SER Ohl, Sec. of DHHR v. Egnor, Judge
Annotate this Case IN THE SUPREME COURT OF APPEALS OF
WEST VIRGINIA
September 1997 Term
No. 24367
STATE OF WEST VIRGINIA EX REL. JOAN E. OHL,
SECRETARY OF THE WEST VIRGINIA
DEPARTMENT OF HEALTH AND HUMAN RESOURCES,
Petitioner,
V.
HONORABLE L.D. EGNOR, JR., JUDGE OF THE
CIRCUIT COURT OF CABELL COUNTY,
AND BRYANT E.W.,
Respondents.
PETITION FOR A WRIT OF PROHIBITION
WRIT GRANTED AS MOULDED
Submitted: October 7, 1997
Filed: December 17, 1997
Darrell V. McGraw Jr.
Attorney General
Charlene A. Baughan
Deputy Attorney General
Charleston, West Virginia
Attorneys for the Petitioner
John M. Hedges
Byrne & Hedges
Morgantown, West Virginia
Attorney for the Respondent,
The Honorable L.D. Egnor, Jr.
Steven T. Cook
Stapleton Law Offices
Huntington, West Virginia
Attorney for the Respondent,
Bryant E.W.
Catherine D. Munster
Chairperson for Amicus Curiae,
Child Placement Alternatives Corporation
Robert E. Wilkinson
Chief Public Defender
Huntington, West Virginia
Attorney for Amici Curiae,
Public Defenders of the 6th and 24th Judicial Circuits
Jane Moran
Williamson, West Virginia
Amicus Curiae
JUSTICE DAVIS delivered the Opinion of the Court.
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. "In determining whether to entertain and issue the writ of prohibition for cases not involving an absence of jurisdiction but only where it is claimed that the lower tribunal exceeded its legitimate powers, this Court will examine five factors: (1) whether the party seeking the writ has no other adequate means, such as direct appeal, to obtain the desired relief; (2) whether the petitioner will be damaged or prejudiced in a way that is not correctable on appeal; (3) whether the lower tribunal's order is clearly erroneous as a matter of law; (4) whether the lower tribunal's order is an oft repeated error or manifests persistent disregard for either procedural or substantive law; and (5) whether the lower tribunal's order raises new and important problems or issues of law of first impression. These factors are general guidelines that serve as a useful starting point for determining whether a discretionary writ of prohibition should issue. Although all five factors need not be satisfied, it is clear that the third factor, the existence of clear error as a matter of law, should be given substantial weight." Syllabus point 4, State ex rel. Hoover v. Berger, 199 W. Va. 12, 483 S.E.2d 12 (1996).
3. "West
Virginia Code § 49-5-13(b) (Supp.1996) expressly grants
authority to the circuit courts to make facility-specific
decisions concerning juvenile placements." Syllabus point 1,
State ex rel. W. Va. DHHR v. Frazier, 198 W. Va.
678, 482 S.E.2d 663 (1996).
4. While
W. Va. Code § 49-5-13(b) (1995) (Repl. Vol. 1996) expressly
grants authority to the circuit courts to make facility-specific
decisions concerning juvenile placements, that authority is not
without limitation. Rather, the circuit courts must choose from
the alternatives provided in W. Va. Code § 49-5-13(b) in
selecting appropriate juvenile placements.
5. A private
military school does not fall within the meaning of a
rehabilitation facility as contemplated by the Legislature in
W. Va. Code § 49-5-13(b)(6) (1995) (Repl. Vol. 1996).
6. "While a circuit court should give preference to in-state facilities for the placement of juveniles, if it determines that no in-state facility can provide the services and/or security necessary to deal with the juvenile's specific problems, then it may place the child in an out-of-state facility. In making an out-of-state placement, the circuit court shall make findings of fact with regard to the necessity for such placement." Syllabus point 6, State ex rel. W. Va. DHHR v. Frazier, 198 W. Va. 678, 482 S.E.2d 663 (1996).
7. "Once a
circuit court adjudicates a child delinquent pursuant to West
Virginia Code § 49-1-4(3) or -(4) (1995) and finds that the
child is so totally unmanageable, ungovernable and antisocial
that the child is amenable to no treatment or restraint short of
incarceration, then it is the responsibility of the West Virginia
Department of Health and Human Resources to assist the court in
making its placement determination by providing the court with
full information on placements and services available both in and
out of the community. It is the court's responsibility to
determine the placement." Syl. pt. 3, State ex rel.
W. Va. DHHR v. Frazier, 198 W. Va. 678, 482 S.E.2d 663 (1996).
8. "The
language of W. Va. Code § 49-5D-3 [(1996) (Repl. Vol.
