In Re BRANDI B.

IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
January 2013 Term
FILED
May 17, 2013
released at 3:00 p.m.
RORY L. PERRY II, CLERK
SUPREME COURT OF APPEALS
No. 12-0100 OF WEST VIRGINIA
In Re: BRANDI B.
Appeal from the Circuit Court of Pocahontas County
The Honorable James J. Rowe, Judge
Case No. 11-JS-05
AFFIRMED, IN PART; REVERSED, IN PART
and REMANDED WITH DIRECTIONS
Submitted: April 9, 2013
Filed: May 17, 2013
Dewitt W. Daniell, Esq. Patrick Morrissey, Esq.
Office of the Public Defender Attorney General
Lewisburg, West Virginia Andrew Mendelson, Esq.
Attorney for Petitioner Assistant Attorney General
Charleston, West Virginia
Attorneys for Respondent
JUSTICE WORKMAN delivered the Opinion of the Court.
JUSTICE DAVIS, deeming herself disqualified, did not participate in the decision of this
case.
SENIOR STATUS JUSTICE MCHUGH, sitting by temporary assignment.
SYLLABUS BY THE COURT
1. “Where the issue on an appeal from the circuit court is clearly a
question of law or involving an interpretation of a statute, we apply a de novo standard of
review.” Syl. Pt. 1, Chrystal R.M. v. Charlie A.L., 194 W. Va. 138, 459 S.E.2d 415(1995).
2. “The constitutionality of a statute is a question of law which this
Court reviews de novo.” Syl. Pt. 1, State v. Rutherford, 223 W. Va. 1, 672 S.E.2d 137(2008).
3. “This Court reviews the circuit court’s final order and ultimate
disposition under an abuse of discretion standard. We review challenges to findings of
fact under a clearly erroneous standard; conclusions of law are reviewed de novo.’ Syl.
Pt. 4, Burgess v. Porterfield, 196 W Va. 178, 469 S.E.2d 114 (1996).” Syl. Pt. 2, Nutter
v. Nutter, 218 W. Va. 699, 629 S.E.2d 758 (2006).
4. Whether a juvenile’s absences from school are “habitual” and are
“without good cause,” pursuant to West Virginia Code § 49-1-4(15)(C) (2009) is to be
determined on a case-by-case basis. Such determination lies within the sound discretion
of the circuit court and is subject to appellate review only upon an abuse of that
discretion.
i
5. “The legislature is vested with a wide discretion in determining what
the public interest requires, the wisdom of which may not be inquired into by the courts;
however, to satisfy the requirements of due process of law, legislative acts must bear a
reasonable relationship to a proper legislative purpose and be neither arbitrary nor
discriminatory.” Syl. Pt. 1, State v. Wender, 149 W.Va. 413, 141 S.E.2d 359 (1965).
6. “The Due Process Clause, Article III, Section 10 of the West
Virginia Constitution, requires procedural safeguards against State action which affects a
liberty or property interest.” Syl. Pt. 1, Waite v. Civil Serv. Comm’n, 161 W. Va. 154, 241
S.E.2d 164 (1977).
7. “When due process applies, it must be determined what process is
due and consideration of what procedures due process may require under a given set of
circumstances must begin with a determination of the precise nature of the government
function involved as well as the private interest that has been impaired by government
action.” Syl. Pt. 2, Bone v. W. Va. Dep’t of Corrections, 163 W.Va. 253, 255 S.E.2d 919(1979).
8. West Virginia Code § 49-5-11(d) (2010) and West Virginia Code §
49-5-11a(b)(1) (1998) provide authority for the circuit court to place a status offender on
probation and order terms and conditions of such probation as the court determines
ii
necessary to “enforce compliance with a service plan or to restrain actions that interfere
with or defeat a service plan[.]”
9. “[A] petition seeking an order regarding transferring custody of the
status offender to the Department and/or out-of-home placement under W. Va. Code, 49–
5–11a(b)(2) [1998] . . . may only be granted upon a showing by clear and convincing
evidence that such a custody or placement order is actually necessary; that the effective
provision of services cannot occur absent such an order; and that all reasonable efforts
have been made to provide appropriate services without an out-of-home placement or
custody transfer; and orders granting such placement and/or transfer must be based on
specific findings and conclusions by the court with respect to the grounds for and
necessity of the order.” Syl. Pt. 2, in part, State v. Damian R., 214 W. Va. 610, 591
S.E.2d 168 (2003).
10. “[As to] a circuit court’s decision under W. Va. Code, 49–5–
11a(b)(2) [1998] to award custody of a juvenile status offender to the Department of
Health and Human Resources[,] . . . the constitutional rights of due process,
representation by counsel, notice, opportunity to be heard, and to present and cross-
examine witnesses must be afforded to the juvenile and the affected parent in a
proceeding brought pursuant to said statutory provision.” Syl. Pt. 3, in part, State v.
Damian R., 214 W. Va. 610, 591 S.E.2d 168 (2003).
iii
11. Pursuant to West Virginia Code § 49-5-2 (2007), the jurisdiction of
courts over a juvenile adjudicated as a status offender as defined in West Virginia Code §
49-1-4(15) extends only until the juvenile attains the age of eighteen.
iv
WORKMAN, Justice:
Petitioner/Defendant below, Brandi B., appeals the Circuit Court of
Pocahontas County’s December 20, 2011, order adjudicating her a status offender on the
basis of habitual truancy pursuant to West Virginia Code § 49-1-4(15)(C) (2009) and
ordering certain disposition pursuant to West Virginia Code §§ 49-5-11 (2010) and 49-5­
11a (1998). Petitioner alleges that the circuit court 1) erred by adjudicating her an
habitual truant on the basis of absences which were occasioned by an out-of-school
suspension; 2) abused its discretion in its imposition of the proportionate length and
various terms of probation and transfer of legal custody to the Department of Health and
Human Resources (hereinafter “DHHR”); and 3) further erred by imposing probation
which extends past her eighteenth birthday.
For the reasons more fully set forth below, we find that the circuit court
committed no error in adjudicating petitioner a status offender and placing her on
supervised probation. However, we do find that the circuit court erred in failing to make
adequate findings regarding transfer of legal custody to the DHHR and in exceeding its
jurisdiction by attempting to impose probation beyond the age of eighteen. We therefore
affirm, in part, reverse, in part, and remand for further proceedings and entry of a
modified order.
1
I. FACTS AND PROCEDURAL HISTORY
On October 11, 2011, the Pocahontas County Attendance Director filed a
petition in Pocahontas County Circuit Court against the then 14-year-old petitioner,
alleging that she had six unexcused absences from school between September 22 and
October 6, 2011 and was therefore a “delinquent child” for committing the status offense
of truancy. The petition further alleged that petitioner had previously been placed on a
sixty-day improvement period by a Pocahontas County magistrate at the end of the
preceding school year, which improvement period was to continue into the 2011-2012
school year and required her to have no further unexcused absences.1
Prior to the adjudication hearing, and in lieu thereof, on December 20,
2011, petitioner offered to stipulate that she was absent from school on nine days
between September 22, 2011 and October 28, 2011, but that six of the nine days were due
to an out-of-school suspension resulting from her involvement in a fight.2 As a result,
petitioner denied that she was an habitual truant. Petitioner filed a “Motion for Judgment
as a Matter of Law,” arguing that the six absences due to suspension constituted “good
1
The record contains no documentation from this previous truancy petition, nor
any information on how many absences gave rise to the petition.
