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IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
January 2009 Term
STATE OF WEST VIRGINIA ex rel.
BOARD OF EDUCATION OF THE COUNTY OF PUTNAM,
THE HONORABLE J.D. BEANE,
C.E.M., a minor,
the HONORABLE LESLIE L. MAZE, in her capacity
as Special Prosecuting Attorney of Wood County, West Virginia
SUSAN D. SIMMONS, in her capacity as guardian ad litem, and
WEST VIRGINIA DEPARTMENT OF HEALTH AND HUMAN SERVICES,
PETITION FOR WRIT OF PROHIBITION
Submitted: March 11, 2009
Filed: May 4, 2009
Gregory W. Bailey, Esq. Leslie L. Maze Toman
Howard E. Seufer, Jr., Esq.
Special Prosecuting Attorney of Wood County
Bowles Rice McDavid Elizabeth, West Virginia
Graff & Love LLP Attorney for W.Va. Department of Health and
Morgantown, West Virginia
Attorneys for Petitioner
Susan D. Simmons
Simmons & Simmons
Elizabeth, West Virginia
Guardian Ad Litem
The Opinion of the Court was delivered PER CURIAM.
JUSTICE WORKMAN concurs, in part, and dissents, in part, and reserves the right to file
a separate opinion.
SYLLABUS BY THE COURT
1. A writ of prohibition will not issue to prevent a simple abuse of
discretion by a trial court. It will only issue where the trial court has no jurisdiction or
having such jurisdiction exceeds its legitimate powers. W. Va. Code
, 53-1-1. Syllabus
Point 2, State ex rel. Peacher v. Sencindiver
, 160 W.Va. 314, 233 S.E.2d 425 (1977).
2. The due process of law guaranteed by the State and Federal
Constitutions, when applied to procedure in the courts of the land, requires both notice and
the right to be heard. Syllabus Point 2, Simpson v. Stanton, 119 W.Va. 235, 193 S.E. 64
The Petitioner, the Putnam County Board of Education (the School Board),
asks that the Court enter a Writ of Prohibition against the Respondent, the Honorable J.D.
Beane of the Circuit Court of Wood County, to halt the enforcement of two orders directing
the School Board to provide and pay for a full-time nurse for a special-needs student. The
School Board argues that the orders exceeded the circuit court's legitimate powers because
the School Board was not a party to the action before the circuit court, was not served with
notice of the hearing that led to the circuit court's orders, and was not given an opportunity
to be heard at a hearing.
After carefully reviewing the briefs, the legal authority cited and the record
presented for consideration, we grant the requested writ of prohibition.
Facts & Background
Respondent C.E.M. (See footnote 1) is a thirteen-year-old sixth grade student who is currently
enrolled at Winfield Middle School in Putnam County. C.E.M. has attended schools under
the control of the School Board, for eleven years, beginning in the 1998-99 school year.
C.E.M. suffers from a number of medical problems and is wheelchair bound. (See footnote 2) He was born prematurely on May 29, 1995, and remained in the hospital for the first eight
months of his life. Shortly after his hospital discharge, an abuse and neglect petition was
filed against both of his parents in the Circuit Court of Wood County, C.E.M.'s then-home
county, on February 15, 1996. As a result, the Respondent West Virginia Department of
Health and Human Resources (DHHR) was given the legal and physical custody of C.E.M.
DHHR placed C.E.M. in permanent foster care in Putnam County, and he has continuously
resided in the same foster care home for thirteen years.
On June 11, 2008, the Circuit Judge conducted a review hearing in Wood
County on the still-pending abuse and neglect petition. At that review hearing, evidence was
presented by the guardian ad litem for C.E.M., by a special prosecutor, and by the DHHR,
all of whom are Respondents in the instant matter. Following that hearing, on July 25, 2008,
the circuit court entered an order requiring the School Board to provide and pay for a full-
time nurse for C.E.M. while he was at school _ despite the fact that the School Board was
neither a party to the action nor afforded notice of the hearing and an opportunity to appear
to present evidence.
It was alleged in the review hearing before the circuit court that C.E.M. had
been provided with a full-time nurse by the School Board until the 2008-09 school year when
he was promoted from Winfield Elementary to Winfield Middle School. Winfield Middle
School does not have an on-site nurse. The nurse assigned to Winfield Middle School
divides her time between two schools and is approximately ten minutes away from C.E.M.'s
school when she is not on-site at his school. It was alleged that a ten-minute response time
for the nurse poses a significant danger to C.E.M. because he experiences frequent seizures
which require the administration of rectal Valium and oxygen. There was also proffered to
the circuit court a letter from C.E.M.'s physician, who stated that treatment of his seizures
should not be left to lay personnel, and stated that it would be optimal to have nursing
personnel present to handle these situations.
The School Board was not a party to the abuse and neglect action before the
circuit court, and never received notice of or an opportunity to appear at the hearing.
