Provided, That the exemption shall be subject to the
rules prescribed by the county superintendent and approved
by the county board.

(k) A child shall be exempt from the compulsory school
attendance requirement set forth in subsection (a) of this
section if the requirements of this subsection, relating to
alternative private, parochial, church or religious school
instruction, are met. Exemption shall be made for any child
attending any private school, parochial school, church
school, school operated by a religious order or other
nonpublic school which elects to comply with the provisions
of article twenty-eight of this
chapter.

(l) The completion of the eighth grade shall not
exempt any child under sixteen years of age from the
compulsory attendance provision of this article.

§ 18-8-2. Offenses; penalties; cost of prosecution.

Any person who, after receiving due notice, shall fail to
cause a child or children under eighteen years of age in
that person's legal or actual charge to attend school in
violation of the provisions of this article or without just
cause, shall be guilty of a misdemeanor, and shall, upon
conviction of a first offense, be fined not less than fifty
nor more than one hundred dollars together with the costs of
prosecution, or required to accompany the child to school
and remain through the school day for so long as the
magistrate or judge may determine is appropriate. The
magistrate or judge, upon conviction and pronouncing
sentence, may delay the sentence for a period of sixty
school days provided the child is in attendance everyday
during said sixty-day period. Following the sixty-day
period, if said child was present at school for every
school day, the delayed sentence may be suspended and not
enacted. Upon conviction of a second offense, a fine may be
imposed of not less than fifty dollars nor more than one
hundred dollars together with the costs of prosecution and
the person may be required to accompany the child to school
and remain throughout the school day until such time as the
magistrate or judge may determine is appropriate or confined
in jail not less than five or more than twenty days.
Every day a child is out of school contrary to the
provisions of this article shall constitute a separate
offense. Magistrates shall have concurrent jurisdiction with
circuit courts for the trial of offenses arising under this
section.

Any person eighteen years of age or older who is enrolled in
school who, after receiving due notice, fails to attend
school in violation of the provisions of this article or
without just cause, shall be guilty of a misdemeanor and
shall, upon conviction of a first offense, be fined not less
than fifty dollars nor more than one hundred dollars
together with the costs of prosecution and required to
attend school and remain throughout the school day. The
magistrate or judge, upon conviction and pronouncing
sentence, may delay the imposition of a fine for a period of
sixty school days provided the person is in attendance
every day during said sixty-day period. Following the
sixty-day period, if said student was present at school
everyday, the delayed sentence may be suspended and not
enacted. Upon conviction of a second offense, a fine may be
imposed of not less than fifty dollars nor more than one
hundred dollars together with the costs of prosecution and
the person may be required to go to school and remain
throughout the school day until such time as the person
graduates or withdraws from school or confined in jail not
less than five or more than twenty days. Every day a student
is out of school contrary to the provisions of this
article shall constitute a separate offense. Magistrates
shall have concurrent jurisdiction with circuit courts for
the trial of offenses arising under this section.

Upon conviction of a third offense, any person
eighteen years of age or older who is enrolled in school
shall be withdrawn from school during the remainder of that
school year. Enrollment of that person in school during the
next school year or years thereafter shall be conditional
upon all absences being excused as defined in law, state
board policy and county board of education policy. More than
one unexcused absence of such a student shall be grounds for
the director of attendance to authorize the school to
withdraw the person for the remainder of the school year.
Magistrates shall have concurrent jurisdiction with circuit
courts for the trial of offenses arising under this section.


§ 18-8-4. Duties of attendance director and assistant
directors; complaints, warrants and hearings.

(a) The county attendance director and the assistants shall
diligently promote regular school attendance. They shall
ascertain reasons for inexcusable absences from school of
pupils of compulsory school age and students who remain
enrolled beyond the sixteenth birthday as defined under this
article and shall take such steps as are, in their
discretion, best calculated to correct attitudes of parents
and pupils which result in absences from school even though
not clearly in violation of law.