2
The offer to stipulate also noted that petitioner’s mother had “testified”
(presumably at the preliminary hearing) that the absences on September 22 and 23 were
due to illness and that she sent a note from petitioner’s doctor, but conceded that
petitioner had failed to produce such documentation for the court.
2
cause” under West Virginia Code § 49-1-4(15)(C) and could not be used to adjudicate her
an habitual truant. Petitioner argued that the three remaining non-suspension unexcused
absences were insufficient to prove “habitual” truancy as required by statute.
The circuit court disagreed, reasoning that a student is expected to abide by
the code of conduct while at school and that absences occasioned by a failure to do so did
not constitute “good cause.” The circuit court found that, although the three undisputed
absences would not constitute “habitual” truancy, the total nine absences including the
six suspension days did. The court then adjudicated petitioner to be a status offender,
referred her to DHHR for services and placed her on probation3 until she graduates from
high school.4 As further part of its disposition, the court ordered that petitioner be placed
in the legal custody of DHHR but remain in the physical custody of her biological
mother. In support of the transfer of custody, the circuit court’s order states simply that
3
As part of her probation, the circuit court ordered that petitioner comply with the
following terms and conditions: 1) that she not change her status of school unless
approved by the circuit court; 2) that she have no unexcused absences/tardies, failing
grades, or disciplinary problems at school; 3) that she abide by her parents’ supervision
and the terms of her probation; 4) that she “cooperate with the MDT process by attending
and participating in any and all meets [sic]”; 5) that she abstain from use/possession of
alcohol, drugs, marijuana, controlled substances, or prescriptions not prescribed by a
doctor; and 6) that she submit to random drug screens of blood, breath, or urine at the
request of the Probation Officer and at her expense.
4
Petitioner will turn eighteen on May 6, 2015; she will presumably graduate one
month later, in June, 2015. The prosecuting attorney questioned the length of probation
to ascertain whether the court intended it to last simply until petitioner was eighteen or
until she graduated high school, and the court confirmed that it was to last until
graduation.
3
“it is contrary to the welfare of the child for her legal custody to remain with her parents
and it is in her best interest of the child [sic] to have her legal custody be with the
Department[.]” This appeal followed.
II. STANDARD OF REVIEW
“Where the issue on an appeal from the circuit court is clearly a question of
law or involving an interpretation of a statute, we apply a de novo standard of review.”
Syl. Pt. 1, Chrystal R.M. v. Charlie A.L., 194 W. Va. 138, 459 S.E.2d 415 (1995).
Moreover, “[t]he constitutionality of a statute is a question of law which this Court
reviews de novo.” Syl. Pt. 1, State v. Rutherford, 223 W. Va. 1, 672 S.E.2d 137 (2008).
Petitioner’s assignments of error regarding the court’s disposition order implicate the
following standard of review:
“This Court reviews the circuit court’s final order and
ultimate disposition under an abuse of discretion standard.
We review challenges to findings of fact under a clearly
erroneous standard; conclusions of law are reviewed de
novo.” Syl. Pt. 4, Burgess v. Porterfield, 196 W Va. 178, 469
S.E.2d 114 (1996).
Syl. Pt. 2, Nutter v. Nutter, 218 W. Va. 699, 629 S.E.2d 758 (2006). With these standards
in mind, we proceed to the parties’ arguments.
III. DISCUSSION
Petitioner makes three assignments of error, each containing various
subsidiary issues. Generally, however, petitioner assigns as error both the circuit court’s
adjudication and disposition of the habitual truancy petition filed against her. As such,
4
our discussion will address the assigned errors in the context of the particular stage of the
underlying proceeding at issue.
A.
Truancy Adjudication
We first address petitioner’s contention that the circuit court erred in
adjudicating her an habitual truant, and therefore a “status offender,” on the basis of
school absences occasioned by an out-of-school suspension. West Virginia Code § 49-1­
4(15) describes the conduct making a juvenile susceptible to adjudication as a “status
offender.” Subparagraph 15(C) provides the pertinent definition at issue herein, and
defines “a juvenile who has been adjudicated as one . . . [w]ho is habitually absent from
school without good cause” as a status offender.
1. “Good Cause” Determination
Petitioner contends that the circuit court erred in its interpretation of the
“good cause” language of the habitual truancy statute by refusing to find that her
absences due to out-of-school suspension constituted “good cause.” In support of her
argument, petitioner attempts to distinguish “unexcused absences” from absences
“without good cause.” Although she concedes that her absences were unexcused, she
urges this Court to adopt and implement Black’s Law Dictionary’s definition of “good
cause” which is: “a legally sufficient reason.” Black’s Law Dictionary 251 (9th Ed. 2009)
(emphasis added). Under this definition, petitioner contends that her absence from school
5
was mandated by the school and therefore provides her a “legal excuse” which equates to
“good cause.” Respondent counters that it is simply “absurd” to attempt to characterize
an absence due to suspension as “good cause” and further argues that if petitioner were so
concerned about being adjudicated habitually truant, she should simply have complied
with the code of conduct at school and avoided suspension. During oral argument,
respondent further contended that the reference in the petition to petitioner’s prior
absences, which gave rise to imposition of an improvement period in the preceding
school year, essentially “rescued” the circuit court’s finding of habitual truancy and, in
effect, mooted our analysis of the six suspension absences.5
Petitioner asserts that the circuit court’s error was one of statutory
interpretation and contends that resolution of this issue calls for application of our long-
standing rules of statutory construction. However, upon closer review, it is clear that the
5
The record does not support this argument. Although there is reference to the
improvement period in the petition underlying this appeal, it does not include information
on how many absences precipitated the improvement period. More importantly,
however, based upon that portion of the transcript of the adjudication hearing provided in
the appendix record, the circuit court made no reference whatsoever to these prior
absences in making its findings. Rather, the circuit court demonstrated its exclusive
focus on the nine absences specifically set forth in the petition by stating that it believed
that nine unexcused absences would constitute “habitually truant” but that if it excluded
the six suspension absences, three unexcused absences would not be “habitual.”
Additionally, although a record of the prior improvement period does not appear
in the appendix record, based upon the scant description of the improvement period set
forth in the petition, to the extent that petitioner’s prior improvement period was ordered
by a magistrate, it was improvidently ordered. See In re Greg H., 208 W. Va. 756, 542
S.E.2d 919 (2000) (holding that only circuit court may exercise statutory authority to
order improvement period pursuant to West Virginia Code § 49-5-9(b)).
