In re Gloria H.

979 A.2d 710

410 Md. 562

In re GLORIA H.

No. 15 September Term, 2008.

Court of Appeals of Maryland.

September 14, 2009.

Stacy W. McCormack, Asst. Public Defender (Nancy S. Forster, Public Defender, Baltimore, MD), on brief, for Appellant.

Jessica V. Carter, Asst. Atty. Gen. (Douglas F. Gansler, Atty. Gen. of Maryland, Baltimore, MD), on brief, for Appellee.

ARGUED BEFORE BELL, C.J., HARRELL, BATTAGLIA, GREENE, MURPHY, ADKINS and BARBERA, JJ.

MURPHY, Judge.

In this appeal from the Circuit Court for Prince George's County, sitting as a Juvenile Court, we hold that the State's evidence was sufficient as a matter of law to establish that Gloria H., Appellant, violated the compulsory public school attendance law set forth in § 7-301 of the Education Article. We also hold, however, that Appellant is entitled to a new trial on the issue of whether she was "involved" in a violation of that statute.

Background

§ 3-8A-03 of the Courts and Judicial Proceedings Article, in pertinent part, provides:

(c) Criminal cases under compulsory public school attendance laws. — The jurisdiction of the [Juvenile] court is concurrent with that of the District Court in any criminal case arising under the compulsory public school attendance laws of this State.

At all times relevant to the case at bar, § 7-301 of the Education Article,¹ in pertinent part, provided:

Compulsory attendance.

(a) Who must attend. — (1) Except as otherwise provided in this section, each child who resides in this State and is 5 years old or older and under 16 shall attend a public school regularly during the entire school year unless the child is otherwise receiving regular, thorough instruction during the school year in the studies usually taught in the public schools to children of the same age.

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(c) Duty of parent or guardian. — Each person who has legal custody or care and control of a child who is 5 years old or older and under 16 shall see that the child attends school or receives instruction as required by this section.

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(e) Penalties — ....

(2) Any person who has legal custody or care and control of a child who is 5 years old or older and under 16 who fails to see that the child attends school or receives instruction under this section is guilty of a misdemeanor and;

(i) For a first conviction is subject to a fine not to exceed $50 per day of unlawful absence or imprisonment not to exceed 10 days, or both; and

(ii) For a second or subsequent conviction is subject to a fine not to exceed $100 per day of unlawful absence or imprisonment not to exceed 30 days, or both.

(3) As to any sentence imposed under this section, the court may suspend the fine or the prison sentence and establish terms and conditions which would promote the child's attendance. The suspension authority provided for in this subsection is in addition to and not in limitation of the suspension authority under § 6-221 of the Criminal Procedure Article.

Appellant was charged in an Adult Truancy Petition ("Juvenile Petition-Adult") that included the following assertions:

1. That the [Appellant] was born on 09-AUG-1966 and is an adult residing [in] Prince George's County, MD 20743.

2. That your Petitioner alleges that the [Appellant] did:

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c. on or about August 22, 2005 have control over [her daughter, Monica²], a child who was five (5) years or older and under sixteen (16) years of age and who is subject to the compulsory attendance laws of the State as defined in Section 7-301 of the Education Article of the Annotated Code of Maryland, and failed to see that the child attended school or received instruction;

3. That such conduct constitutes a violation of Section 7-301 thereby constituting a criminal misdemeanor[.]

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WHEREFORE, the State asks that the Court make appropriate findings and dispositions[.]

During the adjudicatory hearing on this Petition, the State presented its case through the testimony of Jacqueline Nayes, a Pupil Personnel Worker employed by the Prince George's County Public School System. According to Ms. Nayes, (1) Monica, a student at Suitland High School, had been absent on seventy four of the one hundred eighty days in the Prince George's County Public School System's 2005-2006 school year,³ and (2) from October of 2005 to the end of the school year, she contacted Appellant about Monica's attendance record "at least five times." The following transpired during Ms. Nayes' direct examination:

THE PROSECUTOR: Now, Ms. Nayes, when you would have a conversation with [Appellant], what if anything would she tell you about this child? What reasons did she give you for the child's (unintelligible)?

MS. NAYES: She just said that Monica — at the inner-agency council she said she was trying to get Monica to school. And she was trying and the grandmother — I've spoken to the grandmother. She has tried too.

THE PROSECUTOR: In what way have they tried or did she indicate[] in what way she had tried?

MS. NAYES: I think on some occasions, and I don't think it was on a regular basis, but I think she does — she has brought her to school. Drive her to school.

The following transpired during Ms. Nayes' cross-examination:

[APPELLANT'S COUNSEL]: If you are physically in the building but don't go to class[,] specifically home-room, you're marked absent?

MS. NAYES: You are marked absent. However, if a teacher spots you then ... they're supposed to alert the attendance office to let them know.

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[APPELLANT'S COUNSEL]: And once she enters the school building she's — once she enters the school building she's then in the care and custody of the Suitland High School?

MS. NAYES: Correct.

