Darrell V. McGraw, Jr.
Earl Henry Hager
Attorney General
Public Defender Corporation
Robert D. Goldberg
Clarksburg, West Virginia
Assistant Attorney General Attorney for the Appellant
Charleston, West Virginia
Attorneys for the Appellee
The Opinion of the Court was delivered PER CURIAM.
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. “In reviewing challenges to the findings and conclusions of the circuit court,
we apply a two-prong deferential standard of review. We review the final order and the
ultimate disposition under an abuse of discretion standard, and we review the circuit court's
underlying factual findings under a clearly erroneous standard. Questions of law are subject
to a de novo review.” Syl. Pt. 2, Walker v. West Virginia Ethics Comm'n, 201 W. Va. 108,
492 S.E.2d 167 (1997).
3. “A trial court's evidentiary rulings, as well as its application of the Rules
of Evidence, are subject to review under an abuse of discretion standard.” Syl. Pt. 4, State
v. Rodoussakis, 204 W. Va. 58, 511 S.E.2d 469 (1998).
4. “The West Virginia Rules of Evidence and the West Virginia Rules of Civil Procedure allocate significant discretion to the trial court in making evidentiary and procedural rulings. Thus, rulings on the admissibility of evidence and the appropriateness of a particular sanction for discovery violations are committed to the discretion of the trial court. Absent a few exceptions, this Court will review evidentiary and procedural rulings of the circuit court under an abuse of discretion standard.” Syl. Pt. 1, McDougal v. McCammon, 193 W. Va. 229, 455 S.E.2d 788 (1995).
5. “[S]uch a petition [for out-of-home placement] 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).
6. “Generally, an order is effective when a court announces it.” Syl. Pt. 1, Moats v. Preston County Comm'n, 206 W. Va. 8, 521 S.E.2d 180 (1999).
7. “An oral order has the same force, effect, and validity in the law as a written
order. In other words, the actual physical possession of a written order is not required to
effectuate said order.” Syl. Pt. 2, Moats v. Preston County Comm'n, 206 W. Va. 8, 521
S.E.2d 180 (1999).
Per Curiam:
This is an appeal by Larry M., a juvenile, (hereinafter “Appellant”)
(See footnote 1)
from an
order of the Circuit Court of Harrison County transferring custody of the Appellant from his
parent to the Department of Health and Human Resources (hereinafter “DHHR”) and
authorizing his placement out of his home. The Appellant contends that the lower court erred
in finding that no less restrictive disposition could be found for the Appellant, in placing him
out of the home without adequate findings of fact, and for failing to have an adjudicatory
order in place at the time of disposition. The Appellant also contends that the lower court
erred in allowing the number of days the Appellant missed from school to be admitted as
evidence through a witness other than the truancy officer who handled the official school
records. Upon thorough review of the record, the briefs, and the applicable precedent, we
find no reversible error and affirm the determination of the lower court.
On June 4, 2002, the lower court reviewed the Appellant's medical records and a psychological evaluation. (See footnote 4) Subsequent to such review, the court ordered the DHHR to provide the Appellant with in-home services and required the Appellant to undergo counseling at United Summit Center. In-home services were provided by West Virginia Youth Advocate, and counseling was obtained through a youth services provider, Kathy Cox.
On March 10, 2003, the State moved to revoke the in-home services and place the Appellant in a setting out of the home, pursuant to West Virginia Code § 49-5-11a(b)(2) (1998) (Repl. Vol. 2001), (See footnote 5) asserting that the Appellant had continued to miss school and had failed to cooperate with the offered services. The State's motion referenced the Appellant's receipt of services from the Truancy Diversion Program, counseling at the United Summit Center, weekly in-home counseling services from the West Virginia Youth Advocate, and counseling from Kathy Cox.
On March 25, 2003, the circuit court held a hearing on the State's motion for placement out of the home. During that hearing, the State introduced the testimony of Youth Services worker Kathy Cox and asked Ms. Cox whether the Appellant's attendance record had improved since she began providing in-home services. Counsel for the Appellant objected, claiming that attendance information could be elicited only through Truancy Officer Schillace. (See footnote 6) The circuit court sustained the Appellant's objection, in part. The court prohibited Ms. Cox from testifying regarding information contained in the Appellant's school attendance reports, but allowed her to testify regarding general information she had regarding the Appellant's attendance of school. Ms. Cox thereafter testified that her knowledge of the attendance record was based upon a review of the official school attendance reports. In addition to Ms. Cox's testimony, both Juvenile Probation Officer Tracy Keener and Youth Services worker Kathy DeBose also testified that the Appellant's attendance record had remained problematic, with numerous unexcused absences. (See footnote 7) Appellant's counsel did not object to the testimony of either Mr. Keener or Ms. DeBose. The Appellant and his mother also testified during the hearing and did not deny that the Appellant had accumulated many unexcused absences from school.
