SER T.K. v. Honorable Lora A. Dyer, Judge, West Virginia DHHR, and T.C. ( 2020 )

STATE OF WEST VIRGINIA
SUPREME COURT OF APPEALS
State of West Virginia ex rel. T.K.,
Petitioner FILED
May 26, 2020
vs.) No. 19-1135 (Jackson County 19-JA-108) released at 3:00 p.m.
EDYTHE NASH GAISER, CLERK
SUPREME COURT OF APPEALS
The Honorable Lora Dyer, OF WEST VIRGINIA
Judge of the Circuit Court of Jackson County,
West Virginia, the West Virginia Department of
Health and Human Resources, and T.C.
Respondents
MEMORANDUM DECISION
The guardian ad litem (“the GAL”), Erica Brannon Gunn, of the infant child, T.K.,1 invokes
this Court’s original jurisdiction, seeking a writ of prohibition to prevent the circuit court from
enforcing its November 25, 2019, order. In its order, the circuit court found that the respondent
maternal grandmother, T.C. (“grandmother”), was nonabusing, and directed that the physical
custody of T.K. be returned to her. A response in opposition to the writ was filed by the
grandmother, through her counsel Roger L. Lambert. A summary response in opposition to the
requested writ was also filed by the respondent circuit court judge, The Honorable Lora A. Dyer,
as a self-represented litigant.
This Court has considered the parties’ briefs,2 oral arguments, and the record submitted.
Upon consideration of the standard of review, the Court denies the petition for writ of prohibition.
In light of our prior precedent on the dispositive issue presented in this case, we dispose of this
matter under Rule 21 of the West Virginia Rules of Appellate Procedure.
1
Because this case involves children and sensitive matters, we follow our practice of using
initials to refer to the children and the parties. See W.Va. R. App. P. 40(e); State v. Edward Charles
L., 183 W. Va. 641, 645 n.1, 398 S.E.2d 123, 127 n.1 (1990).
2
We note at the outset that the West Virginia Department of Health and Human Resources
(“the DHHR”) failed to submit a brief or to provide any status updates concerning T.K. with this
Court, despite being required to do so by the Court’s procedural rules, see West Virginia Rule of
Appellate Procedure 11, and being specifically directed to do so by the Court in its December 17,
2019, scheduling order. Additionally, the DHHR did not participate in oral arguments before this
Court. It is inexplicable, and of great concern, to this Court that the DHHR did not participate in
this case, especially in light of the fact that the circuit court’s order, which is the focus of this
extraordinary proceeding, places T.K.’s legal custody with the DHHR.
1
I. Facts and Procedural Background
T.K.3 was the subject of several guardianship proceedings prior to the instant abuse and
neglect proceeding. 4 Prior to March 16, 2016, he was placed in the custody and care of his paternal
grandfather in Jackson County, West Virginia. The paternal grandfather passed away, and T.K.
was then placed, through another guardianship proceeding, into the custody of a family friend,
R.F., by order entered March 16, 2016, in Jackson County Case No. 11-CIGR-6. T.K. remained
with R.F. until April 27, 2018, when T.K.’s mother, T.T. (“mother”), petitioned the circuit court
for return of custody of T.K. As a result of the mother’s petition, T.K. was returned to her on June
26, 2018, upon the circuit court’s finding that she had sufficiently improved her circumstances to
justify the termination of the guardianship.
Between June 26, 2018, and May 2019, T.K. remained with his mother in the State of Ohio.
His mother testified at the preliminary hearing in the abuse and neglect proceeding5 that she placed
T.K with the grandmother in May of 2019 because “I believe that she was going to be able to give
him proper attention that he needs on top of—he became very aggressive up there with us and his
little sister.”6 T.K.’s mother indicated that there was an incident in which T.K. threw air freshener
gel beads into his sister’s room in hopes that she would eat them, and that T.K. also started
destroying things around the house and stealing. T.K.’s mother also testified that T.K. had wanted
to kill himself or hurt himself. She sought mental health treatment for her son, but the situation
got to the point where she did not think she could handle him anymore; therefore, at the end of the
school year, the child came to West Virginia to stay with the grandmother.
On June 12, 2019, the grandmother filed a petition for guardianship of child, and on August
6, 2019, a hearing was held on that petition. Thereafter, by order entered August 14, 2019, the
circuit court appointed the grandmother as T.K.’s temporary guardian. Despite the GAL’s current
position, she did not object to this temporary appointment.
3
T.K. was nine years old in 2019.
4
There is no evidence of any of the prior guardianship proceedings in the record before
the Court. The information regarding these proceedings is gleaned from the parties’ briefs.
5
It is important to clarify that this case involves the consolidation of a guardianship
proceeding with an abuse and neglect proceeding as set forth in more detail infra in this decision.
This preliminary hearing occurred in connection with the abuse and neglect petition that was filed
by the GAL on September 5, 2019.
