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In re K.M.

Supreme Court of West Virginia

May 22, 2017

In re: K.M.

         (Kanawha County 2015-JD-193)

          MEMORANDUM DECISION

         Petitioner 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.[1] 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.

         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, 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.

         In 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.

         In 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.

         In 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.

         In 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 review:
"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.

         To 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 community-based treatment.

         Petitioner's 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 ...


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