Appellant and Monica both testified that, although Monica arrived at her school on a regular basis, Monica rarely attended the classes to which she was assigned.

The following transpired during Appellant's cross-examination:

[THE PROSECUTOR]: At some point you realized that your child was not going to school?

[APPELLANT]: Yes.

[THE PROSECUTOR]: And what if anything did you do when you found out she was not in school?

[APPELLANT]: I would leave work and take her to school or get the cab to take her.

[THE PROSECUTOR]: So the only thing you did was (unintelligible) send her to school (unintelligible)?

[APPELLANT]: Correct.

[THE PROSECUTOR]: But there were sometimes when you did not even see her get on the bus, right?

[APPELLANT]: Right.

[THE PROSECUTOR]: Now how much did you pay a cab to take her to school?

[APPELLANT]: Ten dollars.

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[THE PROSECUTOR]: Of the 74 days is it your testimony then that she was in school but not in class for those 74 days?

[APPELLANT]: Yes.

[THE PROSECUTOR]: How do you know?

[APPELLANT]: `Cause she wasn't at home when I got there.

[THE PROSECUTOR]: For those 74 days — for the 74 days?

[APPELLANT]: Uh-huh.

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[THE PROSECUTOR]: Okay. Did you ever ask Monica why she didn't want to go to school?

[APPELLANT]: No.

[THE PROSECUTOR]: (Unintelligible)?

[APPELLANT]: I mean, she tells me she goes to school, she just don't go to class.

[THE PROSECUTOR]: Okay. Did you ever find out why you[r] child didn't like to go to class?

[APPELLANT'S COUNSEL]: Objection, the issue is whether or not she went to school.

[THE PROSECUTOR]: well it —

THE COURT: Overruled.

[THE PROSECUTOR]: — even in school or —

THE COURT: All right. I said — I said overruled.

[APPELLANT]: Can you repeat the question, please?

THE COURT: Did you ever ask her why she didn't want to go to class?

[APPELLANT]: No.

[THE PROSECUTOR]: You never did?

THE COURT: The answer is no. Next question.

[THE PROSECUTOR]: Nothing further.

The following transpired during Monica's cross-examination:

[THE PROSECUTOR]: Did there come a point in time when you got disciplined for not going to class?

WITNESS: Yes.

[THE PROSECUTOR]: What kind of discipline was that?

WITNESS: I couldn't go outside or nothing.

[THE PROSECUTOR]: You couldn't go outside?

WITNESS: Yes.

[THE PROSECUTOR]: Okay. And that was it?

WITNESS: Yes.

[THE PROSECUTOR]: Okay. And how long would you be — I guess you would call that — you were grounded, is that it?

WITNESS: Yes.

[THE PROSECUTOR]: How long would you be grounded?

WITNESS: I don't know.

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[THE PROSECUTOR]: How long would your mom ground you?

WITNESS: I don't know.

[THE PROSECUTOR]: You can't remember?

WITNESS: No.

[THE PROSECUTOR]: Days, weeks, months?

(No verbal response.)

[THE PROSECUTOR]: So you'd be grounded, but you still wouldn't go to school?

WITNESS: Yes.

[THE PROSECUTOR]: And you'd be in the school building according to you, but you wouldn't go to class?

WITNESS: Yes.

[THE PROSECUTOR]: — for 74 days? And where were you hanging out?

WITNESS: In the hallways.

[THE PROSECUTOR]: Just hanging out in the hallways?

(No verbal response.)

[THE PROSECUTOR]: Who were you hanging out with?

[APPELLANT'S COUNSEL]: Objection, Your Honor.

THE COURT: Overruled.

WITNESS: Sometimes with my friends or by myself.

[THE PROSECUTOR]: When you were hanging out by yourself — so the times you hung out by yourself, according to you, your friends would be in class, right?

WITNESS: I don't know.

[THE PROSECUTOR]: But they wouldn't be with you, hanging out in the hallways, right?

WITNESS: Yes.

[THE PROSECUTOR]: You'd be hanging out by yourself?

WITNESS: Yes.

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[THE PROSECUTOR]: So when you go to school and you hang out in the hallways, what time would you get home?

WITNESS: My regular time.

[THE PROSECUTOR]: What did you say?

WITNESS: My regular time.

[THE PROSECUTOR]: Which was? Which is what?

WITNESS: Three —

[THE PROSECUTOR]: Three o'clock. Okay.

WITNESS: Yes.

[THE PROSECUTOR]: When you get home, would your mom be home?

WITNESS: Yes.

THE COURT: I can't hear you. What did you say?

WITNESS: Yes.

[THE PROSECUTOR]: Okay. And what would you tell her?

WITNESS: Nothing.

[THE PROSECUTOR]: Nothing? What would she ask you?

WITNESS: Sometimes she'd ask me do I go to class, sometimes she don't.

[THE PROSECUTOR]: What would you tell her?

WITNESS: No or yes — I'd say yes, sometimes I said no.

[THE PROSECUTOR]:...