1996)] is mandatory and requires the Department of Health and
Human Resources to convene and direct treatment teams not only
for juveniles involved in delinquency proceedings, but also for
victims of abuse and neglect." Syl. pt. 3, E.H. v. Matin,
___ W. Va. ___, ___ S.E.2d ___ (No. 23999 November 21,
1997).
Davis, Justice:
In this original proceeding for a writ of
prohibition, the petitioner, Joan E. Ohl, in her capacity as
Secretary of the West Virginia Department of Health and Human
Resources, requests this Court to prohibit the respondent, the
Honorable L.D. Egnor, Jr., Judge of the Circuit Court of Cabell
County, from taking any action to enforce his order of August 29,
1997, and his ruling of September 3, 1997. The challenged order
and ruling required the Department of Health and Human Resources
to place a juvenile, who had previously been adjudicated
delinquent and had been placed in the legal and physical custody
of the Department, at an out-of-state military school with all
costs payable by the Department. We issued a rule to show cause.
Because we find that the relevant statute did not afford Judge
Egnor the authority to make such a placement, we now grant as
moulded the writ of prohibition.
I.
FACTUAL AND PROCEDURAL HISTORY
This case arises from juvenile
proceedings involving Bryant W.See footnote 1 1 The record
indicates that Bryant was brought within the juvenile
jurisdiction of the Circuit Court of
Cabell County in 1992, by virtue of a juvenile petition filed
by the elementary school he was then attending. The petition was
not included in the record before this Court, but it apparently
alleged that Bryant W. failed to regularly attend school, and
also failed to obey school rules when he did attend. The
Honorable Judge L.D. Egnor, Jr., has presided over this juvenile
action. By Judge Egnor's order entered on January 27, 1993,
Bryant W. was adjudicated delinquent. He was eleven years old at
that time. The court awarded legal custody to the Department of
Health and Human Resources [hereinafter "DHHR"], with
physical custody to remain with Bryant W.'s mother.
Thereafter, a DHHR caseworker prepared a summary of Bryant W.'s background to assist Judge Egnor in determining what actions would be in the best interest of Bryant. The summary concluded by recommending six months of in-home intervention services. A psychological evaluation similarly suggested in-home intervention, but stated further that placement in a group home might be appropriate if in-home intervention did not produce significant improvement. A disposition hearing was held on February 25, 1993. Following this hearing, by order entered March 9, 1993, the circuit court ordered that physical custody of Bryant W. be transferred to his step-father.See footnote 2 2 In addition, the court ordered in-home intervention services. A second order, entered March 12, 1993, also resulted from the February 25, 1993, disposition hearing. In that order, the circuit court
placed Bryant on probation for one year. The court enumerated
specific conditions of probation, which included the requirement
that Bryant W. attend school and comply with all school rules and
regulations.
Bryant W. continued to miss school and
violate school rules. Consequently, following a modification
hearing held on November 3, 1993, the court again adjudicated
Bryant a delinquent child and extended his probation for a period
of six additional months. The court also transferred physical
custody of Bryant back to his mother, and ordered in- home
intervention and counseling for Bryant.
Bryant's behavior did not improve and
a second modification hearing was held on February 7, 1994.
Following the hearing, the court once again adjudicated Bryant a
delinquent child. Bryant's probation was extended indefinitely
and physical custody was awarded to the DHHR for placement at
Stepping Stones Group Home.
Thereafter, on June 19, 1995, the circuit court held a hearing to ascertain whether Bryant should be released from Stepping Stones Group Home. At that hearing, the court determined that Bryant had satisfactorily completed the rehabilitation program at Stepping Stones based upon information provided by Bryant's probation officer, Michael Lacy. Consequently, Bryant was released from the home and physical custody was returned to his mother, although legal custody remained with the DHHR. In addition, the court
modified the previously imposed indefinite term of probation
to a term of one year.
An agreed order dismissing the
juvenile matter was subsequently entered on March 1, 1996.
Bryant's term of probation, however, apparently continued as
earlier ordered. Shortly thereafter, a third modification hearing
was held on April 4, 1996, during which the court determined that
Bryant had violated the terms and conditions of his probation.
Bryant was once again placed at the Stepping Stones Group Home,
and his probation was extended to run concurrently with such
placement. As one of the conditions of his probation, Bryant was
ordered to refrain from associating with any member of a
particular street gang. While the record does not contain
specific details, we infer from this restriction that Bryant had
become somehow involved with this gang.
At a subsequent release hearing held
on July 8, 1997, the circuit court was informed that Bryant had
satisfactorily completed his second rehabilitation program at
Stepping Stones. Consequently, the court ordered that physical
custody of Bryant be awarded to his step-father, with a three
month program of aftercare provided by Stepping Stones. In
addition, Bryant's term of probation was extended to June 10,
1998.
