Submitted: April 24, 2018
Certified Questions from the Circuit Court of Lewis County
Honorable Kurt Hall, Judge Juvenile Abuse Neglect No.
C. Clevenger Assistant Prosecuting Attorney for Lewis County,
West Virginia Weston, West Virginia Attorney for the
Petitioner, West Virginia Department of Health and Human
Phillip Davis Arthurdale, West Virginia Attorney for the
Respondent Father, M.F.K.
J. Prall Buckhannon, West Virginia Attorney for the
Respondent Mother, K.A.L.
Alexandria Solomon Davis, West Virginia and Bryan S. Hinkle
Buckhannon, West Virginia Guardians ad Litem for the Minor
BY THE COURT
"When a child is born alive, the presence of illegal
drugs in the child's system at birth constitutes
sufficient evidence that the child is an abused and/or
neglected child, as those terms are defined by W.Va. Code
§ 49-1-201 (2015) (Repl. Vol. 2015), to support the
filing of an abuse and neglect petition pursuant to W.Va.
Code § 49-4-601 (2015) (Repl. Vol. 2015)." Syllabus
point 1, In Re: A.L.C.M., 239 W.Va. 382');">239 W.Va. 382, 801 S.E.2d
an infant child is born alive and becomes the subject of an
abuse and neglect petition, but the child dies during the
pendency of the abuse and neglect proceedings, the matter may
proceed to an adjudicatory hearing, and the presiding circuit
court may make findings of fact and conclusions of law as to
whether the subject child is an abused and/or neglected child
and whether the respondents are abusing and/or neglectful as
contemplated by W.Va. Code § 49-4-601(i) (2015) (Repl.
Vol. 2015). The circuit court's findings and conclusions
regarding the existence of abuse and/or neglect must,
however, be based upon the conditions alleged in the abuse
and neglect petition and any amendments thereto.
"Each child in an abuse and neglect case is entitled to
effective representation of counsel. To further that goal,
W.Va. Code, 49-6-2(a)  [now W.Va. Code §
49-4-601(f)] mandates that a child has a right to be
represented by counsel in every stage of abuse and neglect
proceedings. Furthermore, Rule XIII of the West Virginia
Rules for Trial Courts of Record provides that a
guardian ad litem shall make a full and independent
investigation of the facts involved in the proceeding, and
shall make his or her recommendations known to the court.
Rules 1.1 and 1.3 of the West Virginia Rules of
Professional Conduct, respectively, require an attorney
to provide competent representation to a client, and to act
with reasonable diligence and promptness in representing a
client." Syllabus point 5, in part, In re Jeffrey
R.L., 190 W.Va. 24, 435 S.E.2d 162 (1993).
an infant child is born alive, becomes the subject of an
abuse and neglect petition, and is appointed a guardian ad
litem to represent him/her in such case, but the child dies
during the pendency of the abuse and neglect proceedings, the
guardian ad litem remains involved in the case to advocate
for the child until the conclusion of such proceedings.
instant proceeding is before this Court upon two questions
certified by the Circuit Court of Lewis County. By order
entered September 26, 2017, the Circuit Court of Lewis County
certified the following questions for our consideration and
1. When an infant child is born alive, but dies during the
pendency of an Abuse and Neglect proceeding, prior to
adjudication, and said infant child is the only child in the
home, may the matter proceed to an adjudicatory hearing, and
may the deceased child be found and adjudicated to be an
abused or neglected child?
2. If an infant child is born alive, but dies during the
pendency of an Abuse and Neglect proceeding, and said infant
child is the only child in the home, should the Guardian
ad Litem remain a party to the proceeding to advocate
for the rights of the deceased child?
review of the parties' briefs, the record designated for
appellate consideration, and the pertinent authorities, we
answer both certified questions in the affirmative.