6
T.K.’s sister, who was not the subject of any of the guardianship proceedings or the abuse
and neglect proceeding, was four years old.
2
In connection with the guardianship proceeding, the circuit court ordered the DHHR to
investigate.7 According to a September 4, 2019, “Disposition of CPS Investigation Report for
Family and Circuit Courts” (“investigation report”), which was submitted to the circuit court prior
to the scheduled final hearing in the guardianship proceeding, the request to investigate was made
by the circuit court based on allegations that mother, who was not a West Virginia resident, was
allowing her mother, the respondent grandmother, to take guardianship of the child. According to
the investigative report, T.K. was residing with his grandmother and appeared to be well taken
care of. He “presented as friendly and curious.” The child stated that “he loves being with
grandma,” and appeared to be bonded with her. T.K. disclosed no abuse that had occurred at his
mother’s home in Ohio, and he did not disclose any fears. Significantly, it was reported that the
child was “receiving medical care and being well-cared for.” According to the investigative report,
“Mother sent him to grandmother’s because she could not deal with his extreme outbursts.” There
were no negative aspects of the report regarding grandmother. Child Protective Services (“CPS”)
determined that T.K.’s mother had placed the child with “a protective caregiver when the child’s
behaviors became too much for the mother to cope with. Mother recognized that she was unable
to care for the child and agreed for . . . [the grandmother] to care for . . . [the child.]” Further, the
investigative report indicated that there was no CPS history found. As a result of this investigation,
CPS found that “maltreatment . . . [was] not . . . substantiated” The CPS case was closed with no
petition being filed.
Notwithstanding the DHHR’s positive investigative report, on September 5, 2019, the
petitioner GAL filed a juvenile abuse and neglect petition on T.K.’s behalf, naming the child’s
grandmother, mother, and biological father, as respondents.8 The allegations in the petition
directed towards the grandmother focused on a CPS history and associated criminal charge, the
failure to seek mental health treatment for T.K., and a lack of contact between T.K. and the
grandmother for several years prior to the mother’s placement of the child with his grandmother.
Specifically, the GAL alleged that “[a]lthough . . . [the grandmother] was granted temporary
custody of the minor child, further investigation has determined that she is not an appropriate
caregiver for the child due to a lengthy CPS history.” The GAL also alleged the grandmother was
“charged criminally after an incident where here [sic] children were left alone. By her own
admission . . . [the grandmother] states that she was ‘banned from the [S]tate of Pennsylvania.’”
7
See W. Va. R. Minor Guard. P. 13(b) and W. Va. R. Child Abuse and Neglect P. 3a
(providing for the circuit court to direct the DHHR to submit to the circuit court an investigation
report to determine if there are allegations or other information that present reasons to believe a
child may be in imminent danger).
8
Regarding the allegations in the abuse and neglect petition involving T.K.’s mother and
biological father, the grandmother’s and GAL’s status updates on the child submitted to this Court
pursuant to West Virginia Rule of Appellate Procedure 11(i) and (j) reflect that the father’s parental
rights were terminated on February 19, 2020, and the mother voluntarily relinquished her parental
rights on the same day. The GAL’s petition for writ of prohibition does not involve either T.K.’s
father or mother as it is focused solely on the circuit court’s order involving the child’s placement
with his grandmother. Accordingly, we do not address any aspects of the petition and the
concomitant dispositions relating to T.K.’s mother or biological father.
3
Further, the GAL averred that T.K. had not received any mental health treatment since being in
the grandmother’s custody, including that “[t]he grandmother and mother made statements that
they do not believe that he needs treatment and that he is all better. The grandmother states that
the child is no longer on his ADHD medication.”
We find it important to note at this juncture that the child was immediately removed from
his grandmother’s custody and placed into foster care based upon the GAL’s allegations that T.K.
was in “imminent danger” if he were permitted to remain in the home with his grandmother due
to the foregoing allegations against her. West Virginia Code § 49-4-602(a)(1) provides:
Upon the filing of a petition, the court may order that the child
alleged to be an abused or neglected child be delivered for not more than
ten days into the care, custody, and control of the department or a
responsible person who is not the custodial parent or guardian of the child,
if it finds that:
(A) There exists imminent danger to the physical well-being of the
child; and (B) There are no reasonably available alternatives to removal of
the child, including, but not limited to, the provision of medical, psychiatric,
psychological or homemaking services in the child’s present custody.
See Syl. Pt. 1, In re Jonathan P., 182 W. Va. 302, 387 S.E.2d 537 (providing that the statute
“authorizes, upon the filing of a petition, the immediate, temporary taking of custody of a child by
the Department of Human Services when there exists an imminent danger to the physical well-
being of the child and there are no reasonably available alternatives to the removal of the child.”).
