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Colorado Criminal Law – Understanding the Law In Colorado Truancy Cases

Understanding Truancy Laws in Colorado is the purpose of this webpage. It contains a lengthy listing of the applicable laws and policies governing the rights and obligations of the Courts to punish in Colorado truancy cases and the rights and responsibilities of minors and their families under Colorado Juvenile Criminal Law.

A court in Colorado may issue orders compelling school attendance and enforce such orders with a wide range of sanctions under the court’s contempt powers. The juvenile court has exclusive original jurisdiction in truancy proceedings.

Colorado Compulsory School Attendance Laws

C.R.S. § 22-33-104(1)

Every child who has attained the age of six years and who is under the age of seventeen years must attend public school. Secondary school pupils must attend for at least one thousand fifty-six hours, and elementary school pupils must attend school for nine hundred sixty-eight hours during each school year.

C.R.S. § 22-33-104(5)

Every parent of a child who has attained the age of six years and who is under the age of seventeen shall ensure such child attends the public school. Children enrolled in independent, parochial or homestudy programs, however, are exempt.

The compulsory school attendance laws apply to a six-year-old who has been enrolled in a public school in the first grade or in a higher grade level. These laws do not apply, however, to a six-year-old child whose parent or legal guardian chooses to withdraw his or her child from school

C.R.S. § 22-33-108(4)

When a child does not comply with attendance requirements, the duty to initiate judicial proceedings is with the Attorney for the school the Attendance officer or the Local board of education.

C.R.S. § 22-33-108(1.5)

Any proceeding under the school attendance laws must be commenced in the county in which the child resides or is present.

C.R.S. § 22-33-108(5)

The attendance officer of the school district or the state must provide written notice to the parent and the child. The notice must state the proceedings will be initiated unless the child complies with the provisions of the school attendance laws. The attendance officer may combine the notice with a summons to court.

C.R.S. § 22-33-108(5)

The date of the hearing may not be less than five days from the date of the notice and summons. The hearing should not proceed if the child complies with the applicable provision before the filing of the proceeding.

C.R.S. § 22-33-104(4)(a)

The school board of each district must adopt a written policy outlining attendance requirements, including provisions for excused absences. It may also include appropriate penalties for nonattendance due to unexcused absences. The policy shall specify the maximum number of unexcused absences a child may incur before judicial proceedings are initiated.

Truancy Cases in the Colorado State Courts

C.R.S. § 19-1-105(2)

At the first hearing, a Guardian Ad Litem or an attorney should be appointed to represent the child if his or her family qualifies. The child and his or her parents may retain an attorney privately. In all proceedings, school children have the right to an attorney.

C.R.S. § 13-25-127

The school district’s attorney prosecutes the case. A school social worker may be available to give factual information about the child’s attendance record. The school district proves the child’s non-attendance by preponderance of the evidence.

Colorado Defenses to Allegations – Charges of Truancy

C.R.S. § 22-33-104(2)

Compulsory school attendance laws do not apply when a child:

Has a temporary illness;

Is excused by the school;

Is enrolled in an independent or parochial school;

Has a physical, emotional or mental disability causing extensive absences;

Has been suspended, expelled, or denied admission;

Is issued a current age and school certificate or work permit;

Is incarcerated;

Is in pursuit of a work-study program under the supervision of a public school;

Has previously graduated from the twelfth grade;

Is undergoing home-school instruction;

Is enrolled in a school where the state board of education has approved a lesser number of days of attendance. 

Who Must Prove The Excused Absence?

The burden is on the child to prove he or she is excused from compulsory school attendance. The child and his or her parents or custodian possess the unique knowledge to assert the excuse.

Court Orders In Truancy Cases

C.R.S. § 22-33-108(6)

After adjudicating the child truant, the court has the discretion to issue orders against the child, or the child’s parent, or both, compelling school attendance.

The order may require:

The child to attend school without any further unexcused absences or tardies;

For the parents to take reasonable steps to assure the child’s attendance;

The family to follow an appropriate treatment plan that addresses the school attendance problems.

C.R.S. § 19-3-501

If the child appears to be dependent or neglected, the court may order Department of Human Services (DHS) to investigate and report back to the court. The court may authorize or order DHS to file a Dependency and Neglect Petition if warranted.

C.R.S. § 19-1-105(2)

The court may also appoint the child a guardian ad litem.

Contempt of Court in Colorado Truancy Cases

C.R.S. § 22-33-108(8) – C.R.C.P. 107

The court may initiate contempt proceedings against a child or parent who is alleged to have violated the court order compelling school attendance. The court must advise the child and parent of their rights.

