In re R.T.

In Re: R.T.

No. 13-0788

STATE OF WEST VIRGINIA SUPREME COURT OF APPEALS

ISSUED: March 7, 2014

(Wirt County 12-JS-12)

MEMORANDUM DECISION

Petitioner R.T., a juvenile, by counsel George M. Torres, filed this appeal from an order of the Circuit Court of Wirt County entered on July 15, 2013. The State of West Virginia, by counsel Laura Young, filed a response in support of the circuit court's order. Petitioner appeals the order of the circuit court continuing her placement in the custody of the West Virginia Department of Health and Human Resources ("Department") and placing her in a residential facility.

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.

Petitioner was born on June 16, 1997. She was adjudicated as a juvenile status offender on May 11, 2012, upon admitting the allegations set forth in a truancy petition that she was habitually absent from school without good cause.¹ See West Virginia Code § 49-1-4. More specifically, during the 2011-12 school year and as of March 14, 2012, petitioner had forty-four absences from Wirt County High School, of which sixteen absences were unexcused.² A status offense supervision agreement was also executed on May 11, 2012, in which petitioner agreed, among other things, to "attend and remain in school at all times when school is in session and not be absent therefrom except for unavoidable causes of absence which are specifically authorized by [her] youth services worker." Other conditions intended to modify petitioner's behavior were included in the agreement.

A status hearing was subsequently conducted on December 6, 2012, and in an order entered that same day, the circuit court ordered, inter alia, that petitioner "and her parents need to cooperate with the [Department] to address the truancy issue."³

A report completed by the Department dated January 3, 2013, revealed that in December of 2012, petitioner missed thirteen days of school, "including 9 days after the Status Review Hearing was held on [December 6, 2012]. Upon return from the semester break, [petitioner] missed [January 2, 2013,] and arrived at approximately noon on [January 3, 2013]. All of these absences were unexcused." A status report completed by petitioner's probation officer dated January 7, 2013, indicated that in March 2012 petitioner received in-patient treatment for "anxiety, school refusal and depression." She was also treated on an out-patient basis for "depression, anxiety, parent-child relational problems, Attention Deficit Hyperactivity Disorder (ADHD) and [e]arly features of Oppositional Defiant Disorder." Furthermore, "[s]tressors were identified as moderate due to stress between divorced parents." Petitioner's probation officer also noted that there has been no improvement in petitioner's school attendance and that

[h]er truancy continues. . . . It appears that [petitioner's] mental health problems continue to interfere with her ability to obtain an education. I would . . . recommend [petitioner] be placed in a residential treatment facility where her mental health problems can be stabilized and she can obtain her education. Her current lack of attendance will in turn cause her to fall further behind in school and increase her chances of quitting school prior to obtaining her diploma.

Following a status hearing on January 8, 2013, and by order entered February 6, 2013, the circuit court concluded that given the on-going truancy problems, "continuation in the home is not in the best interests of the child[;]" that the Department "has made reasonable efforts to avoid a placement outside of the child's home[;]" and that temporary legal and physical custody of petitioner again be placed in the Department. Petitioner was placed at the Gustke Shelter (a non-secured facility) and enrolled at Parkersburg High School. During her placement at the Gustke Shelter, petitioner had no unexcused absences and was excused for two partial days for medical appointments. She did not have any behavior problems while in the Department's custody.

Following a status hearing on February 12, 2013, petitioner was returned to the custody of her parents. The record indicates that petitioner's parents are divorced; that petitioner resided with them on an "alternating basis[;]" that the parents' relationship with each other is "antagonistic[;]" that petitioner resists efforts by both parents to get her to attend school; and has manipulated them "against each other so they are unable to present a unified front when dealing with [petitioner's] truancy issues." While in her parents' custody, petitioner had three excused absences for whole days for medical appointments; had doctor's excuses for seven absences; submitted parent notes for five absences; and had unexcused absences for five whole days and seven partial days.

By order entered May 29, 2013, following a May 14, 2013, hearing, the circuit court concluded that "continuation in the home is contrary to the best interests of [petitioner]" and ordered that petitioner be placed in the legal custody of the DHHR, returned to the Gustke Shelter, and "[t]hereafter, future placement at a facility such as the West Virginia Children's Home in Elkins, West Virginia." Upon returning to the Gustke Shelter on May 14, 2013, petitioner had only one excused absence.

A report completed by Wirt County Child Protective Services ("CPS") worker Michael W. Seebaugh dated June 19, 2013, indicated that he and another CPS worker conducted a home visit at the residence of petitioner's maternal aunt and uncle, Kimberly and William C., at the request of petitioner's counsel. Petitioner's proposed placement plan was and is placement with her aunt and uncle. Mr. Seebaugh reported that that placement presented no safety concerns and that "Mr. [C.] presented as an appropriate candidate for a relative caretaking arrangement. . . . Upon inquiry, Mr. [C.] indicated they would be willing to provide a residence for [petitioner] as long as she was willing to live by their rules."

The June 19, 2013, report indicated further that, according to her final attendance records for the 2012-13 school year, petitioner

missed 88 days in a 180-day instructional calendar, or approximately 49% of available instructional days. . . . Given [petitioner's] attendance pattern this year, it is nothing short of a miracle she was able to pass all her classes except one . . . . However, it should be noted that [petitioner] is certainly capable of competing for A's and B's rather than merely scraping by.

The report also acknowledged that "[i]n all fairness to [petitioner], there are obvious and well-documented tensions in her family that have certainly affected her attitude and facilitated the manipulation of her parents she admitted to recently at the shelter. . . . [petitioner] performed well below her capabilities. . . ." In addition to opining that petitioner "could benefit from a stay at the West Virginia Children's Home to assist her in conquering the school avoidance behaviors" and to give her "access to frequent supportive counseling and therapy sessions[,]" Mr. Seebaugh's report noted that petitioner "does not exhibit any of the other behaviors that typically land a teenager in a residential placement facility. [Petitioner] does not use or abuse drugs, has not committed crimes against property or persons, and has been a model resident at the Gustke Shelter." With regard to the possibility of petitioner residing with Mr. and Mrs. C., the report indicated that there are no ...