We question both the GAL and the circuit court allowing the removal of the child under the
“imminent danger” provision of the foregoing statute given the DHHR’s investigative report
submitted to the circuit court the day before the GAL’s abuse and neglect petition was filed. As
indicated above, the DHHR reported that T.K. was doing well, was receiving medical care, and
was being well cared for. Despite this investigative report, which found no maltreatment by the
grandmother, the removal of this child under the “imminent danger provision” caused this child to
be yanked from his grandmother’s care and placed into foster care, which action triggered mental
health issues that necessitated T.K. being hospitalized on two occasions due to suicidal ideations.
We have previously held that “[i]t is a traumatic experience for children to undergo sudden and
dramatic changes in their permanent custodians[,]” and courts should not allow such changes
unless there actually is imminent danger demonstrated by the allegations in the petition. See Syl.
Pt. 3, in part, James M. v Maynard, 185 W. Va. 648, 408 S.E.2d 400 (1991).
Nevertheless, the circuit court conducted a preliminary hearing on the GAL’s petition on
September 19, 2019.9 T.K.’s mother, father and grandmother testified. In addition to testifying
9
Also, on September 19, 2019, the circuit court ordered that the guardianship proceeding,
civil action number 19-CIG-9, be consolidated with the abuse and neglect case, number 19-JA-
108. In its November 25, 2019, adjudication order, the circuit court dismissed the guardianship
proceeding. The circuit court specifically kept jurisdiction over the child’s continued custody and
placement within the abuse and neglect proceeding because of its adjudication of the child as
4
about the reasons she placed her son with his grandmother as previously mentioned, T.K.’s mother
also testified regarding the grandmother’s CPS history. The mother testified that “nothing really
happened” regarding her childhood involvement with CPS when she lived with the grandmother.
Specifically, the mother stated that “when my mother was at work, we were put in the care of my
younger brother’s father, who decided to leave us home alone.” The mother stated that as a child
she was placed in foster care a couple of months before being returned to the grandmother. She
said that CPS did monthly visits after that, but that “nothing happened.” T.K.’s mother also
testified that she and the grandmother had had “a bumpy relationship, but what mother—
mother/daughter doesn’t.” She stated that she had not had contact with her mother for about seven
years because “I’m stubborn. I said a few things I shouldn’t have and I just was too stubborn to
apologize.” The mother also testified about taking T.K. to counseling for his behavioral problems.
When asked if this counseling continued when the child was placed with his grandmother, the
mother stated: “She did take him – for [sic] what I was told, she took him to his doctors and his
doctor said that it was no longer needed since he was doing so much better with her. And I know
for a fact that my mom wouldn’t do something without given the go-ahead.”
The grandmother also testified at the preliminary hearing. She stated that T.K. came to
live with her at the end of May 2019. The grandmother testified that she had been involved with
CPS when she resided in Pennsylvania some twenty-five years ago. According to the
grandmother,
[m]y son’s father was living with us at the time and we had a
disagreement. I was the only one working and he left and I couldn’t
get – lose my job, and so I thought I had made all the necessary
accommodations for my children. My oldest daughter, I believe,
was eight at the time . . . had emergency numbers on the fridge and
thought I had made for every incident and still had a neighbor watch
me go to work and called the authorities and they came and removed
the children.
T.K.’s grandmother confirmed that her children were placed in foster care for two or three months.
In response to questioning by the GAL concerning whether the grandmother was arrested in
connection with her children being removed from her care, the grandmother testified that she was
not sure it was in regards to that incident. The GAL asked the grandmother, “[W]hat were your
criminal charges?” The grandmother responded, “I don’t recall.” The GAL then asked the
grandmother, “but you were charged criminally around the same time?” The grandmother stated,
“[t]here were other things that happened that I’m not – that didn’t have to do with that.”10
Regarding grandmother’s comment that she was “banned from the State of Pennsylvania[,]” she
abused and neglected due to the father’s abandonment. See W. Va. R. Minor Guard. P. 13(c)
(providing for consolidation of guardianship proceeding with abuse and neglect proceeding).
10
Despite the allegations in the abuse and neglect petition of the grandmother being
criminally charged, other than this brief exchange during the grandmother’s testimony regarding
a criminal charge around the time of the Pennsylvania CPS incident, there was no other evidence
about any criminal charges involving the grandmother or how those charges were resolved.
5
testified that she believed she “had heard them say that in court and my mother had shared that
with me.”
The grandmother also testified that after her children were returned to her in Pennsylvania,
the family moved to West Virginia. She stated that she had also been involved with CPS in this
State. The grandmother testified that when two of her daughters were teenagers they wanted
freedom to do as they pleased. The grandmother stated that her daughter contacted CPS because
she wanted to live with a friend and believed that getting CPS involved might achieve that result.
The grandmother stated that a note was found where the daughter and her friend “had written to
each other in school and made a list of what to tell” CPS. The grandmother stated that CPS was
contacted, but the children were not taken from the grandmother’s home, and there was no abuse
and neglect substantiated. Further, the grandmother testified that this had occurred in 1994 or
1995. There was no evidence introduced by either the GAL or the DHHR about any CPS cases
involving the grandmother in West Virginia.
