1997 Regular Session
To: Juvenile Justice; Education
By: Senator(s) Burton, Johnson (19th), Jordan (24th), Hawks
Senate Bill 2900
AN ACT TO AMEND SECTION 43-21-105, MISSISSIPPI CODE OF 1972, TO PROVIDE THAT A SECOND OFFENSE OF TRUANCY ON THE PART OF A CHILD SHALL CONSTITUTE A DELINQUENT ACT; TO AMEND SECTION 37-13-91, MISSISSIPPI CODE OF 1972, IN CONFORMITY; AND FOR RELATED PURPOSES.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:
SECTION 1. Section 43-21-105, Mississippi Code of 1972, is amended as follows:
43-21-105. The following words and phrases, for purposes of this chapter, shall have the meanings ascribed herein unless the context clearly otherwise requires:
(a) "Youth court" means the Youth Court Division.
(b) "Judge" means the judge of the Youth Court Division.
(c) "Designee" means any person that the judge appoints to perform a duty which this chapter requires to be done by the judge or his designee. The judge may not appoint a person who is involved in law enforcement to be his designee.
(d) "Child" and "youth" are synonymous, and each means a person who has not reached his eighteenth birthday. A child who has not reached his eighteenth birthday and is on active duty for a branch of the armed services or is married is not considered a "child" or "youth" for the purposes of this chapter.
(e) "Parent" means the father or mother to whom the child has been born, or the father or mother by whom the child has been legally adopted.
(f) "Guardian" means a court-appointed guardian of the person of a child.
(g) "Custodian" means any person having the present care or custody of a child whether such person be a parent or otherwise.
(h) "Legal custodian" means a court-appointed custodian of the child.
(i) "Delinquent child" means a child who has reached his tenth birthday and who has committed a delinquent act or, while being required to attend an alternative school program provided under Section 37-13-92, willfully and habitually absents himself therefrom.
(j) "Delinquent act" is any act, which if committed by an adult, is designated as a crime under state or federal law, or municipal or county ordinance other than offenses punishable by life imprisonment or death. A delinquent act includes escape from lawful detention, a second violation on the part of a child of the Mississippi School Compulsory Attendance Law, violations of the Uniform Controlled Substances Law and violent behavior.
(k) "Child in need of supervision" means a child who has reached his seventh birthday and is in need of treatment or rehabilitation because the child:
(i) Is habitually disobedient of reasonable and lawful commands of his parent, guardian or custodian and is ungovernable; or
(ii) While being required to attend school, willfully and habitually violates the rules thereof or willfully and habitually absents himself therefrom; or
(iii) Runs away from home without good cause; or
(iv) Has committed a delinquent act or acts.
(l) "Neglected child" means a child:
(i) Whose parent, guardian or custodian or any person responsible for his care or support, neglects or refuses, when able so to do, to provide for him proper and necessary care or support, or education as required by law, or medical, surgical, or other care necessary for his well-being; provided, however, a parent who withholds medical treatment from any child who in good faith is under treatment by spiritual means alone through prayer in accordance with the tenets and practices of a recognized church or religious denomination by a duly accredited practitioner thereof shall not, for that reason alone, be considered to be neglectful under any provision of this chapter; or
(ii) Who is otherwise without proper care, custody, supervision or support; or
(iii) Who, for any reason, lacks the special care made necessary for him by reason of his mental condition, whether said mental condition be mentally retarded or mentally ill; or
(iv) Who, for any reason, lacks the care necessary for his health, morals or well-being.
(m) "Abused child" means a child whose parent, guardian or custodian or any person responsible for his care or support, whether legally obligated to do so or not, has caused or allowed to be caused upon said child sexual abuse, sexual exploitation, emotional abuse, mental injury, nonaccidental physical injury or other maltreatment. Provided, however, that physical discipline (not to include any form of sexual abuse) performed on a child by a parent, guardian or custodian shall only be deemed to be abuse under this paragraph when a licensed physician has determined that physical injury has occurred. "Sexual Abuse" includes obscene or pornographic photographing, filming or depiction of children for commercial purposes, or the rape, molestation, incest, prostitution or other such forms of sexual exploitation of children under circumstances which indicate that the child's health or welfare is harmed or threatened.
(n) "A child in need of special care" means a child with any mental or physical illness that cannot be treated with the dispositional alternatives ordinarily available to the youth court.
(o) A "dependent child" means any child who is not a child in need of supervision, a delinquent child, an abused child or a neglected child, and which child has been voluntarily placed in the custody of the Department of Human Services by his parent, guardian or custodian.
