OAG 93-37


April 21, 1993




Hon. Michael L. Henry

District Judge

28th Judicial Circuit

P. O. Box 682

Somerset, KY 42502

Dear Judge Henry:

You have requested an opinion from our office regarding an interpretation of the truancy laws.

Your first question asks:

Can OAG No. 81-73, holding that a married minor under the age of 16 may not be required to attend school, and OAG No. 87-40 holding to the contrary, be harmonized for purposes of enforcement of the Habitual Truant Laws?

You are correct that our opinions in OAG 81-79 and OAG 87-40 are in conflict. In OAG 81-79 we held that married students under sixteen years old are not required to attend school. Subsequently, in OAG 87-40 we reached an opposite conclusion and held that married students under sixteen are required to attend school. In OAG 87-40 we did not cite the earlier opinion in OAG 81-79 and thus there may be some confusion regarding the current status of the law. We believe that OAG 87-40 reversed our earlier opinion in OAG 81-79 and therefore married children under sixteen year sold must attend school. Accordingly, OAG 87-40 should be followed regarding this issue and OAG 81-79 should be disregarded.

In your second question you ask:

For purposes of enforcement of the Habitual Truant Laws found in KRS 159.150 and KRS 600.020, is a married female under 16 years of age "a child" as defined in KRS 600.020?

The Unified Juvenile Code defines "child" as:

"Child" means any person who has not reached his eighteenth birthday unless otherwise provided.

KRS 600.020(5).

We believe that according to the common and ordinary usage of the definition set forth in KRS 600.020(5), any married or unmarried person under 18 years old is a "child" for purposes of enforcing the truancy laws found in the Unified Juvenile Code. KRS 446.080(4).

We addressed a similar issue in OAG 87-40 and held that a married child under the age of 18 is subject to the compulsory attendance laws. We explained in that opinion that a child does not lose the disability of infancy as a result of marriage. In OAG 87-40 we reasoned that since marriage did not remove the legal protection afforded children from their own mistakes, then marriage should not 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." OAG 87-40.

In answer to your question, we believe that for purposes of enforcement of the Habitual Truant Laws in KRS 159.150 and KRS 600.020, a married female under 16 years of age is a "child" as defined in KRS 600.020.

Your final question inquires:

After having reviewed OAG No. 91-79 I am still unsure of the answer to the question, which statute controls regarding the number of days absence which must be found before a child is a habitual truant; the number stated in KRS 600.020(24) or the number stated in KRS 159.150?

OAG 91-79 recites the definitions for "habitual truant" included in KRS 159.150 and KRS 600.020(24) and concludes that the definitions cannot be reconciled in terms of their language although perhaps the terms can be reconciled in their application. For purposes of enforcing the truancy laws contained in the juvenile code we believe that the habitual truancy definition contained in KRS 600.020(24) is controlling.

The Unified Juvenile Code provides that a truant child is considered a status offender. KRS 630.020. A "status offense action" is:

[A]ny action brought in the interest of a child who is accused of committing acts, which if committed by an adult, would not be a crime. Such behavior shall not be considered criminal or delinquent and such children shall be termed status offenders. Status offenses shall not include violations of state or local ordinances which may apply to children such as a violation of curfew or possession of alcoholic beverages[.]

The definition of "habitual truancy" in the juvenile code KRS 600.020(24) is important in ascertaining the district court's jurisdiction over truancy matters in the court system. This definition provides that a child is a habitual truant if he has three unexcused absences or nine unexcused tardy instances. Pursuant to KRS 630.020 the district court has exclusive jurisdiction over status offenders such as a child who allegedly has been a habitual truant form school. Thus, a district judge has jurisdiction over a child who has three unexcused absences or nine unexcused tardy instances from school.

While we do not believe that KRS 159.150 affects the jurisdiction of the juvenile court judge on a habitual truancy case, a reading of the compulsory attendance section of the education laws reveals no significant distinction between a truant versus a habitual truant. The education laws define truant and habitual truant as follows:

Any child who has been absent from school without valid excuse for three (3) or more days, or tardy on three (3) or more days, is a truant. Any child who has been reported as a truant three (3) or more times is an habitual truant. Being absent for less than half of a school day shall be regarded as being tardy.

As a practical matter the compulsory education section of the education law makes no differentiation between treatment or penalties for truants or habitual truants. Thus parents may be fined for wilfully failing to send their child to school for three days or nine days. KRS 159.990.

In summary, KRS 600.020(26) controls over KRS 159.150 in ascertaining the number of days a child must have unexcused absences prior to being found habitually truant under the Unified Juvenile Code.

Sincerely yours,

CHRIS GORMAN

ATTORNEY GENERAL





Lynne Schroering

Assistant Attorney General

(502) 564-7600

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