CHAPTER 346

FORMERLY

HOUSE SUBSTITUTE NO. 1

FOR

HOUSE BILL NO. 213

AS AMENDED BY HOUSE AMENDMENT NOS. 1 AND 2 AND

SENATE AMENDMENT NO. 2

AN ACT TO AMEND TITLES 10, 11 AND 14 OF THE DELAWARE CODE RELATING TO TRUANCY.

BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF DELAWARE :

Section 1. Amend Chapter 27, Title 14 of the Delaware Code by designating all of the present Chapter 27 as Subchapter I of said Chapter, which new subchapter shall be entitled as follows:

“SUBCHAPTER I. SCHOOL ATTENDANCE REQUIREMENTS.”

Section 2. Amend Chapter 27, Title 14 of the Delaware Code by adding thereto a new subchapter, designated as Subchapter II, which new subchapter shall be entitled as follows:

“SUBCHAPTER II. TRUANCY.”

Section 3. Amend § 2702, Chapter 27, Title 14 of the Delaware Code by striking the first sentence of subsection (a), by re-designating the remainder of subsection (a) as subsection (b), and by inserting a new subsection (a) to read as follows:

“(a) Except as otherwise provided, the following provisions are applicable to school attendance in this State:

(1) Every person in this State who has legal custody, guardianship of the person, or legal control of a child between 5 and 16 years of age shall enroll the child in a public school in the school district of the person’s residence.

(2) Every person who has legal custody, guardianship of the person, or legal control of a student who is enrolled in a public school of this state shall send the student to the school each day of the minimum school term and to any academic improvement activities required by Section 153 of this title.

(3) Every student who is enrolled in a public school of this state shall attend the school each day of the minimum school term and any academic improvement activities required by Section 153 of this title. A student who has been absent from school without a valid excuse for more than three school days in a school year is a truant. A truant and the parent of a truant are subject to the administrative procedures and Court proceedings set out in Subchapter II of this Chapter.

Section 4. Further Amend § 2702, Chapter 27, Title 14 of the Delaware Code by striking the section designation (c)(1) as it appears in subsection (d) and inserting in lieu thereof the designation “(d)(1)”.

Section 5. Further amend § 2702, Chapter 27, Title 14 of the Delaware Code by re-designating subsections (b), (c), (d), and (e)as subsections (c), (d), (e) and (f).

Section 6. Amend § 2706, Chapter 27, Title 14 of the Delaware Code by re-designating said section as new § 2722, Subchapter II, of Chapter 27, by striking subsection (b) in its entirety, and by re-designating subsection (c) as subsection (b).

Section 7. Amend § 2707, Chapter 27, Title 14 of the Delaware Code by re-designating said section as § 2706, Subchapter I, of Chapter 27.

Section 8. Amend § 2708, Chapter 27, Title 14 of the Delaware Code by re-designating said section as § 2727, Subchapter II, of Chapter 27.

Section 9. Amend § 2709, Chapter 27, Title 14 of the Delaware Code by striking it in its entirety.

Section 10. Amend § 2710, Chapter 27, Title 14 of the Delaware Code by re-designating such section as new § 2734, Subchapter II, of said Chapter 27, and by amending it to delete the words “§ 2709” and replace it with “§ 2729”.

Section 11. Amend §§ 2711-2712, Chapter 27, Title 14 of the Delaware Code by re-designating such sections as new §§ 2735 and 2736, Subchapter II, of said Chapter.

Section 12. Amend § 2713, Chapter 27, Title 14 of the Delaware Code by re-designating said section as new § 2723, Subchapter II, of said Chapter 27.

Section 13. Amend Subchapter II, Chapter 27, Title 14 of the Delaware Code by adding thereto a new section, designated as §2721, which new section shall read as follows:

Ҥ 2721. Definitions.

In this Chapter:

(a) ‘Court’ means a Justice of the Peace Court.

(b) ‘Parent’ means a person who has legal custody, guardianship of the person, or legal control of a student and who has enrolled the student in grades kindergarten through twelve of a public school of this state.

(c) ‘Principal’ means the highest administrative official of a public school and includes a person or group of persons designated by the principal to deal with school attendance.

(d) ‘Record’ means written materials and exhibits forwarded to a Court by the school with a referral under this subchapter or admitted into evidence at a Court hearing.

(e) ‘School’ or ‘action by the school’ means decisions made or actions taken by the principal which pertain to school attendance.

(f) ‘Student’ means a person who is enrolled in kindergarten through grade 12 of a public school of this state.

(g) ‘Truant’ means a student who has been absent from school without valid excuse for more than three school days during a school year.