6
circuit court’s determination that the suspension absences were not “good cause,” derives
not from its interpretation of this statutory language, but rather, constitutes a finding by
the circuit court on a matter left to its sound discretion by the Legislature. This Court has
historically held that “good cause” determinations prescribed by statute lie within the
lower court’s discretion. See State ex rel. Shorter v. Hey, 170 W. Va. 249, 294 S.E.2d 51(1981) (holding that “good cause” determination pursuant to West Virginia Code § 62-3­
1 for trial continuance outside of term of indictment is within court’s discretion); State ex
rel. Foster v. Luff, 164 W. Va. 413, 264 S.E.2d 477 (1981) (holding that determination of
“good cause” for additional expert fees under West Virginia Code § 51-11-8 was within
discretion of trial court); State v. Wooldridge, 129 W. Va. 448, 40 S.E.2d 899 (1946)
(holding that “good cause” for change of venue under West Virginia Code § 62-3-13 rests
within the discretion of the trial court).
Nevertheless, petitioner urges this Court to invade the province of the
circuit court and decree that disciplinary absences per se constitute good cause and
thereby judicially insert into the statute a definition which is not there. However, “‘it is
not for [courts] arbitrarily to read into [a statute] that which it does not say. Just as courts
are not to eliminate through judicial interpretation words that were purposely included,
we are obliged not to add to statutes something the Legislature purposely omitted.’”
Longwell v. Bd. of Educ. of Cnty. of Marshall, 213 W. Va. 486, 491, 583 S.E.2d 109, 114
(2003) (citing Banker v. Banker, 196 W. Va. 535, 546–47, 474 S.E.2d 465, 476–77
(1996) (emphasis in original). We find that the statute at issue quite deliberately omits an
7
enumerated list of absences for “good cause” to allow the circuit court to give full effect
to the protective and rehabilitative goals of the status offender statutory scheme.6 Other
courts have observed the broad reach of similar statutes, noting that “language limitations
are particularly acute for the draftsmen of juvenile laws designed to implement the broad
social policy” of the juvenile justice system. District of Columbia v. B. J. R., 332 A.2d
58, 61 (D. C. 1975). Had our Legislature intended to strip the circuit court of the
discretion to determine whether certain categories of absences are “without good cause,”
it could have simply indicated as much.7
In State ex rel. Harris v. Calendine, 160 W.Va. 172, 181, 233 S.E.2d 318,
325 (1977), this Court expressly found that “[t]he Legislature has vested the juvenile
court with jurisdiction over children who commit [] status offenses so that the court may
enforce order, safety, morality, and family discipline within the community.” This Court
found justification in the broad powers granted to the circuit court in the status offender
statutory scheme by noting that “the class to which status offenders belong has been
created under authority of the State’s inherent and sovereign parens patriae power[.]” Id.
at 183, 233 S.E.2d at 326. However, we were careful to emphasize that “status offenders
6
Status offenders are not entitled to jury trials when “incarceration is not a
possibility.” W. Va. Code § 49-5-6(b).
7
In fact, a small number of other states have done precisely that. See Col. Rev.
Stat. § 22-33-104(2)(d) (2012) (exempting students who have been “suspended, expelled,
or denied admission” from compulsory school attendance statute); Ind. Code § 20-33-8­
31 (same); Kan. Stat. Ann. § 72-8905 (1994) (same); Neb. Rev. Stat. § 79-259 (1996)
(same); Vt. Stat. Ann. Tit 16, § 1153 (1999) (same).
8
must be treated in a fashion consistent with the parens patriae power, namely, they must
be helped and not punished.” Id.; see also In the Interest of E. B., 287 N.W.2d 462, 465
(N. D. 1980) (finding that status offender classification is designed “to improve the
child’s condition and to remove the taint of criminality”).
However, not only does West Virginia Code § 49-1-4(15)(C) leave to the
circuit court’s discretion the determination as to whether absences which form the basis
of a truancy petition are “without good cause,” it further requires a determination by the
court that such absences are “habitual.” Although petitioner suggests that the Legislature
did not intend for students subject to disciplinary suspensions to be treated as truants, we
find nothing in the language of the statute or elsewhere which would demand exemption
of students who are absent due to disciplinary suspensions from adjudication as habitual
truants.8 To the contrary, regardless of whether a student is absent from school due to
8
We make note of, but are not persuaded by, the language of West Virginia Code
§ 18-8-4(f)(4) (2010) which “exclude[s] for accountability purposes” the inclusion of
disciplinary suspensions in reporting absences to the West Virginia Board of Education.
West Virginia Code § 18-8-4(f)(4) requires the attendance director to make an on-
demand report to the West Virginia Board of Education on school attendance and further
mandates the State Board of Education to promulgate a legislative rule that sets forth the
type of student absences which are “excluded for accountability purposes.” Section 18-8­
4(f)(4) further mandates that absences which are excluded for accountability purposes
“include, but are not limited to, excused student absences, students not in attendance due
to disciplinary measures and absent students for whom the attendance director has
pursued judicial remedies[.]” (emphasis added). This legislative rule is embodied in
West Virginia C.S.R. § 126-81-4.2.
We find this language immaterial to the case sub judice inasmuch as the statute’s
plain language limits the scope of the exclusion to accountability for truancy reporting.
It is clear that the reporting exclusion is designed, not to evince a Legislative intent to
9
treat suspension absences differently for truancy purposes, but rather to draw the county
and State boards’ attention to students whose absences are not otherwise accounted for or
addressed.
Concomitantly, we likewise find respondent’s citation to West Virginia Code §
18-8-8 inapposite to the issue at bar. Respondent cites to this statute in support of its
contention that out-of-school suspensions for improper conduct are statutorily defined as
“unlawful” absences and therefore may form the basis of a truancy adjudication. West
Virginia Code § 18-8-8, originally enacted in 1941, provides that “if a child be suspended
from school because of improper conduct or refusal of such child to comply with the
requirements of the school”: 1) the school is to notify the Superintendent of the
suspension, specifying the time or conditions of such suspension; and 2) readmission may
be refused “until such requirements and regulations be complied with.” Respondent
contends that the further provision in the statute that “[a]ny such child shall be treated by
the school as being unlawfully absent from the school during the time he refuses to
comply with such requirements and regulations,” connotes a Legislative intent to treat
suspension absences as truancy.
However, the very particular language of this statute seems more directly geared
toward the parents of students who have been suspended pending compliance with some
school requirement. To that end, the statute indicates 1) that the suspension may only last
until the student is in compliance, which would not seem to pertain to a disciplinary
infraction—as soon as the behavior/incident stopped, the student would be “in
compliance” with a code of conduct; and 2) that the unlawful absence encompasses only
that time period when the student is non-compliant, which again would not pertain to a
disciplinary suspension—when the child is at home, he is presumably “compliant” or at
least not violating a school code of conduct. Moreover, by specifying that pursuant to the
“unlawful absences” described in the statute the parent may be prosecuted under the
compulsory attendance laws--and not the student as a truant--the intent seems to be to
compel parents to ensure that their children are compliant with school requirements and
do not get a “pass” from prosecution by arguing simply that the child is suspended when
the ability to correct the non-compliance is presumably within their control.