On April 2, 2003, the circuit court ordered that the Appellant be placed outside his home. Included in that order were the following findings:
1. The juvenile's mother is unable to provide proper care and
supervision at this time;
2. Continuation in the home is contrary to the best interests of
the juvenile respondent;
3. The Court has concerns that the health, safety and welfare of
the juvenile are in danger at this time;
4. The Court's concerns about the health, safety, and welfare of
the juvenile can only be addressed by placement;
5. The West Virginia Department of Health and Human
Resources has made reasonable efforts to prevent placement.
On April 17, 2003, the circuit court entered an order placing the Appellant in Pressley Ridge
School at Laurel Park in Clarksburg, West Virginia, with such placement to begin on
April 24, 2003.
On appeal of that order, the Appellant seeks release and a new dispositional
hearing. The Appellant contends that the circuit court erred in finding that no less restrictive
disposition should be granted, erred by failing to make adequate findings of fact, and erred
by disposing of the case when no order of adjudication had been entered. The Appellant
further alleges that the circuit court erred in allowing the number of days that he missed
school to be admitted into evidence by witnesses other than the official truancy officer.
In reviewing challenges to the findings and conclusions
of the circuit court, we apply a two-prong deferential standard
of review. We review the final order and the ultimate
disposition under an abuse of discretion standard, and we review
the circuit court's underlying factual findings under a clearly
erroneous standard. Questions of law are subject to a de novo
review.
Syl. Pt. 2, Walker v. West Virginia Ethics Comm'n, 201 W. Va. 108, 492 S.E.2d 167 (1997).
With regard to the lower court's admission of evidence regarded by the
Appellant as hearsay, we review such allegation under an abuse of discretion standard. “A
trial court's evidentiary rulings, as well as its application of the Rules of Evidence, are
subject to review under an abuse of discretion standard.” Syl. Pt. 4, State v. Rodoussakis,
204 W. Va. 58, 511 S.E.2d 469 (1998). This Court also explained as follows in syllabus
point one of McDougal v. McCammon, 193 W. Va. 229, 455 S.E.2d 788 (1995):
The West Virginia Rules of Evidence and the West
Virginia Rules of Civil Procedure allocate significant discretion
to the trial court in making evidentiary and procedural rulings.
Thus, rulings on the admissibility of evidence and the
appropriateness of a particular sanction for discovery violations
are committed to the discretion of the trial court. Absent a few
exceptions, this Court will review evidentiary and procedural
rulings of the circuit court under an abuse of discretion standard.
[S]uch a petition [for out-of-home placement] 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.
In the case sub judice, the lower court made specific findings of fact, as outlined in the final
order and quoted above. In addition to those written findings, the lower court expressed the
following findings orally at the conclusion of the March 2003 hearing:
There really hasn't been any denial on the part of [the
Appellant] or his mother concerning his failure to regularly
attend school this year. The Court's not been presented with any
documentation that would justify the number of absences that
have been alleged and he pretty much acknowledged that he has
continued to be absent from school. So here we have three (3)
school years now. We're into the third year that he has missed
a substantial number of school days. The truancy continues, the
services haven't been much good - - there may have been some
improvement, but they really haven't done much good. . . .
Now the Court finds that Ms. W. [Appellant's mother]
cannot provide the necessary supervision [the Appellant] needs
at the present time to insure that he gets his education as
required by law. As I indicated, he's now had three (3) school
years that have been substantially missed because of his failure
to regularly attend school. The Court finds that continuation in
the home is contrary to [the Appellant's] best interests. Again,
because he's not receiving his education. The Court believes
that reasonable efforts have been made to prevent placement out
of home by both the Court and the Department [DHHR] and that
placement out of the home at this time is in his best interest.
Our review of the lower court's action in this matter reveals that the lower
court provided sufficient findings of fact and conclusions of law to justify its conclusion that
the Appellant's placement order was, in the language of Damian, “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
and/or custody transfer.” 214 W. Va. at ___, 591 S.E.2d at 175. This Court has noted that
“the court must set forth on the record findings of fact which support the conclusion required
by the statute. . . .” State ex rel. B. S. v. Hill, 170 W. Va. 323, 327, 294 S.E.2d 126, 129
(1982). We further find that the Damian requirements have been met since the order in the
case sub judice “granting such placement or transfer . . . [was] based on specific findings and
conclusions by the court with respect to the grounds for and necessity of the order.” 214
W. Va. at ___, 591 S.E.2d at 175.
The Appellant's contention that the lower court failed to choose the least
restrictive appropriate alternative is equally without merit. Indeed, West Virginia Code §
49-5-11a(2)(c) does require the court to “make every effort to place juveniles in community-
based facilities which are the least restrictive alternatives appropriate to the needs of the
juvenile and the community.” This Court recognized this directive in Damian, explaining
that “we must emphasize that the entire statutory scheme for status offenders contemplates
that removal from the home and/or transfer of custody from a parent be undertaken only
when necessary and upon clear and convincing proof that no less restrictive alternative is
feasible.” 214 W. Va. at ___, 591 S.E.2d at 174. The Damian Court also emphasized that
“[t]he removal of a juvenile status offender or delinquent from his parent's custody is
authorized 'only when the child's welfare or the safety and protection of the public cannot
be adequately safeguarded without removal. . . .' W.Va.Code, 49-1-1(a)(12)(b) [1999].” Id.
at ___, 591 S.E.2d at 174.