According to a February 28, 1997, entry in a recording log created by the DHHR social worker assigned to Bryant's case, Bryant had expressed a desire to attend military school. The recording log indicates that this possibility was at least mentioned
during the release hearing of July 8, 1997. The log further
indicates that on July 24, 1997, the social worker investigated
the prospect of getting approval for Bryant to attend military
school.See footnote 3 3
An August 11, 1997, entry in the log stated that the social
worker had obtained a verbal "OK" to pursue military
school, and the worker had instructed Bryant to schedule an
interview with one such school. Although the recording log does
not indicate the location of the school, the parties submit that
the school was located out-of-state. Ultimately, arrangements for
placement could not be completed at this school because it would
not accept tuition payments on a monthly basis, and, in addition,
it declined to accept Bryant due to his history of juvenile court
involvement. There is no indication in the recording log that any
efforts were made to locate an in-state placement for Bryant,
other than an entry stating "Bryant not allowed back in
Huntington or at [Huntington High School] due to recent gang
contacts."
An August 13, 1997, entry in the recording log indicated that Bryant was either associating with the previously mentioned street gang, or that the gang was threatening Bryant's friends. At a hearing on August 21, 1997, the circuit court was appraised of the failure to get Bryant into the military school previously discussed. Therefore, Bryant was temporarily placed at Stepping Stones pending a review hearing later that month. Also during the August 21 hearing, Bryant's counsel requested permission to work with Bryant
to locate a military school that would accept a state agency
contract. Judge Egnor consented to this request.
At the subsequent review hearing, held on August 28, 1997, Judge Egnor ordered that Bryant be placed at an out-of-state military schoolSee footnote 4 4 at which he had been accepted. Judge Egnor ordered that all costs of the placement be paid by the DHHR. The total cost of placement at this military school was determined to be $1,555.56 per month, which is $55.56 per diem. No objections were made to this order. The DHHR Social Worker was present at the hearing, as was an assistant prosecuting attorney for Cabell County; however, the DHHR argues that the assistant prosecuting attorney was not representing the DHHR's interests at this hearing. Thereafter, the DHHR entered into negotiations with the school regarding the school's contract. Ultimately, the DHHR drafted its own contract, which was accepted by the school. However, the contract was not signed by the DHHR, and Bryant was not transported to the school. The DHHR contends that, in redrafting the contract, it inadvertently included a provision for which the state could not lawfully contract.See footnote 5 5 However, the school maintained that it would not accept the contract
without this provision.
On September 3, 1997, Counsel for
Bryant W. learned that Bryant had not been transferred to the
military school. During a conversation between Bryant's counsel
and a DHHR representative earlier that day, the DHHR expressed
that it desired an additional twenty-four hours to investigate
in-state placement for Bryant. The military school's term had
already begun, and the enrollment deadline was September 4, 1997,
the day after this conversation. Thus, if Bryant was not at the
school by the following day, his opportunity to attend would be
lost. Accordingly, a review hearing was held on September 3, at
the request of Bryant W.'s counsel.
Initially, those present for the hearing included Bryant's counsel, the Cabell County Prosecuting Attorney, and Bryant's Probation Officer. In addition, Counsel for The DHHR was present via telephone. At this hearing, counsel for Bryant W. informed the court that Bryant had not been placed at the military school per the court's previous order and that the DHHR was now resisting the placement. Counsel for the DHHR stated, during her response to these comments, that Jennifer Plymale, Commissioner of the Children and Families Division of the DHHR, was present with counsel via the telephone. Judge Egnor
then ordered Ms. Plymale to appear in his office in one hour,
and adjourned the proceedings pending her appearance.
Commissioner Plymale appeared as
ordered and was accompanied by Joan Ohl, Secretary of the DHHR,
whereupon the proceedings were reconvened. The DHHR, through its
counsel, requested the court to reconsider its order, which had
been announced at the hearing of August 28, 1997, and entered on
August 29, 1997, directing that Bryant be placed at the
out-of-state military school. Thereafter, the DHHR presented
evidence in support of its motion.
Secretary Ohl was among those offering testimony at the hearing. She stated that during a phone conversation with Bryant's counsel at 11:30 a.m. on that very day, she requested twenty-four hours to look for a placement for Bryant within the State. She expressed that placing Bryant within the State would be much more cost effective than the military school option. She contended that the DHHR did not have funds with which to pay the military school. In response to Judge Egnor's inquiry regarding the source of funds to pay for an in-state alternative, Secretary Ohl explained that all of the funds to send Bryant to the military school would come from the State's general revenue fund. Alternatively, the cost of in-state facilities could be split between the general revenue fund and the Medicaid budget. Thus, she opined that in-state placement, while more expensive overall, would require less funding from the general revenue. Secretary Ohl explained further that the
DHHR funds are appropriated on a monthly basis. Although the
September appropriation for social services had already been
expended, Secretary Ohl stated, new funds would be available on
the first day of October. However, according to Secretary Ohl,
such funds typically are exhausted by the eighth day of every
month.See footnote 6 6
Commissioner Plymale also testified at
the hearing. She emphasized that the DHHR had a duty to be
responsible with state funds, and she felt it was fiscally
irresponsible to enter a contract that the DHHR could not meet
financially. After hearing the testimony presented by all the
parties, Judge Egnor denied the DHHR's motion to reconsider and
ordered Secretary Ohl to sign the contract to secure Bryant's
admission to the military school, and further ordered the DHHR to
transport him to the school on or by September 4, 1997. Bryant
was subsequently transported to the school and is, by all
accounts, thriving there.
