In re Brandi B.

• Decision Date: 17 May 2013
• Docket Number: No. 12–0100.,12–0100.
• Citation: 743 S.E.2d 882,231 W.Va. 71
• Parties: In re BRANDI B.
• Court: West Virginia Supreme Court

231 W.Va. 71

743 S.E.2d 882

In re BRANDI B.

No. 12–0100.

Supreme Court of Appeals of West Virginia.

Submitted April 9, 2013.

Decided May 17, 2013.

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.

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 functioninvolved 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 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).

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.

Dewitt W. Daniell, Esq., Office of the Public Defender, Lewisburg, WV, for Petitioner.

Patrick Morrissey, Esq., Attorney General, Andrew Mendelson, Esq., Assistant Attorney General, Charleston, WV, for Respondent.

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.

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 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 probation ³ 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 “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, 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 §...