Accordingly, in its petition to this Court, the School Board vigorously disputes the claim that
C.E.M. needs or has always been provided with a full-time nurse. The School Board has
attached an affidavit to its petition from its director of exceptional education, Patricia
Homberg, to support this position. Ms. Homberg states that C.E.M., in accordance with his
Individualized Education Plans (IEP) prepared each year, has never needed or been
provided with a full-time nurse. Furthermore, Ms. Homberg states that in four of C.E.M.'s
eleven years in the school system, the school nurse available to attend to C.E.M. was
assigned to multiple schools. (See footnote 3)
The circuit court did not have this input from Ms. Homberg at the review
hearing because the School Board was not given notice of the hearing. Without having the
benefit of the School Board's information, the circuit court's July 25, 2008 order made a
general finding that, Due to the medical needs of the minor child, the minor child requires
the assistance of a full-time nurse when in school. (See footnote 4) The order did not specifically require
any action by the School Board.
Following entry of the July 25, 2008 order, the DHHR sent a copy of the
order to the School Board. After receiving this order, counsel for the School Board informed
the DHHR that it would take the Circuit Judge's order under advisement, but noted that the
School Board was not a party to this action, and had not been provided notice or an
opportunity to be heard. The School Board also noted to the DHHR that the order did not
require it to take any action.
On November 10, 2008, the Circuit Judge entered another order, this time
specifically requiring the School Board to take action. This second order stated that the
does hereby ORDER Putnam County Schools to provide a full-
time nurse for the minor child, C.E.M., while the minor child is
in the physical care of Putnam County Schools, as has
historically been provided for said minor child. The Court does
further ORDER that Putnam County Schools shall pay for the
expense of said nurse.
Several days later, the School Board filed a petition with this Court seeking a
writ of prohibition to halt enforcement of the circuit court's November 10, 2008 order.
Standard of Review
A writ of prohibition will not issue to prevent a simple abuse of discretion by
a trial court. It will only issue where the trial court has no jurisdiction or having such
jurisdiction exceeds its legitimate powers. W. Va. Code, 53-1-1. Syllabus Point 2, State ex
rel. Peacher v. Sencindiver, 160 W.Va. 314, 233 S.E.2d 425 (1977). In accord, Syllabus
Point 1, State ex rel. Shepard v. Holland, 219 W.Va. 310, 633 S.E.2d 255 (2006).
It is undisputed that the School Board had _ at a minimum _ a financial interest
directly affected by the Circuit Judge's orders, and was charged with formulating and
carrying out C.E.M.'s IEP. It is also undisputed that the School Board was not provided with
either a notice of the hearing or an opportunity to be heard in the circuit court. The School
Board therefore asserts that its fundamental right to due process has been violated by the
Circuit Judge's orders and that the best interests of C.E.M. were not served. (See footnote 5)
The Respondents counter by arguing that the circuit court did not exceed its
jurisdiction because the primary goal in cases involving abuse and neglect, as in all family
matters, must be the health and welfare of the children. Syllabus Point 3, in part, In re: Katie
S., 198 W.Va. 79, 479 S.E.2d 589 (1996).
While doing what is in the best interests of the child is the primary goal of
abuse and neglect proceedings, this goal does not relieve a court from complying with
fundamental due process requirements. The most fundamental due process protections are
notice and an opportunity to be heard. As we held in Syllabus Point 2 of Simpson v. Stanton,
119 W.Va. 235, 193 S.E. 64 (1937): The due process of law guaranteed by the State and
Federal Constitutions, when applied to procedure in the courts of the land, requires both
notice and the right to be heard.
A circuit court cannot adequately protect an abused child when the individuals
who can supply pertinent facts are not given notice and the opportunity to present evidence.
It was clearly a significant oversight of the lower court and the parties to make no effort to
include the School Board in the relevant hearings, not only for the preservation of due
process but also for determining an outcome that would be in C.E.M.'s best interests. The
School Board's documents reflecting C.E.M.'s educational and school medical records as
well as testimony of school employees as to relevant information on the progress and needs
of C.E.M. would surely shed light on the question of the best interests of this young man.
The Respondents state in their reply brief that There is absolutely no medical
evidence to justify the determination of the Putnam County Board of Education that a full-
time nurse is not required at this time. We again note that the School Board was not given
an opportunity to present evidence in the circuit court. The School Board has presented the
director's affidavit which contains evidence suggesting that C.E.M. has not had a seizure at
school in two and a half years, that he has never been provided with a full-time nurse, and
that for four of his eleven years in the school system, there was not a nurse present on-site.
We note that some of the director's statements may be in opposition to
C.E.M.'s treating physician's opinion that treatment of his seizures should not be left to lay
personnel, and that it would be optimal to have nursing personnel present to handle these
situations. It is not our function at this stage to weigh the evidence or make conclusions
about the care C.E.M. requires while attending school. We note these conflicting viewpoints
simply to point out that the Circuit Judge lacked relevant, necessary information when
issuing the orders in this case by failing to provide the School Board with notice.