Notably, West Virginia Code § 18-8-7 makes it a misdemeanor to “induce[] or
attempt[] to induce” a child to “unlawfully absent” himself from school. If suspension
due to a disciplinary infraction is a per se “unlawful absence” as that term is used in
Section 18-8-8, then presumably the principal of the school who suspended the student
would be guilty of a misdemeanor. Such an absurd result demonstrates that the term
“unlawful absence” as used in West Virginia Code § 18-8-8 bears no legal relevance to
determining whether a suspension is necessarily excluded as “good cause” under the
habitual truancy statute.
10
disciplinary suspension or merely lacks the discipline and guidance to ensure regular
school attendance, our status offender laws seek to address the core problems underlying
the absences for the protection of both the juvenile and the public.
Accordingly, we hold that whether a juvenile’s absences from school are
“habitual” and are “without good cause,” pursuant to West Virginia Code § 49-1­
4(15)(C) is to be determined on a case-by-case basis. Such determination lies within the
sound discretion of the circuit court and is subject to appellate review only upon an abuse
of that discretion. In the case sub judice, we find no such abuse of discretion.
2. Substantive and Procedural Due Process
Notwithstanding the circuit court’s statutory authority to determine that her
suspension absences did not constitute good cause, petitioner further argues that her
adjudication under West Virginia Code § 49-1-4(15)(C) on the basis of suspension
absences has resulted in an infringement of her constitutional rights to substantive and
procedural due process.9 In that regard, petitioner advances an “as applied” constitutional
challenge to West Virginia Code § 49-1-4(15)(C). 10 She contends that by complying
with the school-ordered suspension, lest she risk prosecution for trespassing, she was
9
Petitioner articulates no challenge to the subject statutory scheme on the basis of
unconstitutional vagueness or overbreadth.
10
An “as-applied” challenge stands in contrast to a “facial” challenge to the
statute. See Syl. Pt. 6, Kolvek v. Napple, 158 W.Va. 568, 212 S.E.2d 614 (1975) (“A
statute may be valid on its face but unconstitutionally applied. The unconstitutional
application of the statute may be prohibited and the statute allowed to stand.”)
11
essentially forced to violate the compulsory school attendance statutes and therefore was
cornered into violating the law no matter what she did. Moreover, she contends that
inasmuch as her suspension at the school level did not afford her the procedural due
process protections afforded in juvenile court, use of those suspensions to adjudicate her
an habitual truant violated her right of procedural due process.
Article III, Section 10 of the West Virginia Constitution provides that “[n]o
person shall be deprived of life, liberty, or property, without due process of law, and the
judgment of his peers.” Although in Harris, 160 W.Va. at 179, n.3, 233 S.E.2d at 324,
n.3, this Court described due process as an “inherently elusive concept,” we have
nonetheless succinctly characterized the right to substantive due process as one of
fundamental fairness: “[D]ue process . . . is ultimately measured by the concept of
fundamental fairness.” State ex rel. Blankenship v. Richardson, 196 W.Va. 726, 739, 474
S.E.2d 906, 919 (1996); see also Committee on Legal Ethics v. Printz, 187 W.Va. 182,
188, 416 S.E.2d 720, 726 (1992) (quoting U. S. v. Elliott, 266 F. Supp. 318, 326
(S.D.N.Y. 1967) (“[F]undamental fairness . . . is the heart of due process[.]”); State ex
rel. Peck v. Goshorn, 162 W.Va. 420, 422, 249 S.E.2d 765, 766 (1978) (“[D]ue process
of law is synonymous with fundamental fairness[.]”). Although petitioner’s argument on
this front is not fully developed, it appears that it is this notion of “fundamental fairness”
upon which her substantive due process claim is based. In short, petitioner argues simply
that it is fundamentally unfair to penalize her lawful compliance with the out-of-school
12
suspension by using the absences occasioned thereby as a basis to adjudicate her an
habitual truant.
For purposes of determining whether application of the status offender
statutory scheme to petitioner violates substantive due process, it is instructive to note
that this Court has held:
The legislature is vested with a wide discretion in determining
what the public interest requires, the wisdom of which may
not be inquired into by the courts; however, to satisfy the
requirements of due process of law, legislative acts must bear
a reasonable relationship to a proper legislative purpose and
be neither arbitrary nor discriminatory.
Syl. Pt. 1, State v. Wender, 149 W.Va. 413, 141 S.E.2d 359 (1965). We have further
applied this holding to the juvenile justice scheme, as pertains to status offenders. See
Harris, 160 W. Va. at 179, 233 S.E.2d at 324. We further stated that, as to the status
offender laws, they are part of a “comprehensive system of child welfare[,] [t]he aim of
[which] is to protect and rehabilitate children, not to punish them.” Id. at 183, 233 S.E.2d
at 326. We noted that status offenders “have a special position within the current
system,” id. at 183, 233 S.E.2d at 326, and that when the State seeks to exercise its
authority under the status offender laws and is therefore “proceeding under color of its
parens patriae authority, it must actually have fair prospects of achieving a beneficent
purpose[.]” Id. at 186, 233 S.E.2d at 327.
We therefore are left to determine if adjudicating a juvenile an habitual
truant on the basis, in whole or in part, of absences occasioned by an out-of-school
13
suspension is rationally related to a “proper legislative purpose” and further, whether
such adjudication is arbitrary or discriminatory. West Virginia Code § 49-1-1(a)(1-3)
states that the purpose of the chapter is to provide a “coordinated system of child welfare
and juvenile justice,” the goals of which are, in part, to “[a]ssure each child care, safety
and guidance . . . [s]erve the mental and physical welfare of the child, [and] [p]reserve
and strengthen the child’s family ties[.]” More pointedly, the child welfare laws are
designed to “[p]rovide for early identification of the problems of children and their
families, and respond appropriately with measures and services to prevent abuse and
neglect or delinquency” and “[p]rovide a system for the rehabilitation of status offenders
and juvenile delinquents[.]” W. Va. Code § 49-1-1(a)(8) and (9).
In light of these purposes, we have little difficulty in finding that
adjudicating a juvenile a status offender on the basis of absences occasioned by
disciplinary suspension is rationally related to the Legislative purpose of “early
identification of problems of children and their families” and commensurate
rehabilitation of such juveniles. In point of fact, we find status offender adjudication
even more critical for a juvenile subject to disciplinary suspension, who is not otherwise
being aided or addressed by our child welfare or juvenile justice laws. Clearly, on the
basis of the disciplinary action which gave rise to petitioner’s suspension, a delinquency
petition may have been available to the State. However, we find petitioner’s adjudication
as an habitual truant under the more lenient status offender laws to have been a measured
and compassionate attempt by the State to exercise its sovereign parens patriae power to
14
provide early intervention and rehabilitation to petitioner in the least restrictive means
available. In light of these considerations, we find nothing arbitrary nor discriminatory
about the use of an habitual truancy adjudication occasioned by disciplinary absences to
bring petitioner within the ambit of the child welfare and juvenile justice laws; therefore,
we find no substantive due process violation.
