CHARLESTON – The West Virginia Supreme Court of Appeals issued a memorandum decision, stating that a truancy complaint filing wasn’t malicious in the case of a student who had missed more than two weeks of school.
A student, known as C.D., appealed an order by Grant Circuit Court that granted summary judgment in favor of Grant County Board of Education.
The Supreme Court affirmed that decision, finding no prejudicial error and no substantial question of law.
At all times relevant, C.D. was a senior at Petersburg High School. She suffers from diabetes, and her illness requires her to wear an insulin pump in order to check her blood sugar levels frequently.
Because of her condition, the school board agreed to excuse any absences related to her illness, pursuant to her 504 plan. She would not be penalized for absences required for medical appointments and/or illness. During the 2014-2015 school year, the petitioner’s 504 team met to discuss her condition at the beginning of the school year, but did not meet again.
In the fall semester of 2014, the petitioner missed several days of school. In December 2014, Assistant Principal Paula Weese, called the petitioner’s father to tell him that she had accumulated more than five absences. A notice was also sent to the petitioner, who was not living with her parents, but with a boyfriend, that informed her of the accumulation of five unexcused absences, and that a truancy complaint would be filed if she continued to be absent without an excuse.
C.D. also met with Weese regarding her absences that month.
During the meeting with Weese, C.D provided written excuses for all of her absences, and was informed that the board knew about her condition, and that she did not have to worry about a truancy complaint.
Petitioner also asserts that Weese told her during the meeting that “due to Ms. D. being on a 504 plan, the [Board] would contact Ms. D. or her father before truancy was considered.”
The board denies that the petitioner provided an excuse for all of her absences, and asserts that the excuses were not provided until January 2015.
The board also asserts that some of the excuses were due to a “job interview,” “transportation problems,” and “back pain.”
In the spring semester of 2015, the petitioner accumulated 14 additional unexcused absences and a truancy complaint was filed on April 9, 2015.
The board did not send the petitioner an additional notice, or make additional attempts to contact the petitioner or her father prior to filing the complaint.
C.D. was arraigned on the truancy complaint on April 15, 2015.
On May 12, 2015, C.D.’s father sent a letter to the board identifying the dates that the petitioner was absent due to her diabetes. Subsequently, the truancy complaint was dismissed.
The petitioner filed suit against the board on July 17, 2015, asserting claims for failure to accommodate pursuant to the West Virginia Human Rights Act; malicious prosecution; and reckless infliction of emotional distress.
The board filed an answer and a motion for summary judgment. C.D. also filed a motion for summary judgment.
At a hearing held Sept.19, 2016, the circuit court granted the board’s motion for summary judgment as to all three claims in the complaint.
The circuit court entered its order granting summary judgment to the board on Oct. 6, 2016. In its order, the circuit court found that the board complied with the West Virginia Legislative rules concerning attendance and the West Virginia Code.
C.D. then appealed the order and asked the Supreme Court to reverse the circuit court’s decision.
The petitioner complained that the circuit court judge should have recused himself because of bias.
“Petitioner asserts that the circuit court’s statements regarding his tenure as a prosecutor, that he ‘never bought’ petitioner’s claim for reckless infliction of emotional distress, and that he wanted to dismiss petitioner’s case ‘months ago,’ are direct evidence that the circuit court improperly relied upon personal experience to form an opinion in this case,” the memo states.
In response, the board notes that petitioner did not file a motion for disqualification, nor did she raise the issue of bias prior to the instant appeal.
As a result, the board argues, C.D. waived the right to raise this argument.
In her reply, the petitioner asserts that she noticed the argument in her notice of appeal to the Supreme Court, and argues that even if she failed to make the appropriate motion below, that the circuit court committed plain error in failing to recuse itself.
“We disagree with petitioner and find that petitioner failed to preserve this issue for appeal,” the memo states. “We have repeatedly held that ‘[e]rrors assigned for the first time on appeal will not be regarded in any matter of which the trial court had jurisdiction or which might have been remedied in the trial court, had objection been raised there.’”
The petitioner failed to provide a citation to the record where, either in writing or in oral presentation, she raised the issue of disqualification with the circuit court. Therefore, she has waived her right to raise this argument for the first time on appeal.
“The circuit court found, and we agree, that petitioner presented no evidence to prove that the filing of the truancy complaint was malicious,” the memo states. “Further, probable cause existed for the filing of the petition, as petitioner had accrued fourteen additional unexcused absences at the time the complaint was filed. Accordingly, we decline to reverse the circuit court’s decision to grant summary judgment on these claims.”
W.Va. Supreme Court of Appeals case number: 16-1035