Request By:
Honorable Carroll M. Redford, Jr.
Barren County Attorney
Glasgow, Kentucky 42141
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Robert L. Chenoweth, Assistant Attorney General
As the Barren County Attorney you have asked the Office of the Attorney General to render an opinion relative to possible legal proceedings which may be brought against a parent or legal guardian who fail to send their compulsory schoolaged child to school. You indicated the fines authorized under KRS 159.990(1) for the failure of a parent or legal guardian to comply with their obligations under the state's compulsory attendance laws (KRS, Chapter 159) were really not too effective in getting the parents to send their children to school. You have suggested that possibly a charge could be brought against the parent or legal guardian under KRS 530.060. The penal code section is entitled "Endangering Welfare of Minor" and is a Class A misdemeanor which would permit, upon conviction, a parent or legal guardian being placed in imprisonment for up to twelve months or being fined in an amount not to exceed $500, or both. KRS 500.080(10) and KRS 534.040(1), (2)(a). KRS 530.060 reads in full as follows:
"(1) A parent, guardian or other person legally charged with the care or custody of a minor is guilty of endangering the welfare of a minor when he fails or refuses to exercise reasonable diligence in the control of such child to prevent him from becoming a neglected, dependent or delinquent child.
(2) Endangering the welfare of a minor is a Class A misdemeanor. "
Your specific question relates to the fact that the commentary under this section states that although the pre-existing "contributing" law did not require a prior judicial finding of neglect, dependency or delinquency of the minor, that KRS 530.060 does require such a prior judicial finding. You have asked what this "prior judicial finding" would mean in the case where the parent or legal guardian pleads not guilty and demands trial by jury.
A charge under KRS 530.060 is within the exclusive jurisdiction of the juvenile session of the county court. KRS 208.020 (3). Any person charged with committing this misdemeanor is entitled to a trial by jury. KRS 208.020(6).
As for the "Commentary (1974)" statement under KRS 530.060 that this section requires a prior judicial finding that the minor has been found to have been "neglected, dependent or delinquent, " we believe such statement is clearly incorrect. KRS 500.100 does provide that: "The commentary accompanying the code (Kentucky Penal Code) may be used as an aid in construing the provisions of this code." However, as explained in a "note" preceding the Kentucky Penal Code provisions, "Commentary (1974)" which appears following the sections of the code is not the official commentary referred to in KRS 500.100, but merely are "unofficial notes."
In support of our conclusion, we merely refer to the plain language of KRS 530.060 for an authoritative statement of what is required. The section provides that this charge may be brought when the "parent, guardian or other person legally charged with the care and custody of a minor" fails or refuses to exercise reasonable diligence in the control of such child to prevent him from becoming a neglected, dependent or delinquent child. " (Emphasis supplied.) We believe the words "from becoming" clearly signals that the child need not already have been determined to be either neglected, dependent or delinquent.
We believe we would be remiss in our duty to advise you on the application of the law if we did not discuss KRS 530.060 as it might be considered under the compulsory attendance problem you have written about. Before doing this, however, we want to draw your attention to KRS 530.070 (Unlawful transaction with minor) and specifically Section (1)(c) which provides:
"(1) A person is guilty of unlawful transaction with a minor when:
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(c) He knowingly induces, assists, or causes a minor to become a habitual truant; "
This section was discussed in a recent opinion from this office, OAG 77-514, a copy of which is attached for your consideration.
In considering KRS 530.060 as it might relate to compulsory attendance and a child being truant from school, an issue arises as to whether being a truant from school may cause the child to become neglected, dependent or delinquent. The juvenile court has, with limited exception, exclusive jurisdiction over a child under eighteen years of age and over matters involving children under eighteen. KRS 208.020. For purposes of juvenile court consideration as concerns a definition of "neglected or dependent child, " KRS 208.010 refers you to the definitions in KRS 199.011. KRS 199.011(5) defines a "dependent child" and KRS 199.011(6) defines a "neglected child. " These two sections respectively read as follows:
"(5) 'Dependent child' means any child who is under improper care, control, or guardianship that is not due to the negligence of the parent or guardian, provided that the child is not an abused or neglected child.
(6) 'Abused or neglected child' means a child whose health or welfare is harmed or threatened with harm when his parent, guardian or any other person: inflicts or allows to be inflicted upon the child, physical or mental injury by other than accidental means; creates or allows to be created a risk of physical or mental injury to the child by other than accidental means; commits or allows to be committed an act of sexual abuse upon the child; willfully abandons or exploits such child; does not provide the child with adequate care and supervision; food, clothing and shelter; education; or medical care necessary for the child's well-being; provided, however, that a parent or guardian legitimately practicing his religious beliefs who thereby does not provide specified medical treatment for a child, for that reason alone shall not be considered a negligent parent or guardian. This exception, however, shall not preclude a court from ordering that medical services be provided to the child, where his health requires it."
Note that KRS 199.011(6) specifically refers to the parent or guardian who fails or refuses to "provide the child with adequate . . . education. . . ."
It must be further noted that for the juvenile court to have jurisdiction over a child for truancy, such truancy must be habitual. See KRS 208.020(1)(c) and KRS 159.150 and also OAG 77-514, supra, and OAG 67-553, copy attached. Moreover, habitual truancy is a status offense. A "status action" is defined in § KRS 208.020(9). A "delinquency action," in comparison, is defined in KRS 208.020(8).
In view of the above consideration of what a neglected and dependent child is defined to be and that habitual truancy may lead the child to be brought before the juvenile court as a status offender but not as a delinquent offender, we believe it may be very difficult to show that a parent or legal guardian failing to send their child to school is committing the misdemeanor of endangering the welfare of a minor. Again, we invite your consideration of the possibility presented for a charge under KRS 530.070 when a parent or legal guardian fails to send their child to school. OAG 77-514, supra.