In The Interest Of J.L., Jr.

IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
September 2014 Term
FILED
September 18, 2014
No. 13-0831 released at 3:00 p.m.
RORY L. PERRY II, CLERK
SUPREME COURT OF APPEALS
OF WEST VIRGINIA
IN THE INTEREST OF
J.L., JR.
Appeal from the Circuit Court of Wood County
Honorable John D. Beane, Judge
Juvenile Abuse Neglect No. 11-JA-134
REVERSED AND REMANDED
Submitted: September 10, 2014
Filed: September 18, 2014
Dee-Ann Booth Burdette William B. Summers
Jonathan M. Burton Parkersburg, West Virginia
West Virginia Department of Attorney for the Respondent,
Health and Human Resources, Jason L.
Bureau for Child Support Enforcement
Charleston, West Virginia
Attorneys for the Petitioner,
Bureau for Child Support Enforcement
CHIEF JUSTICE DAVIS delivered the Opinion of the Court.
SYLLABUS BY THE COURT
1. “The jurisdiction of family courts is limited to only those matters
specifically authorized by the Legislature, while circuit courts have original and general
jurisdiction and other powers as set forth in Article VIII, § 6 of the Constitution of West
Virginia.” Syllabus point 5, in part, Lindsie D.L. v. Richard W.S., 214 W. Va. 750, 591
S.E.2d 308 (2003).
2. “A circuit court has jurisdiction to entertain an abuse and neglect
petition and to conduct proceedings in accordance therewith as provided by W. Va. Code
§ 49-6-1, et seq.” Syllabus point 3, State ex rel. Paul B. v. Hill, 201 W. Va. 248, 496 S.E.2d
198 (1997).
3. “When a child is the subject of an abuse or neglect or other proceeding
in a circuit court pursuant to Chapter 49 of the West Virginia Code, the circuit court, and not
the family court, has jurisdiction to establish a child support obligation for that child.”
Syllabus point 3, West Virginia Department of Health and Human Resources, Bureau for
Child Support Enforcement v. Smith, 218 W. Va. 480, 624 S.E.2d 917 (2005).
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4. Pursuant to Rule 6 of the West Virginia Rules of Procedure for Child
Abuse and Neglect Proceedings, when a circuit court enters an order awarding or modifying
child support in an abuse and neglect case, the circuit court retains jurisdiction over such
child support order.
5. Pursuant to Rule 16a(d) of the West Virginia Rules of Procedure for
Child Abuse and Neglect Proceedings, a circuit court cannot transfer or remand a child
support order that it has entered in an abuse and neglect case to the family court for
enforcement or modification.
ii
Davis, Chief Justice:
The petitioner herein, the West Virginia Department of Health and Human
Resources, Bureau for Child Support Enforcement [hereinafter “BCSE”], appeals from an
order entered July 16, 2013, by the Circuit Court of Wood County.1 By that order, the circuit
court remanded the case to the Family Court of Wood County with instructions to enforce
the circuit court’s order, entered in the underlying abuse and neglect case, modifying the
child support obligation of the respondent father herein, Jason L.2 On appeal to this Court,
the BCSE assigns error to the circuit court’s decision to remand the case to the family court
for enforcement of the circuit court’s modification order. Upon a review of the parties’
arguments, the appendix record, and the pertinent authorities, we agree with the BCSE that
it was improper for the circuit court to remand the case to the family court for enforcement
of a child support order entered by the circuit court. Accordingly, we reverse the July 16,
1
This case originated in the Family Court of Wood County as a divorce action
(Civil Action No. 05-D-95). During the pendency of child support enforcement proceedings
therein, the underlying abuse and neglect case was filed in the Circuit Court of Wood County
(Juvenile Abuse Neglect No. 11-JA-134). Because the child support order being enforced
in the instant contempt proceeding was entered by the circuit court in the abuse and neglect
case, we have adopted that case’s style to maintain consistency therewith. For further
discussion of the procedural posture giving rise to the case sub judice, see Section I, infra.
2
“In this case involving sensitive facts, we adhere to our usual practice adopted
in other such cases and refer to the parties by their last initials rather than by their complete
surnames.” In re Emily, 208 W. Va. 325, 329 n.1, 540 S.E.2d 542, 546 n.1 (2000) (citations
omitted). See also W. Va. R. App. P. 40(e)(1) (restricting use of personal identifiers in abuse
and neglect cases).
1
2013, order of the Circuit Court of Wood County and remand this case for further
proceedings consistent with this opinion.
I.
FACTUAL AND PROCEDURAL HISTORY
The facts of this case are straightforward and not disputed by the parties. The
respondent parents herein, Mary P. [hereinafter “Mary”] and Jason L. [hereinafter “Jason”],
previously were married and had one child. During their 2005 divorce proceedings, Mary
was awarded custody of the parties’ child, and Jason was ordered to pay child support in the
amount of $165.66 per month.
In 2011, the BCSE initiated enforcement proceedings against Jason in the
divorce case in the Family Court of Wood County for nonpayment of child support. On April
11, 2011, the family court entered an order declaring Jason to be in arrears and granting
judgment against him in the amount of $13,130.53. When Jason still failed to fulfill his child
support obligation or pay his arrearage, the BCSE initiated contempt proceedings against
Jason seeking to enforce its judgment against him. During the pendency of the contempt
proceedings, the instant abuse and neglect case was filed in the Circuit Court of Wood
County alleging that the parties’ child was an abused or neglected child because Jason had
committed various acts of domestic violence in the child’s presence and Mary had failed to
2
shield the child from such incidents.3 Due to the pending abuse and neglect case, the family
court determined that Rule 6 of the West Virginia Rules of Procedure for Child Abuse and
Neglect Proceedings4 prohibited it from hearing the contempt petition insofar as the circuit
court now had jurisdiction of child support matters and dismissed the contempt petition
without prejudice.