On the day following the hearing,
Secretary Ohl filed this petition for a writ of prohibition
praying that this Court issue a rule to show cause why a writ of
prohibition should not be awarded by this Court prohibiting the
respondent, Judge Egnor, from taking any action to enforce his
order of August 29, 1997, and his ruling of September 3, 1997.See footnote 7 7 We
issued a rule to show cause and now grant the writ as moulded.See footnote 8 8
II.
DISCUSSION
A.
Writ of Prohibition
We have stated the general rule with
respect to the propriety of the extraordinary remedy of
prohibition as follows: "[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." Syl. pt. 2, State ex rel. Peacher v.
Sencindiver, 160 W. Va. 314, 233 S.E.2d 425 (1977). The
speedily filed brief in the instant case is not a model of
clarity. However, we perceive that Secretary Ohl does not
challenge Judge Egnor's jurisdiction over the juvenile
proceeding. Rather, we interpret Secretary Ohl's argument to be
that Judge Egnor exceeded his legitimate powers, in violation of
W. Va. Code 49-5-13(b)(6), by ordering that Bryant W. be
placed in a private military school located outside of this
state.See footnote 9 9
In this regard, we have stated:
In determining
whether to entertain and issue the writ of prohibition for cases
not involving an absence of jurisdiction but only where it is
claimed that the lower tribunal exceeded its legitimate powers,
this Court will examine five factors: (1) whether the party
seeking the writ has no other adequate means, such as direct
appeal, to obtain the desired relief; (2) whether
the petitioner will be damaged or prejudiced in
a way that is not correctable on appeal; (3) whether the lower
tribunal's order is clearly erroneous as a matter of law; (4)
whether the lower tribunal's order is an oft repeated error or
manifests persistent disregard for either procedural or
substantive law; and (5) whether the lower tribunal's order
raises new and important problems or issues of law of first
impression. These factors are general guidelines that serve as a
useful starting point for determining whether a discretionary
writ of prohibition should issue. Although all five factors need
not be satisfied, it is clear that the third factor, the
existence of clear error as a matter of law, should be given
substantial weight.
Syl. pt. 4, State ex rel. Hoover v. Berger, 199
W. Va. 12, 483 S.E.2d 12 (1996). Moreover, we have explained
that "[m]andamus, prohibition and injunction against judges
are drastic and extraordinary remedies. . . . As
extraordinary remedies, they are reserved for really
extraordinary causes." State ex rel. Suriano v. Gaughan,
198 W. Va. 339, 345, 480 S.E.2d 548, 554 (1996) (internal
quotations and citations omitted). After thoroughly reviewing the
evidence submitted in this case, and the parties' arguments, we
find prohibition is appropriate and grant the writ.
B.
Juvenile Placement in Private School Outside of West Virginia
Petitioner argues that the circuit court
abused its power in violation of W. Va. Code §
49-5-13(b)(6) (1995) (Repl. Vol. 1996) by ordering the DHHR to
place a juvenile in a private military school located outside of
West Virginia. We agree.
When unfortunate circumstances require
that a juvenile be removed from his or her home, it is the
circuit courts that determine where the juvenile shall be placed.
This point was made abundantly clear in our recent decision in State
ex rel. W. Va. DHHR v. Frazier, 198 W. Va. 678, 482 S.E.2d 663 (1996), where we held in Syllabus point 1: "West
Virginia Code § 49-5-13(b) (Supp.1996) expressly grants
authority to the circuit courts to make facility-specific
decisions concerning juvenile placements."
However, this authority is not without
limitation. W. Va. Code § 49-5-13 contains the provisions
regarding disposition of juvenile delinquents, including status
offenders.See footnote 10 10
Bryant W. is classified as a status offender as he has not
committed an offense that would be a crime if committed by an
adult. Specific provisions for the disposition of status
offenders such as Bryant W. are found in W. Va. Code §
49-5-13(b)(6) (1995) (Repl. Vol. 1996), which states:
(b) Following the
adjudication, the court shall conduct the dispositional
proceeding, giving all parties an opportunity to be heard. In
disposition the court shall not be limited to the relief sought
in the petition and shall, in electing from the following
alternatives, consider the best interests of the child and
the welfare of the public:
. . . .
