STATE OF WEST VIRGINIA
SUPREME COURT OF APPEALS
In re: D.W. FILED
March 31, 2014
RORY L. PERRY II, CLERK
No. 13-0786 (Wirt County 12-JS-25) SUPREME COURT OF APPEALS
OF WEST VIRGINIA
MEMORANDUM DECISION
Petitioner D.W., by counsel G. Bradley Frum, appeals the Circuit Court of Wirt County’s
May 7, 2013, adjudicatory order placing him in the Department of Health and Human Resources’
(“DHHR”) custody.1 The State, by counsel Laura Young, filed a response. On appeal, petitioner
alleges that the circuit court erred in failing to refer him to the DHHR for services at
adjudication.2
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 affirming the circuit court’s order is appropriate under Rule 21
of the Rules of Appellate Procedure.
In November of 2012, the DHHR filed a juvenile delinquency petition alleging that
petitioner, then fourteen years old, habitually refused to attend school during the 2012-2013
school year. Petitioner accumulated forty-two absences as of October 24, 2012, just three months
into the school year; twenty-five absences were unexcused. Petitioner filed a motion for an
improvement period in which he asserted that he took responsibility for his truancy, would
cooperate with the DHHR and school officials, and would attend school. The circuit court granted
the pre-adjudicatory improvement period by order entered on December 20, 2012.
In a court report dated April 1, 2013, the DHHR noted that despite being granted an
improvement period, petitioner missed an additional fifty-four and one-half days of school since
October 24, 2012. Forty of those absences occurred after he was granted an improvement period.
On April 9, 2013, the circuit court held an adjudicatory hearing, during which petitioner admitted
1
In keeping with this Court’s policy of protecting the identity of minors, petitioner will be
referred to by his initials throughout the memorandum decision. See, e.g., State v. Larry A.H., 230
W. Va. 709, 742 S.E.2d 125 (2013); State v. Edward Charles L., 183 W. Va. 641, 398 S.E.2d 123
(1990).
2
Although petitioner nominally designates the circuit court’s placement of “custody” with
the DHHR as error, petitioner’s scant discussion is comprised entirely of the argument that the
assessment to which he was referred was not a proper referral for “services” pursuant to West
Virginia Code § 49-5-11. W.Va. R.App.Pro. 10(c)(7).
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to the allegations in the petition. The circuit court adjudicated petitioner as a status offender and
ordered that he undergo a comprehensive assessment and planning system him at the Gustke
Shelter. It is from this adjudicatory order that petitioner appeals.
We have previously held that “‘[w]here 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).” Syl.
Pt. 1, State v. Steven H., 215 W.Va. 505, 600 S.E.2d 217 (2004). Here, petitioner’s entire
argument turns on an interpretation of West Virginia Code § 49-5-11(d), which reads, in relevant
part, that
[i]f the allegations in a petition alleging that the juvenile is a status offender are
admitted or sustained by clear and convincing proof, the court shall refer the
juvenile to the Department of Health and Human Resources for services . . . and
order the department to report back to the court with regard to the juvenile’s
progress at least every ninety days . . . .
Petitioner argues that this statute required the circuit court to refer him to the DHHR for services.
However, petitioner cites to no case law indicating that the assessment ordered below does not
constitute “services” under West Virginia Code § 49-5-11(d). Nor does petitioner’s argument
acknowledge that the matter had already been referred to the DHHR and that services had been
provided, to no avail, since as early as November of 2012, when he was granted a pre
adjudicatory improvement period. It is clear from the record that the services petitioner was
offered failed to abate his truancy issues and that the circuit court did not err in ordering petitioner
undergo an assessment for implementation of additional services.
For the foregoing reasons, the circuit court’s May 7, 2013, adjudicatory order is hereby
affirmed.
Affirmed.
ISSUED: March 31, 2014
CONCURRED IN BY:
Chief Justice Robin Jean Davis
Justice Brent D. Benjamin
Justice Margaret L. Workman
Justice Menis E. Ketchum
Justice Allen H. Loughry II
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