Request By:
Honorable Kevin L. Garvey, Judge
Jefferson District Court
Jefferson Hall of Justice
Louisville, Kentucky 40202
Opinion
Opinion By: David L. Armstrong, Attorney General; Kevin M. Noland, General Counsel
This is in response to your request in which you have asked several questions concerning the enforcement of the compulsory school attendance statutes. This response will address each of your questions separately, and we will discuss relevant provisions of both the Kentucky school law and the recently enacted Juvenile Code.
Your first question is whether it is still the Attorney General's position that a parent or legal guardian may be charged, pursuant to KRS 530.070, with the misdemeanor of unlawful transaction with a minor if the situation of habitual truancy of the child develops. In OAG 77-514 we adopted that view and feel it is still an appropriate interpretation of the statutes relevant to compulsory attendance.
Your second question is whether a parent may be held accountable if he/she fails to comply with the provisions of KRS 159.010(2), which requires 60 days written notice and counseling prior to an unmarried child between the ages of 16 and 18 withdrawing from school. In short, the answer is yes. The requirements of KRS 159.010 are expressly covered by the penalty provisions of KRS 159.990, which may be enforceable against the parent, guardian, custodian, or other person who wilfully fails to comply with KRS 159.010.
As an aside, we point out that in OAG 64-312, this office concluded that parents of a student over 16 years of age may not be penalized for the student's truancy since the compulsory attendance laws do not apply to pupils over 16 years of age. However, OAG 64-312 was issued prior to the enactment of KRS 159.010(2), and this subsequent enactment has warranted the modification of OAG 64-312 to the extent it is inconsistent with the present opinion.
Your third question is whether a married child, under the age 16 years, is exempt from compulsory school attendance. In OAG 61-953, our office concluded that the marriage of a child under the age of 16 years emancipates the child from his or her parents or guardian, and as a result the provisions of KRS 159.010, which placed statutory obligations upon the parent or guardian to ensure compulsory school attendance by the child, were no longer applicable to the parents or guardian of that child.
Once the child under 16 marries, we assume that the parent or guardian no longer has "custody or charge" of that child, and as a result, no longer has a legal responsibility for the failure of the child to attend school. However, left unresolved is whether the married child under 16 years of age has a legal responsibility to attend school. Exemptions from compulsory school attendance are listed in KRS 159.030. No exemption listed within KRS 159.030 applies to a married child under the age of 16 years.
Additionally, while there is no Kentucky case law directly on point with the question facing us, there are cases which hold that a child does not lose the disability of infancy through marriage, i.e.,
Hudson's Guardian v. Hudson et al., 160 Ky. 432, 169 S.W. 891 (1914). Most of these cases involve an infant's disability in receiving and controlling the corpus of a trust before the age of majority, but the rationale may apply equally to education. The law presumes that an infant is incapable of managing and controlling property, thus the concept of a trust in which the control of the property and the benefits (profits and income) are segregated is recognized. In this way the law protects infants from their own mistakes as well as fraudulent practices of others. By analogy the law endeavors to insure that a child receives a certain minimum amount of education. The rationale behind the compulsory attendance laws is to protect children from their own mistakes; in this case the mistake of dropping out of school. If marriage is not a basis to remove the veil of protection surrounding property in trust for infants, it is no better basis to justify allowing a child to forego a basic education. Education was once a privilege, but in today's competitive labor force it is a necessity.
Furthermore, the Kentucky Juvenile Code places a considerable amount of emphasis on education as a necessity for the well-being of a child. Two chapters, KRS Chapters 620 and 630, address the court's authority with regard to habitually truant children. The more specific chapter is KRS Chapter 630 governing status offenders. KRS 630.020 gives the juvenile court exclusive jurisdiction in proceedings concerning any child within the district who allegedly has been an habitual truant from school. KRS 600.020(19) defines an habitual truant. Dispositional alternatives available to the court under KRS 620.140 include protective orders requiring the parent or any other person to abstain from any conduct abusing, neglecting, or making the child dependent.
The scope of the court's authority in issuing dispositional orders under both KRS Chapters 620 and 630 must be considered in conjunction with KRS 610.160. This section gives the court the power of contempt in addition to "any other remedy provided by law" to compel obedience of the parents, guardian, or person exercising custodial control or supervision of the child to the court's orders. The juvenile code gives the district court wide latitude even beyond the contempt powers of the court to enforce its orders against parents and persons exercising custodial control, subject to due process considerations and reasonableness.
In the context of a married minor who is an habitual truant, the question arises as to whether a spouse of such a minor is subject to penalties under the Juvenile Code. The answer depends on whether the spouse can be viewed as a person exercising custodial control or supervision. KRS 600.020(26) defines a person exercising similar custodial control or supervision as a person "who has assumed the role and responsibility of a parent or guardian for the child, but who does not necessarily have legal custody of the child." Construed broadly, in some circumstances the spouse of a married minor could be viewed as a person who is exercising supervision of the child.
In summary as to your third question, a married child under the age of 16 has a legal responsibility to attend school. In contrast, once a child marries, the parent or guardian no longer has a legal obligation to ensure that the child attends school. However, if the spouse of a minor, who is under the age of 16 and who is an habitual truant, is found to be a person exercising custodial control or supervision as defined in KRS 600.020(26), the spouse may be subject to penalties under the Juvenile Code. The Juvenile Code provides the juvenile court with wide latitude in fashioning remedies and enforcement of orders to ensure school attendance.
Your final question concerns the burden of proof required of the Commonwealth in order for the juvenile court to impose penalties for habitual truancy to encourage compliance with compulsory attendance laws.
KRS 610.080(2) provides in relevant part:
"Unless otherwise exempted, upon motion by any child brought before the court on a complaint under KRS 610.010(1)(a), (b), (c) [habitual truancy] or (d), the Rules of Criminal Procedure shall apply. All adjudications shall be supported by evidence beyond a reasonable doubt, unless specified to the contrary by other provisions of KRS Chapters 600 to 645 . . ."
Therefore, in order for the juvenile court to impose penalties for habitual truancy, the burden of proof required of the Commonwealth is evidence beyond a reasonable doubt.
To summarize the conclusions reached herein, it is our opinion that:
(1) A parent, legal guardian, or other person exercising custodial control or supervision may be charged with the misdemeanor of unlawful transaction with a minor pursuant to KRS 530.070 if the situation of habitual truancy of the child develops.
(2) A parent, guardian, or other custodian may be subject to the penalties found in KRS 159.990 for failure to comply with KRS 159.010(2), which requires 60 days written notice and counseling prior to an unmarried child between the ages of 16 and 18 withdrawing from school.
(3) A married child under the age of 16 has a legal responsibility to attend school. In contrast, once a child marries, the parent or guardian no longer has a legal obligation to ensure that the child attends school. However, if the spouse of a minor who is under the age of 16 and who is an habitual truant, is found to be a person exercising custodial control or supervision as defined in KRS 600.020(26), the spouse may be subject to penalties under the Juvenile Code. The Juvenile Code provides the juvenile court with wide latitude in fashioning remedies and enforcement of orders to ensure school attendance.
(4) In order for the juvenile court to impose penalties for habitual truancy, the burden of proof required of the Commonwealth is evidence beyond a reasonable doubt.
We trust this response has adequately resolved your questions.