(6) Upon an
adjudication of delinquency pursuant to subdivision (3) or (4),
section four [§ 49-1-4 (3) or (4)], article one of this chapter,See footnote 11 11 and
upon a finding that the child is so totally unmanageable,
ungovernable and antisocial that the child is amenable to no
treatment or restraint short of incarceration, commit the child
to a rehabilitative facility devoted exclusively to the
custody and rehabilitation of children adjudicated delinquent
pursuant to said subdivision. Commitments shall not exceed
the maximum period of one year with discretion as to discharge to
rest with the director of the institution, who may release the
child and return him or her to the court for further disposition.
The order shall state that continuation in the home is contrary
to the best interests of the child and why; and whether or not
the state department made a reasonable effort to prevent the
placement or that the emergency situation made such efforts
unreasonable or impossible[.]
(Emphasis added) (footnote added).
When the language of a statute is clear and unambiguous, we apply the statute without resorting to the rules of statutory construction. See Syl. pt. 5, Walker v. West Virginia Ethics Comm'n, ___ W. Va. ___, ___ S.E.2d ___ (Nos. 23881, 23890 July 15, 1997) ("'"'Where the language of a statute is clear and without ambiguity the plain meaning is to be accepted without resorting to the rules of interpretation.' Syl. pt. 2, State v. Elder, 152 W. Va. 571, 165 S.E.2d 108 (1968)." Syllabus point 1, Courtney v. State Dept. of
Health of West Virginia, 182 W. Va. 465, 388 S.E.2d 491 (1989).' Syllabus point 3, Francis O. Day Company,
Inc. v. Director, Division of Environmental Protection, 191
W. Va. 134, 443 S.E.2d 602 (1994)."). We believe the
language of W. Va. Code § 49-5-13(b)(6) is clear. In
juvenile dispositions, the circuit court is limited, under the
first paragraph of W. Va. Code § 49-5-13(b), to choosing
from the enumerated alternatives contained therein. Therefore, we
hold that, while W. Va. Code § 49-5-13(b) expressly grants
authority to the circuit courts to make facility-specific
decisions concerning juvenile placements, that authority is not
without limitation. Rather, the circuit courts must choose from
the alternatives provided in W. Va. Code § 49-5-13(b) in
selecting appropriate juvenile placements.
In the case sub judice, the relevant alternative is found in W. Va. Code § 49-5- 13(b)(6). Pursuant to that section, upon a finding that a child who has been adjudicated delinquent is "so totally unmanageable, ungovernable and antisocial that the child is amenable to no treatment or restraint short of incarceration,"See footnote 12 12 a circuit court may "commit
the child to a rehabilitative facility devoted exclusively
to the custody and rehabilitation of children adjudicated
delinquent pursuant to said subdivision."See footnote 13 13 The
question we must answer, then, is whether a private military
school is a rehabilitative facility.See footnote 14 14 We find that it
is not.
The Legislature has addressed what is
contemplated by the term "rehabilitative facility" in
the context of directing the DHHR to establish and maintain such
facilities. In this regard, the Legislature has identified a
"rehabilitative facility" as:
primarily, a nonsecure facility having as
its primary purpose the rehabilitation of adjudicated juvenile
offenders who are status offenders. Such facility shall not
have a bed capacity for more than twenty children, and shall
minimize the institutional atmosphere and prepare the child
for reintegration into the community . . . [A]
portion of such facility may be designed and operated as a secure
facility used exclusively for status offenders whom the juvenile
court has specifically found to be so unmanageable, ungovernable
and antisocial that no other reasonable alternative exists, or
could exist, for treatment or restraint other than placement in a
secure facility.
W. Va. Code § 49-5B-5(a) (1979) (Repl. Vol. 1996) (emphasis
added). Thus, the primary goal of a rehabilitative facility for
status offenders, as contemplated by the Legislature, is to
rehabilitate. In this context, the term rehabilitate is generally
understood as meaning "to restore to a useful and
constructive place in society through social
rehabilitation." Webster's Third New International
Dictionary of the English Language Unabridged 1914 (1970). See
also State ex rel. R.S. v. Trent, 169 W. Va. 493,
508, 289 S.E.2d 166, 175 (1982) ("The child welfare law
clearly contemplates that the rehabilitation of delinquent
children shall be accomplished by a program of individualized
care and treatment directed towards the ultimate goal of
reintegrating such children into society so that they no longer
pose a threat to themselves or to the public.") We do not
believe that a private military school meets the requirements
outlined above. While some services provided by a private
military school may address, on some level, the goals
contemplated by the Legislature, we believe the primary
focus of a private military school is education provided in a
military atmosphere, not rehabilitation. We do not believe such a
school is equipped to address the special needs of juveniles who
have been adjudicated "juvenile delinquents" or
"status offenders," i.e., to provide a juvenile
with needed social services and to prepare him or her for
reintegration into the community. Notably, Bryant W. was rejected
by one military school due to his history of court intervention,
and the military school that ultimately accepted him did so in
exception to its general policy.See footnote 15 15 Therefore, we
hold that a private military school does not fall within the
meaning of a rehabilitation facility as contemplated by the
Legislature in W. Va. Code § 49-5-13(b)(6).