Finally, regarding T.K’s mental health treatment11 the grandmother testified that she
“heard” about T.K.’s counseling, but had not taken the child to counseling since he had been with
her. She stated that she was unaware that the child had made statements about killing himself.
She had been told that he had “pee[d] on box springs.” Further, she testified that the child had
“denied all of it.” The grandmother testified T.K. had not “display[ed] any of those [actions] that
others had accused him of.” Further, the grandmother stated that she had taken T.K. to Dr. Anna
Cadavid, a pediatrician.12 Dr. Cadavid had given her two questionnaires—one for the grandmother
and one for T.K.’s teacher—to fill out before T.K.’s next visit. The grandmother testified that Dr.
Cadavid wanted them to monitor the child’s behavior for use in deciding a treatment plan for T.K.
at the next visit. The grandmother stated T.K. was being weaned off the medication due to serious
side effects including hair loss, not sleeping well, and the child was “peaked, sickly, tired, just not
like a normal nine-year-old.” Finally, the grandmother was asked if anyone in the guardianship
case, whether the DHHR, the GAL, or anyone else had “come to you and sa[id], listen you need
to get this kid into counseling right now?” The grandmother responded, “No.” She stated that if
someone would have told her that they wanted the child in counseling right now, “he would have
went first thing.”
At the conclusion of the preliminary hearing, and as set forth in the circuit court’s
September 24, 2019, order, the circuit court found clear and convincing evidence that imminent
danger existed at the time of the removal, and, more specifically, that “the Adult Respondents were
not providing the child with mental health treatment at the time of the removal.”
The circuit court next held an adjudicatory hearing on October 11, 2019. It is significant
that neither the petitioner GAL, who filed the abuse and neglect petition, nor the DHHR offered
11
There was no evidence in the record about what type of mental health treatment or
counseling that T.K. had been undergoing while residing with his mother other than the mother’s
testimony that she had taken the child to counseling at Personal Family Counseling.
12
The grandmother had also taken the child to the dentist and orthodontist.
6
any additional evidence at this hearing.13 The grandmother, however, presented evidence, which
included the testimony of Dr. Cadavid, T.K.’s pediatrician. Dr. Cadavid stated that she had seen
the child twice, with the first visit on July 29, 2019. She testified that the child had a previous
diagnosis of Attention Deficit Hyperactivity Disorder (“ADHD”), which had been treated by a
doctor in Ohio; however, no medical records from the Ohio doctor were provided to Dr. Cadavid.
Instead, Dr. Cadavid relied upon the grandmother for the child’s history of medical treatment. The
child was on two medications, Concerta and Guanfacine, to treat the ADHD, hyperactivity,
agitation, and to help with sleep. T.K. was being weaned off these medications. The grandmother
told the doctor that T.K. had been doing well and there were no concerns about his behavior. The
doctor stated that, at that time, she followed the weaning down process that the child was then
undergoing. She corroborated the grandmother’s testimony regarding the questionnaires, which
were to be completed before the next visit to make sure that all the child’s symptoms were getting
better. Dr. Cadavid testified that she had no suspicions of abuse and neglect at the visit and the
grandmother gave her no concerns. Interestingly, Dr. Cadavid, who continued to see the child
after he was removed from the grandmother’s custody, testified that by the time the child had been
placed with the second foster family, after being removed from the grandmother’s custody, the
doctor asked that foster family about the weaning process. The foster family reported that T.K.
“was on no medication anymore, and . . . [they] didn’t have any concern about behavior or meds
or depression.” Dr. Cadavid testified that she was unaware of T.K exhibiting any violence towards
others or having a history of suicidal ideations. The doctor was also unaware of the child
undergoing counseling in Ohio.
Angela Crank, T.K.’s fourth-grade teacher, also testified. Ms. Crank testified that T.K.
“was a very sweet kid. He was – wanted to please his teachers. He made friends very quickly.
He was not a good academic student, he was very easily distracted, and he would disrupt the class
quite frequently, blurting things out. It could be relevant or totally irrelevant.” She stated that he
was never violent and never made any threats of harm to himself or to others. Ms. Crank also had
interacted with the grandmother at a parent conference. She described the grandmother as being
very eager to be helpful in any way. The grandmother wanted to know how T.K. was behaving in
class, and she was willing to work with Ms. Crank on a plan that would make the child successful.
Ms. Crank had no concerns about the child being abused or neglected. The grandmother had
disclosed to her that the child had been on lots of medications and had been weaned off those
medications.
Finally, Anna Bailey, who was a former employee with Jackson County CPS and married
to the grandmother’s brother, testified. Ms. Bailey had observed T.K. with the grandmother and
testified that she personally had not observed any issues with the child. She said the grandmother
had mentioned something about the child being suicidal or self-harming, but that had occurred
when T.K. was with his mother. Ms. Bailey was unaware of any issues while the child had been
in the grandmother’s care.