(p) "Custody" means the physical possession of the child by any person.
(q) "Legal custody" means the legal status created by a court order which gives the legal custodian the responsibilities of physical possession of the child and the duty to provide him with food, shelter, education and reasonable medical care, all subject to residual rights and responsibilities of the parent or guardian of the person.
(r) "Detention" means the care of children in physically restrictive facilities.
(s) "Shelter" means care of children in physically nonrestrictive facilities.
(t) "Records involving children" means any of the following from which the child can be identified:
(i) All youth court records as defined in Section 43-21-251;
(ii) All social records as defined in Section 43-21-253;
(iii) All law enforcement records as defined in Section 43-21-255;
(iv) All agency records as defined in Section 43-21-257; and
(v) All other documents maintained by any representative of the state, county, municipality or other public agency insofar as they relate to the apprehension, custody, adjudication or disposition of a child who is the subject of a youth court cause.
(u) "Any person responsible for care or support" means the person who is providing for the child at a given time. This term shall include, but is not limited to, stepparents, foster parents, relatives, nonlicensed babysitters or other similar persons responsible for a child and staff of residential care facilities and group homes that are licensed by the Department of Human Services.
(v) The singular includes the plural, the plural the singular and the masculine the feminine when consistent with the intent of this chapter.
(w) "Out-of-home" setting means the temporary supervision or care of children by the staff of licensed day care centers, the staff of public, private and state schools, the staff of juvenile detention facilities, the staff of unlicensed residential care facilities and group homes and the staff of, or individuals representing, churches, civic or social organizations.
SECTION 2. Section 37-13-91, Mississippi Code of 1972, is amended as follows:
37-13-91. (1) This section shall be referred to as the "Mississippi Compulsory School Attendance Law."
(2) The following terms as used in this section are defined as follows:
(a) "Parent" means the father or mother to whom a child has been born, or the father or mother by whom the child has been legally adopted.
(b) "Guardian" means a guardian of the person of a child, other than a parent, who is legally appointed by a court of competent jurisdiction.
(c) "Custodian" means any person having the present care or custody of a child, other than a parent or guardian of said child.
(d) "School day" means not less than five (5) and not more than eight (8) hours of actual teaching in which both teachers and pupils are in regular attendance for scheduled schoolwork.
(e) "School" means any public school in this state or any nonpublic school in this state which is in session each school year for at least one hundred eighty (180) school days, except that the "nonpublic" school term shall be the number of days that each school shall require for promotion from grade to grade.
(f) "Compulsory-school-age child" means a child who has attained or will attain the age of six (6) years on or before September 1 of the calendar year and who has not attained the age of seventeen (17) years on or before September 1 of the calendar year.
(g) "School attendance officer" means any full-time employee of the district attorney assigned to monitor compulsory public school attendance, to investigate nonattendance of compulsory-school-age children and to counsel all school-age children to attend school. From and after July 1, 1987, a school attendance officer shall possess a college degree with a major in a behavioral science or a related field. Such requirements shall not apply to attendance officers employed prior to January 1, 1987.
(h) "Appropriate school official" means the superintendent of the school district or his designee or, in the case of a nonpublic school, the principal or the headmaster.
(i) "Nonpublic school" for the purposes of this section shall mean an institution for the teaching of children, consisting of a physical plant, whether owned or leased, including a home, instructional staff members and students, and which is in session each school year. This definition shall include, but not be limited to, private, church, parochial and home instruction programs.
(3) A parent, guardian or custodian of a compulsory-school-age child in this state shall cause such child to enroll in and attend a public school or legitimate nonpublic school for the period of time that such child is of compulsory school age, except under the following circumstances:
(a) When a compulsory-school-age child is physically, mentally or emotionally incapable of attending school as determined by the appropriate school official based upon sufficient medical documentation.
(b) When a compulsory-school-age child is enrolled in and pursuing a course of special education, remedial education or education for handicapped or physically or mentally disadvantaged children.
(c) When a compulsory-school-age child is being educated in a legitimate home instruction program.
The parent, guardian or custodian of a compulsory-school-age child described in item (a), (b) or (c) of this subsection, or the parent, guardian or custodian of a compulsory-school-age child attending any nonpublic school, or the appropriate school official for any or all such children attending such school shall complete a "certificate of enrollment" in order to facilitate the administration of this section.