28 C.F.R. § 31.304(h) – C.R.S § 19-1-103(36) – C.R.J.P. 3.8

Status Offenses

Juveniles alleged to be status offenders (offenses such as truancy cases that would not be a crime if committed by an adult), must not be detained for more than twenty-four hours (excluding weekends and holidays), unless there has been a judicial determination that there is probably cause to believe the juvenile has violated a valid court order.

28 C.F.R. § 31.303(f)(3)(v) – C.R.C.P. 107(d)(1)

Juvenile’s Rights in Colorado Truancy Cases

Under federal and state law, the juvenile must be afforded full due process rights, including:

The right to have the charges in writing served on him or her a reasonable time before the hearing;

The right to a hearing before the court;

The right to an explanation of the nature and consequences of the proceeding;

The right to legal counsel, and the right to have such counsel appointed by the court if indigent;

The right to confront witnesses;

The right to present witnesses;

The right to have a transcript of the proceeding; and

The right to an appeal.

C.R.J.P. 3.8 – 28 C.F.R. § 31.303(f)(3)(iv) – C.R.S. § 19-1-103(36) – C.R.S. § 19-2-508(3)(a)

If a juvenile is alleged to be a status offender, the court must hold a hearing within 72 hours exclusive of non-judicial days (weekends and holidays), and a public agency must prepare a written report. The timelines are different, however, if the juvenile is found to be a danger to self or the community.

C.R.J.P. 3.8 – 28 C.F.R. § 31.303(f)(3)(vi)

If a court sentences a status offender to a locked detention center, before doing so, it must review a written report prepared by a public agency independent of law enforcement, to assess whether all less restrictive dispositions have been exhausted or are clearly inappropriate. These requirements do not apply to shelter placement or to placement in staff secure detention.

A Colorado Sample Truancy Rights Advisement

C.R.C.P. 107 – C.R.J.P. 3.8

My name is Magistrate (name).

The court is going to start today by giving an advisement of rights for children alleged to be in violation of the Colorado school attendance law, or cited for contempt of court. Both the child and his or her parents or guardians are ordered to listen and pay attention, as I will outline your rights with regards to the case.

This is a magistrate division of the juvenile court. For every hearing, you have a right to request that a judge hear this matter. If you wish to exercise your right to have this matter heard by a judge, you must make your request at the start of the hearing. If you do not object to the magistrate hearing the matter, you will be bound by the findings and orders of the magistrate, subject to a request for review.

If you are here because the school district has filed a petition with the court, in which it is alleged that you are in violation of the Colorado school attendance law, you have the following rights.

You have the right to have a hearing, or trial, to determine if the allegations in the petition are true. At that hearing, it would be the responsibility of the school district to convince the court by a preponderance of the evidence that you have violated or are not in compliance with the school attendance law.

If the court finds those allegations to be true, or if you admit them, then the court may enter an order directed to you, or your parents, or both, to follow an appropriate plan that addresses problems affecting your school attendance.

If you or your parents are here because of a contempt citation, you have the following rights:

The right to proof beyond a reasonable doubt that you willfully failed or refused to comply with the court’s order.

You have the right to plead guilty or not guilty to the charges.

You have the right to remain silent, and the right to testify at trial in your own behalf.

You have the right to make statements in your own behalf at sentencing.

If the court finds the allegations of the contempt citation true, or if you admit them, the court may sentence you for a period of not more than six months in the detention center, or may impose a fine. The court may sentence an adult for a period of not more than six months in the county jail, or may impose a fine.

In all proceedings, you have the right to an attorney. If you cannot afford to hire an attorney, and if you qualify under the Supreme Court guidelines, the court will appoint an attorney to represent you. You have the right to have subpoenas issued to compel witnesses to testify in your own behalf, and to confront and cross-examine witnesses who testify against you.

Any party has the right to appeal any final decision of the court. If you want to appeal the findings or orders of the magistrate, you must file a request for judicial review within fifteen days after you have received notice of the findings or rulings. If you wish to appeal a magistrate’s ruling to the court of appeals, you must first have filed for judicial review of that ruling.

If you have any questions about this advisement, please bring them to the attention of the magistrate when your case is called.

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___________________________
H. Michael Steinberg Esq.
Attorney and Counselor at Law
The Colorado Criminal Defense Law Firm of H. Michael Steinberg
A Denver, Colorado Lawyer Focused Exclusively On
Colorado Criminal Law For Over 30 Years.
The Edward Building
8400 East Prentice Avenue - Suite 420
Greenwood Village, Colorado 80111
Primary Web Site:  http://www.HMichaelSteinberg.com
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