(h) ‘Valid excuse’ means an excuse which is approved in the regulations of the Department of Education.

Section 14. Amend Subchapter II, Chapter 27, Title 14 of the Delaware Code by adding thereto the following new sections:

“ § 2724. Notification to parents and students.

At the beginning of a school year each school district or public school shall notify each student and the parent of each student of the school attendance requirements of this code, including the procedures and penalties applicable to truancy. The school district or school may determine the form of the notification.

§ 2725. Absences without excuse; truancy conferences.

(a) If a student has been absent from school without a valid excuse one or more days, the principal of the school may take such action as the principal considers appropriate.

(b) If a student is truant, the principal may schedule a truancy conference with the student, the student’s parent and the principal pursuant to Section 2726 of this subchapter. The conference may be attended by other persons as the principal may include.

(c) Following a truancy conference the school shall decide whether or not to file a charge against the parent for a violation of Section 2702 of this Chapter; provided, however, that the principal shall refer the case for prosecution following the 30th day of unexcused absence by a student during the school year, in compliance with § 2702(d) of this Chapter, and may refer the case before the 30th day of unexcused absence, if the principal determines it is appropriate to do so.

(d) The fact that a student or student’s parent may attend or has attended a truancy conference does not bar the principal filing a complaint with a Court. The principal’s failure to hold a truancy conference does not bar the filing of a complaint with a Court and adjudication by a Court.

§ 2726. Procedure for truancy conferences.

The provisions of § 4122 of this Title shall apply to truancy conferences. The principal shall determine the date, time and place of the conference and shall give all participants notice at least one week prior to the conference. In conducting a truancy conference, the principal may exclude any person, including a parent or a student, from the conference or part of a conference.

§ 2728. Procedure for Court adjudication.

(a) When the school charges a parent or a student with a violation of § 2702 of this Chapter, the school shall file a written complaint in the Court. The complaint shall be on such form(s) as the Court may require. The school shall be the complainant and the parent or the student shall be the defendant. The Court must determine whether probable cause exists to issue a warrant or summons against the person charged.

(b) The school shall attach to the complaint any record relevant to the allegations of the complaint.

(c) When a complaint is filed, all sanctions imposed by the principal shall remain in effect unless suspended or terminated by the principal or stayed by the Court.

(d) The school may request that the Court postpone adjudication. The Court in its discretion may postpone the proceedings and may impose conditions on the student or parent.

§ 2729. Failure to send; affirmative defense; penalties.

(a) If a charge is filed against a parent for a violation of § 2702 of this Chapter, the Court shall determine whether the evidence establishes beyond a reasonable doubt that the parent has violated the section.

(b) In the prosecution of a parent for a violation of § 2702 of this Chapter, it shall be an affirmative defense that the parent has made substantial and reasonable efforts to comply with the compulsory attendance requirements of § 2702 but is unable to cause the child to attend school. If the Court determines the affirmative defense is valid it shall dismiss the complaint against the parent and the school may file a complaint against the student pursuant to § 2730 of this Chapter.

(c) This section shall not apply to a parent whose child is receiving instruction pursuant to § 2703 of this Chapter, to children exempted from compulsory attendance requirements pursuant to § 2705 of this Chapter, or whose children are in compliance with school attendance requirements.

(d) A parent who is determined to have violated Section 2702 is guilty of an unclassified misdemeanor and shall be sentenced as follows:

(1) for a first offense, a fine of not less than $25.00 nor more than $300.00, or imprisonment for not more than 10 days or both;

(2) for a second offense, a fine of not less than $50.00 nor more than $500.00, or imprisonment for not more than 20 days or both;

(3) for a third or subsequent offense, a fine of not less than $230.00 nor more than $1,150.00 or imprisonment for not more than 30 days or both.

(e) To the extent possible the fine shall be commensurate with the number of days the student was absent from school without valid excuse.

(f) The Court may order the parent to perform unpaid community service in lieu of a fine. The Court may require that all or part of the service may be performed for a public school district.

(g) The Court may also order as conditions of release prior to judgment or as conditions of sentence upon conviction, such conditions as the Court considers necessary to obtain compliance with school attendance requirements. These conditions include but are not limited to the following:

(1) verifying the child’s attendance with the school; (2) meeting with school officials; (3) taking the child to school; (4) taking the child to the bus stop; (5) attending school with the child; (6) undergoing medical, psychological, or psychiatric evaluations and following the evaluator’s recommendations; (7) undergoing an evaluation for drug, alcohol, or other substance abuse and following the evaluator’s recommendations; (8) taking the child for medical, psychological, or psychiatric evaluation or for drug, alcohol, or other substance abuse evaluation and following the evaluator’s recommendations.