13
Pursuant to the DHHR’s request, the circuit court took judicial notice of the prior
testimony elicited during the preliminary hearing and rested on that evidence.
7
On November 25, 2019, the circuit court entered a thirteen-page order, adjudicating T.K.
as an abused and neglected child based upon the father’s abandonment of the child.14 Based upon
the evidence admitted against the grandmother to prove the allegations in the petition, the circuit
court refused to adjudicate the grandmother as an abusing parent. 15 Specifically, the circuit court
made the following findings in regard to the grandmother’s prior involvement with CPS:
Petitioner and DHHR failed to establish by clear and convincing
evidence that Grandmother is unfit to be T.K.’s guardian on this
basis. The only instance of substantial abuse and neglect occurred
nearly 25 years ago, and the only proof of this incident was
Grandmother’s own admission. No records or other evidence was
presented by Petitioner or DHHR regarding the same.
Grandmother’s children were returned to her following this incident.
Accordingly, the Court can safely assume that termination of
parental rights did not occur from this Court proceeding.
37. Regarding any other CPS history that occurred in
West Virginia, the record is completely devoid of any evidence as
to the substance of any such claims. The evidence of record, again
coming from Grandmother herself, is that referrals to CPS were
false reports by Grandmother’s teenage daughters. The only other
testimony regarding this CPS history was from . . . [the mother],
who testified that “nothing really happened.”16
(Footnote added). Additionally, the circuit court found that
both DHHR and Petitioner [GAL] have failed to prove any
correlation between Grandmother’s admitted neglect of her children
in the State of Pennsylvania nearly twenty-five years ago and her
14
See supra note 8.
15
See W. Va. Code § 49-1-201 (defining “abusing parent” as “a parent, guardian, or other
custodian . . . whose conduct has been adjudicated by the court to constitute abuse or neglect as
alleged in the petition charging child abuse or neglect.”).
16
The circuit court also found concerning the alleged CPS involvement in this State:
It is particularly troubling to the Court that Petitioner and DHHR
failed to present any records or testimony regarding those prior
investigations to establish the legitimacy of those claims. Again, it
is the petitioner who has the burden in a child abuse and neglect
case. The Court cannot speculate whether these claims were
substantiated, and it certainly cannot use such unproven allegations
to adjudicate Grandmother.
8
ability to care for TK at the time of the petition. No basis in the law
has been presented to adjudicate Grandmother on the basis of this
old, uncorroborated, out-of-state CPS history.
The circuit court also found that Dr. Cadavid “rebutted the allegations that Grandmother
neglected TK’s medical care[,]” stating that the grandmother “took TK to see Dr. Cadavid and Dr.
Cadavid began the process of assessing and treating TK.17 But the treatment plan never
materialized because TK was removed before TK’s follow-up visit.” Further, the circuit court
found that the grandmother testified “no one from DHHR ever requested Grandmother enroll TK
into counseling; no evidence indicated Petitioner made such a request prior to filing the Petition.
Grandmother testified she would have complied if any such request was made.” The circuit court
also found:
42. Regarding the decision to wean TK from his
medication, the evidence shows the weaning process continued to
its conclusion without incident after TK was removed from
Grandmother’s custody.
43. West Virginia Code explicitly provides a mechanism
whereby Petitioner or DHHR could have sought a Court ordered
examination of TK by a physician, psychologist, or psychiatrist in
support of the allegations of medical neglect contained in the
Petition, and to ensure TK would receive any necessary ongoing
care. See W. Va. Code § 49-4-603. Despite allegations Grandmother
was not providing adequate medical care for TK, the record contains
no indication such an examination was ever sought by Petitioner or
DHHR. Neither Petitioner nor DHHR have made any showing why
this Court should supplant the medical decisions of Dr. Cadavid.
In addition to refusing to adjudicate the grandmother as an abusing guardian, the circuit
court determined that placement of T.K.’s physical custody with the grandmother was in the
child’s best interest; however, the circuit court further found that it was in the child’s best interest
for legal custody of the child to remain with the DHHR. Significantly, the circuit court ordered the
DHHR to file a case plan including a plan to facilitate the return of T.K. to grandmother and a plan
to address his “medical/psychological/psychiatric needs while TK is in relative care with
Grandmother.” The circuit court directed that upon the child’s release from Highland Hospital, 18
the DHHR was to “cause T.K. to be examined by a qualified child psychologist or psychiatrist to
17
On the remaining allegation made by the GAL regarding the grandmother not seeing
T.K. for years prior to his placement with her, the circuit court found that the mother testified that
she was estranged from the grandmother for several years because “she said things to Grandmother
she ‘regretted’ and was ‘just too stubborn to apologize.’”
18
As previously mentioned, T.K. was hospitalized in Highland Hospital while in foster
care, after being removed from the grandmother’s custody. T.K. was released from Highland
Hospital on November 26, 2019, and physical custody was returned to the grandmother.