Because we find that a private
military school is not a rehabilitation facility as contemplated
by the Legislature in W. Va. Code § 49-5-13(b)(6), we
conclude that the circuit court exceeded its authority under that
statute when it ordered the DHHR to place a juvenile in a private
military school.See
footnote 16 16
Although we have resolved the substantive issue in this case, there are two
additional points that should briefly be addressed. First,
much has been made of the fact that Bryant W. was placed in a
facility located outside of this State. This fact, in and of
itself, lends nothing to the resolution of this case. We have
stated, on more than one occasion, that when a juvenile must be
placed outside the home, in-state facilities should be favored,
but placement at an in-state facility is not necessarily
mandatory:
While a circuit
court should give preference to in-state facilities for the
placement of juveniles, if it determines that no in-state
facility can provide the services and/or security necessary to
deal with the juvenile's specific problems, then it may place the
child in an out-of-state facility. In making an out-of-state
placement, the circuit court shall make findings of fact with
regard to the necessity for such placement.
Syl. pt. 6, State ex rel. W. Va. DHHR v. Frazier, 198
W. Va. 678, 482 S.E.2d 663.See footnote 17 17 Dispositions
must be made in the best interests of the juvenile, and when
there is no in-state
facility that meets a juvenile's particular needs, a circuit
court may order an out-of-state placement upon making the
requisite findings of fact. While we recognize that far too many
juveniles are being unnecessarily placed in facilities outside of
this State, we caution the DHHR and the circuit courts that, in
making their respective recommendations and dispositions, they
should be mindful of their duty to provide for the best interests
of the child and the community. A juvenile should not be placed
at an in-state facility that does not meet his or her needs
simply for the sake of making an in-state placement. We make no
determination regarding the proper placement of Bryant W.; that
decision is appropriately left to the circuit court. We simply
emphasize that, in our zeal to curb the increasing number of
out-of-state placements, we should not loose sight of the fact
that dispositions must be consistent with the best interests of
the juvenile. See W. Va. Code § 49-1-1 (1981) (Repl.
Vol. 1996); W. Va. Code § 49-5-13(b). See also Syl.
pt. 4, State ex rel. B. S. v. Hill, 170 W. Va. 323,
294 S.E.2d 126 (1982) ("'All officers and employees of the
State charged with implementing the provisions of the juvenile
law are required to act in the best interests of the child and
the public in establishing an individualized program of treatment
for each child adjudged delinquent.' Syllabus Point 7, State
ex rel. R.S. v. Trent, 169 W. Va. 493, 289 S.E.2d 166
(1982).").
Finally, we wish to comment on the
conduct of the DHHR in this case. We have held:
Once a circuit
court adjudicates a child delinquent
pursuant to West Virginia Code § 49-1-4(3) or -(4) (1995) and
finds that the child is so totally unmanageable, ungovernable and
antisocial that the child is amenable to no treatment or
restraint short of incarceration, then it is the
responsibility of the West Virginia Department of Health and
Human Resources to assist the court in making its placement
determination by providing the court with full information on
placements and services available both in and out of the
community. It is the court's responsibility to determine the
placement.
Syl. pt. 3, Frazier, 198 W. Va. 678, 482 S.E.2d 663
(emphasis added). Moreover, we have recently recognized that
"[t]he language of W. Va. Code § 49-5D-3 [(1996)
(Repl. Vol. 1996)] is mandatory and requires the Department of
Health and Human Resources to convene and direct treatment teams
not only for juveniles involved in delinquency proceedings, but
also for victims of abuse and neglect." Syl. pt. 3, E.H.
v. Matin, ___ W. Va. ___, ___ S.E.2d ___ (No. 23999
November 21, 1997). In the case sub judice, the DHHR
failed miserably in carrying out its duties to assist the court.
Although the DHHR has come before this Court to vehemently
protest Bryant W.'s placement at a private military school, we
note that the DHHR made no alternative recommendations to the
circuit court when that court was making its decision on the
proper disposition for Bryant. Only after the circuit court made
its decision, and just one day before the placement decided upon
by the circuit court would have been permanently lost, did the
DHHR notify the court of its intent to search for alternative
placements to recommend to the court. Even at that late date, the
DHHR had prepared no recommendations. In order to properly assist
the children entrusted to its care, the DHHR must fulfill its
mandatory duties in a timely fashion. Eleventh hour attempts to
fulfill these duties, such as occurred in this case, are wholly
inadequate, totally
inconsistent with the DHHR's mandatory duties to assist the
circuit courts in finding appropriate placements and contrary to
the best interests of the children involved and the community.