(h) Upon conviction, the name and address of the parent and a summary of the disposition of any offenses for which the parent was convicted shall be reported by the Court to the Division of Family Services of the Department of Services for Children, Youth and Their Families and to the Division of Social Services of the Department of Health and Social Services.

§ 2730. Failure to Attend; Penalties.

(a) In the event the Court determines that a parent who is charged with violating § 2702 of this Chapter has a valid affirmative defense under § 2729(b) of this Chapter, the school may file in the Court a civil charge of truancy against the student.

(b) The Court shall determine whether a preponderance of the evidence establishes that the student has violated § 2702 of this Chapter.

(c) If the Court determines the student has violated § 2702 of this Chapter, it shall adjudicate the student a truant and may order the following remedial dispositions:

(1) community service; (2) counseling; (3) substance abuse evaluation and treatment; (4) mental health evaluation and treatment; (5) a curfew with hours set by the Court; (6) suspension or revocation of any permit held by the student, including a work permit or a driver’s permit; (7) suspension or revocation of any license held by the student, including a driver’s license or a hunting license; (8) prohibition of the student’s participation in or attendance at any extra-curricular activity or social event which is an official school event or is sponsored by the school or held on school property; (9) recommend that the student enroll the school in alternative educational and related services in accordance with Chapter 16 of this title; and (10) such other action as is permitted by statute or by Court rule. The Court shall not suspend or revoke a student’s permit or license if the student demonstrates to the Court that suspension or revocation would impose an economic hardship on the parent or on the student’s family.

(d) Where the Court has ordered the suspension or revocation of a student’s permit or license, the student is prohibited from applying for a new permit or license without permission of the Court as long as the student is under the jurisdiction of the Court.

§ 2731. Enforcement of Court Order.

(a) The Court shall retain jurisdiction of the matter until all terms of the court’s order have been complied with regardless of any change in the student’s age or marital status.

(b) If the Court determines a student has not complied with the terms of the Court’s order, it may transfer the case to the Family Court for prosecution of the student for criminal contempt pursuant to § 1271 of Title 11 of this Code.

§ 2732. Appeals.

(a) A parent convicted of a violation of § 2702 of this chapter may appeal to the Court of Common Pleas in the county in which the judgment was given. The appeal shall be filed within 15 days from the date of conviction. On appeal the Court shall make a de novo determination.

(b) No stay shall be granted pending an appeal pursuant to subsection (a) unless the person appealing shall, at the time the appeal is taken, gives bond in any amount with surety to be fixed by the Court.

(c) A student who has been adjudicated truant pursuant to § 2730 of this Chapter may appeal to the Family Court in the county in which the adjudication occurred. The appeal shall be filed within 15 days of the date of the adjudication. On appeal the Court shall make a de novo determination based on the record below.

(d) No appeal of the adjudication of truancy pursuant to subsection (c) shall stay execution of the remedial disposition unless a judge of the Family Court orders a stay.

§ 2733. Jurisdiction; Venue.

(a) The Justice of the Peace Court shall have exclusive original jurisdiction of complaints filed pursuant to this Chapter.

(b) All complaints under this Chapter shall be filed in a Justice of the Peace Court in the county where the school the child is required to attend is located or in the county in which the office of the school district which contains the child’s school is located.

Section 15. Amend Chapter 93, Part VII, Title 10 of the Delaware Code by adding thereto the following new sections:

Ҥ 9306. Truancy matters.

The Justice of the Peace Court shall have jurisdiction throughout the state to hear, try and finally adjudicate any truancy matter referred to such Court in accordance with Chapter 27 of Title 14. In any truancy case, except as otherwise set forth in Chapter 27 of Title 14, the Justice of the Peace Court shall have original and exclusive jurisdiction over both the parties and the subject matter.”

Section 16. Amend § 921, Chapter 9, Title 10 of the Delaware Code by adding, at the end of subsection (3) the following:

“Provided however, that the Justice of the Peace Court shall have original and exclusive jurisdiction over truancy matters as set forth in Chapter 27 of Title 14, and the Family Court shall assume exclusive jurisdiction over those matters transferred or appealed from the Justice of the Peace Court in accordance with §§ 2731 and 2732 of Title 14.”

Section 17. Amend § 1103 of Title 11, Delaware Code, by striking subsection (d) in its entirety & inserting in lieu thereof the following:

“(d) ‘Truancy’ or ‘truant’ shall refer to a pupil enrolled in grades kindergarten through twelve of a public school who has been absent from school without a valid excuse, as defined in the regulations of the State Board of Education, for more than three school days during a school year.”

Approved June 28,2000