9
determine appropriate mental health care and/or medications for TK during and after the pendency
of this case.” The grandmother was to be provided with a copy of any discharge instructions for
the child following his inpatient treatment. Finally, the grandmother was “ORDERED to follow
said discharge instructions upon TK’s return to her home.”
Based upon the circuit court’s decision not to adjudicate the grandmother as abusing and
to return physical custody of T.K. to her, the GAL filed the instant writ of prohibition.
II. Standard of Review
As this Court has previously stated:
A “writ of prohibition shall lie as a matter of right in all cases
of usurpation and abuse of power, when the inferior court has no
jurisdiction of the subject matter in controversy, or, having such
jurisdiction, exceeds its legitimate powers.” W. Va. Code § 53-1-1
(1923); accord Syl. Pt. 2, in part, State ex rel. Peacher v.
Sencindiver, 160 W. Va. 314, 233 S.E.2d 425 (1977) (“A writ of
prohibition will not issue to prevent a simple abuse of discretion by
a trial court. It will only issue where the trial court has no jurisdiction
or having such jurisdiction exceeds its legitimate powers.”). To
evaluate whether a lower court has acted in excess of its legitimate
powers, we consider the following factors:
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.
10
Syl. Pt. 4, State ex rel. Hoover v. Berger, 199 W. Va. 12, 483 S.E.2d
12 (1996).
State ex rel. H.S. v. Beane, 240 W. Va. 643, 646, 814 S.E.2d 660, 663 (2018). Guided by these
precepts, we turn to the issues before us.
III. Discussion
The sole issue before the Court is whether the circuit court committed clear legal error by
failing to adjudicate the grandmother as abusing and in returning physical custody of the infant
child, T.K., to the grandmother.19 The GAL contends that the circuit court erred in finding that she
failed to prove the allegations in the petition by clear and convincing evidence. She argues the
uncontroverted evidence proved: 1) the grandmother had an admitted history with CPS and related
criminal charge; 2) the grandmother failed to seek mental health treatment for T.K.; and 3) the
grandmother was absent from T.K.’s life for years preceding the mother’s placement with the
grandmother.
First, we consider the GAL’s argument that the circuit court improperly discounted the
grandmother’s admitted history with CPS and the connected criminal charge. In support of this
argument, the GAL relies upon Rule 10 of the West Virginia Rules of Minor Guardianship.20 Rule
19
We note that the GAL presents two assignments of error, the first of which misstates the
circuit court’s decision that the grandmother was found to be “an abusing parent.” The GAL’s
assigned errors were:
1. Did the Circuit Court of Jackson County, West Virginia[,] err in
finding the Adult Respondent grandmother an abusing parent after
hearing evidence of her prior CPS history and criminal history, and
her failure to provide mental health treatment to the Infant
Respondent T.K.?
2. Did the Circuit Court of Jackson County, West Virginia[,] err in
restoring custody of Infant Respondent T.K. to the Adult
Respondent Grandmother after hearing evidence of her CPS and
criminal history, and her minimal contact with the minor child
through his life?
Assuming that the GAL meant that the circuit court found the grandmother a “nonabusing parent,”
because the two assigned errors are repetitive, for purposes of this decision they are consolidated
into a single issue.
20
As mentioned above, the guardianship proceeding was consolidated with the abuse and
neglect proceeding, and then dismissed. See supra note 9. Due to the dismissal of the guardianship
proceeding, the circuit court did not expressly examine the Rule 10 screening factors in its
adjudicatory order, although it is clear that the circuit court implicitly considered the two factors
11
10 establishes certain screening factors that a circuit court is to consider in determining an
appropriate guardian for a minor in a minor guardianship proceeding instituted pursuant to West
Virginia Code § 44-10-1 to -16, including, in relevant part:
The court, when determining an appropriate guardianship
appointment over the person of a minor, shall ascertain and consider,
among other pertinent matters, whether any proposed guardian:
....
2) Has a record of any misdemeanor or felony convictions;
....
4) Has ever been the subject of any substantiated report alleging
child abuse, neglect, or molestation made to any child protection
agency, other law enforcement agency, or court in any jurisdiction.
...
W. Va. R. Minor Guard. P. 10, in pertinent part. The GAL argues that the evidence offered
regarding whether the “proposed guardian” has ever been the subject of any substantiated report
of abuse or neglect and has any misdemeanor or felony convictions weighs against finding the
grandmother an appropriate guardian for the child. Id. We disagree.
It is axiomatic that the screening factors set forth in Rule 10 are to be considered by a
circuit court in determining an appropriate guardian for an infant child, “among other pertinent
matters,” which language necessarily also encompasses what is in the child’s best interest. See W.