In addition to substantive due process rights, “[t]he Due Process Clause,
Article III, Section 10 of the West Virginia Constitution, requires procedural safeguards
against State action which affects a liberty or property interest.” Syl. Pt. 1, Waite v. Civil
Service Comm’n, 161 W. Va. 154, 241 S.E.2d 164 (1977). Petitioner contends that if
absences occasioned by an out-of-school suspension are to be used as a basis for a
truancy adjudication, procedural due process requires that she be provided all of the same
due process rights at the school level prior to suspension to which she is entitled under
the circuit court’s juvenile jurisdiction.11
This Court has held that
[w]hen due process applies, it must be determined what
process is due and consideration of what procedures due
process may require under a given set of circumstances must
begin with a determination of the precise nature of the
government function involved as well as the private interest
that has been impaired by government action.
11
Petitioner does not, however, contend that she was not afforded the due process
rights afforded to her pursuant to West Virginia Code § 18A-5-1a for her temporary, six-
day suspension from school.
15
Syl. Pt. 2, Bone v. W. Va. Dep’t of Corrections, 163 W.Va. 253, 255 S.E.2d 919 (1979);
see also Lamar Outdoor Advertising v. West Virginia Dept. of Transp., 228 W.Va. 68,
717 S.E.2d 255 (2011). This holding focuses our analysis on whether the “precise nature
of the government function involved” demands that the procedural due process rights
provided for in West Virginia Code § 49-5-2 (2007)12 must be afforded to a student at the
12
West Virginia Code § 49-5-2 (g) through (j) provide that the following due
process rights are available to a juvenile subject to proceedings under Chapter 49:
(g) A juvenile is entitled to be admitted to bail or
recognizance in the same manner as an adult and shall be
afforded the protection guaranteed by Article III of the West
Virginia Constitution.
(h) A juvenile has the right to be effectively represented by
counsel at all stages of proceedings under the provisions of
this article. If the juvenile or the juvenile’s parent or
custodian executes an affidavit showing that the juvenile
cannot afford an attorney, the court shall appoint an attorney,
who shall be paid in accordance with article twenty-one [§§
29-21-1- et seq.], chapter twenty-nine of this code.
(i) In all proceedings under this article, the juvenile shall be
afforded a meaningful opportunity to be heard. This includes
the opportunity to testify and to present and cross-examine
witnesses. The general public shall be excluded from all
proceedings under this article except that persons whose
presence is requested by the parties and other persons whom
the circuit court determines have a legitimate interest in the
proceedings may attend: Provided, That in cases in which a
juvenile is accused of committing what would be a felony if
the juvenile were an adult, an alleged victim or his or her
representative may attend any related juvenile proceedings, at
the discretion of the presiding judicial officer: Provided,
however, That in any case in which the alleged victim is a
juvenile, he or she may be accompanied by his or her parents
16
school level prior to suspension, if such absences are to be used in an habitual truancy
proceeding pursuant to West Virginia Code § 49-1-4(15)(C).
Petitioner argues that the “deprivations” effectuated by virtue of her
adjudication as a status offender demand heightened procedural due process before the
school orders a suspension which will produce absences in violation of the compulsory
school attendance laws. However, as the Supreme Court of Maine noted,
it is not every loss of liberty which gives rise to an application
of the standards of due process required in criminal
proceedings. Just as the natural parent may constitutionally
place limitation on the child’s freedom of locomotion and
may substitute the will and judgment of the parent for that of
the child and thus constrain the child’s will for his own
protection, so also may the State in the exercise of its parens
patriae guardianship.
S**** S**** v. State, 299 A.2d 560, 568 (Me. 1973).
More to the point, petitioner expresses concern that use of out-of-school
suspension absences to form the basis of a truancy petition essentially leaves truancy
adjudications to the whim of principals. Petitioner suggests that principals may
indiscriminately use their authority under West Virginia Code § 18A-5-1a (2006) to
or representative, at the discretion of the presiding judicial
officer.
(j) At all adjudicatory hearings held under this article, all
procedural rights afforded to adults in criminal proceedings
shall be afforded the juvenile unless specifically provided
otherwise in this chapter.
17
suspend a student and thereby compel a student to become a “truant,” while stripping the
student of the due process rights afforded juveniles under West Virginia Code § 49-5-2
when being subjected to a truancy adjudication. We find this concern unfounded. Were
this Court to adopt a per se rule that absences occasioned by suspension were necessarily
lacking in “good cause,” or further, that a certain number of such absences were per se
“habitual,” petitioner’s argument may have merit.13 However, as discussed more fully
supra, the determination of whether an absence is without “good cause” is left to the
sound discretion of the circuit court. As such, a mere suspension at the school level does
not an habitual truant make. The circuit court is left to determine, in its discretion, not
only whether the absences which form the basis of the petition are “without good cause,”
13
We take this occasion to caution that, although not entirely clear from the
appendix record below, it appears that the circuit court may have utilized the five-
absences “trigger” set forth in West Virginia Code § 18-8-4(b) (2010) as the standard by
which to make the determination that petitioner’s absences were “habitual.” West
Virginia Code § 18-8-4(b) sets in motion the procedures mandated to address violations
of the compulsory school attendance statutes “[i]n the case of five total unexcused
absences of a student during a school year[.]” However, although petitioner did not
assign as error the circuit court’s conclusion that nine absences without good cause
constituted “habitual,” we take this opportunity to note that the requirements of West
Virginia Code § 18-8-4, as a predicate to prosecution under West Virginia Code § 18-8-2,
concern prosecution of a parent or guardian only and do not in any way restrict the basis
of a truancy petition to absences within a single school year, nor do they create a
presumption of “habitualness” for greater than five absences. See State ex rel. Estes v.
Egnor, 191 W. Va. 36, 443 S.E.2d 193 (1994) (finding that West Virginia Code § 18-8-2
imposes liability against a parent or guardian and makes no provision for prosecution of a
student under that statute regardless of age). The broad language of West Virginia Code
§ 49-1-4(15)(C) and the discretion of the circuit court thereunder is not constrained by the
statutory requisites of prosecution of a parent or guardian under the compulsory school
attendance statutes.
18
but also whether such absences are “habitual.”14 Accordingly, a juvenile receives the full
benefit of the due process rights afforded by West Virginia Code § 49-5-2 at the instant
of a truancy adjudication on the basis, in whole or in part, of suspension absences.
Rather than being denied adequate due process, a juvenile subject to a truancy
adjudication which involves suspension absences actually receives two levels of due
process—once at the school level prior to suspension and again at the circuit court level
upon adjudication. As such, the “precise nature” of the government functions at issue—
enforcement of disciplinary rules at the school level and adjudication for purposes of
integration into our juvenile justice system—do not require that school-level due process
rise to the level of the procedural protections set forth in West Virginia Code § 49-5-2.
Accordingly, we find that application of West Virginia Code § 49-1­
4(15)(C) does not violate petitioner’s constitutional rights to substantive and procedural
due process. As such, we find no error in the circuit court’s adjudication of petitioner as
status offender on the basis of habitual truancy.
