STATE OF WEST VIRGINIA 

                             SUPREME COURT OF APPEALS



STATE OF WEST VIRGINIA EX REL.
A.D., M.D., and D.D.,
Petitioners                                                                        FILED
                                                                                June 21, 2018
vs.) No. 18-0489 (Clay County No. 16-JD-9)                                     EDYTHE NASH GAISER, CLERK
                                                                               SUPREME COURT OF APPEALS
                                                                                   OF WEST VIRGINIA
THE HONORABLE JACK ALSOP, JUDGE
OF THE FOURTEENTH JUDICIAL CIRCUIT,
Respondent


                                MEMORANDUM DECISION

        The Petitioners seek a writ of prohibition to prevent further enforcement of a final
juvenile dispositional order of the Circuit Court of Clay County.1 That order required the
juvenile Petitioner, A.D., 2 to wear a GPS ankle monitoring bracelet while on home
confinement until he reached the age of eighteen.3 A.D was twelve years old when these
conditions were imposed. The Respondent, through counsel, filed a summary response
brief in support of the circuit court=s decision.4

        This Court has considered the parties= briefs, the appendix submitted, and the
parties= oral arguments. Upon consideration of the standard of review, the Court finds that
the circuit court=s dispositional order is clearly erroneous as a matter of law. Accordingly,
we prohibit enforcement of the circuit court=s dispositional order and remand this case for
entry of an order releasing A.D. to the custody of his mother without any restrictions or

       1
       The Petitioners are represented in this proceeding by Gretchen O. Lewis, who
undertook this matter pro bono.
       2
         Consistent with our long-standing practice in cases involving children, we use
initials where necessary to protect the identities of those involved in this case. See In re
K.H., 235 W. Va. 254, 773 S.E.2d 20 (2015).
       3
           The other Petitioners in this matter are A.D.=s mother and step-father.
       4
       The Respondent was represented by James E. Samples, Prosecuting Attorney of
Clay County, and Daniel B. Dotson, III, Assistant Prosecuting Attorney.

                                                1

conditions. Insofar as this case does not present a new or significant issue of law, and for
the reasons set forth herein, we find this case satisfies the Alimited circumstances@
requirements of Rule 21(d) of the West Virginia Rules of Appellate Procedure and is
proper for disposition as a memorandum decision.

        The limited record in this case shows that on October 18, 2016, A.D. carried a small
amount of marijuana into Clay County Middle School, where he was enrolled in the
seventh grade. It appears that the marijuana was given to A.D. several days earlier by his
adult half-brother, with instructions to deliver it to another adult half-brother. For reasons
that are not clear, the delivery to his half-brother did not occur, and A.D. kept the marijuana
in his school notebook. While at school with the marijuana on October 18, A.D. engaged
in a conversation with another student who had indicated that he had smoked marijuana
once during summer camp and would like some more. A.D. informed the student that he
had marijuana and would sell it to him.5 This conversation was overheard by another
student who reported the matter to a teacher. A.D. was later taken into custody at school
by the county sheriff=s office and taken to a magistrate.

        On December 2, 2016, the State filed a petition requesting that A.D. be adjudicated
a juvenile delinquent. A.D. was appointed counsel several days later.6 On May 15,
2017, an adjudication by admission hearing was held before the circuit court. During that
hearing, A.D. pled guilty to possession of marijuana with intent to deliver. A subsequent
dispositional hearing was held on June 22, 2017. At the conclusion of that proceeding, the
circuit court entered a dispositional order on August 7, 2017.

        The dispositional order placed A.D. on probation and home confinement until his
eighteenth birthday. Some of the conditions imposed on A.D. included the following: (1)
he had to wear a GPS ankle monitoring bracelet; (2) he had to submit to random alcohol
and drug testing; (3) he could not leave the State without permission from the probation
officer; (4) he could not go beyond 100 feet of his home; and (5) he was allowed to leave
his home only for work, medical care, education, church services, or community services.
During the months that followed entry of the dispositional order, the circuit court denied a
request to allow A.D. to participate in a school football program, and a request to allow him
to attend a family celebration of the 71st wedding anniversary of his great-grandparents.

      On November 20, 2017, A.D. was admitted to Highland Hospital for psychiatric
treatment. A.D. was admitted to the hospital because of suicidal acts that included cutting
       5
           No sale actually took place.
       6
       The attorney representing A.D. in the proceeding before this Court did not
represent A.D. in the juvenile proceedings in circuit court.

