IN RE THOMAS L., 25353.

• Citation: 513 S.E.2d 908,204 W.Va. 501
• Decision Date: 07 December 1998
• Docket Number: No. 25353.,25353.
• Court: West Virginia Supreme Court
• Parties: In the Interest of THOMAS L.

513 S.E.2d 908

204 W.Va. 501

In the Interest of THOMAS L.

No. 25353.

Supreme Court of Appeals of West Virginia.

Submitted November 12, 1998.

Decided December 7, 1998.

William C. Meyer, II, Esq., Public Defender Services, Princeton, West Virginia, Attorney for Thomas L.

Darrell V. McGraw, Jr., Esq., Attorney General, Barbara H. Allen, Esq., Managing Deputy Attorney General, Charleston, West Virginia, Attorneys for the State of West Virginia.

PER CURIAM:

This case is before this Court upon appeal of a final order of the Circuit Court of Mercer County entered on February 17, 1998. Pursuant to that order, the appellant, Thomas L.,¹ was placed in the West Virginia Industrial Home for Youth [hereinafter "Industrial Home"] following a guilty plea to the charge of delivery of a controlled substance.² In this appeal, the appellant contends that the court erred by placing him in the Industrial Home.

This Court has before it the petition for appeal, all matters of record, and the briefs of counsel. For the reasons set forth below, we affirm the final order of the circuit court.

I.

On May 9, 1997, Thomas L., then fifteen years old, sold two marijuana cigarettes to some friends for ten dollars. Thereafter, the group of friends, including Thomas L., got into a car and began driving around while smoking the marijuana. Tragically, the car crashed into a tree when the driver attempted to reach into the back seat for one of the marijuana cigarettes. Jamie C., a female juvenile who was also a passenger in the car, was killed. Thomas L. fled the scene and went to a nearby bowling alley to call his mother for a ride home.

Subsequently, the police learned of Thomas L.'s involvement in the accident, and he was charged with delivery of a controlled substance. On October 20, 1997, Thomas L. pleaded guilty to the charge pursuant to a plea agreement whereby the State agreed not to oppose his motion for probation.

During the dispositional phase of the case, it was learned that Thomas L. has a substance abuse problem relating to both drugs and alcohol. In fact, it was noted that he had been hospitalized for alcohol poisoning on two occasions.³ During a hearing on December 15, 1997, the circuit court acknowledged that Thomas L. had been attending substance abuse counseling and appeared to be making good progress. Nonetheless, the circuit court ordered the probation officer to investigate the alternatives between probation and placement in the Industrial Home.

A second dispositional hearing was held on January 12, 1998. The circuit court again noted that Thomas L. was continuing to make progress in his counseling sessions. The circuit court discussed possibly placing him in a group home. The case was continued to allow the probation officer to locate a facility that would provide both punishment and rehabilitation.

At the final hearing on February 17, 1998, the circuit court was informed that Thomas L. had tested positive for marijuana during a drug screening on January 26, 1998. The circuit court was also informed that Thomas L. had been suspended from school after he inappropriately touched a female student. Thereafter, the circuit court denied the motion for probation and ordered Thomas L. to be placed in the Industrial Home.

II.

Thomas L. contends that he was placed in the Industrial Home solely because of the of death of Jamie C. He maintains that the circuit court was influenced by the presence of her parents at the final hearing. Thomas L. asserts that the circuit court overlooked the overwhelming evidence that he was making great strides in reforming his behavior. He argues that placement at the Industrial Home was not the least restrictive alternative in his case.

To the contrary, the State argues that the circuit court's decision was procedurally sound and well within its discretion. Recognizing that Thomas L. made some progress in his drug and alcohol treatment plan, the State points out that he experienced some notable lapses including a positive drug screen and trouble at school. The State asserts that it is simply unfair to suggest that the circuit court was influenced by the presence of Jamie C.'s parents at the final hearing. They did not participate in the hearing, and the court was already aware of their views concerning the case by virtue of their participation in prior proceedings involving the driver of the car.

W.Va.Code 49-5-13(b)(5) (1997) authorizes the circuit court to commit a juvenile to an industrial home "upon a finding that the best interests of the juvenile or the welfare of the public require it, and upon an adjudication of delinquency[.]" When a circuit court contemplates commitment to an industrial home, it is required to make a record and set forth its reasons for selecting that dispositional alternative. As we explained in Syllabus Point 4 of State ex rel. D.D.H. v. Dostert, 165 W.Va. 448, 269 S.E.2d 401 (1980):

In a juvenile proceeding it is the obligation of a trial court to make a record at the dispositional stage when commitment to an industrial school is contemplated under W.Va.Code, 49-5-13(b)(5) [1978] and where incarceration is selected as the disposition, the trial court must set forth his reasons for that conclusion. In this regard the court should specifically address the following: (1) the danger which the child poses to society; (2) all other less restrictive alternatives which have been tried either by the court or by other agencies

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