(b) In the case of five consecutive or ten total unexcused
absences of a child during a school year, the attendance
director or assistant shall serve written notice to the
parent, guardian or custodian of such child that the
attendance of such child at school is required and that
within ten days of receipt of the notice the parent,
guardian or custodian, accompanied by the child, shall
report in person to the school the child attends for a
conference with the principal or other designated
representative of the school in order to discuss and correct
the circumstances causing the inexcusable absences of the
child; and if the parent, guardian or custodian does not
comply with the provisions of this article, then the
attendance director or assistant shall make complaint
against the parent, guardian or custodian before a
magistrate of the county. If it appears from the complaint
that there is probable cause to believe that an offense has
been committed and that the accused has committed it, a
summons or a warrant for the arrest of the accused shall
issue to any officer authorized by law to serve the summons
or to arrest persons charged with offenses against the
State. More than one parent, guardian or custodian may be
charged in a complaint. Initial service of a summons or
warrant issued pursuant to the provisions of this
section shall be attempted within ten calendar days of
receipt of the summons or warrant and subsequent attempts at
service shall continue until the summons or warrant is
executed or until the end of the school term during which
the complaint is made, whichever is later.

(c) The magistrate court clerk, or the clerk of the circuit
court performing the duties of the magistrate court as
authorized in section eight, article one,
chapter fifty of this code, shall assign the case to a
magistrate within ten days of execution of the summons or
warrant. The hearing shall be held within twenty days of the
assignment to the magistrate, subject to lawful continuance.
The magistrate shall provide to the accused at least
ten days' advance notice of the date, time and place of the
hearing.

(d) When any doubt exists as to the age of a child absent
from school, the attendance director shall have authority to
require a properly attested birth certificate or an
affidavit from the parent, guardian or custodian of such
child, stating age of the child. The county attendance
director or assistant shall, in the performance of his or
her duties, have authority to take without warrant any child
absent from school in violation of the provisions of this
article and to place such child in the school in which such
child is or should be enrolled.

(e) The county attendance director shall devote such time as
is required by section three of this article to
the duties of attendance director in accordance with this
section during the instructional term and at such other
times as the duties of an attendance director are required.
All attendance directors hired for more than two
hundred days may be assigned other duties determined by the
superintendent during the period in excess of two
hundred days. The county attendance director shall be
responsible under direction of the county superintendent for
the efficient administration of school attendance in the
county.

(f) In addition to those duties directly relating to the
administration of attendance, the county attendance director
and assistant directors shall also perform the following
duties:

(1) Assist in directing the taking of the school census to
see that it is taken at the time and in the manner provided
by law;

(2) Confer with principals and teachers on the comparison of
school census and enrollment for the detection of possible
nonenrollees;

(3) Cooperate with existing state and federal agencies
charged with enforcement of child labor laws;

(4) Prepare a report for submission by the county
superintendent to the State Superintendent of Schools on
school attendance, at such times and in such detail as may
be required. The state board shall promulgate a legislative
rule pursuant to article three-b,
chapter twenty-nine-a of this code that sets forth student
absences that shall be excluded for accountability purposes.
The absences that shall be excluded by the rule shall
include, but not be limited to, excused student absences,
students not in attendance due to disciplinary measures and
absent students for whom the attendance director has pursued
judicial remedies to compel attendance to the extent of his
or her authority. The attendance director shall file with
the county superintendent and county board of education at
the close of each month a report showing activities of the
school attendance office and the status of attendance in the
county at the time;

(5) Promote attendance in the county by the compilation of
data for schools and by furnishing suggestions and
recommendations for publication through school bulletins and
the press, or in such manner as the county superintendent
may direct;

(6) Participate in school teachers' conferences with parents
and students;

(7) Assist in such other ways as the county superintendent
may direct for improving school attendance;

(8) Make home visits of students who have excessive
unexcused absences, as provided above, or if requested by
the chief administrator, principal or assistant principal;
and

(9) Serve as the liaison for homeless children and youth.

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