III.
CONCLUSION
Because we find that a
private military school does not fall within the meaning of a
rehabilitation facility as contemplated by the Legislature in
W. Va. Code § 49-5- 13(b)(6), we find that the circuit
court exceeded its authority under that statute when it ordered
the Department of Health and Human Resources to place a juvenile
in a private military school. Consequently, we grant the writ as
moulded and prohibit the respondent, the Honorable L.D. Egnor,
Jr., Judge of the Circuit Court of Cabell County, from taking any
further action to enforce his order of August 29, 1997, his
ruling of September 3, 1997, and his corresponding order of
September 11, 1997.
Writ granted as moulded.
Footnote: 1 1 We follow our past practice in domestic and juvenile cases involving sensitive facts and do not use the last names of the parties. See, e.g., State ex rel. Amy M. v. Kaufman, 196 W. Va. 251,254 n.1, 470 S.E.2d 205, 208 n.1 (1996).
Footnote: 2 2 Bryant's stepfather did not reside with Bryant's mother.
Footnote: 3 3 Presumably, the social worker needed approval from her superiors to pursue to prospect of recommending such an unconventional placement to the circuit court.
Footnote: 4 4 We decline to disclose the school's name or specific location. Instead, we will refer to it as "the military school" or "the school," in furtherance of our practice of protecting the identity of juveniles such as Bryant. See supra note 1.
Footnote: 5 5 In her brief, Secretary Ohl stated that the controverted provision required full payment of the entire cost of nine months of schooling in the event that Bryant quit or was dismissed from the school prior to the completion of the school year. During oral
argument, however, counsel for Secretary Ohl stated that the controverted provision required monthly payments in advance of services rather than monthly payments after services had been rendered.
Footnote: 6 6 We note at this juncture that, although Secretary Ohl opined that in-state placement would require less funding from the general revenue fund, evidence submitted to this Court by Counsel for Bryant W. reveals that payment of the military school tuition actually requires less funding from the general revenue than does the DHHR's proposed alternative. According to Secretary Ohl's brief, the DHHR proposes to send Bryant W. to the Davis Stuart group home in Princeton, West Virginia. A letter from the business manager of the Davis Stuart, Inc., organization stated that the total per diem fee for the their group homes is $162.91. The portion of that total paid by Medicaid equals $48.73. The remaining $114.18 is paid from the general revenue fund. By contrast, as previously stated, the military school's per diem tuition, which must be paid entirely from the general revenue fund, is only $55.56.
Footnote: 7 7 Following the petition for a writ of prohibition and the issuance of the rule to show cause, an order reflecting Judge Egnor's September 3, 1997, ruling, and containing findings of fact and conclusions of law, was entered in the Circuit Court of Cabell County on September 11, 1997.
Footnote:
8 8
We highly commend Judge Egnor, Michael Lacy, Bryant W.'s
probation officer and Steven Cook, Bryant's attorney, for their
efforts over the past five years in this juvenile case. If more
of those individuals involved in juvenile cases were similarly
dedicated, many of the problems with juvenile dispositions in
this State would surely be resolved. In the case sub judice,
Judge Egnor made a variety of attempts to mould a treatment plan
that would address Bryant's problems and promote his best
interests. During this period, Michael Lacy monitored Bryant's
progress, or lack thereof, and requested modification hearings
when necessary. After trying numerous community-based and
in-state placement alternatives, Judge Egnor finally implemented
a treatment plan that incorporated a private military school
located by Bryant's attorney. Based upon his experiences with
Bryant, Judge Egnor believed there was a high probability that
Bryant would be successful at the school. Indeed, we find no
grounds upon which to criticize the quality of the facility
chosen by Judge Egnor. However, we are bound to enforce the
constitutional laws established by the Legislature, and, as
hereinafter explained, we must conclude that a private military
school simply does not comport with the notion of a
rehabilitative facility as contemplated by the Legislature in
W. Va. Code § 49-5-13(b)(6).
Footnote: 9 9 Secretary Ohl briefly argued additional grounds for asserting that Judge Egnor exceeded his authority. Because we resolve this case based upon our interpretation of W. Va. Code § 49-5-13(b)(6), we need not address those additional grounds.
Footnote: 10 10 At the time of the relevant statute, the term "juvenile delinquent" referred to juveniles who had committed criminal acts as well as certain non-criminal acts. See W. Va. Code § 49-1-4 (1978) (Repl. Vol. 1996). Juvenile delinquents who had committed only the specified non-criminal act(s) were commonly referred to as "status offenders." During 1997, the child welfare provisions of the West Virginia Code were amended. Presently, a "status offender" is no longer included within the definition of a "juvenile delinquent." See W. Va. Code § 49-1-4(8) & (14) (1997) (Supp. 1997).