The form of the certificate of enrollment shall be prepared by the State Board of Education and shall be designed to obtain the following information only:
(i) The name, address, telephone number and date of birth of the compulsory-school-age child;
(ii) The name, address and telephone number of the parent, guardian or custodian of the compulsory-school-age child;
(iii) A simple description of the type of education the compulsory-school-age child is receiving and, if such child is enrolled in a nonpublic school, the name and address of such school; and
(iv) The signature of the parent, guardian or custodian of the compulsory-school-age child or, for any or all compulsory-school-age child or children attending a nonpublic school, the signature of the appropriate school official and the date signed.
The State Board of Education shall furnish a sufficient number of such certificates of enrollment to each school attendance officer in the state.
The certificate of enrollment shall be returned to the school attendance officer where such child resides on or before September 15 of each year. Any parent, guardian or custodian found by the school attendance officer to be in noncompliance with this section shall, after written notice of such noncompliance by the school attendance officer, comply with this subsection within ten (10) days after such notice or be in violation of this section. Provided, however, that in the event such child has been enrolled in a public school within fifteen (15) calendar days after the first day of the school year as required in subsection (6), the parent or custodian may at a later date enroll such child in a legitimate nonpublic school or legitimate home instruction program and send the certificate of enrollment to the school attendance officer and be in compliance with this subsection.
For the purposes of this subsection, a legitimate nonpublic school or legitimate home instruction program shall be those not operated or instituted for the purpose of avoiding or circumventing the compulsory attendance law.
(4) An "unlawful absence" is an absence during a school day by a compulsory-school-age child, which absence is not due to a valid excuse for temporary nonattendance. Days missed from school due to disciplinary suspension shall not be considered an "excused" absence under the provisions of this section. The provisions of this subsection shall not apply to children enrolled in a nonpublic school.
Each of the following shall constitute a valid excuse for temporary nonattendance of a compulsory-school-age child enrolled in a public school, provided satisfactory evidence of the excuse is provided to the superintendent of the school district or his designee:
(a) An absence is excused when the absence results from the compulsory-school-age child's attendance of an authorized school activity with the prior approval of the superintendent of the school district or his designee. Such activities may include field trips, athletic contests, student conventions, musical festivals and any similar activity.
(b) An absence is excused when the absence results from illness or injury which prevents the compulsory-school-age child from being physically able to attend school.
(c) An absence is excused when isolation of a compulsory-school-age child is ordered by the county health officer, by the State Board of Health or appropriate school official.
(d) An absence is excused when it results from the death or serious illness of a member of the immediate family of a compulsory-school-age child. The immediate family member of a compulsory-school-age child shall include children, spouse, grandparents, parents, brothers and sisters, including stepbrothers and stepsisters.
(e) An absence is excused when it results from a medical or dental appointment of a compulsory-school-age child where an approval of the superintendent of the school district or his designee is gained prior to the absence, except in the case of emergency.
(f) An absence is excused when it results from the attendance of a compulsory-school-age child at the proceedings of a court or an administrative tribunal if such child is a party to the action or under subpoena as a witness.
(g) An absence may be excused if the religion to which the compulsory-school-age child or such child's parents adheres, requires or suggests the observance of a religious event. The approval of such absence is within the discretion of the superintendent of the school district or his designee, but approval should be granted unless the religion's observance is of such duration as to interfere with the education of the child.
(h) An absence may be excused when it is demonstrated to the satisfaction of the superintendent of the school district or his designee that the purpose of the absence is to take advantage of a valid educational opportunity such as travel including vacations or other family travel. Approval of such absence must be gained from the superintendent of the school district or his designee prior to the absence but such approval shall not be unreasonably withheld.
(i) An absence may be excused when it is demonstrated to the satisfaction of the superintendent of the school district or his designee that conditions are sufficient to warrant the compulsory-school-age child's nonattendance. However, no absences shall be excused by the school district superintendent or his designee when any student suspensions or expulsions circumvent the intent and spirit of the compulsory attendance law.
(5) Any compulsory-school-age child subject to the provisions of this section who is adjudicated to be a truant for a second or subsequent offense of truancy may be committed to the appropriate state training school.
Any parent, guardian or custodian of a compulsory-school-age child subject to the provisions of this section who refuses or willfully fails to perform any of the duties imposed upon him or her under the provisions of this section or who intentionally falsifies any information required to be contained in a certificate of enrollment, shall be guilty of contributing to the neglect of a child and, upon conviction, shall be punished in accordance with the provisions of Section 97-5-39, Mississippi Code of 1972.
