Pupil Personnel Director, Finke, filed a DNA petition in Family Court alleging five-year-old Child had missed 21.5 days of school, 16 of which were unexcused. Child was enrolled in kindergarten as a five-year-old and the absences occurred before she turned six. Family Court summarily dismissed the petition, finding it did not meet the prima facie burden for abuse or neglect. The Commonwealth appealed.
The Commonwealth argued that Family Court erred by summarily dismissing the petition, because it made a prima facie case for educational neglect. The Court of Appeals affirmed, holding that there can be no educational neglect for a child for excessive absenteeism who is not required by law to attend school. It reasoned that KRS 158.030(2) states that a child who is five years of age by August 1 may enter a primary school program—rather than shall. Thus, a parent has discretion of whether the child will attend, and Child’s enrollment and attendance were optional. It further reasoned that KRS 159.150(1), the truancy statute, also distinguishes five-year-olds as they cannot be truant, showing that the Generally Assembly recognizes a difference between children who are mandatorily required to attend school at age six and children who may optionally attend school at age five.
Digested by Nathan R. Hardymon