K.M., by counsel Jason D. Parmer, appeals the Circuit Court
of Kanawha County's March 1, 2016, dispositional order
placing him on probation and in an out-of-state, inpatient
treatment facility following his adjudication as a juvenile
delinquent on one count of incest. The State, by counsel Gordon
L. Mowen, II and Zachary A. Viglianco, filed a response and a
supplemental appendix. Petitioner filed a reply. On appeal,
petitioner argues that the circuit court erred in failing to
impose a less-restrictive dispositional alternative and in
making insufficient findings of fact to support placement in
an out-of-state facility.
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,
this 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.
December of 2013, petitioner's parents voluntarily
admitted the thirteen-year-old into Highland Hospital for
sexually abusing his disabled seven-year-old sister, A.M.
Petitioner was discharged that same month with a discharge
summary that recommended further treatment because he lacked
insight into his behavior. Thereafter, petitioner was
admitted to the River Park inpatient program in April of 2014
after another instance of inappropriate behavior with his
sister. During his treatment, petitioner disclosed persistent
sexual fantasies about his sister and classmates at his
school. Despite being a patient for approximately eight
months, petitioner did not make significant progress, and his
father removed him against medical advice in December of
2014. Following his discharge, Highland staff informed Child
Protective Services ("CPS") that petitioner feared
he would abuse his sister again.
January of 2015, CPS interviewed A.M. During the interview,
A.M. disclosed abuse by two of her brothers - petitioner and
Q.M. During a second interview, A.M. repeated these
allegations. Thereafter, police interviewed petitioner and he
admitted to anally penetrating his sister on three occasions.
September of 2015, petitioner was charged in a juvenile
delinquency petition with three counts of first-degree sexual
assault and three counts of incest. Petitioner was ordered to
undergo an adolescent sexual offender risk assessment. At the
time the report was prepared, petitioner had been ordered to
attend community-based treatment. Despite this order from the
circuit court, the evaluation noted that petitioner failed to
attend his scheduled appointments. The evaluation further
noted a "significant concern regarding
[petitioner's] engagement/participation in
treatment." The report ultimately indicated that
petitioner could be a candidate for community treatment, but
he would have to attend all therapy appointments because of
"significant concern [that petitioner] must take
treatment seriously and be fully engaged in that treatment in
order to be safe in the community." Further, petitioner
disclosed his own sexual abuse by one of his brothers during
the evaluation. Thereafter, by order entered in December of
2015, the circuit court accepted petitioner's plea to one
count of incest and adjudicated him a juvenile delinquent.
February of 2016, the circuit court held a dispositional
hearing. At this point, petitioner, who lived with his father
and two older brothers, no longer lived in the same house as
A.M., who resided with her mother. During the hearing, the
circuit court heard testimony from two employees of Dayspring
Counseling, where petitioner received outpatient counseling.
According to one witness, although petitioner was initially
considered a suitable candidate for community-based
placement, new information came to light that petitioner was
"unwilling to discuss the details of the case"
which could lead to problems in communication with his
probation officer. According to this witness,
petitioner's unwillingness to discuss the past abuse
constituted a "red flag" in regard to disposition.
This witness also expressed concerns with petitioner's
parents' lack of support, as evidenced by
petitioner's father discharging him against medical
advice and the fact that petitioner missed appointments
throughout the proceedings. In fact, this lack of parental
support constituted a high risk factor, among eight other
such factors, in terms of petitioner's treatment moving
forward. Following the close of evidence, the circuit court
found that one of petitioner's biggest impediments to
progress was his placement with his family, including
petitioner's father's continued refusal to
acknowledge that an older child in the home sexually abused
petitioner. In fact, the circuit court went so far as to
indicate that petitioner's living situation in the home
was troubling. Ultimately, the circuit court found that
petitioner's treatment at two prior in-state facilities
was unsuccessful and ordered that placement in an
out-of-state facility for inpatient treatment was necessary.
It is from the dispositional order that petitioner appeals.
We have previously established the following standard of
"In reviewing the findings of fact and conclusions of
law of a circuit court . . ., we apply a three-pronged
standard of review. We review the decision . . . under an
abuse of discretion standard; the underlying facts are
reviewed under a clearly erroneous standard; and questions of
law and interpretations of statutes and rules are subject to
a de novo review." Syllabus Point 1, State
v. Head, 198 W.Va. 298, 480 S.E.2d 507 (1996).
Syl. Pt. 1, in part, State v. Georgius, 225 W.Va.
716, 696 S.E.2d 18 (2010). Upon our review, we find no error
in the circuit court's rulings below.
begin, the Court finds no error in the disposition imposed.
According to petitioner, the circuit court erred in failing
to impose the least-restrictive dispositional alternative in
light of testimony that he could benefit from community-based
treatment. Per West Virginia Code § 49-4-714(b),
"[t]he court shall make all reasonable efforts to place
the juvenile in the least restrictive alternative appropriate
to the needs of the juvenile and the community . . . ."
In interpreting this statute, we have held as follows:
"In considering the least restrictive dispositional
alternative for sentencing a juvenile, a juvenile court must
consider the reasonable prospects for rehabilitation of the
child as they appear at the time of the dispositional
hearing, with due weight given to any improvement in the
child's behavior between the time the offense was
committed and the time sentence is passed." Syllabus
Point 6, State ex rel. D.D.H. v. Dostert, 165 W.Va.
448, 269 S.E.2d 401 (1980).
Syl. Pt. 6, State v. Kirk N., 214 W.Va. 730, 591
S.E.2d 288 (2003). Based upon these authorities, it is clear
that the circuit court did not err in placing petitioner in
an inpatient treatment facility, as opposed to
argument on appeal is entirely premised upon his
interpretation of testimony presented at the dispositional
hearing. According to petitioner, he believes that the
witnesses who testified regarding his treatment needs all
suggested that community-based treatment was appropriate.
However, petitioner's argument ignores the fact that the
witnesses identified nine high-risk factors related to
petitioner's treatment in a community-based program,
including one such factor that was unknown to the witnesses
until after petitioner's evaluation. Specifically, the
circuit court heard evidence that shortly before disposition,
petitioner became "unwilling to discuss the details of
the case . . . ." Petitioner's recent reluctance to
speak with others regarding his past sexual abuse of his
sister constituted a ...