STATE OF WEST VIRGINIA
 

SUPREME COURT OF APPEALS
 

State of West Virginia, FILED 

Petitioner Below, Respondent May 24, 2013 

RORY L. PERRY II, CLERK 

vs) No. 12-0832 (Gilmer County 11-JS-1 and 12-JD-6) SUPREME COURT OF APPEALS 

OF WEST VIRGINIA 

W.H.,
 

Respondent Below, Petitioner
 

MEMORANDUM DECISION 

Petitioner W.H.’s1 appeal, filed by counsel Christina C. Flanigan, arises from the Circuit 

Court of Gilmer County, wherein petitioner was placed in a Level III facility, rather than on 

probation, by order entered on June 15, 2012. The State responds, by counsel Laura Young, in 

support of the circuit court’s decision. 

This Court has considered the parties’ briefs and the record on appeal. The facts and legal 

arguments are adequately presented, and the decisional process would not be significantly aided 

by oral argument. Upon consideration of the standard of review, the briefs, and the record 

presented, the Court finds no substantial question of law and no prejudicial error. For these 

reasons, a memorandum decision is appropriate under Rule 21 of the Rules of Appellate 

Procedure. 

In March of 2011, the DHHR filed an abuse and neglect petition that contained only 

allegations of petitioner’s misbehavior at school. Subsequently, the abuse and neglect petition 

was amended as a status offense petition. Allegations in the petition cited instances in which 

petitioner spat on the school bus floor, cursed at and about teachers, placed a condom in a 

classmate’s shoe, and threw metal cans and erasers with others present, to name a few. In July of 

2011, the circuit court placed petitioner on a pre-adjudicatory, probationary period for one year 

with orders to comply with certain terms and conditions. In February of 2012, before petitioner’s 

completion of the one-year period, the State filed a motion to revoke petitioner’s probation. As a 

basis for revocation, the motion included several episodes for which petitioner was placed on 

detention at school, such as underage tobacco possession, online bullying and harassment, and 

inappropriate sexual comments directed toward one of the female teachers. Allegations were 

later amended to include an incident where petitioner committed battery against another student. 

The case proceeded to adjudication where petitioner admitted to the aforementioned allegations. 

At disposition, the circuit court ordered petitioner’s placement at the Elkins Mountain School, a 

Level III facility for juveniles where petitioner was ordered to participate in individual 

counseling and to work toward achieving his high school diploma. Petitioner appeals this 

placement. 

1 We use petitioner’s initials, rather than his full name, because he is a juvenile. See State v. 

Edward Charles L., 183 W.Va. 641, 645 n.1, 398 S.E.2d 123, 127 n.1 (1990). 

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Petitioner argues that this placement at the facility was not the least restrictive alternative 

available and, that, accordingly, the circuit court committed reversible error. Petitioner argues 

that Rule 34 of the West Virginia Rules of Juvenile Procedure states that “[j]uveniles adjudicated 

as delinquent or status offenders are entitled to be sentenced in the least restrictive manner 

possible that will meet their needs and protect the welfare of the public.” Petitioner asserts that 

he did well in his improvement period from July of 2011 until January of 2012, but then he was 

required to visit with his father while in his mother’s primary custody, and petitioner began 

acting out at school in hopes of avoiding required visitation with his father. Petitioner argues that 

his misbehavior only occurred at school and has not had any behavioral problems reported 

outside of this setting. The State responds by arguing that the circuit court properly ordered the 

juvenile to the custody of the Level III facility for disposition. The State asserts that the circuit 

court did not abuse its discretion by considering petitioner’s history of behavioral issues, the 

extensive medical diagnostics concerning petitioner’s mental health, and reports from school 

officials. The State highlights that petitioner’s acts were not mere scuffles, but those that were 

either violent or had the potential for violence and carry the risk of bodily harm to others or 

himself. 

We apply the following standard of review: 

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. W.Va. Ethics Comm’n, 201 W.Va. 108, 492 S.E.2d 167 (1997). 

Our review of the record uncovers no error or abuse of discretion by the circuit court in 

its placement of the juvenile petitioner. We find that the circuit court articulated on the record the 

evidence to support its reasons for placing the child out of his mother’s home and in a juvenile 

facility. The circuit court emphasized that outside services and counseling were necessary for the 

child’s welfare and that no less restrictive alternatives were available as petitioner’s behavior 

could not be managed by his parents. The circuit court did not commit error in its placement of 

petitioner pursuant to West Virginia Code § 49-6-13(b). 

For the foregoing reasons, we affirm. 

Affirmed. 

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ISSUED: May 24, 2013 

CONCURRED IN BY: 

Chief Justice Brent D. Benjamin 

Justice Robin Jean Davis 

Justice Margaret L. Workman 

Justice Menis E. Ketchum 

Justice Allen H. Loughry II 

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