Darrell V. McGraw, Jr.
Jeffrey N. Weatherholt
Attorney General Thompson & Weatherholt, P.L.L.C.
Robert D. Goldberg Romney, 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. [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).
This is an appeal by Steven H., (See footnote 1) a juvenile status offender (hereinafter Appellant), from an order of the Circuit Court of Hardy County placing the Appellant in an out-of-home placement. On appeal, the Appellant seeks release from such placement. Upon thorough review of the record, the arguments of counsel, and the applicable precedent, we find no reversible error and affirm the school placement accomplished by the order of the lower court.
On September 14, 2000, the lower court ordered the Appellant to attend New Dominion School in Oldtown, Maryland. Such out-of-home placement was accomplished pursuant to the directives of West Virginia Code § 49-5-11a(b)(2) (1998) (Repl. Vol. 2001). (See footnote 4)
While at New Dominion, the Appellant complied with school rules, and status hearings conducted in December 2000, March 2001, and September 2001 indicated that the Appellant had earned good grades at New Dominion.
On May 29, 2002, at the conclusion of the educational period at New Dominion, the Appellant was returned home and attended a hearing before the lower court. Apparently based upon the suggestion of administrators at the New Dominion School, the lower court placed the Appellant on probation by order dated June 10, 2002, and specified that the Appellant would remain on probation until the age of twenty-one. The Appellant did not object to the probation order or appeal that order. On January 14, 2003, the Appellant tested positive for drugs and was suspended from school. The Appellant's probation officer requested revocation of probation, based upon the fact that the Appellant's drug usage and school expulsion violated the terms of the probation order.
During a February 5, 2003, hearing, the Appellant admitted that he had violated conditions of his probation by smoking marijuana and being expelled from school for fighting. By order dated February 21, 2003, the lower court revoked the Appellant's probation and ordered DHHR to locate appropriate placement for the Appellant. The DHHR arranged placement at Timber Ridge School in Winchester, Virginia. The lower court, finding that no equivalent facility existed in West Virginia, ordered the Appellant to be placed at Timber Ridge.
The Appellant appeals that determination of the lower court, contending that
he should have been permitted to remain at home and receive home schooling by the county
until the age of sixteen, at which time he planned to discontinue his public education.
Specifically, the Appellant assigns error to the lower court's order placing him on probation
after his release from New Dominion. The Appellant also assigns error to the lower court's
alleged failure to make findings of fact, failure to accord the Appellant with the least
restrictive alternative, and failure to order psychiatric findings as part of an individualized
In response, the State maintains that the only issue raised by the Appellant below was that the lower court had failed to accord the Appellant with the least restrictive alternative. Further, the State emphasizes that any objection to the June 10, 2002, order placing the Appellant on probation should have been raised at that time and has been waived due to the failure to object and to appeal. Thus, the State argues that appeal of the probation issue is untimely and should not be considered by this Court.
It is also worthwhile to note that the Appellant has indicated the possibility that
he may complete the Timber Ridge program by March 2004 or June 2004, so he would like
to have the option of waiving any of the requirements . . . ordered by this Court, if such tests,
or other documents cannot be conducted or completed at his current placement, and/or which
may otherwise increase his time at his current placement or another facility.
[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
In the case sub judice, through the order dated February 21, 2003, the lower court found that equivalent facilities for the Juvenile are not available in the State of West Virginia, and the institutional care with the Timber Ridge School Facility in the State of Virginia is in the best interest of the Juvenile and will not produce undue hardship. In addition to those written findings, the record of the February 5, 2003, hearing indicates that additional discussion had occurred regarding the best interests of the Appellant. In analyzing the available alternatives for resolution of the matter, the lower court, the State, counsel for the Appellant, and the probation officer discussed the possibility that the Appellant might be permitted to remain in the custody of his mother and obtain home schooling. Mr. Stephen L. Davis, as Chief Probation Officer, explained to the court as follows: I would recommend placement, Your Honor. I mean, we've been dealing with Steven for approximately 2-½ years now. . . I don't believe he would be getting an education of home school that - - that he needs or deserves. With specific regard to the Timber Ridge location, the Appellant's counsel stated, I think we could probably reach an agreement as to placement, Your Honor.
