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State ex rel. H.S. v. Beane

Supreme Court of West Virginia

May 30, 2018


          Submitted: April 25, 2018

          Jeffrey B. Reed, Esq. Parkersburg, West Virginia Counsel for Petitioners H.S. and J.S.

          Patrick Morrisey, Esq. Attorney General Charleston, West Virginia Chaelyn W. Casteel, Esq. Assistant Attorney General Fairmont, West Virginia Counsel for Respondent DHHR

          Jessica E. Myers, Esq. Myers Law Offices Parkersburg, West Virginia CounselforRespondentsT.B.and A.C.

          Courtney L. Ahlborn, Esq. Parkersburg, West Virginia Guardian ad Litem


         1. "In determining whether to entertain and issue the writ of prohibition for cases not involving an absence of jurisdiction but only where it is claimed that the lower tribunal exceeded its legitimate powers, this Court will examine five factors: (1) whether the party seeking the writ has no other adequate means, such as direct appeal, to obtain the desired relief; (2) whether the petitioner will be damaged or prejudiced in a way that is not correctable on appeal; (3) whether the lower tribunal's order is clearly erroneous as a matter of law; (4) whether the lower tribunal's order is an oft repeated error or manifests persistent disregard for either procedural or substantive law; and (5) whether the lower tribunal's order raises new and important problems or issues of law of first impression. These factors are general guidelines that serve as a useful starting point for determining whether a discretionary writ of prohibition should issue. Although all five factors need not be satisfied, it is clear that the third factor, the existence of clear error as a matter of law, should be given substantial weight." Syl. Pt. 4, State ex rel Hoover v. Berger, 199 W.Va. 12, 483 S.E.2d 12 (1996).

         2. "The word 'shall, ' in the absence of language in the statute showing a contrary intent on the part of the legislature, should be afforded a mandatory connotation." Syl. Pt. 2, Terry v. Sencindiver, 153 W.Va. 651, 171 S.E.2d 480 (1969).



         The petitioners H.S. and J.S., who are the long-time foster and designated preadoptive parents of the minor child T.C., seek a writ of prohibition to prevent the enforcement of the January 9, 2018, order of the Circuit Court of Wood County in an ongoing abuse and neglect proceeding. [1] This order granted visitation with the child to respondents T.B. and A.C., who are the child's paternal grandmother and paternal aunt, respectively.[2] The petitioners contend that the circuit court granted the visitation without affording them notice or a meaningful opportunity to be heard, as required by law. After reviewing the parties' arguments, the appendix record, and the pertinent law, we grant the writ of prohibition.[3]

         I. Factual and Procedural Background

         The child, T.C., was born in March 2013. In December 2014, the Department of Health and Human Resources ("DHHR") filed an abuse and neglect petition against the child's biological parents. [4] As a result, the child was removed from the home and temporarily placed with the paternal grandmother, respondent T.B. However, the guardian ad litem explains that T.B. allowed the father to have contact with T.C. in contravention of the DHHR's instructions, so the child was subsequently moved to the petitioners' home. The petitioners, who are T.C.'s maternal aunt and uncle, have cared for T.C. since April 2015 and wish to adopt him.

         Both biological parents stipulated to adjudications of abuse and, ultimately, they both failed to complete post-adjudicatory improvement periods. The mother's parental rights were terminated on November 17, 2016, and she did not appeal. The father's parental rights were terminated on August 15, 2017, and he filed a petition for appeal with this Court on October 24, 2017. The multidisciplinary treatment team has proposed a permanency plan for the child of adoption by the petitioners, and permanent placement review hearings have been held in furtherance of this plan.

         On October 27, 2017, during the pendency of the father's appeal, the respondents filed a motion to intervene and motion for custody of T.C. with the circuit court. Respondent T.B. sought grandparent visitation, while respondent A.C. sought permanent custody. Theyalso sought visitation with the child pending further proceedings. This motion was not served upon the petitioners, and no one notified the petitioners of either the motion or the circuit court's January 2, 2018, evidentiary hearing to address the motion. During this hearing, the respondents testified and the court admitted photographs of the child into evidence.[5] Over the DHHR's and guardian ad litem's objections, the circuit court ordered that the respondents would receive supervised visitation with the child once every two weeks for two hours. The respondents' requests to intervene and for custody were taken under advisement. These rulings were reflected in an order entered on January 9, 2018.

         Upon being informed by a child care agency that the circuit court had ordered this visitation, the petitioners filed a combined motion to intervene, to be recognized as persons entitled to notice and the opportunity to be heard, and to prohibit the visitation. The circuit court held a hearing on the petitioners' motion on February 26, 2018, and, by order entered on March 6, 2018, the court granted the petitioners' motion to intervene and recognized them as persons entitled to notice. However, the circuit court refused to stop the respondents' visitation.

         On March 13, 2018, the petitioners filed the instant petition for a writ of prohibition. This Court granted a stay of the January 9, 2018, visitation order pending consideration of the petition, and issued a rule to show cause. Having now ...

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