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In re I.M.K.

Supreme Court of West Virginia

June 4, 2018

IN RE I.M.K.

          Submitted: April 24, 2018

          Certified Questions from the Circuit Court of Lewis County Honorable Kurt Hall, Judge Juvenile Abuse Neglect No. 17-JA-17

          James C. Clevenger Assistant Prosecuting Attorney for Lewis County, West Virginia Weston, West Virginia Attorney for the Petitioner, West Virginia Department of Health and Human Resources.

          G. Phillip Davis Arthurdale, West Virginia Attorney for the Respondent Father, M.F.K.

          Thomas 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 Child, I.M.K.

         SYLLABUS BY THE COURT

         1. "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 260 (2017).

         2. When 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.

         3. "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) [1992] [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).

         4. If 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.

          OPINION

          DAVIS, JUSTICE

         The 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 decision:

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?

         Upon a review of the parties' briefs, the record designated for appellate consideration, and the pertinent authorities, we answer both certified questions in the affirmative.

         I. FACTUAL AND PROCEDURAL HISTORY

         The facts of the instant proceeding are straightforward and not disputed by the parties. The infant child herein, I.M.K., [1] was 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 birth.

         On July 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 follows:

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 birth.
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.

         By 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[2] and appointed a guardian ad litem[3] ("Guardian") for the minor child.

         Thereafter, 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 treatment."

         Following 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 follows:

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 review.

         The court then set the matter for an adjudicatory hearing.

         Before 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), [4] further guidance from the ...

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