                                              2

himself and an attempt to hang himself. A.D. was discharged from the hospital on
November 27, 2017, with a diagnosis of major depressive disorder.7

       When counsel in this proceeding learned of A.D.=s circumstances, she filed this
petition for a writ of prohibition seeking the immediate release of A.D. Our law is well
established that,

              [i]n determining whether to entertain and issue the writ of prohibition
       for cases not involving an absence of jurisdiction but only where it is claimed
       that the lower tribunal exceeded its legitimate powers, this Court will
       examine five factors: (1) whether the party seeking the writ has no other
       adequate means, such as direct appeal, to obtain the desired relief; (2)
       whether the petitioner will be damaged or prejudiced in a way that is not
       correctable on appeal; (3) whether the lower tribunal=s order is clearly
       erroneous as a matter of law; (4) whether the lower tribunal=s order is an oft
       repeated error or manifests persistent disregard for either procedural or
       substantive law; and (5) whether the lower tribunal=s order raises new and
       important problems or issues of law of first impression. These factors are
       general guidelines that serve as a useful starting point for determining
       whether a discretionary writ of prohibition should issue. Although all five
       factors need not be satisfied, it is clear that the third factor, the existence of
       clear error as a matter of law, should be given substantial weight.

Syl. pt. 4, State ex rel. Hoover v. Berger, 199 W. Va. 12, 483 S.E.2d 12 (1996).8 The State
summarily argues that the Petitioners cannot satisfy any of the Hoover factors. We
       7
           The hospital referred A.D. to out-patient therapy.
       8
         The State has not made a specific procedural challenge to the use of a petition for a
writ of prohibition in this matter. The State has argued only that the facts of the case do
not warrant prohibition relief. We make this observation because, ordinarily, a petition for
habeas corpus relief would be the appropriate remedy when home confinement is
challenged. See Syl. pt. 2, Elder v. Scolapia, 230 W. Va. 422, 738 S.E.2d 924 (2013) (AAn
offender who has been sentenced pursuant to the Home Incarceration Act, West Virginia
Code '' 62-11B-1 to-13 (2010), and is accordingly subject to substantial restrictions on his
or her liberty by virtue of the terms and conditions imposed by a home incarceration order,
which include arrest and resentencing for a violation of those terms and conditions, is
>incarcerated under sentence of imprisonment= for purposes of seeking post-conviction
habeas corpus relief under West Virginia Code ' 53-4A-1 (2008).@). Because of the
State=s waiver of this issue, and the extremely unique facts of this case, we find that the
request for prohibition relief is properly before this Court.

                                                3

disagree.

       We find that, under the facts of this case, sentencing a twelve-year-old child to
home confinement until he reaches the age of eighteen, requiring him to wear a GPS ankle
monitoring bracelet, submitting him to random drug and alcohol tests, and prohibiting him
from going beyond 100 feet of his home Ais clearly erroneous as a matter of law.@ The
bedrock of our juvenile laws is rehabilitation, not punishment. See State v. McDonald,
173 W. Va. 263, 267, 314 S.E.2d 854, 858 (1984) (AWe have long recognized that the
purpose of our juvenile law is to promote the rehabilitation of troubled children, rather than
to punish them.@). West Virginia Code ' 49-4-714(b) (2015) provides unequivocally and
in mandatory language that A[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.

Syl. pt. 3, State ex rel. S J C. v. Fox, 165 W. Va. 314, 268 S.E.2d 56 (1980).

       There is nothing in the record to support the conclusion that the circuit court
followed its mandatory duty to consider the least restrictive alternative for sentencing A.D.
The dispositional order set out only one finding to support the draconian punishment
imposed on A.D. That finding merely stated that A.D. Ahas failed to understand the
seriousness of this act[.]@ The single finding of fact set out in the circuit court=s
dispositional order is inconsistent with the requirements of Rule 39(a)(1) of the West
Virginia Rules of Juvenile Procedure, which states in part:

       The dispositional order by the court shall contain written findings of fact to
       support the disposition and shall contain the following information:

       (A) why public safety and the best interest of the juvenile are served by the
       disposition ordered;

       (B) what alternative dispositions, if any, were recommended to the court and
       why such recommendations were not ordered.

       The placement of A.D. was on probation also not done in compliance with our rules.

                                              4

Under Rule 39(e) provides that,

      [u]pon a finding that the juvenile is in need of extra-parental supervision: (1)
      place the juvenile under the supervision of a probation officer of the court
      while leaving the juvenile in the home; and (2) prescribe a program of
      treatment, therapy or limitations upon the juvenile’s activities under
      reasonable terms which are within the juvenile’s ability to perform,
      including any appropriate program of community service and restitution.

