Justices say Putnam school board doesn't have to give boy full-time nurse

CHARLESTON -- The West Virginia Supreme Court has sided with the Putnam County Board of Education, which was seeking to block a judge's order that it provide a full-time nurse to a wheelchair-bound boy.

In a per curiam opinion released Monday, the court said Wood Circuit Judge J.D. Beane violated the school board's due process rights by not alerting the board to a 2008 hearing during which Beane decided the 13-year-old boy -- identified in court records as C.E.M. -- would be provided with a full-time nurse.

"The circuit court clearly denied the school board its fundamental due process rights to notice and an opportunity to be heard," the opinion said. "In so doing, the circuit court did not have before it important evidence concerning the child's medical and educational history."

The opinion continued: "We find it troubling that neither the special prosecuting attorney, the guardian ad litem, (West Virginia Department of Health and Human Resources), nor the circuit court recognized the need to include the school board in these hearings wherein the School Board's interests were considered and decided ex parte."

C.E.M. was born prematurely in 1995 and left hospitalized for the first 8 months of his life, court records say. The DHHR filed an abuse and neglect petition against the boy's parents in 1996 in Wood County where he was born.

The state ultimately was given custody of C.E.M. and he was transferred to a foster home in Putnam County, where he's lived ever since.

The boy entered the Putnam school system in 1998. He's currently a sixth grader at Winfield Middle School.

The boy's representatives in the 2008 abuse and neglect hearing before Beane argued that he needed a full-time nurse because of his health problems and that he'd been provided with one in the past by the Putnam school board.

Prone to frequent seizures, the boy's representatives argued that since Winfield Middle School does not a full-time nurse, the boy needed to be provided with one.

According to court records, the nurse at Winfield Middle splits her time with another school ten minutes away. The boy's representatives, and a physician, argued to Beane that the distance could be detrimental to the boy's health if he were to suffer a seizure and have to be administered medication.

Beane, in a July 25, 2008, order, made a finding that C.E.M. required a full-time nurse while in school. The DHHR sent a copy of the order to the Putnam school board, which said it would take the matter under advisement.

Beane entered a second order in November which required the school board to provide a full-time nurse for C.E.M.

The school board appealed, seeking a writ of prohibition to block Beane's order.

In it's appeal, the school board presented an affidavit from Patricia Homberg, director of exceptional education, which stated that none of C.E.M.'s Individualized Education Plans noted the need for a full-time nurse.

Homberg further stated that during at least four of C.E.M.'s years in the Putnam school system, the schools had nurses that split their time with other schools.

Not only did the Supreme Court chastise Wood court officials for violating the school board's due process, it criticized the court for falling short in protecting C.E.M.

"A circuit court cannot adequately protect an abused child when the individuals who can supply pertinent facts are not given notice and the opportunity to present evidence," the opinion said. "It was clearly a significant oversight of the lower court and the parties to make no effort to include the school board in the relevant hearings, not only for the preservation of due process but also for determining an outcome that would be in C.E.M.'s best interests.

"The school board's documents reflecting C.E.M.'s educational and school medical records as well as testimony of school employees as to relevant information on the progress and needs of C.E.M. would surely shed light on the question of the best interests of this young man."

Justice Margaret Workman cocurred in part and dissented in part from the opinion. Chief Justice Benjamin reserved the right to file a concurring opinion.

Supreme Court case number: 09-C-34617