Appellant's counsel thereafter noted his objection, as follows, I don't believe this would be
the least restrictive alternative. You know, again he is just a status offender and I believe that
there could be - - the case should actually be dismissed or - - or with the Department for
services. The court noted the objection and entered the February 21, 2003, order placing
the Appellant at Timber Ridge.
Our review of the record and order discloses that the lower court provided sufficient findings of fact and conclusions of law to justify the determination that the Appellant's out-of-home placement order was, in the terminology 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 conclusions required by the statute. State ex rel. B. S. v. Hill, 170 W. Va. 323, 326, 294 S.E.2d 126, 129 (1982), quoting State ex rel. S.J.C. v. Fox, 165 W. Va. 314, 317, 268 S.E.2d 56, 59. We find that such requirement has been satisfied. 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 procedural history of this case illuminates the efforts undertaken by the lower court, the DHHR, and other entities to comply with the statutory mandates. The lower court first attempted a minimally invasive resolution, in the form of an improvement period with certain conditions. The Appellant proved that he was unable to comply with those conditions or benefit from the court's attempted resolution of the matter. The Appellant was thereafter placed at New Dominion, and he responded positively until his return home.
Approximately six months after his return, he was expelled from school for fighting, and he also tested positive for drug use. The Appellant's behavior indicates that the less restrictive alternatives attempted by the lower court were unsuccessful and that out-of-home placement was the least restrictive alternative available to the lower court based upon the circumstances.
Thus, upon thorough review of this matter, we conclude that the record adequately demonstrates the necessity for 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. Further, we find no reversible error in the failure of the lower court to order psychological testing in order to determine the appropriate placement for the Appellant. The information presented to the lower court provided a sufficient basis upon which the court could base a resolution. Further, it does not appear from the record that the Appellant requested additional evaluation prior to a final determination.
Based upon the clear failure of the Appellant to challenge the probation order
through means of an appeal, we cannot consider any non-jurisdictional challenge to that order.
See Whitlow v. Board of Educ., 190 W. Va. 223, 226, 438 S.E.2d 15, 18 (1993)
(acknowledging general rule that failure to raise nonjurisdictional issues below precludes
appellate consideration). The Appellant does not specify any precise condition of probation
to which he presently objects and appears to premise his assignment of error upon the general
fact that the lower court placed him on probation after his success at New Dominion.
Consequently, we find that the Appellant's current challenge to the lower court's decision to
place the Appellant on probation has not been raised in a timely fashion. The order was
entered in June 2002, and the Appellant did not appeal that order.
Based upon the foregoing, we find that the lower court's order placing the
Appellant on probation after his tenure at the New Dominion School was not appealed in a
timely fashion, and the Appellant is not entitled to the relief he currently seeks on that issue.
We further find that the lower court did not err in its findings of facts and conclusions of law;
did not fail to accord the Appellant with the least restrictive alternative; and did not otherwise
err in ordering the Appellant to Timber Ridge.
(See footnote 6)
Based upon the assertions of the Appellant,
his tenure at Timber Ridge was expected to conclude by March or June 2004; if such
estimates were correct, school attendance issues are no longer problematic for the Appellant.
(b) He leaves the residence of your Petitioner and stays
out all night long.
(c) He leaves the residence of your Petitioner and does not come home until after midnight.
(d) On the night of December 31, 1999, he came home and had been drinking beer or alcoholic beverages and was believed to be under the influence of same.
(e) He has been suspended from the school bus and is a discipline problem at Moorefield Middle School and is not obeying the rules and regulations of the Moorefield Middle School.
(f) Your Petitioner has attempted counseling with the juvenile through the West Virginia Department of Health and Human Resources, Potomac Highlands Mental Health Guild and Eastern Psychological, with little, if any, effect as the juvenile's conduct keeps getting worse.