Upon prosecution of a parent, guardian or custodian of a compulsory-school-age child for violation of this section, the presentation of evidence by the prosecutor that shows that such child has not been enrolled in school within eighteen (18) calendar days after the first day of the school year of the public school which such child is eligible to attend, or that such child has accumulated twelve (12) unlawful absences during the school year at the public school in which such child has been enrolled, shall establish a prima facie case that such child's parent, guardian or custodian is responsible for the absences and has refused or willfully failed to perform the duties imposed upon him or her under the provisions of this section. Provided, however, that no proceedings under this section shall be brought against a parent, guardian or custodian of a compulsory-school-age child unless the provisions of subsection (7)(g) of this section have first been complied with.
(6) If a compulsory-school-age child has not been enrolled in a school within fifteen (15) calendar days after the first day of the school year of the school which such child is eligible to attend or such child has accumulated five (5) unlawful absences during the school year of the public school in which such child is enrolled, the school district superintendent shall, within two (2) school days or within five (5) calendar days, whichever is less, report such absences to the school attendance officer. The State Department of Education shall prescribe a uniform method for schools to utilize in reporting such unlawful absences to the school attendance officer. The superintendent, or his designee, shall report any student suspensions or student expulsions to the school attendance officer when they occur.
(7) The district attorney shall appoint one or more school attendance officers in accordance with the provisions of subsection (8) of this section to administer the provisions of this section. However, from and after October 1, 1994, the board of supervisors in any county having a population of more than forty-five thousand (45,000) according to the 1990 federal census, in their discretion, may authorize the appointment of one or more school attendance officers in addition to the number funded from state funds under subsection (8), to be compensated from the county general fund. The duties of the school attendance officer shall be limited to those set forth in this section, and no school attendance officer shall be ordered or authorized to perform any duty in the district attorney's office not relating to the enforcement of the provisions of this section. The school attendance officer shall:
(a) Cooperate with any public agency to locate and identify all compulsory-school-age children who are not attending school;
(b) Cooperate with any other courts of competent jurisdiction;
(c) Investigate all cases of nonattendance and unlawful absences by compulsory-school-age children not enrolled in a nonpublic school;
(d) Provide appropriate counseling to encourage all school-age children to attend school until they have completed high school;
(e) Attempt to secure the provision of social or welfare services which may be required to enable any such child to attend school;
(f) Contact the home or place of residence of a compulsory-school-age child and any other place in which the officer is likely to find any compulsory-school-age child when such child is absent from school during school hours without a valid written excuse from school officials and when such child is found, the officer shall notify the parents and school officials as to where the child was physically located;
(g) Contact promptly the home of each compulsory-school-age child in the school district within the officer's jurisdiction who is not enrolled in school or is not in attendance at public school and is without a valid written excuse from school officials; if no valid reason is found for such nonenrollment or absence from such school, the school attendance officer shall give written notice to the parent, guardian or custodian of the requirement for such child's enrollment or attendance;
(h) Perform all other duties relating to compulsory school attendance established by the district attorney.
When the school attendance officer has made all attempts to secure enrollment and/or attendance of a compulsory-school-age child and is unable to effect said enrollment and/or attendance, the attendance officer shall file a petition with the youth court under Section 43-21-451 or shall file a petition in a court of competent jurisdiction as it pertains to parent or child. The youth court shall expedite a hearing to make an appropriate adjudication and a disposition to ensure compliance with the Compulsory School Attendance Law, and may order the child to enroll or reenroll in school. The superintendent of the school district to which such child is ordered may, in his discretion, assign such child to the alternative school program of such school established pursuant to Section 37-13-92, Mississippi Code of 1972.
A school attendance officer appointed pursuant to subsection (7) of this section shall, while engaged in the performance of his duties, carry on his person a badge identifying him as a school attendance officer of the district attorney and an identification card designed by the Commissioner of Public Safety and issued by the appropriate district attorney. Neither such badge nor such identification card shall bear the name of any elected public official.
(i) This subsection shall stand repealed from and after July 1, 1998.