The dispositional order did not set out any finding that A.D. needed extra-parental
supervision. Nor did the order set out any program of treatment or therapy. The order did
nothing more than impose unreasonable limitations on A.D.=s freedom.

      Further, the circuit court=s decision to place A.D. on home confinement was done
without any justification. Our law is longstanding and clear in holding that,

      [b]efore ordering the incarceration [which includes home confinement] of a
      child adjudged delinquent, the juvenile court is required to set forth upon the
      record the facts which lead to the conclusion that no less restrictive
      alternative is appropriate. The record must affirmatively show that the
      child=s behavioral problem is not the result of social conditions beyond the
      child=s control, but rather of an intentional failure on the part of the child to
      conform his actions to the law, or that the child will be dangerous if any other
      disposition is used, or that the child will not cooperate with any rehabilitative
      program absent physical restraint.

Syl. pt. 2, State ex rel. R.S. v. Trent, 169 W. Va. 493, 289 S.E.2d 166 (1982). None of the
factors set out under Trent were discussed in the circuit court=s dispositional order.

      Finally, Rule 12(c)(1) of the West Virginia Rules of Juvenile Procedure sets out a
presumption of unconditional release of a juvenile delinquent as follows:

      (c) Presumption for Unconditional Release.

      (1) The juvenile shall be released, with or without conditions, unless the
      court determines there is substantial likelihood that:

      (A) the juvenile's health or welfare would be immediately endangered;

      (B) the juvenile would endanger others;


                                             5

       (C) the juvenile would not appear for a court hearing; or

       (D) the juvenile would not remain in the care or control of the person into
       whose lawful custody the juvenile is released.

The dispositional order in this case failed to make a finding on any of Rule 12(c)(1)=s
requirements for denying the unconditional release of A.D.9

        We are gravely concerned about the egregious punishment imposed upon A.D. and
the emotional trauma he endured because of that punishment.10 AThis Court has been
unwavering in its attempts to attain resolutions that most thoroughly serve the best interests
of the child.@ State ex rel Ridge v. W. Virginia Dep’t of Health & Human Res., 238 W. Va.
268, 274, 793 S.E.2d 918, 924 (2016). The punishment imposed by the circuit court does
not serve the best interests of A.D. Although A.D. engaged in conduct that would be a
crime if committed by an adult, he was only twelve years old. It was a tragedy to toss him
into the gutter as a lost cause when his life had not yet truly begun. Our legal system must
never abandon our children.
       9
       The record indicates that A.D.=s mother and step-father were never questioned nor
allowed to speak at the dispositional hearing.
       10
         An affidavit was submitted by a therapist who has been treating A.D. since his
release from Highland Hospital. The therapist wrote the following:

       [1] As a child therapist I am very concerned for [A.D.=s] social and emotional
       health as well as his academic opportunities, or lack thereof, given the
       sentence of home confinement until age 18.

       [2] [A.D.] has consistently maintained that he has no hope of ever being a
       normal teenager.

       [3] I believe that in order for children to be the most productive and
       contributing members of society, they should be allowed the opportunity to
       atone for mistakes, but at a reasonable, developmentally appropriate level.
       Our state needs to provide the best experiences and opportunities for our
       children in order for us to produce healthy, contributing members to our
       society.


       [4] Preventing this child from participating in socially and emotionally
       necessary activities in order to meet developmental needs, is a detriment to
       this child and overall, to the community and ultimately, our state.

                                              6

        A.D. has been on home confinement for almost a year. During that time, he has
worn a GPS ankle monitoring bracelet and been confined to within 100 feet of his home.
The offense that he committed did not justify this punishment, nor were there any other
aggravating factors to support such punishment. Consequently, the circuit court=s
dispositional order is clearly erroneous as a matter of law. The writ of prohibition prayed
for is granted, and the circuit court=s dispositional order is prohibited from enforcement.
This case is remanded to the circuit court to enter a new dispositional order that releases
A.D. to his mother without any conditions.11 Finally, the Clerk of this Court is directed to
issue the mandate in this case forthwith.

                                                                                Writ granted.

ISSUED:       June 21, 2018

CONCURRED IN BY:
Chief Justice Margaret L. Workman
Justice Robin Jean Davis
Justice Menis E. Ketchum
Justice Elizabeth D. Walker
Justice Allen H. Loughry II suspended and therefore not participating




       11
          See W.Va. Code ' 49-4-701 (f)(1) (2016) (“If a juvenile commits an act which
would be a crime if committed by an adult, and the juvenile is adjudicated delinquent for
that act, the jurisdiction of the court which adjudged the juvenile delinquent continues until
the juvenile becomes twenty-one years of age.”).

                                              7