Footnote: 11 11 W. Va. Code § 49-1-4 (1978) (Repl. Vol. 1996) defines a "delinquent child." Subsections (3) and (4) of W. Va. Code § 49-1-4 state that a "delinquent child" is a child: "(3) Who, without just cause, habitually and continually refuses to respond to the lawful supervision by such child's parents, guardian or custodian; [or] (4) Who is habitually absent from school without good cause."
Footnote:
12 12
In her brief, Secretary Ohl asserts that W. Va. Code §
49-5-13(b)(6) does not apply to Bryant W. because the circuit
court failed to find that Bryant was "so totally
unmanageable, ungovernable and antisocial that the child is
amenable to no treatment or restraint short of
incarceration." We disagree. The court's lengthy order,
which had not yet been entered at the time Secretary Ohl filed
her petition with this Court, contained detailed findings of fact
regarding Bryant, although it did not specifically state that
Bryant was "so totally unmanageable, ungovernable and
antisocial that the child is amenable to no treatment or
restraint short of incarceration." While the better course
would have been for the circuit court to have made a specific
finding in this regard, we can easily infer this conclusion from
the exhaustive findings made by the court.
We note that under the 1997 amendments to the Child Welfare provisions of West Virginia Code, such a finding is no longer required. See, e.g., W. Va. Code § 49-5- 11a (1997) (Supp. 1997) (addressing disposition of status offenders).
Footnote: 13 13 Under the 1997 revisions to the Child Welfare statutes, disposition of status offenders is addressed in W. Va. Code § 49-5-11a (1997) (Supp. 1997). The provisions no longer provide a specific list of placement alternatives, and no longer require that a juvenile be placed in a rehabilitative facility. While the new provisions encourage circuit courts to make placements at community based facilities, they grant to the courts broader discretion in determining the precise placement that will meet the best interests of the juvenile and the community. See W. Va. Code § 49-5-11a (2) (c) ("The court shall not be limited to the relief sought in the [DHHR's] petition and shall 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.").
Footnote: 14 14 The requirement that the rehabilitative facility be devoted exclusively to the custody of children adjudicated delinquent speaks to the prohibition against housing status offenders in the same facility with juveniles adjudicated delinquent as a result of criminal activity. See Syl. pt. 1, State ex rel. C.A.H. v. Strickler, 162 W. Va. 535, 251 S.E.2d 222 (1979) ("'Under no circumstances can a child adjudged delinquent because of a status offense, i. e., an act which if committed by an adult would not be a crime, be incarcerated in a secure, prison-like facility with children adjudged delinquent because of criminal activity.' Syl. pt. 4, State ex rel. Harris v. Calendine, [160] W. Va. [172], 233 S.E.2d 318 (1977)."). See also W. Va. Code § 49-5-13(b)(6) (1978) (Repl. Vol. 1980) (including for the first time, in statutory amendments that succeeded this Court's holding in Harris v. Calendine, language that a child must be committed to a facility "devoted exclusively to the custody and rehabilitation of children adjudicated delinquent [under statutory provisions related to non-criminal acts]. . . . "
Footnote: 15 15 We in no means assert that Bryant W. does not possess the qualifications for admission to a private military school. Clearly he does and has been so accepted. We conclude only that such a school does not provide the rehabilitative services contemplated by the Legislature in W. Va. Code § 49-5-13(b)(6).
Footnote: 16 16 Secretary Ohl also briefly argued that Judge Egnor deprived her of due process by eliminating her right to appeal his order. Because we have granted the relief requested by Secretary Ohl, we need not reach this issue.
Footnote:
17 17
More recently, we held that:
Circuit
courts may specify direct placements of juveniles in out-of-state
facilities only: (1) if in accord with the plan(s) of the
juvenile's multidisciplinary team, or if not in accord with that
plan(s), then (2) after the circuit court has made specific
findings of fact, following an evidentiary hearing, that the
plan(s) of the juvenile's miltidisciplinary treatment team is
inadequate to meet the child's needs.
Syl. pt. 5, E.H. v. Matin, ___ W. Va. ___, ___ S.E.2d ___ (No. 23999 November 21, 1997). Unfortunately, Judge Egnor and Bryant W. did not receive the benefit of multidisciplinary treatment team recommendations in this case. However, such should not be the case in the future. In Syllabus point 3 of Matin we held that "[t]he language of W. Va. Code § 49-5D-3 is mandatory and requires the Department of Health and Human Resources to convene and direct treatment teams not only for juveniles involved in delinquency proceedings, but also for victims of abuse and neglect." Id.
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