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State ex rel. R.H. v. Bloom

Supreme Court of West Virginia

May 5, 2017

State of West Virginia ex rel. R.H., Petitioner
v.
The Honorable Louis H. Bloom, Judge of the Circuit Court of Kanawha County, West Virginia, The West Virginia Department of Health and Human Resources, and A.H., Respondents

          MEMORANDUM DECISION

         The petitioner R.H., [1] by counsel James M. Pierson, seeks a writ of mandamus requiring the Honorable Louis H. Bloom, Judge of the Circuit Court of Kanawha County, to allow him to intervene in a pending abuse and neglect case pertaining to his grandchildren. In the alternative, the petitioner asks for a writ of mandamus requiring the circuit court to afford him a meaningful opportunity to participate in the abuse and neglect proceedings. In response, the West Virginia Department of Health and Human Resources ("DHHR"), by counsel Michael Jackson, and the children's guardian ad litem Jennifer R. Victor, assert that a writ of mandamus is not warranted.

         After carefully considering the parties' written and oral arguments, we deny the petition for mandamus. As there is no substantial question of law and no right to mandamus relief, we dispose of this matter in a memorandum decision pursuant to Rule 21 of the Rules of Appellate Procedure.

         I. Factual and Procedural Background

         This Court has not been provided with a record in this matter.[2] However, based on the briefs filed by the petitioner, the DHHR, and the guardian ad litem, we have been able to derive the following information that appears to be undisputed. The petitioner's daughter, A.H., has four children. She left some or all of these children at the petitioner's home and disappeared on April 25, 2016; reportedly, no one was able to locate or contact her after this date. D.W. is the father of two of A.H.'s children, B.W. and G.W., but D.W. has been absent from his children's lives for several years. On May 16, 2016, the DHHR filed an abuse and neglect petition alleging, inter alia, that A.H. and D.W. had abandoned their children. During a preliminary hearing on May 27, 2016, the circuit court awarded temporary legal custody of the children to the DHHR. The court formally placed B.W. and G.W. in the petitioner's home pending the outcome of the abuse and neglect proceedings.[3]

         According to the petitioner, on September 20, 2016, he filed with the circuit court a "Petition for Adjudication as Psychological Parent of the Infant Children and Motion to Intervene for Purposes of Establishing Psychological Parent." The circuit court considered this motion at a hearing in November of 2016 where the petitioner provided sworn testimony. According to the petitioner, the court denied his motion to be declared a psychological parent but nonetheless allowed the petitioner's counsel to monitor the abuse and neglect proceedings. The petitioner reports that he, personally, was sent out of the courtroom, but his lawyer was permitted to stay for the remainder of the hearing. According to the DHHR and the guardian ad litem, during the November 2016 hearing, the circuit court adjudicated A.H. and D.W. as abusing parents for having abandoned their children.

         The petitioner states that, thereafter, he was personally allowed to participate in a meeting of the Multidisciplinary Treatment Team ("MDT") regarding the children.[4]However, he says his lawyer was refused entrance to the meeting by another meeting participant. The petitioner reports that his lawyer tried to contact the judge's staff about access to the meeting, but was unsuccessful. There is no indication in the petitioner's brief that he ever filed a motion with the circuit court regarding his and/or his lawyer's participation in this or future MDT meetings.

         According to the DHHR and the guardian ad litem, the circuit court held a dispositional hearing on January 5, 2017, and terminated the parental rights of both A.H. and D.W.[5] The DHHR and the guardian ad litem inform this Court that the permanency plan for the children B.W. and G.W. is permanent placement with the petitioner. The guardian ad litem represents that she has already recommended to the circuit court that B.W. and G.W. be adopted by the petitioner, and she is prepared to assist the petitioner in obtaining a subsidized adoption.

         The petitioner filed his petition for a writ of mandamus with this Court on January 3, 2017. On January 5, 2017, he filed a motion asking this Court to stay the abuse and neglect case because he had learned the circuit court was about to hold a hearing to address the permanent placement of B.W. and G.W. Based upon the petitioner's representations, on January 5, 2017, this Court stayed the circuit court's permanency proceedings pending our review of the mandamus petition. A rule to show cause order was issued on February 14, 2017, and the DHHR and the guardian ad litem filed timely response briefs. This Court heard oral arguments on April 18, 2017, and the petition for mandamus is now ready for decision.

         II. Standard of Review

         It is well-settled that "[a] writ of mandamus will not issue unless three elements coexist-(1) a clear legal right in the petitioner to the relief sought; (2) a legal duty on the part of respondent to do the thing which the petitioner seeks to compel; and (3) the absence of another adequate remedy." Syl. Pt. 2, State ex rel. Kucera v. City of Wheeling, 153 W.Va. 538, 170 S.E.2d 367 (1969). This Court has also explained that "[s]ince mandamus is an 'extraordinary' remedy, it should be invoked sparingly." State ex rel. Billings v. City of Point Pleasant, 194 W.Va. 301, 303, 460 S.E.2d 436, 438 (1995). With this in mind, we consider the issues raised.

         III. Discussion

         As a preliminarymatter, we are somewhat stymied to understand why, from a practical standpoint, the petitioner has elected to pursue this petition for mandamus. He obviously wishes to adopt B.W. and G.W., and that is exactly what the guardian ad litem and the DHHR have recommended and are poised to pursue. The petitioner's mandamus petition and motion to stay have delayed the very relief he seeks. These actions have also delayed the children's opportunity to obtain needed permanency in their lives. Although the petitioner may disagree with the circuit court's denial of his motion to be declared a psychological parent, he certainly does not need that designation to adopt B.W. and G.W. now that the biological parents' rights have been terminated.

         Turning to the petitioner's mandamus arguments, he asserts that he has had physical custody of these children both before and during the pendency of the abuse and neglect proceedings. As such, he claims the right to be a party in the abuse and neglect case pursuant to the provisions of West Virginia Code § 49-4-601(h) (2015):

(h) Right to be heard. In any proceeding pursuant to this article, the party or parties having custodial or other parental rights or responsibilities to the child shall be afforded a meaningful opportunity to be heard, including the opportunity to testify and to present and cross-examine witnesses. Foster parents, preadoptive parents, and ...

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