B.
Disposition
14
Therefore, petitioner’s hypothetical concern regarding a student with regular
attendance and exemplary grades who is suspended for a minor disciplinary infraction
and then subject to status offender adjudication is unfounded. The circuit court has
within its discretion the ability to consider the nature of the underlying offense, but more
importantly, whether such an isolated incident constitutes “habitual” truancy. See also
n.13, supra.
19
Petitioner next assigns as error the circuit court’s disposition arising from
her adjudication as a status offender. In particular, she argues that the proportional length
and conditions of the court-ordered probation to her status as an habitual truant are
excessive and an abuse of discretion; she argues further that the transfer of legal custody
to the DHHR is likewise erroneous.
1. Probation
Petitioner argues that the overall length of her order of probation and,
generally, its attendant terms and conditions, are excessive and therefore
unconstitutionally punitive. She highlights the fact that she was ordered to three-and-a­
half years of probation for a “first time status offender” and the requirement that she stay
enrolled in school, although by statute she may withdraw at seventeen. Respondent
counters that all of the terms are designed for the protection and rehabilitation of
petitioner and are therefore, neither punitive in nature nor subject to an “excessiveness”
analysis. Importantly, petitioner appears to concede generally that the circuit court’s
imposition of probation and its terms is “within the bounds of its’ [sic] lawful authority.”
West Virginia Code §§ 49-5-11 and -11a govern disposition for juveniles
adjudicated as status offenders. West Virginia Code § 49-5-11(d) provides that if
allegations alleging a status offense are sustained by clear and convincing proof, “the
court shall refer the juvenile to the [DHHR] for services, pursuant to section eleven-a”;
however, if the circuit operates a “truancy program,” the judge may “in lieu of referring
20
truant juveniles to the department, order that the juveniles be supervised by his or her
probation office.”15 (emphasis added).
West Virginia Code § 49-5-11a provides further direction regarding
disposition of status offenders. West Virginia Code § 49-5-11a(a) describes the types of
services which may be provided by the DHHR and notes that such services “shall be
designed to develop skills and supports with their families and to resolve problems
related to the juveniles or conflicts with their families.” Critically, West Virginia Code §
49-5-11a(b) provides that, if necessary, the DHHR may petition the court for a valid court
order: 1) “to enforce compliance with a service plan or to restrain actions that interfere
with or defeat a service plan”; and/or 2) “to place a juvenile out of home in a nonsecure
or staff-secure setting, and/or to place a juvenile in custody of the department” (emphasis
added). However, such an order is not dependent upon a petition by the DHHR; rather,
the circuit court may enter an order even in absence of such a request by the DHHR
pursuant to West Virginia Code § 49-5-11a(c), which provides that “[i]n ordering any
further disposition under this section, the court is not limited to the relief sought in the
[DHHR’s] petition . . . .”
These provisions, read in pari materia, clearly evince a Legislative intent to
permit the circuit court to place a status offender on probation and order terms and
conditions of such probation as the court determines necessary to “enforce compliance
15
The provision regarding supervision by the probation office was added in 2010.
21
with a service plan or to restrain actions that interfere with or defeat a service plan[.]”
See Syl. Pt. 3, Smith v. State Workmen’s Compensation Comm’r, 159 W.Va. 108, 219
S.E.2d 361 (1975) (“Statutes which relate to the same subject matter should be read and
applied together so that the Legislature’s intention can be gathered from the whole of the
enactments.”).
As noted above, despite petitioner’s concession that the statutory scheme
grants the circuit court authority to order probation, she contends that the circuit court
“threw the book at her” and therefore transformed the rehabilitative means and methods
of disposition into “punishment” which was excessive in light of her “first-time” status
offense. We are particularly sensitive to such an argument inasmuch as we have
previously indicated that the cruel and unusual punishment concepts contained in Article
III, Section 5 of the West Virginia Constitution 16 should be broadly applied to status
offenders “whom the State has pledged not to punish at all, but rather, to protect and
rehabilitate.” Harris, 160 W. Va. at 190, 223 S.E.2d at 329-30.
16
See Syl. Pt. 2, State v. Lewis, 191 W. Va. 635, 447 S.E.2d 570 (1994):
Article III, Section 5 of the West Virginia Constitution, which
contains the cruel and unusual punishment counterpart to the
Eighth Amendment of the United States Constitution, has an
express statement of the proportionality principle: “Penalties
shall be proportioned to the character and degree of the
offense.” Syl. Pt. 8, State v. Vance, 164 W. Va. 216, 262
S.E.2d 423 (1980).
22
In Harris, we expressly applied the proportionality principles of Article III,
Section 5 of the West Virginia Constitution to treatment of status offenders and found
that incarceration of status offenders in secure, prison-like facilities was unconstitutional.
In reaching that conclusion, we examined three elements utilized by the Fourth Circuit in
Hart v. Coiner, 483 F.2d 136 (4th Cir. 1973), to determine if certain “punishment” is
constitutionally disproportionate: “(1) the nature of the offense itself; (2) the legislative
purpose behind the punishment; and (3) what punishment would have been applied in
other jurisdictions.” Harris, 160 W. Va. at 191, 223 S.E.2d at 330. As to the first
element, we found that status offenders are “located on the extreme end of the spectrum
of juvenile misconduct running from most serious to least serious offenses.” Id. at 191,
233 S.E.2d at 330. As to the second, we reiterated the well-established legislative
purpose of the status offender laws to “enforce[e] family discipline, protect[] children,
and protect[] society from uncontrolled children[.]” Id. at 192, 233 S.E.2d at 330. We
found that incarceration in prison-like facilities with children guilty of criminal conduct
was not rationally related to that end. Id. at 191-92, 223 S.E.2d at 330. Finally, we found
that other jurisdictions had eliminated incarceration of status offenders; therefore, we
held that incarceration of status offenders in secure, prison-like facilities violated Article
III, Section 5 of the West Virginia Constitution. Id. at 192, 223 S.E.2d at 330.
However, unlike incarceration of status offenders, we find the imposition of
a term of probation—even for a first-time status offender—to be not only statutorily
authorized, but constitutionally proportionate. It is critical to view probation not under
23
the lens of the criminal justice system, but rather the juvenile justice system. With
respect to probationary terms and conditions in the adult, criminal context, “[e]very
condition of probation constitutes a restriction of liberty[.]” Louk v. Haynes, 159 W. Va.
482, 493, 223 S.E.2d 780, 787 (1976). However, as to juveniles, the United States
Supreme Court has acknowledged,
juveniles, unlike adults, are always in some form of custody.
Children, by definition, are not assumed to have the capacity
to take care of themselves. They are assumed to be subject to
the control of their parents, and if parental control falters, the
State must play its part as parens patriae. In this respect, the
juvenile’s liberty interest may, in appropriate circumstances,
be subordinated to the State’s “parens patriae interest in
preserving and promoting the welfare of the child.”