Va. Code § 44-10-3 (pertaining to the appointment and termination of guardian for a minor and
providing that the court may appoint a temporary guardian for a minor as long as “the appointment
is in the minor’s best interest”) (emphasis added). As with all decisions a court makes that affect
children, what is in the child’s best interest is of paramount concern. Michael K.T. v. Tina L.T.,
182 W. Va. 399, 405, 387 S.E.2d 866, 872 (1989) (“[T]he best interests of the child is the polar star
by which decisions must be made which affect children.”). Further, In re Guardianship of A.C.,
240 W. Va. 23, 807 S.E.2d 271 (2017), the Court discussed Rule 10 in the context of also
evaluating the best interests of the child. Id. at 27-29, 807 S.E.2d at 275-77. The petitioner, in
Guardianship of A.C., argued that the circuit court’s placement of the child with the grandmother
was not in the child’s best interest and failed to include “an appropriate evaluation of the
Guardianship Screening Factors enumerated in Rule 10.” 240 W. Va. at 24, 807 S.E.2d at 272.
We agreed, finding, among other things, that the circuit court had disregarded overwhelming
evidence of unfitness of the grandmother, including the grandmother abusing alcohol and possibly
drugs, driving on a revoked license, and permitting “individuals with various and sundry drug and
other issues to live in the home.” Id. at 28, 807 S.E.2d at 276. We recognized that
identified by the GAL in reaching its determination that the grandmother was a fit, nonabusing
guardian. Despite the lack on any express ruling by the circuit court on this issue, we consider the
GAL’s argument.
12
the circuit court appears to have undervalued the Guardianship
Screening Factors; those factors require courts to consider whether
the proposed guardian has convictions, abuses drugs or alcohol, or
has allowed a registered sex offender and drug abusers to live in the
home. See W.Va. R. Prac & P. Minor Guardianship Proc. 10.
240 W. Va. at 28, 807 S.E.2d at 276.
The instant case, however, is factually distinguishable from Guardianship of A.C., because
the circuit court did not undervalue the screening factors set forth in Rule 10, but carefully
considered the evidence presented and made a decision that was undeniably in the child’s best
interest. Despite the GAL’s evidence that the grandmother admitted to a history with CPS in both
Pennsylvania and West Virginia,21 the GAL completely disregards the fact that the removal
occurred some twenty-five years ago and that the grandmother’s children were returned to her care
after a two- to three-month period. Succinctly stated, the GAL failed to prove any connection
between the grandmother’s admitted history with CPS involving her children in Pennsylvania that
occurred almost twenty-five years ago and her ability to serve as T.K.’s guardian at the time of the
petition. The GAL further contends that “there was ongoing CPS involvement in West Virginia.”
The grandmother, however, testified that the CPS involvement in this State also happened in 1994
or 1995 and that CPS was contacted, but the children were not taken from her home, and there was
no abuse and neglect substantiated. The GAL offered no other evidence regarding any West
Virginia CPS involvement with the grandmother. See supra notes 16 and 21. Finally, neither the
Rule 10 screening factors nor any other legal authority offered by the GAL supports the GAL’s
position that the grandmother had to be adjudicated as abusing or was otherwise not an appropriate
guardian for T.K., on the basis of an uncorroborated twenty-five-year-old CPS history resulting
from an incident which did not result in a termination of parental rights, but only brief removal of
the children from the home.
Next, the GAL argues that the circuit court erred in not adjudicating the grandmother as
abusing on the basis that she failed to seek mental health treatment for T.K. and weaned the child
off his medication. We disagree. Our review of the evidence shows that once the child was in the
grandmother’s care, she sought medical treatment for him with Dr. Cadavid, who assessed the
child’s medical condition. According to the testimony, Dr. Cadavid was working with the
grandmother to determine the child’s treatment plan going forward, which could have included
21
The GAL recognizes that there was no other evidence regarding CPS’s involvement
introduced below, stating that “[w]hile it is true that there were no records presented, it is not
necessary to present these records inasmuch as the parties admitted to this CPS history.” The GAL
claims she did “make efforts” to obtain the West Virginia records, but “the referrals predate the
current FACS system, so I was told they were unavailable.” The GAL also asserts that with the
current system, records are not available after seven years; but she offered no evidence to support
this statement. It is significant that the GAL offered no evidence that she ever attempted to locate
any of the CPS records from either Pennsylvania or West Virginia. Rather, the GAL simply argues
that based on the testimony presented, “it simply was not necessary to present those records.”
13
medication, counseling or other treatment. Further, regarding the child being weaned off
medication, the evidence showed that when T.K. was seen by Dr. Cadavid, the doctor was told by
the grandmother that the child was being weaned off two medications. Dr. Cadavid testified that
she had no suspicions of abuse and neglect at the visit and the grandmother gave her no concerns.
Interestingly, the doctor, who continued to see the child after he was removed from grandmother’s
custody, testified that by the time the child had been placed with the second foster family, she
asked them about the weaning-off process and was told that “he was on no medication anymore,”
and that they “didn’t have any concern about behavior or meds or depression.” Finally, the
evidence was that neither GAL nor the DHHR requested grandmother enroll T.K. in any type of
mental health counseling when she first got custody of the child; according to the grandmother’s
testimony, had that request been made, she would have done so.