(8) Each district attorney shall retain the same number of school attendance officer positions that existed in the respective counties on February 17, 1994, and shall retain in office the same employees holding such school attendance officer positions on February 17, 1994. Until June 30, 1996, out of the funds appropriated therefor, the Department of Finance and Administration shall continue to authorize the funding of one hundred twenty-one (121) school attendance officers as were allotted to the various youth courts and family courts on February 17, 1994, and any unused portion of the funds appropriated therefor because of temporary vacancies or unfilled vacancies shall revert to the State General Fund. From and after July 1, 1996, the state shall provide funding for one (1) school attendance officer employed by the district attorney for each two thousand five hundred (2,500), or major fraction thereof, of compulsory-school-age children as defined in subsection (2)(f) of this section in enrollment in the public schools of the county for the purpose of employing school attendance officers as defined in subsection (2)(g) of this section. Each district attorney shall be allotted at least one (1) school attendance officer for each county within the jurisdiction of the district attorney's circuit court district, but in no case shall state funds be used to fund more than five (5) attendance officers per county. Provided further, that the State Board of Education shall not approve funding more than one (1) school attendance officer in any county until justification therefor is certified by the district attorney. From and after July 1, 1996, the salary scale for school attendance officers shall be as follows:
(a) For school attendance officers holding a bachelor's degree as required under this section, or any other attendance officer employed prior to January 1, 1987, who does not hold such a degree, an annual salary based on years of experience as a school attendance officer or related field of service or employment, as follows:
Years of Experience Salary
0 - 4 years $19,650.00
5 - 8 years 21,550.00
9 - 12 years 23,070.00
13 - 16 years 24,590.00
Over 17 years 26,110.00
(b) For school attendance officers holding a license as a social worker, an annual salary based on years of experience as a school attendance officer or related field of service or employment, as follows:
Years of Experience Salary
0 - 4 years $20,650.00
5 - 8 years 22,950.00
9 - 12 years 24,790.00
13 - 16 years 26,630.00
17 - 20 years 28,470.00
Over 21 years 30,310.00
(c) For school attendance officers holding a license as a social worker who also hold a master's degree in a behavioral science or a related field, an annual salary based on years of experience as a school attendance officer or related field of service or employment, as follows:
Years of Experience Salary
0 - 4 years $21,450.00
5 - 8 years 24,000.00
9 - 12 years 26,040.00
13 - 16 years 28,080.00
17 - 20 years 30,120.00
Over 21 years 32,160.00
Notwithstanding the February 17, 1994, ruling of the Supreme Court of Mississippi declaring this section unconstitutional as it relates to the selection and supervision of school attendance officers, school attendance officers, as employees of the various youth and family courts, shall be considered valid employees of the respective youth and family courts until the effective date of Senate Bill No. 3019, 1994 Regular Session. As such, school attendance officers shall exercise the same duties and be entitled to the same salary and benefits that existed before the Supreme Court ruling on February 17, 1994, from February 17, 1994, until April 8, 1994. Annual hours of continuing education and training for said school attendance officers shall continue to be provided by the Mississippi Judicial College.
The State Board of Education shall adopt rules and regulations for the purpose of reprimanding any school superintendents who fail to timely report unexcused absences under the provisions of this section.
(9) The State Department of Education shall devise a form and a procedure for reporting the number of compulsory attendance violations and other necessary statistical information concerning public school attendance. The report shall be submitted on a monthly basis to the State Department of Education and to the youth court judge for the affected school district.
School districts shall maintain accurate records documenting enrollment and attendance in a manner that allows the State Department of Education to make an assessment of changes in enrollment and attendance, including dropout rates.
School districts shall produce an annual report detailing statistical information in reference to dropout rates and other attendance-related problems, and provide the report to the State Department of Education.
The State Department of Education shall compile annually a statewide report on school district effectiveness in reducing absentee problems, dropout rates, and other attendance-related problems during the previous school year, incorporate the information into the annual Mississippi Report Card required by Section 37-3-53, Mississippi Code of 1972, on school district performance and offer technical assistance and coordination services to assist districts in improving performance.
(10) Notwithstanding any provision or implication herein to the contrary, it is not the intention of this section to impair the primary right and the obligation of the parent or parents, or person or persons in loco parentis to a child, to choose the proper education and training for such child, and nothing in this section shall ever be construed to grant, by implication or otherwise, to the State of Mississippi, any of its officers, agencies or subdivisions any right or authority to control, manage, supervise or make any suggestion as to the control, management or supervision of any private or parochial school or institution for the education or training of children, of any kind whatsoever that is not a public school according to the laws of this state; and this section shall never be construed so as to grant, by implication or otherwise, any right or authority to any state agency or other entity to control, manage, supervise, provide for or affect the operation, management, program, curriculum, admissions policy or discipline of any such school or home instruction program.
SECTION 3. This act shall take effect and be in force from and after its passage.