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State ex rel. C. H. v. Faircloth

Supreme Court of West Virginia

July 6, 2018

STATE OF WEST VIRGINIA ex rel. C. H. and S. H., Foster Parents of J. L., Jr., Petitioners,
v.
THE HONORABLE LAURA V. FAIRCLOTH, Judge Of the Circuit Court of Berkeley County, West Virginia, THE WEST VIRGINIA DEPARTMENT OF HEALTH AND HUMAN RESOURCES, A. M., J. L., AND M. V., Respondents.

          Submitted: June 21, 2018

         PETITION FOR WRIT OF PROHIBITION

          Stephanie E. Scales-Sherrin, Esq. Martinsburg, West Virginia Attorney for Petitioners C. H. and S. H.

          Kimberley Crockett, Esq. Martinsburg, West Virginia Attorney for Respondent Mother A. M.

          Patrick Morrisey, Esq. Attorney General Melinda C. Dugas, Esq. Assistant Attorney General Charleston, West Virginia Attorney for West Virginia Department of Health and Human Resources.

          Debbie Flowers Payne, Esq. Martinsburg, West Virginia Guardian ad Litem for Respondent Mother A. M.

          Nicholas Forrest Colvin, Esq. Martinsburg, West Virginia Attorney for Respondent Father J. L.

          Jeffrey K. Matherly, Esq. Martinsburg, West Virginia Guardian ad Litem for J. L., Jr.

          JUSTICE LOUGHRY suspended and therefore not participating.

         SYLLABUS

         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. "Foster parents who are granted standing to intervene in abuse and neglect proceedings by the circuit court are parties to the action who have the right to appeal adverse circuit court decisions." Syl. Pt. 1, In re Harley C, 203 W.Va. 594, 509 S.E.2d 875 (1998).

         3. "The foster parents' involvement in abuse and neglect proceedings should be separate and distinct from the fact-finding portion of the termination proceeding and should be structured for the purpose of providing the circuit court with all pertinent information regarding the child. The level and type of participation in such cases is left to the sound discretion of the circuit court with due consideration of the length of time the child has been cared for by the foster parents and the relationship that has developed." Syl. Pt. 1, in part, In re Jonathan G., 198 W.Va. 716, 482 S.E.2d 893 (1996).

         4. Foster parents, pre-adoptive parents, or relative caregivers who occupy only their statutory role as individuals entitled to a meaningful opportunity to be heard pursuant to West Virginia Code § 49-4-601(h) (2015) are subject to discretionary limitations on the level and type of participation as determined by the circuit court. Foster parents who have been granted the right to intervene are entitled to all the rights and responsibilities of any other party to the action. To the extent that this holding is inconsistent with In re Jonathan G., 198 W.Va. 716, 482 S.E.2d 893 (1996), our holding in In re Jonathan G. is hereby modified.

         5. "Although parents have substantial rights that must be protected, the primary goal in cases involving abuse and neglect, as in all family law matters, must be the health and welfare of the children." Syl. Pt. 3, In re Katie S., 198 W.Va. 79, 479 S.E.2d 589 (1996).

         6. "In a contest involving the custody of an infant the welfare of the child is the polar star by which the discretion of the court will be guided." Syl. Pt. 2, State ex rel. Lipscomb v. Joplin, 131 W.Va. 302, 47 S.E.2d 221 (1948).

         7. Foster parents are entitled to intervention as a matter of right when the time limitations contained in West Virginia Code § 49-4-605(b) (2017) and/or West Virginia Code § 49-4-610(9) (2015) are implicated, suggesting that termination of parental rights is imminent and/or statutorily required.

         8. "Child abuse and neglect cases must be recognized as being among the highest priority for the courts' attention. Unjustified procedural delays wreak havoc on a child's development, stability and security." Syl. Pt. 1, in part, In re Carlita B., 185 W.Va. 613, 408 S.E.2d 365 (1991).

          OPINION

          WORKMAN, C. J.

         Petitioners/foster parents C. H. and S. H.[1] (hereinafter "foster parents"), seek a writ of prohibition precluding the Circuit Court of Berkeley County from enforcing its March 23, 2018, order denying their motion to intervene and its June 7, 2018, order granting the biological parents A. M. and J. L. (hereinafter collectively "biological parents" and/or "biological mother" and "biological father") post-dispositional improvement periods. The foster parents assert that the circuit court exceeded its legitimate authority by not granting them an evidentiary hearing on their motion to intervene and by granting the biological parents post-dispositional improvement periods in excess of statutory time limitations. The Department of Health and Human Resources (hereinafter "DHHR"), J. L., Jr.'s guardian ad litem, and the biological parents argued below that intervention by the foster parents would have been inappropriate prior to termination of the biological parents' parental rights and that the foster parents have no standing to challenge the post-dispositional improvement periods. Nevertheless, DHHR now maintains that the biological parents' parental rights should be terminated by operation of the statutory time limitations; J. L., Jr.'s guardian ad litem likewise now concurs in that assessment as to biological mother, for her failure to adequately demonstrate improvement.

         Upon careful review of the briefs, the appendix record, the arguments of the parties, and the applicable legal authority, we find that the circuit court committed clear error as a matter of law and that the foster parents raise important issues of first impression. We therefore grant the writ of prohibition and remand this case with directions to the circuit court to vacate its order granting the biological parents post-dispositional improvement periods, grant the foster parents' motion to intervene, and to immediately schedule this matter for disposition, conducting any and all further proceedings as necessary and appropriate in this matter in a timely manner.