Finally, the GAL argues that the grandmother’s absence from T.K.’s life for nine years
preceding the mother’s placement of the child with her was evidence that T.K.’s placement with
the grandmother was not in the child’s best interest. The GAL contends that while there is a
grandparent preference, the best interests of a child is controlling and, in this case, the circuit court
ignored the best interests of the child. See Syl. Pt. 2, In re K.E., 240 W. Va. 220, 809 S.E.2d 531
(2018) (“‘West Virginia Code § 49-3-1(a) provides for grandparent preference in determining
adoptive placement for a child where parental rights have been terminated and also incorporates a
best interests analysis within that determination by including the requirement that the DHHR find
that the grandparents would be suitable adoptive parents prior to granting custody to the
grandparents. The statute contemplates that placement with grandparents is presumptively in the
best interests of the child, and the preference for grandparent placement may be overcome only
where the record reviewed in its entirety establishes that such placement is not in the best interests
of the child.’ Syllabus Point 4, Napoleon S. v. Walker, 217 W. Va. 254, 617 S.E.2d 801 (2005).”);
see also W. Va. Code § 49-4-114(a)(3) (2015) (“For purposes of any placement of a child for
adoption by the department, the department shall first consider the suitability and willingness of
any known grandparent or grandparents to adopt the child. Once grandparents who are interested
in adopting the child have been identified, the department shall conduct a home study evaluation,
including home visits and individual interviews by a licensed social worker. If the department
determines, based on the home study evaluation, that the grandparents would be suitable adoptive
parents, it shall assure that the grandparents are offered the placement of the child prior to the
consideration of any other prospective adoptive parents.”).
The evidence before us, however, shows the GAL ignored T.K.’s mother’s testimony that
the grandmother’s absence from her grandchild’s life was due to the mother’s behavior, and was
not the grandmother’s choice. We also disagree with the GAL’s assertion that placement of T.K.
in the grandmother’s care was not in the child’s best interest, as the circuit court determined. All
the evidence showed that the child was well cared for and was thriving while in his grandmother’s
care. In short, the evidence simply does not support the GAL’s contention that the circuit court
disregarded T.K.’s best interest in placing the child with his grandmother.
Moreover, the circuit court’s determination that the GAL failed to prove the allegations
against the grandmother contained in the abuse and neglect petition by clear and convincing
evidence is amply supported by the record. See W. Va. Code § 49-4-601(i) (“At the conclusion of
the adjudicatory hearing, the court shall make a determination based upon the evidence and shall
14
make findings of fact and conclusions of law as to whether the child is abused or neglected and
whether the respondent is abusing, neglecting, or, if applicable, a battered parent, all of which shall
be incorporated into the order of the court. The findings must be based upon conditions existing at
the time of the filing of the petition and proven by clear and convincing evidence.”); accord Syl.
Pt. 3, In re K.P., 235 W Va. 221, 772 S.E.2d 914 (2015).
As an ancillary matter, we recognize that T.K. has experienced serious mental health issues
that have required two hospitalizations. Given the concern of all the parties to the status of this
child’s mental health, upon return of this case to the circuit court, we direct the circuit court to
conduct a hearing within thirty days in order to ensure that the DHHR has complied with the circuit
court’s directives in its November 25, 2019, adjudicatory order, which included: 1) the DHHR
filing a case plan that addresses “TK’s medical/psychological/psychiatric needs while TK is in
relative care with Grandmother[;]” 2) the DHHR causing the child “to be examined by a qualified
child psychologist or psychiatrist to determine appropriate mental health care and/or medications
for TK during and after the pendency of this case[;]” and 3) the grandmother fully complying with
any treatment directives that have been made by the child’s treating physician(s). In this same
vein, we remind the circuit court that Rule 39(b) of the Rules of Procedure for Child Abuse and
Neglect Proceedings requires:
At least once every three months until permanent placement is achieved as
defined in Rule 6, the court shall conduct a permanent placement review
conference, requiring the multidisciplinary treatment team to attend and
report as to progress and development in the case, for the purpose of
reviewing the progress in the permanent placement of the child.
While the Court understands from the Rule 11 status updates filed in this case that the child is
thriving while in the grandmother’s care, the circuit court should make every effort to ensure that
he receives any necessary mental health treatment recommended by his medical providers.
IV. Conclusion
For the foregoing reasons, we conclude that the circuit court did not commit clear error,
lack jurisdiction, or exceed its legitimate powers in failing to adjudicate the grandmother as
abusing, or in returning physical custody of T.K. to the grandmother. Accordingly, the petition for
writ of prohibition is denied.
Writ Denied.
ISSUED: May 26, 2020
CONCURRED IN BY:
Chief Justice Elizabeth D. Walker
Justice Margaret L. Workman
Justice Tim Armstead
Justice Evan H. Jenkins
15
The Honorable Michael D. Lorensen sitting by temporary assignment.
DISQUALIFIED:
Justice John A. Hutchison
16