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In re Z.D.

Supreme Court of West Virginia

November 2, 2017

In The Interest Of Z.D. and D.D.

          Submitted: October 3, 2017

         Appeal from the Circuit Court of Mercer County The Honorable Derek C. Swope, Judge Civil Action Nos. 16-JAT-424-DS and 16-JAT-425-DS

         AFFIRMED, IN PART; AND REVERSED, IN PART

          Gerald R. Linkous, Esq. Mercer County Public Defenders Corporation Princeton, West Virginia Counsel for the Petitioner

          David B. Kelley, Esq. The Kelley Law Firm Bluefield, West Virginia Guardian ad Litem

          Patrick Morrisey, Esq. Attorney General S. L. Evans, Esq. Assistant Attorney General Charleston, West Virginia Counsel for the Respondent The Department of Health and Human Resources

         SYLLABUS BY THE COURT

         1. "'When this Court reviews challenges to the findings and conclusions of the circuit court, a two-prong deferential standard of review is applied. 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.' Syl., McCormick v. Allstate Ins. Co., 197 W.Va. 415, 475 S.E.2d 507 (1996)." Syl. Pt. 1, In re S.W., 236 W.Va. 309, 779 S.E.2d 577 (2015).

         2. "Where the issue on an appeal from the circuit court is clearly a question of law or involving an interpretation of a statute, we apply a de novo standard of review." Syl. Pt. 1, Chrystal R.M. v. Charlie A.L., 194 W.Va. 138, 459 S.E.2d 415 (1995).

         3. An indigent litigant is not entitled to court-appointed counsel in a domestic relations proceeding. Further, upon the filing of an abuse and neglect petition, which results in appointment of counsel for an indigent litigant, once the abuse and neglect proceeding is dismissed, the litigant is not entitled to court-appointed counsel in subsequent domestic relations proceedings.

         4. Pursuant to Rule 47 of the West Virginia Rules of Practice and Procedure for Family Court, courts shall not routinely assign guardians ad litem for children in a domestic relations case. Where, however, the court is presented with substantial allegations of domestic abuse, serious allegations of abuse and neglect, serious issues relating to the child's health and safety, or allegations involving disproving a child's paternity, a guardian ad litem shall be appointed by the court for the child(ren).

         5. Under Rule 47 of the West Virginia Rules of Practice and Procedure for Family Court, the order appointing a guardian ad litem shall specify the terms of the appointment, including the guardian's role, duties and scope of authority, the issues to be investigated, as well as the specific reasons for the appointment and the expectations of the court for the guardian ad litem's report, including the date by which the written report is due. The order appointing a guardian ad litem shall also require the parties to fully cooperate with the guardian ad litem in terms of the investigation.

         6. Before a guardian ad litem may seek payment by this Court, a proper order that comports with Rule 47 of the West Virginia Rules of Practice and Procedure for Family Court must be entered and there must be compliance with the requirements of West Virginia Trial Court Rule 21.04 and 21.05.

          WORKMAN, JUSTICE.

         In this appeal, the Court is asked to determine whether a parent, who had court-appointed counsel in an abuse and neglect proceeding, is entitled to representation by court-appointed counsel once the abuse and neglect proceeding is dismissed and further action is brought in a domestic relations case. The petitioner father, C.D., [1] appeals the Circuit Court of Mercer County's order, entered January 18, 2017, determining that once the abuse and neglect proceeding was dismissed, the petitioner was no longer entitled to court-appointed counsel to resolve a custody issue within the confines of a subsequent domestic relations case. Upon review of the parties' briefs[2] and arguments, the appendix record, and all other matters submitted before the Court, we affirm the circuit court's ruling on the court-appointed counsel issue. But we reverse the circuit court's decision to continue the appointment of the guardian ad litem for the children in the domestic relations proceeding.

         I. Facts and Procedural History

         The petitioner and A.D., [3] filed for divorce in the Family Court of Mercer County. In 2012, as part of the domestic relations proceeding, the parents entered into a "Mediated Parenting Plan" concerning their two children, Z.D. and D.D.[4] At the time this plan was adopted by the family court, the petitioner was pro se.

         On April 26, 2016, the DHHR filed an abuse and neglect petition against both parents, alleging that the children were neglected as a result of their excessive absenteeism from school. The filing of the abuse and neglect proceeding by the DHHR caused the matter to be transferred to the jurisdiction of the circuit court.[5] The circuit court appointed a guardian ad litem for the children and counsel for each of the parents.

         On July 18, 2016, the circuit court conducted an adjudicatory hearing and by order entered August 2, 2016, the circuit court accepted the DHHR's recommendation that the parents be placed on a preadjudicatory improvement period. On December 12, 2016, the circuit court held another hearing on the DHHR's motion to dismiss[6] the case as the parents had successfully completed the preadjudicatory improvement period by resolving the truancy concerns involving their children. According to the transcript of that hearing, the circuit court noted at the beginning of the hearing that the mother had just filed a motion for custody of the children.[7] The circuit court indicated that it was granting DHHR's motion to dismiss and would retain jurisdiction over the domestic relations case. The circuit court, however, stated that it was giving the parents one shot to resolve the mother's motion for custody at a Multi-Disciplinary Treatment Team ("MDT") meeting "on the State's nickel. I'm going to dismiss it [referring to the abuse and neglect case] but with one more MDT on the State's nickel and the purpose of that is to discuss this Motion for Custody." After the MDT meeting, the circuit court informed the petitioner and the mother that they were no longer entitled to court-appointed counsel as the abuse and neglect case was over.[8]

         In a January 18, 2017, order, the circuit court memorialized what occurred at the December 12, 2016, hearing. Specifically, the circuit court found that a motion for custody had been filed; that the DHHR requested that the matter be dismissed; that after one more MDT meeting, scheduled for January 5, 2017, the circuit court was dismissing and removing the abuse and neglect case from its docket; that thereafter the case was a domestic case; that the petitioner and the mother were "not entitled to counsel dealing with a custody issue[;]" and that the guardian ad litem for the infant children "will bill under the Supreme Court guidelines for domestic cases." It is from this order that the petitioner appeals.

         II. ...


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