### STATE OF WEST VIRGINIA
SUPREME COURT OF APPEALS

FILED

In re: A. M. 

### October 19, 2018

EDYTHE NASH GAISER, CLERK vs.) No. 17-1065 (Wood County 17-JS-11W) SUPREME COURT OF APPEALS

OF WEST VIRGINIA



### MEMORANDUM DECISION

Petitioner A.M., by counsel Reggie R. Bail ey, appeals the Circuit Court of Wood County’s November 6, 2017, dispositional order co mmitting him to the custody of the Division of Health and Human Resources (“DHHR”) for pl acement in a Level II structured residential treatment facility and continuing his probation until age eighteen. 1 Respondent State of West Virginia, by counsel Scott E. Johnson, filed a res ponse. On appeal, petitioner contends that the circuit court erred in placing him in the Level II facility rather than w ith one of his parents.

This Court has considered the parties’ briefs and the record on appeal. The facts and legal arguments are adequately presented, and the deci sional process would not be significantly aided by oral argument. Upon consideration of the st andard of review, the briefs, and the record presented, the Court finds no substantial questi on of law and no prejudicial error. For these reasons, a memorandum decision affi rming the circuit court’s order is appropriate under Rule 21
of the Rules of A ppellate Procedure.

On March 31, 2017, the State initiated juveni le proceedings agains t petitioner alleging that he was habitually absent from school with out good cause. At an adjudicatory hearing held on May 15, 2017, petitioner admitted to the allega tions contained within the petition, and the circuit court adjudicated him as a status offender. The court also referred petitioner to the DHHR for services, directed the DHHR to submit m onthly progress reports, and ordered that a Comprehensive Assessment and Planning Sy stem (“CAPS”) assessment and psychological evaluation be completed.

The DHHR submitted a progress report for Ju ly of 2017 detailing that petitioner violated
five of the “Terms and Conditions for Status Offenders” to which he had previously agreed. Specifically, petitioner failed to re port to his Youth Service Worker as required, snuck out of his home, failed to attend summer school, was without adult supervision by leaving his home, and failed to truthfully answer que stions regarding his summer sc hool attendance. Accordingly, the State filed a “Motion for Modification of Dispositi on,” and the parties app eared for a hearing on

1 Consistent with our long-standing practice in cases with sensitive facts, we use initials where necessary to protect the identities of those involved in this case. See In re K.H. , 235 W.Va. 254, 773 S.E.2d 20 (2015); Melinda H. v. William R. II , 230 W.Va. 731, 742 S.E.2d 419 (2013);
State v. Brandon B. , 218 W.Va. 324, 624 S.E.2d 761 (2005); State v. Edward Charles L. , 183 W.Va. 641, 398 S.E.2d 123 (1990).

1this motion on September 22, 2017. At this hearing, petitioner admitted to all of the allegations contained within the progress report, except for the al legation that he failed to truthfully answer questions regarding his summer sc hool attendance. As a result of these admissions, the circuit court ordered that the DHHR take temporary cust ody of petitioner for placement in a non-secure shelter facility pending disposition.

Angela Elms, a juvenile probation officer, completed a “Court Report” to assist the circuit court with petitioner’s disposition. Within the report, Ms. Elms detailed petitioner’s family, personal, educational, and legal histor y. Ms. Elms documented petitioner’s admitted drug use, declining grades, and numerous transgressions at school that resulted in both in-school and out-of-school suspension. Ms. Elms also noted peti tioner’s “history of tr uancy, substance abuse, negative social influences, anger issues, and behavioral problems” along with his “lack of regard [for] authority, . . . poor coping skills” and poor decision-making skills. These circumstances led Ms. Elms to opine that petitioner needed “a more structured environment,” and she specifically recommended placement in a Level II facility.

Petitioner’s Multi-Disciplinary Team (“MDT”) met and submitted a report dated October 23, 2017. The MDT documented that petitioner “conti nued to skip class a nd received an out[

- ]of[-]school suspension for five days for ha ving inappropriate boundaries with a teacher.” 2 Petitioner, who was placed in a youth shelte r following the September 22, 2017, hearing, also had problems at the youth shelter, including figh ting with another youth. The MDT observed that petitioner’s “continued behaviors at the shelter are cause for c oncern.” Petitioner was afforded in-home services, but they were “unsuccessful due to [petitioner’s] behaviors.” Accordingly, the MDT recommended that petitioner be placed in a Level II residential pr ogram to treat both his
behavior and substance abuse issues.