Schall v. Martin, 467 U.S. 253, 265 (1984) (quoting Santosky v. Kramer, 455 U.S. 745,
766 (1982) (citations omitted). Moreover, this Court, in reviewing the constitutionality
of a curfew ordinance, quoted extensively from and found persuasive like reasoning
expressed by the United States Court of Appeals for the District of Columbia in Hutchins
v. District of Columbia, 188 F.3d 531 (D.C. Cir. 1999). In particular, we quoted with
approval the District Court’s findings that
“unemancipated minors lack some of the most fundamental
rights of self-determination—including even the right of
liberty in its narrow sense, i.e., the right to come and go at
will.” . . . . [I]t [is] anomalous to say that juveniles have a
right to be unsupervised when they are always in some form
of custody [and] the recognition of such a right would fly in
the face of the state’s well-established power of parens
patriae in preserving and promoting the welfare of children.
The state’s authority over children’s activities is
unquestionably broader than that over like actions of adults[.]
24
Sale v. Goldman, 208 W. Va. 186, 195, 539 S.E.2d 446, 455 (2000) (quoting Hutchins,
188 F.3d at 539 (citations omitted)). See also Harris, 160 W. Va. at 183, 223 S.E.2d at
326 (noting that the class of status offenders is created under the State’s sovereign parens
patriae power “and not under the plenary power of the State to control criminal activity
and punish criminals”).
We find that supervision by a probation officer and required compliance
with terms and conditions designed to integrate with a juvenile’s service plan is a tangible
and effective means of fulfilling the laudatory goals of the juvenile justice system. The
Court of Appeals of Louisiana found likewise and rejected an attempt to characterize
placement of status offenders in approved facilities as punishment. In the Interest of
Gras, 337 So.2d 641 (La. App. 1976). The Gras court found that status offender
adjudication was a much-needed
attempt[] to provide these children with the treatment,
guidance, and care which under normal circumstances is
provided in the home. The proceedings in the instant case
illustrate the concerted effort of the juvenile court and its
probation office to act in the best interest of the child by
providing her with an environment best suited to meet her
adolescent behavior problems.
Id. at 645. Similarly, placement of juveniles under the supervision of the court’s
probation office and ordering compliance with reasonable terms and conditions is
designed to create an environment to best enable the juvenile to address the issues which
brought the juvenile within the scope of the juvenile justice system in the first instance.
More importantly, in fulfillment of its parens patriae power, probationary supervision
25
allows the State to provide the guidance and discipline which is clearly otherwise lacking
at home.
Insofar as the particular terms and conditions of probation ordered by the
circuit court are concerned, petitioner highlights only one for substantive attack—not
surprisingly, the requirement that she stay enrolled in school until she graduates.
Petitioner contends that since the compulsory school attendance statute permits her to
withdraw at age seventeen, the circuit court’s attempt to force her to remain enrolled
beyond seventeen is erroneous. 17 We disagree. First, we note that the circuit court’s
order does not wholesale prohibit petitioner from withdrawing from school; rather, it
indicates that she may not “change her status of school unless approved by the Court.”
(emphasis added). Secondly, we find that this particular term of probation, obviously, is
exquisitely designed to give effect to the very purpose of the underlying adjudication and
further does credit to the overall scheme of juvenile justice. We find more than adequate
support within the parameters set forth in West Virginia Code § 49-5-11a permitting the
court to enter an order “restrain[ing] actions that interfere with or defeat a service plan”
to justify this term of probation in light of the basis upon which petitioner was
adjudicated a status offender. See also In re Marbella P., 221 P.3d 38, 41 (Az. 2009)
(holding that requirement to stay enrolled in school beyond compulsory age bore rational
17
West Virginia Code § 18-8-1a(a)(3) (2010) provides that “[b]eginning with the
2011-2012 high school freshman cohort class of students . . . compulsory school
attendance . . . continues to the seventeenth birthday or for as long as the student
continues to be enrolled in a school system after the seventeenth birthday.” Petitioner
was a freshman during the 2011-2012 school year.
26
relationship to purpose of probation); In re Robert M., 209 Cal. Rptr. 657, 659 (Cal. Ct.
App. 1985) (finding that school attendance as condition of probation is “rationally related
to rehabilitation and prevention of future criminality”); In re Wendy C., 520 N.Y.S.2d
277, 279 (1987) (finding that continued enrollment in school beyond compulsory age was
within court’s “continuing supervisory authority” over juvenile).
As such, subject to our holding set forth infra regarding the jurisdictional
age limit of the circuit court’s order of probation, we find no error in the circuit court’s
imposition of probation, nor in any of its terms and conditions, including but not limited
to the requirement that petitioner stay enrolled in school until graduation, unless
otherwise permitted by the circuit court.18
2. Transfer of Custody
Petitioner next argues that the circuit court erred in its disposition by
transferring her legal custody to the DHHR without the requisite findings in support of
such a transfer. While not expressly confessing error, respondent offers no argument in
18
Moreover, we find all of the remaining terms and conditions ordered by the
circuit court, which were only summarily criticized by petitioner, to be likewise geared
toward “restrain[ing] actions that interfere with or defeat a service plan” as permitted by
West Virginia Code § 49-5-11a(b)(1) and therefore proper. See n.3 supra. Accord State
v. M.D.J., 169 W. Va. 568, 289 S.E.2d 191 (1982) (utilizing enabling statutory language
under West Virginia Code § 49-5-13(b)(3)(b) to determine validity of probationary terms
for juvenile delinquent).
27
support of the circuit court’s transfer of custody, 19 noting merely that the circuit court
mercifully declined to place petitioner in a juvenile facility. Regardless, however, we
find that the circuit court’s transfer of custody, while within its statutory authority, did
not contain the proper prerequisite showing and was wholly lacking in the appropriate
findings and conclusions required.
Without question, status offenders are subject to out-of-home placement
and/or a custody transfer. As noted above, West Virginia Code § 49-5-11a(b) provides
that the court may, “if necessary,” order that a juvenile be placed “out of home in a
nonsecure or staff-secure setting, and/or [] in custody of the department” upon petition by
the DHHR or at the court’s behest in absence of a petition by the DHHR.20 However, as
we first noted in Harris, committing juveniles to the custody of the state in the absence of
a showing of necessity is an improper use of parens patriae power: “[T]he ancient
doctrine of parens patriae is in full retreat on all fronts except in those very narrow areas
where the state can demonstrate, as a matter of fact, that its care and custody is superior
to any available alternative.” Id., 160 W. Va. at 187, 233 S.E.2d at 328 (citing State ex
rel. Hawks v. Lazaro, 157 W. Va. 417, 202 S.E.2d 109 (1974)). See also W. Va. Code §
49-1-1(b) (stating that “it is the intention of the Legislature to provide for removing the
19
As such, “the Court will assume that the respondent agrees with the petitioner’s
view of the issue.” W.V.R. App. Proc. 10(d).
20
See West Virginia Code § 49-5-11a(c) discussed supra.
28
child from the custody of his or her parents only when the child’s welfare or the safety
and protection of the public cannot be adequately safeguarded without removal”).