The circuit court clearly denied the School Board its fundamental due process
rights to notice and an opportunity to be heard. In so doing, the circuit court did not have
before it important evidence concerning the child's medical and educational history. We find
it troubling that neither the special prosecuting attorney, the guardian ad litem, DHHR, nor
the circuit court recognized the need to include the School Board in these hearings wherein
the School Board's interests were considered and decided ex parte.
For these reasons, we hold that the circuit court deprived the School Board of
fundamental due process and clearly exceeded its legitimate powers.
For the reasons set forth above, we grant the writ of prohibition. We decline
to address the Petitioner's request for attorney fees. The circuit court's orders requiring the
School Board to provide and pay for a full-time nurse for C.E.M. are hereby vacated.
As is our practice in cases involving sensitive matters, we use the child's initials
rather than his full name to identify him. See Marilyn H. V. Roger Lee H
., 193 W.Va. 201,
202 n. 1, 455 S.E.2d 570, 571 n.1 (1995).
C.E.M.'s medical conditions are set forth by his physician in an April 22, 2008 letter
attached to Respondents' Response To Petition For Writ of Prohibition.
Ms. Homberg's affidavit explains (with emphasis added):
During 7 years of his enrollment an RN was located at the
school that he attended, and a school health nurse assigned to
various schools provided supervision for the RN. For the other
4 years of his enrollment (including this year), a school health
nurse for C.E.M.'s school was assigned to serve various schools.
. . C.E.M.'s Individualized Education Plan (IEP) has never
required that a full-time nurse be assigned to him.
IEP developed for C.E.M. has even indicated that school health
services, while in school, needed to be provided in any intensity
other than indirectly between '10 minutes per week' and 'as
Another finding by the Circuit Judge states:
The minor child has frequent break-through seizures with status
eplipticus requiring administration of rectal Valium. During
said seizures, the minor child may become cyanotic, requiring
the administration of oxygen.
This finding as to the frequency of C.E.M.'s seizures appears to be somewhat contradicted
by statements made by the foster mother to the School Board. The affidavit from the School
Board's director of exceptional education explains:
C.E.M.'s foster mother completed Putnam County Schools
Health Services Seizure Questionnaire for 2008-2009 and
indicated that C.E.M. rarely has a seizure. The IEP developed
on April 30, 2008, documents that he has not had a seizure at
school in 2 ½ years.
The School Board also states that even if the circuit court had the jurisdiction in this
case to enter an order granting relief against the School Board, exhaustion of administrative
remedies is generally required as a prerequisite to judicial intervention into matters arising
from disputes over a special education student's Individualized Education Plan (IEP).
There are both federal and state procedures in place to resolve disputes over a special
education student's IEP. Under the Individuals with Disabilities Education Act (IDEA),
the state is required to ensure that all children with disabilities have available to them a free
appropriate public education that emphasizes special education and related services[.] 20
U.S.C. 1400(d)(1)(A). The IDEA does not confer upon parents or custodians a right to
immediately seek redress in federal court for the alleged denial of a free appropriate public
education under the Act. Rather, the IDEA contains a detailed administrative scheme that
must be exhausted prior to filing a federal claim. See 20 U.S.C. 1415(1).
The West Virginia counterpart to the IDEA is found in W.Va. Code, 18-20-1, et. seq.,
titled Education of Exceptional Children. Pursuant to W.Va. Code, 18-20-1 , the
State Board of Education is authorized to adopt rules to develop a program to assure that all
exceptional children in the state receive an education in accordance with the mandates of
state and federal laws. Pursuant to this authorization, the State Board developed Policy 2419
which is found in the Code of State Regulations at 126 C.S.R. § 16.
Like the IDEA, Policy 2419 provides a comprehensive administrative scheme
for addressing the complaints of parents, legal custodians and students. This scheme includes
providing notice of procedural rights and the right to mediation. It also includes dispute
resolution mechanisms consisting of the right to file a complaint with the appropriate state
agency; the right to file a due process complaint with the district superintendent or the State
Department of Education; and the right to have one's complaint heard and decided by an
impartial hearing officer. Any party aggrieved by the decision of the hearing officer may
then bring a civil action.
In our recent decision of Sturm v. Board of Educ. of Kanawha County, ___ W.Va.
___, 672 S.E.2d 606 (2008), we concluded that a party, prior to bringing a civil action under
West Virginia Board of Education Policy 2419, 126 C.S.R. § 16, is required to exhaust their
administrative remedies. We stated, in Syllabus Point 5 of Sturm:
Prior to bringing a civil suit alleging failure to provide a
free appropriate public education under the Regulations for the
Education of Students with Exceptionalities, Policy 2419, 126
C.S.R. § 16, a complainant must first exhaust his or her
administrative remedies provided under the regulations or meet
the burden of proving an exception to the exhaustion