FACTUAL AND PROCEDURAL HISTORY
facts of the instant proceeding are straightforward and not
disputed by the parties. The infant child herein, I.M.K.,
born in July 2017 at St. Joseph's Hospital in Buckhannon,
West Virginia. At birth, the child had opiates in its system
as a result of the mother's admitted prenatal drug use.
Immediately following birth, I.M.K. had to be resuscitated
due to respiratory distress and was transferred to the
Neonatal Intensive Care Unit ("NICU") at Ruby
Memorial Hospital in Morgantown, West Virginia. While in the
NICU, I.M.K. was treated for severe neurological and
respiratory conditions based on a diagnosis of drug-affected
28, 2017, while I.M.K. was still in the NICU, the petitioner
herein and petitioner below, the West Virginia Department of
Health and Human Resources ("DHHR") filed the
underlying petition against the child's mother, the
respondent herein and respondent below, K.A.L.
("Mother"), and the child's father, an
additional respondent herein and respondent below, M.F.K.
("Father"). In its petition, the DHHR alleged that
I.M.K. was a "neglected and abused child" as a
result of the parents' illegal drug use, averring as
Based upon information and belief, the Respondent Mother,
[K.A.L.] made admissions to opiate use throughout her
pregnancy, as well as testing positive for controlled
substances during prenatal care. [K.A.L.], further admitted
that her most recent drug use took place three days prior to
the birth of the Infant Respondent [I.M.K.], when she
"sniffed a Percocet".
Based upon information and belief, the Infant
Respondent's urine tested positive for opiates following
Based upon information, and belief, Respondent Father,
[M.F.K.] has a history of opioid abuse, as well as abuse of
other controlled substances.
Based upon information, Respondent [M.F.K.], father of infant
respondent [I.M.K.], has failed to protect said infant
respondent by failing to take action upon reasonable
suspicion of drug use of the Respondent Mother, [K.A.L.],
knowing her history of drug use.
order entered July 28, 2017, the Circuit Court of Lewis
County transferred "[t]emporary legal and physical care,
custody, and control" of I.M.K. to the DHHR. The circuit
court also appointed counsel for each of the
parents and appointed a guardian ad
litem ("Guardian") for the minor
the circuit court held a hearing during which the parents
waived their right to have a preliminary hearing within ten
days so that the hearing could be concluded quickly to permit
them to attend a medical appointment for I.M.K., who was in
grave condition. The circuit court then found, by order
entered August 15, 2017, that the child "should remain
in the temporary legal and physical custody" of the DHHR
and ruled that, "[i]n light of the grave condition of
infant respondent [I.M.K.], this matter is continued
generally, pending the outcome of [the child's] medical
this hearing, I.M.K. died as a result of the aforementioned
medical issues; the child was approximately seventeen days
old. The court then held a preliminary hearing at which time
the child's parents moved to dismiss the subject abuse
and neglect case based upon the child's death, which
motion the DHHR and Guardian opposed. The Court refused to
dismiss the case, ruling in its September 6, 2017, order as
Significant questions of law and fact remain, and dismissal
is not appropriate at this time. The purpose of a preliminary
hearing being to make determinations as to imminent danger,
and/or to order removal of the child from the home if
conditions warrant such removal, the Court finds that a
preliminary hearing in this matter would be moot, due to the
death of the Infant Respondent.
The Court further finds that should the parties hereto wish
to prepare a certified question for submission and review by
the West Virginia Supreme Court of Appeals, they should
confer and submit that certified question to this Court for
court then set the matter for an adjudicatory hearing.
the scheduled adjudicatory hearing, the court decided to
certify questions for this Court's resolution. By
certification order entered September 26, 2017, the court
ruled as follows:
The allegations in the petition of this matter are related to
prenatal use of opiates. No abuse is alleged to have occurred
subsequent to the birth of the child. In light of the ruling
by the Supreme Court of Appeals of West Virginia in the case
of: In Re: A.L.C.M. No. 16-0786 (2017),  further guidance
from the ...