To that end, this Court has previously articulated the requisite showing and
commensurate findings and conclusions required of the circuit court before any such
transfer of custody may occur. In Syllabus Point 2, in part, State v. Damian R., 214 W.
Va. 610, 591 S.E.2d 168 (2003), this Court held:
[A] petition seeking an order regarding transferring custody
of the status offender to the Department and/or out-of-home
placement under W. Va. Code, 49–5–11a(b)(2) [1998] . . .may
only be granted upon a showing by clear and convincing
evidence that such a custody or placement order is actually
necessary; that the effective provision of services cannot
occur absent such an order; and that all reasonable efforts
have been made to provide appropriate services without an
out-of-home placement or custody transfer; and orders
granting such placement and/or transfer must be based on
specific findings and conclusions by the court with respect to
the grounds for and necessity of the order.
(emphasis added). As noted hereinabove, the circuit court’s order states simply that “it is
contrary to the welfare of [petitioner] for her legal custody to remain with her parents and
it is in her best interest of the child [sic] to have her legal custody be with the
Department[.]”21 Clearly, the lack of evidence adduced as to this issue and the court’s
conclusory finding are insufficient to comply with the requirements of Damian R.
21
The transcript from the hearing contained in the appendix record reflects only
that the probation officer inquired of the court whether legal custody, which had been
placed with the DHHR during the preliminary hearing, was being “released back to the
29
Moreover, we find that the circuit court’s order transferring legal custody of
petitioner was not only erroneous due to its lack of evidentiary basis, findings and
conclusions, but further erroneously denied both petitioner and the respondent adult
below, Emma B.,22 their due process rights. West Virginia Code § 49-5-11a(b) provides
that an out of home placement or custody transfer must be made pursuant to a “valid
court order, as defined in section four [§ 49-1-4], article one of this chapter[.]” West
Virginia Code § 49-1-4(16) defines “valid court order” as one in which the juvenile
received “the full due process rights guaranteed to such juvenile by the constitutions of
the United States and the State of West Virginia.” In that regard, and as pertains to both
the petitioner and the “affected parent,” in Syllabus Point 3 of Damian R., we further
held, in part:
[As to] a circuit court’s decision under W. Va. Code, 49–5–
11a(b)(2) [1998] to award custody of a juvenile status
offender to the Department of Health and Human
Resources[,] . . . the constitutional rights of due process,
representation by counsel, notice, opportunity to be heard,
and to present and cross-examine witnesses must be afforded
to the juvenile and the affected parent in a proceeding
brought pursuant to said statutory provision.
Id. (emphasis added). There is no evidence in the record below that the petitioner was on
notice of the potential permanent transfer of custody, much less afforded the opportunity
parents.” Addressing the petitioner, the court responded simply that legal custody would
remain with the DHHR but that physical custody would “continue with the parents as
long as you are doing well.” The circuit court warned petitioner that if she “mess[ed]
up,” “the Department will have the authority to take custody of you and place you in a
facility until the next hearing.”
22
Emma B., although not a party to this appeal, was identified below as the
“respondent adult” and is identified therein as the petitioner’s biological mother.
30
to be heard on the matter or to present and cross-examine witnesses. Moreover, there is
no evidence that the affected respondent parent, Emma B., was afforded the right of
representation or the above-referenced due process rights. As such, we reverse the circuit
court’s transfer of legal custody and remand this matter for further proceedings as
appropriate consistent with our holdings in Damian R.
3. Extension of Probation Beyond Petitioner’s Eighteenth Birthday
Finally, petitioner contends that the circuit court erred in ordering that her
probation extend until she graduates from high school. Petitioner contends that the
circuit court’s juvenile jurisdiction over her extends only until the age of eighteen and
inasmuch as she will reach the age of eighteen approximately one month prior to the
customary commencement of graduating senior classes, the circuit court’s order exceeds
its jurisdiction. Respondent, implicitly conceding that the circuit court has no such
jurisdiction beyond the age of eighteen, argues simply that this issue is not ripe since
petitioner has not yet turned eighteen and, theoretically, could graduate prior to that time.
Respondent maintains that in the event petitioner has not graduated by her eighteenth
birthday, she may then move to have the circuit court’s probationary order dismissed at
that time.
West Virginia Code § 49-1-2 (1997) provides, in part, that “[a]s used in this
chapter, ‘juvenile’ or ‘child’ means any person under eighteen years of age.” Likewise,
the definitional section under “Juvenile Proceedings” defines “child” or “juvenile” as “a
31
person who has not attained the age of eighteen years, or a person who is otherwise
subject to the juvenile jurisdiction of a court pursuant to this article.” W. Va. Code § 49­
5-1(b) and (d). The latter provision, however, does not serve generally to extend the
juvenile jurisdiction of the court beyond the age of eighteen to those who at any time
come under the juvenile jurisdiction of the court. Rather, it allows for the extension of
jurisdiction as expressly provided for in West Virginia Code § 49-5-2(f), which states that
as to juveniles adjudicated delinquent, “the jurisdiction of the court which adjudged the
juvenile delinquent continues until the juvenile becomes twenty-one years of age. The
court has the same power over that person that it had before he or she became an adult[.]”
This exception is obviously inapplicable to the case sub judice as petitioner was not
adjudicated delinquent and we find no other provision which would provide for extension
of the court’s jurisdiction over a juvenile status offender beyond the age of eighteen
years.
In fact, albeit in dicta, this Court has previously had occasion to specifically
admonish lower courts that probation orders for juvenile status offenders may not extend
beyond the age of eighteen. In State v. Steven H., 215 W. Va. 505, 511, n.6, 600 S.E.2d
217, 223, n.6 (2004), the Court sua sponte noted that the probation order before it
improperly attempted to extend Steven H.’s probation until he turned twenty-one. We
counseled that “future probation orders for juvenile status offenders, while otherwise
acceptable and discretionary with the court, should extend only until the status offender
attains the age of eighteen years.” Accordingly, we now expressly hold that, pursuant to
32
West Virginia Code § 49-5-2 (2007), the jurisdiction of courts over a juvenile adjudicated
as a status offender as defined in West Virginia Code § 49-1-4(15) extends only until the
juvenile attains the age of eighteen.
We therefore find that aspect of the circuit court’s order placing petitioner
on probation until she “graduates from high school” to be erroneous and remand this case
to the circuit court for entry of an order providing that petitioner be placed on probation
until the earlier of her eighteenth birthday or graduation from high school.
IV. CONCLUSION
For the reasons set forth more fully above, we affirm the order of the circuit
court adjudicating petitioner a status offender and placing her on probation. However,
we reverse that portion of the circuit court’s order transferring legal custody to the DHHR
and attempting to extend petitioner’s probation until she graduates from high school. We
further remand this matter to the circuit court for further proceedings as appropriate
regarding the transfer of legal custody and for entry of an appropriate order placing
petitioner on probation until the earlier of her eighteenth birthday or graduation from high
school.
Affirmed in Part; Reversed in
Part; and Remanded with
Directions.
33