         I. FACTS AND PROCEDURAL HISTORY

         Respondent biological parents A. M. and J. L. were each named in an abuse and neglect petition shortly after infant J. L., Jr. was born prematurely. The instant petition was based on domestic violence and contentious behavior between the biological parents at the hospital while J. L., Jr. was in the Neonatal Intensive Care Unit (NICU). After approximately eight weeks in the NICU, J. L., Jr. was placed into foster care with the foster parents, where he has remained. He is currently approximately twenty-one months old and continues to suffer from feeding and developmental issues. Biological mother A. M. has prior terminations to three children; biological father J. L. has none. Issues of inadequate housing as pertained to both biological parents [2] and biological mother A. M.'s low intellectual functioning were later uncovered. The biological mother, who is also hard of hearing, was provided a guardian ad litem as well as counsel, and reasonable accommodation under the Americans with Disabilities Act of 1990, 42 U.S.C. § 12101 et seq., and West Virginia. Code §49-4-604(a)(1) (2016).

         Both biological parents admitted to abuse and neglect, whereupon a post-adjudicatory improvement period was ordered for each. None of the orders entered herein are specific about the length of any of the improvement periods, but both biological parents were granted subsequent extensions of their respective improvement periods. They continued on general post-adjudication improvement periods until March 28, 2018, at which point the biological mother had been provided an approximate eleven-month improvement period and the biological father had been provided a one-year, three-month improvement period.[3]

         During their respective improvement periods each biological parent had issues with visitation consistency-the biological father due to transportation issues and the biological mother due to a Virginia-based anonymous DHHR report resulting in termination of her visits in Virginia, where she lived with her father. Both biological parents were eventually compliant with services, but continually struggled to obtain consistent and appropriate housing. During their respective improvement periods, J. L., Jr.'s then-guardian ad litem[4] sought to revoke their improvement periods based on weight loss and illness by J. L., Jr. after visits with biological mother A. M.

         In December 2017, the foster parents retained counsel who noticed her appearance; the circuit court ordered her removed from the e-filing system, [5] however, given that the foster parents were not parties. Shortly thereafter, the foster parents moved to intervene. A hearing was conducted on the motion to intervene on February 14, 2018, whereupon the circuit court denied the motion. The circuit court found that the intervention was premature since it was still in the "fact-finding," pre-termination stage but that the foster parents would be permitted to participate fully in the MDT meetings and attend hearings.[6] The circuit court found there was nothing more the foster parents could offer as parties than they could in their capacity as participants. The foster parents' counsel did not specifically request to introduce evidence at the time the hearing was conducted; however, the foster parents had previously moved to introduce testimony from their pediatric dietician by telephone. The circuit court denied that motion, finding that telephone testimony inhibited the court's ability to observe the witness' demeanor and was unfair to the biological mother who was intellectually challenged and hard of hearing. Other than this motion, the foster parents did not seek to introduce any other evidence on the record, nor did they object specifically to not being permitted to introduce evidence.[7]J. L., Jr.'s then-guardian ad litem supported the foster parents' intervention.

         Also at this hearing, the circuit court took evidence on the previous request of the guardian ad litem to revoke the biological parents' improvement periods.[8] The then-guardian ad litem's request to revoke the improvement periods was based on the biological mother's lack of care during visits, causing the child to be returned sickly and having lost weight and the biological father's ostensible abandonment of his other child, who was also subject of this proceeding.[9] The circuit court found no reason to revoke the improvement period after hearing the testimony of the biological mother's separately-retained physician who opined that J. L., Jr. was healthy and not medically fragile, as had been suggested. The circuit court further found that any slight weight loss that had occurred was negligible and potentially due to weighing discrepancies and/or recent illness of the child.

         The hearing on the motion to revoke was continued to a later date generally for "anything further" on the revocation. It was then sua sponte rescheduled for a later date due to a family emergency of the court. Apparently, the foster parents' counsel provided notice of a scheduling conflict with the new date and was advised by court staff that the court would wait on her arrival at the hearing; however, that apparently did not occur. The hearing was resumed without the foster parents or their counsel being present, nor was their absence noted. During this hearing, which was presumably to be a continuation of the motion to revoke improvement period, the circuit court proceeded to award a six-month post-dispositional improvement period to the biological parents. No objection was made by any parties in attendance, including the new guardian ad litem.[10]As of that date, neither biological parent had independent housing, but the biological father was purportedly being permitted to reside permanently with his parents. The foster parents thereafter filed the instant writ.

         II. STANDARD OF REVIEW

         The factors for the issuance of a writ of prohibition are well-established:

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). With this standard in mind, we turn to the foster parents' assignments of error.

         III. DISCUSSION

         The foster parents make three assignments of error; however, the last two are effectively the same.[11] First, the foster parents argue that the circuit court erred in denying their motion to intervene without an evidentiary hearing. Secondly, the foster parents argue that the circuit court erred in awarding a post-dispositional improvement period which purportedly violates the time limitations set forth in West Virginia Code § 49-4-601 et seq. and lacks sufficient findings to support such an improvement period. We will address each error in turn.

         A. Intervention by Foster Parents

         As indicated, the foster parents first claim that the circuit court exceeded its legitimate powers by denying their motion to intervene in absence of an evidentiary hearing. Although the foster parents frame this issue procedurally, in terms of the circuit court's failure to hold an evidentiary hearing on their motion to intervene, it is clear from the parties' arguments that the crux of the legal issue presented is the more substantial issue of a foster parent's entitlement to intervene in a pending abuse and neglect proceeding. Although, as examined more fully infra, this Court has discussed the proper role of foster parents in abuse and ...


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