Petitioner’s CAPS assessment and psychologica l evaluation were consistent with his
other evaluations in terms of the informati on reported and recommendation offered. The CAPS evaluator stated that petitioner

should be placed at a residential facility at this time. He was placed on probation and gave little regard to the rules set in place. He continued to skip school, smoke marijuana, and was not listening at home. Then he was placed in a shelter where
he had an altercation with a peer and then was suspended from school for a separate incident.

Again, a recommendation was made th at petitioner be placed in a residential program because he was “unlikely to be successful presently if he[] were to return to his home. He does not respect rules and does not seem to fear consequences. I fear that a return home will only result in a continued lack of progress and compliance.” The evaluators concluded that, without placement in a residential program, petitione r’s “prognosis is poor.” In short, all of the professionals who evaluated petitioner were in agreement that re turning home would not be in petitioner’s best

2 Petitioner reportedly asked a teacher to make change for a twenty dollar bill. In handing her the money, he pulled on her shirt collar and attempted to put it down her shirt.

2interests and that placement in a residential pr ogram would provide his best chance for a positive

outcome.

The parties appeared for a dispositional hearing on November 3, 2017. The circuit court found, after

taking into consideration th e best interests and welfar e of both the public and the child, that the child is in need of extra-parental supe rvision under the supervision of a Probation Officer of this [c]ourt; that the child is in need of having prescribed for him a program of treatment and therapy and a program limiting his activities
under terms which are reasona ble and within th e child’s ability to perform.

The court further found that

continuation in the home is contrary to th e best interest of the child because he was not attending school as is required, he received in[-]school suspension, he
continued to not follow rules within the home, continued to sneak out of the home and did not keep in contact with his Yout h Services worker; that the [DHHR] has made reasonable efforts to prevent placement outside the home through in-home services, CAPS Assessment, psychologica l evaluation, shelter placement, DHHR supervision, informal probation supervisi on and medication management; and that the best interest and welfare of the public and the child require that the temporary custody of the child remain with the [D HHR] for placement in an appropriate
Level II structured residen tial treatment facility[.]

The court, therefore, ordered th at petitioner’s custody remain w ith the DHHR for placement in a
Level II structured residential treatment fac ility and that he remain on probation until age eighteen. These rulings were memo rialized in an order dated November 6, 2017, and it is from this order that petitioner appeals.

On appeal, petitioner argues that the circu it court erred in placing him in the Level II facility rather than with one of his parents. In support, peti tioner highlights that the instant proceeding was his first juvenile petition, and only one progress report was completed prior to disposition. Petitioner also notes that the State’s motion for modi fication was filed just as the new school year was beginning. Pe titioner believes that additional services coupled with probation would have been sufficient to address hi s problems, and that th e circuit court did not employ the least restrictive alternative.

“[T]he standard of review with regard to a circuit court’s sentencing order or disposition
. . . is whether the circuit court’s ruli ng constitutes an abuse of discretion.” State v. Kenneth Y.

, 217 W.Va. 167, 170, 617 S.E.2d 517, 520 (2005) (cit ations omitted). “[D]iscretionary, dispositional decisions of the trial courts shou ld only be reversed wher e they are not supported by the evidence or are wr ong as a matter of law.” In re Thomas L. , 204 W.Va. 501, 503, 513 S.E.2d 908, 910 (1998) (internal quo tations and citation omitted).

3Given this highly deferential standard of re view, we find no error in the circuit court’s disposition. The professionals who evaluated petitioner all opined th at returning petitioner to one of his parents would not be in his best in terest and recommended pl acement in a Level II treatment facility. Given that petitioner contin ued to miss school, fought with another individual at the group home, and otherwise failed to fo llow rules after the initi ation of the instant proceedings, we find no support fo r petitioner’s assertion that ad ditional services and probation would have been sufficient to address his proble ms. Thus, we find that the circuit court did not abuse its discretion in ordering pl acement at a Level II facility.

For the foregoing reasons, the circuit c ourt’s November 6, 2017, dispositional order is hereby affirmed.

Affirmed.

ISSUED : October 19, 2018

CONCURRED IN BY :

Chief Justice Margaret L. Workman
Justice Elizabeth D. Walker
Justice Paul T. Farrell sit ting by temporary assignment
Justice Tim Armstead
Justice Evan H. Jenkins

Justice Allen H. Loughry II suspende d and therefore not participating

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