                                STATE OF WEST VIRGINIA

                              SUPREME COURT OF APPEALS


                                                                                 FILED
In re: J.S.                                                                    February 11, 2013
                                                                            RORY L. PERRY II, CLERK
                                                                          SUPREME COURT OF APPEALS
No. 12-0567 (Taylor County 12-JS-20)                                          OF WEST VIRGINIA


                                 MEMORANDUM DECISION

       Petitioner Mother’s pro se appeal arises from the Circuit Court of Taylor County’s order
entered on April 4, 2012, wherein the circuit court found that the minor child is a status offender
based on his truancy and ordered probation until the child turns eighteen. The State, by counsel
Marland L. Turner, has filed its response.

       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 is appropriate under Rule 21 of the Rules of Appellate
Procedure.

        A petition was filed alleging that J.S. had nine unexcused absences between the beginning
of the 2011-2012 school year and January 30, 2012. A hearing was held, during which time
Petitioner Mother claimed that the child had actually only missed five days of school unexcused,
as three of the days claimed by the school were in error. The assistant principal of the school
indicated that the records showed eight unexcused absences. After the adjudicatory hearing, the
disposition order was entered finding that the child was a status offender based on his truancy,
and ordered that the child be placed on probation until his eighteenth birthday.

       In reviewing challenges to the findings and conclusions of the circuit court, we
       apply a two-prong deferential standard of review. We review the final order and
       the ultimate disposition under an abuse of discretion standard, and we review the
       circuit court's underlying factual findings under a clearly erroneous standard.
       Questions of law are subject to a de novo review.

Syl. Pt. 2, Walker v. W.Va. Ethics Comm'n, 201 W.Va. 108, 492 S.E.2d 167 (1997). Petitioner
Mother argues on appeal that her son only had five total unexcused absences, not the eight alleged
by the school. Further, she argues that she was not contacted by the school regarding the absences
and argues that because her son is not a discipline problem he should not be placed on probation.
The State responds, arguing that even assuming that Petitioner Mother was correct in her son only
missing five days, he is still truant pursuant to West Virginia Code § 49-1-4(15). Moreover, the
State argues that any notice issues are irrelevant on appeal and that the only relevant issue on
appeal is whether the child was properly found to be a status offender.

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        Pursuant to West Virginia Code § 18-8-4(b), once a child misses five or more days of
school with unexcused absences, a complaint is made to the local magistrate. If a child is found to
be truant after an adjudicatory hearing, he may be found to be a status offender pursuant to West
Virginia Code § 49-1-4(15) which states that a “‘[s]tatus offender’ means a juvenile who has been
adjudicated as one: . . . (C) [w]ho is habitually absent from school without good cause[.]” In the
present case, the school produced evidence that the minor child missed eight days of school
unexcused. Even assuming petitioner’s contention that the child only missed five days is true, the
circuit court did not err in finding that the minor child was truant. Therefore, this Court finds no
error in the order of the circuit court.

       For the foregoing reasons, the circuit court’s order is hereby affirmed.


                                                                                         Affirmed.

ISSUED: February 11, 2013

CONCURRED IN BY:

Chief Justice Brent D. Benjamin
Justice Robin Jean Davis
Justice Margaret L. Workman
Justice Menis E. Ketchum
Justice Allen H. Loughry II




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