State v. Damian, No. 31116 (Va. 11/21/2003)
| Decision Date | 21 November 2003 |
| Docket Number | No. 31116,31116 |
| Parties | STATE OF WEST VIRGINIA, Plaintiff Below, Appellee, v. DAMIAN R., Defendant Below, Appellant. |
| Court | Virginia Supreme Court |
Appeal from the Circuit Court of Berkeley County Hon. Gray Silver, III, Judge, Case No. 01-JS-52.
REVERSED.
SYLLABUS BY THE COURT
1. "In the law concerning custody of minor children, no rule is more firmly established than that the right of a natural parent to the custody of his or her infant child is paramount to that of any other person; it is a fundamental personal liberty protected and guaranteed by the Due Process Clauses of the West Virginia and United States Constitutions." Syllabus Point 6, In Re Willis, 157 W.Va. 225, 207 S.E.2d 129 (1973).
2. The prior actual provision of services by the State Department of Health and Human Resources to a status offender is not in all cases a jurisdictional prerequisite for the filing of 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]; however, such a petition 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.
3. Ordinarily and in the absence of emergency circumstances 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 and/or to place a juvenile status offender outside of their parents' home may not be based entirely upon hearsay evidence; and 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.
Christopher C. Quasebarth, Assistant Prosecuting Attorney, Martinsburg, West Virginia Attorney for Appellee.
John P. Adams, Esq. Public Defender Corporation Martinsburg, West Virginia Attorney for Appellant.
In the instant case we reverse a circuit court's order transferring custody of a juvenile from his parent to the Department of Health and Human Resources and authorizing his placement out of his home - because the Department did not show the necessity for such an order.
The appellant, D.R. (hereinafter "the juvenile"), was born on September 4, 1987, and was fourteen years old at the time of the proceedings below. During the 2001- 2002 school year the juvenile resided with his mother in Berkeley County, and was enrolled in the seventh grade. The juvenile had truancy and anger management problems at school; in the Fall of 2001 he was expelled from school and the school system offered him alternative educational services on two nights a week after school. A truancy diversion social worker was assigned to work with the juvenile and his family. The juvenile attended some of the alternative education sessions, but missed most of them.(1)
In late 2001, the juvenile's mother, seeking further assistance in dealing with her problems with her son,(2) consulted with the Berkeley County Prosecuting Attorney's Office. As a result of this consultation and with the mother's consent, on December 12, 2001, the Berkeley County Prosecuting Attorney filed a petition pursuant to W.Va. Code, 49- 5-7 [1998], requesting that the juvenile be adjudged to be a status offender.
A probable cause hearing was held by the circuit court on January 29, 2002, where a truancy diversion social worker and the juvenile's mother testified briefly to the juvenile's misconduct. The social worker testified that the juvenile would benefit from counseling; the mother testified that while the juvenile's behavior had already improved noticeably since the petition was filed, the mother still felt she needed help from the court. The circuit court ruled that probable cause had been established and set a date about one month later for an adjudicatory hearing.
On February 27, 2002, the circuit court held the adjudicatory hearing. There was no evidence presented of any further misconduct by the juvenile since the probable cause hearing. The juvenile's counsel advised the court that the juvenile would admit to the factual allegations in the petition and that the juvenile wished to remain with his mother. The circuit court questioned the juvenile to be sure that he understood his rights and then accepted the juvenile's acknowledgment of the truth of the allegations in the petition.
The circuit court entered an order adjudicating the juvenile as a status offender, based on incorrigibility and truancy. The court referred the juvenile to the West Virginia Department of Health and Human Resources ("DHHR") "for treatment according to statute." The court also ordered a psychological examination of the juvenile. The court cautioned the juvenile that his truancy was unacceptable; that he needed above all to attend school regularly; and that he would face more serious consequences if he did not attend school as required.
After this hearing the juvenile began to attend school again. Then, on March 1, 4 and 7, the juvenile reportedly "acted out" in school, by yelling at a teacher and not following directions. The school contacted the DHHR, and on March 15, 2002 the DHHR filed a petition with the circuit court, briefly describing the reported "acting out"incidents and further alleging that "[t]he Juvenile is not amenable to services in the community because he will not remain in a safe residence long enough for services to be offered nor is there a community service available that can supervise the Juvenile to prevent him from skipping school, being incorrigible, and running away, so therefore it is in the best interest of this fourteen-year-old Juvenile if he is placed in the custody of the Department and placed in a staff secure facility." The DHHR sought an order awarding custody of the juvenile to the DHHR for out-of-home placement.
A hearing on this petition was held on March 25, 2002, following which the circuit court entered an order - without making any specific written findings - granting custody of the juvenile to the DHHR for the purpose of making placement at a place to be determined, and pending such placement ordering that the juvenile be held at the Romney Child Care Center.
At the March 25, 2002 hearing, the prosecutor presented testimony from two witnesses. The prosecutor's first witness was a youth services supervisor for the Children's Home Society ("CHS"), a private organization to whom the DHHR had referred the juvenile, apparently pursuant to a contract between the CHS and the DHHR. This witness testified that her agency had been telephonically advised of the "acting out" incidents in early March by the school system. The CHS supervisor testified that she had no personal knowledge of what had happened in the school; that she had not spoken to the juvenile or his mother about the incidents; and that her agency had not provided any services to the juvenile or his family since the adjudication. The prosecutor's second witness was a DHHR foster care worker. This witness testified that she had filed the most recent petition after receiving reports of the juvenile's acting out in school, but that she had no personal knowledge of the subject matter of the reports.
The juvenile's lawyer objected to the hearsay nature of both witnesses' testimony. In response to these objections, the prosecutor told the circuit court that she had subpoenaed the school personnel who reported the conduct, but that they had not yet come to the courtroom.
The circuit court overruled the hearsay objections. Then, after a brief recess, the prosecutor stated that the school personnel witnesses had not been served with subpoenas. The prosecutor did not request a continuance to secure these witnesses' testimony; and rested her case. The juvenile's lawyer did not present any witnesses.
Both sides then summed up. The prosecutor asked for giving custody of the juvenile to the DHHR and placement of the juvenile outside the home on the grounds that the juvenile had misbehaved so soon after the adjudicatory hearing. The juvenile's counsel stated that the juvenile wanted to remain at home and that his mother wanted him to remain at home. The juvenile's counsel further stated that the juvenile's mother had invoked the court system and the juvenile had waived an adjudicatory hearing on the premise that the juvenile would get evaluation and counseling services — which had not been provided. The juvenile's lawyer argued:
The circuit court granted the DHHR's petition for custody, telling the juvenile that he had "flagged your nose at the Court." After the Court's ruling, the juvenile's mother addressed the court, and the following colloquy occurred:
I can't expect him to do his part when the state didn't do their job. And from the bottom of my heart, they didn't do their job. I have also contacted them last week. I was told it's in somebody else's hands. I contacted one...
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