Applying such principles to the case at bar, the procedural history of this matter reveals the extensive efforts undertaken by the lower court and the DHHR to comply with the statutory mandates. An improvement period, with specified conditions designed to accomplish appropriate results, was first implemented. The Appellant did not comply with the conditions of the improvement period, and it was revoked. Additional measures, such as in-home services and personal counseling were also implemented, to no avail. Thus, less restrictive alternatives were attempted and were unsuccessful.
Based upon our review of the record, it appears that the evidence adduced at the hearing legally established the necessity of transferring legal custody of the Appellant to the DHHR and removing him from his home. Under the circumstances presented to the lower court, its action did constitute the least restrictive alternative.
The Appellant further contends that the dispositional order is invalid because
an adjudicatory order had not been entered in this case. The lower court did rule from the
bench that the Appellant was being adjudicated as a status offender based upon poor school
attendance.
(See footnote 9)
No order was entered at that time, apparently due to the difficulty encountered
in obtaining medical records. Although the Appellant contends that the court's failure to
enter a written order memorializing its decision rendered subsequent action void, this Court
has previously indicated that orders which have not been reduced to writing still have the full
force and effect of written orders. In syllabus point one of Moats v. Preston County
Commission, 206 W. Va. 8, 521 S.E.2d 180 (1999), for instance, this Court explained that
“[g]enerally, an order is effective when a court announces it.” Syllabus point two of Moats
continued: “An oral order has the same force, effect, and validity in the law as a written
order. In other words, the actual physical possession of a written order is not required to
effectuate said order.” The lower court clearly had adjudicated the Appellant as a status
offender prior to entering the dispositional order. In view of the lower court's findings on
the record, we conclude that no reversible error was committed in this case.
(See footnote 10)
Despite the failure to object to continued investigation of this issue through testimony of Mr. Keener and Ms. DeBose, the Appellant contends on appeal that only the truancy officer should have been permitted to testify regarding absences, since she was the authority in charge of the official attendance records. During the hearing, the lower court observed as follows: “I know Ms. Schillace [the truancy officer] wasn't here and ordinarily in Probation Revocation proceedings, hearsay is admissible. The Court can take into account the nature of the testimony that was presented and what weight to give it.”
In response to the Appellant's claims that the evidence should not have been introduced, the State argues that the Rules of Evidence did not apply to the dispositional hearing because it was similar in many respects to a probation revocation hearing, a proposition in accord with the lower court's quote above. Evidence of this nature is admissible, the State argues, as long as the juvenile's right to confront and cross-examine is preserved. In this case, Appellant's counsel freely and completely exercised his right to cross-examine the witnesses concerning their testimony. Further both the Appellant and his mother testified and admitted his excessive absences from school.
In Damian, this Court reviewed the myriad of contexts in which this Court has
previously addressed the issue of hearsay evidence in proceedings involving juveniles. This
Court examined cases from the abuse and neglect, child custody, and juvenile transfer
arenas,
(See footnote 11)
and found that while it did not need to “specifically rule on the [hearsay] issue
raised” in that appeal, the issues required clarification for future situations. 214 W. Va. at
___, 591 S.E.2d at 177. This Court consequently concluded as follows in Damian:
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 that 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. at ___, 591 S.E.2d at 177.
Our review of the record reveals that the determinations made by the lower court subsequent to the March 2003 hearing were not based entirely upon hearsay evidence. In addition to the general information provided about the Appellant's absence from school, the Appellant and his mother also testified that the Appellant had not been attending school regularly. Moreover, the testimony regarding the failure of intervention techniques was also utilized by the lower court in arriving at the conclusion of home placement. Accordingly, we find no reversible error. We commend this Court's comments in Damian to the attention of the bench and bar for application in juvenile status offense matters such as the present case.
Based upon the foregoing, we affirm the decision of the lower court.
(a) Services provided by the department for juveniles
adjudicated as status offenders shall be consistent with the
provisions of article five-b [§§ 49-5B-1 et seq.] of this chapter
and shall be designed to develop skills and supports within
families and to resolve problems related to the juveniles or
conflicts within their families. Services may include, but are
not limited to, referral of juveniles and parents, guardians or
custodians and other family members to services for psychiatric
or other medical care, or psychological, welfare, legal,
educational or other social services, as appropriate to the needs
of the juvenile and his or her family.
(b) If necessary, the department may petition the circuit
court:
(1) For a valid court order, as defined in section four [§
49-1-4], article one of this chapter, to enforce compliance with
a service plan or to restrain actions that interfere with or defeat
a service plan; or
(2) For a valid court order 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.