Judge won't dismiss complaint school board filed
CHARLESTON, W.Va. -- A judge won't dismiss a complaint filed by the Kanawha County school board against the mother of a boy who police say had been abused by his teacher.
Three students are set to go to trial next year in a lawsuit claiming the Kanawha County Board of Education could have protected them from alleged sexual abuse by Edwin Albert Smuda, a former JROTC teacher at South Charleston High School.
Earlier this year, three of Smuda's former students filed a lawsuit in Kanawha Circuit Court against his estate and the Board of Education, claiming the board was negligent and recklessly exposed the students, who were then juveniles, to Smuda.
Attorneys for the school board have denied the claims and filed a third-party complaint against the mother of one of the juveniles, stating that if the board is found liable the mother should also be held accountable because she "permitted and encouraged him" to associate with Smuda.
Kanawha Circuit Judge James Stucky on Wednesday denied a motion filed by the mother's lawyers to dismiss that complaint.
Attorney Karen McElhinny, who is representing the school board, said the mother operated a Facebook support page for Smuda.
"Numerous posts were made calling the accusers liars," she said. "I'm troubled that an adult would do that -- have a campaign against other kids in their child's school."
Robert Lorea, an attorney for the juveniles and the boy's mother, called the accusations "venomous" and said the mother didn't create the Facebook page. Her name was wrongly used by the person who actually created it, he said.
"We're here about a sexual abuse case. It's troubling the school board equates comments someone made on Facebook to be on par with sexual abuse," Lorea said.
He added after the hearing that he was "disappointed that the school board would use that defense.
He hopes to find out that lawyers are responsible for that defense, and "not our school board."
McElhinny said neither side has received records yet requested from the Federal Bureau of Investigation. Once those records are reviewed, there would be more support for the complaint filed against the mother, she said.
Smuda, of Dunbar, was charged with first-degree sexual abuse by a parent or guardian in November 2011. In July last year, Smuda was found hanged in an apparent suicide at his sister's house in New Jersey. He was 59.
According to the criminal complaint on file in Kanawha County Magistrate Court, Smuda was charged with sexually abusing one student at his home in Dunbar. He had worked as the JROTC instructor at South Charleston High School for 15 years.
A juvenile male and his mother reported to the Dunbar Police Department in October 2011 that Smuda made sexual advances toward the teenager while they were watching a movie at Smuda's residence on Grandview Drive, the criminal complaint states.
According to the lawsuit filed by the students, the school board had received several reports that students were living with Smuda at his home and accompanying him on vacations.
"The Board, however, took no action to protect the students entrusted to its care. Because of the undeserved trust the Board placed in Smuda countless parents placed their trust and the health and wellbeing of their young sons in Smuda," the lawsuit states.
According to the lawsuit, school administrators received complaints from parents about Smuda's inappropriate behavior toward some of his male students.
A parent filed one complaint in August 2008, according to the lawsuit, that alleged Smuda had put whipped cream down a student's pants.
That complaint resulted in Smuda being placed on leave for one week, the suit states.
In February 2011, one of the alleged victims named in the lawsuit became Smuda's foster child. After a trip two of the alleged victims took with Smuda to Key West, Fla., in connection with the Black Eagle JROTC program, school officials received complaints about alcohol consumption and inappropriate behavior of chaperones in front of the cadets, the lawsuit states. But the board took no action, according to the lawsuit.
In June 2011, Child Protective Services removed Smuda's foster child when Smuda informed CPS he would take the juvenile to Florida. Smuda allegedly took the juvenile to Florida anyway, according to the lawsuit. Another juvenile later joined them.
In Florida, Smuda is alleged to have supplied the juveniles with alcohol and performed oral sex on them, the complaint states.
After the trip, one of the juveniles gave a note to the school's resource officer revealing details about the abuse, according to the complaint. Smuda was then placed on paid leave.
The case is set for trial next April.
Reach Kate White at firstname.lastname@example.org or 304-348-1723.