Thereafter, in the abuse and neglect case, the circuit court, by “Order of
Modified Support” entered November 21, 2012, terminated Jason’s parental rights to the
parties’ child and modified his child support obligation by reducing it by one-half to $82.83
per month and setting his arrearage amount at $50.00 per month until it has been satisfied.
When Jason failed to pay this amount, or any portion of the arrearages he owes, Mary filed
a pro se petition for contempt. The circuit court held a hearing on Mary’s petition for
contempt, and, on July 16, 2013, entered the order at issue in the case sub judice. In its July
16, 2013, order, the circuit court held Jason to be in contempt for nonpayment of child
3
The appendix record in this case is exceedingly sparse, consisting of a mere
twenty-four pages comprised of four orders entered during the course of this matter. While
the Court appreciates counsel’s attempt at brevity, such an abbreviated record leaves many
questions about the procedural posture of this case unanswered, most notably the current
status of the underlying abuse and neglect proceeding that has been pending for nearly three
years and the permanency plan for the parties’ child. See W. Va. R. P. Child Abuse &
Neglect Proceed. 43 (“Permanent placement of each child shall be achieved within twelve
(12) months of the final disposition order, unless the court specifically finds on the record
extraordinary reasons sufficient to justify the delay.”).
4
See Section III, infra, for the text of Rule 6.
3
support as ordered by the circuit court’s November 21, 2012, order modifying his child
support obligation, issued a capias warrant to secure his arrest, directed he be returned to the
family court, and remanded the case to the family court for enforcement of the circuit court’s
modified child support order entered in the abuse and neglect case as well as “for all future
contempt hearings and all future modification hearings regarding child support.”
From this order, the BCSE appeals to this Court.
II.
STANDARD OF REVIEW
In the case sub judice, the BCSE challenges the correctness of the circuit
court’s order. We previously have held that
[i]n reviewing challenges to the findings and conclusions
of the circuit court, we apply a two-prong deferential standard
of review. We review the final order and the ultimate
disposition under an abuse of discretion standard, and we review
the circuit court’s underlying factual findings under a clearly
erroneous standard. Questions of law are subject to de novo
review.
Syl. pt. 2, Walker v. West Virginia Ethics Comm’n, 201 W. Va. 108, 492 S.E.2d 167 (1997).
Mindful of this standard, we proceed to consider the parties’ arguments.
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III.
DISCUSSION
Before this Court, the BCSE assigns error to the circuit court’s order
remanding the case to the family court for enforcement of the circuit court’s order modifying
child support and for all further modifications of child support. In its July 16, 2013, order,
the circuit court ruled:
[I]t is hereby ADJUDGED and ORDERED:
1. Jason L[.] shall be found in willful and contumacious
contempt for failure to pay child support and failing to appear
for this hearing.
2. This Order herein shall serve as a Capias warrant, and
it is hereby ORDERED that any law enforcement officer
authorized to execute a warrant in the State of West Virginia is
hereby authorized to take JASON L[.] into custody and retain
custody of him until the next judicial day that Family Court is in
session in Wood County, West Virginia, and then delivery [sic]
the body of JASON L[.] to appear before the Honorable C.
Darren Tallman, Family Court Judge, between the hours of 9:00
a.m. and 4:00 p.m. to explain his failure to comply with the
Order of the Court and to be further dealt with as the Court
determines necessary.
3. This matter shall be remanded back to Family Court
for all future contempt hearings and all future modification
hearings regarding child support.
4. This matter shall be set for further hearing on the
Petition for Contempt for failure to pay child support before
the Honorable C. Darren Tallman, Family Court Judge of
Wood County on August 7, 2013 at 9:15 a.m. in Civil Action
Number 05-D-95.
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(Emphasis in original). In so ruling, the circuit court explained its reasoning as follows:
Family Court is the more convenient forum for actions
relating to child support as it addresses such issues on a daily
basis.
The WVBCSE attorney appears more frequently in
Family Court and the WVBCSE is a party to all actions
involving the collections and enforcement of child support, so
Family Court would be the more appropriate forum based upon
judicial economy.
The State of West Virginia and the public defenders
services should not be paying for an attorney, appointed in a
circuit court proceeding unrelated to the enforcement and
collection of child support, to defend an issue of contempt or
modification on [sic] child support.
An executed capias may be heard more expeditiously in
Family Court as Circuit Court may be in the middle of a jury
trial or may have hearings scheduled which would take
precedence over the capias.
Disregarding the arguments of the WVBCSE, all further
proceedings concerning the support of this child should be heard
in Family Court regardless of the mandate in Rule 6.
(Emphasis added). Therefore, we must determine whether the circuit court properly
disregarded Rule 6 of the West Virginia Rules of Procedure for Child Abuse and Neglect
Proceedings when it remanded the case to the family court with instructions to preside over
the present contempt proceedings for nonpayment of child support and to hear any future
modifications of child support and contempt proceedings related thereto. In light of the
limited jurisdiction of family courts, the exclusive jurisdiction of circuit courts over child
abuse and neglect proceedings, and our Rules specifically directing circuit courts to award
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child support in abuse and neglect cases, to retain jurisdiction over such awards, and to
refrain from transferring such child support determinations to family courts, we conclude that
the circuit court clearly exceeded its authority when it remanded the instant child support
matter to the family court.
We begin our analysis by reviewing the jurisdiction with which family courts
are vested. Pursuant to article VIII, § 16 of the West Virginia Constitution, “[f]amily courts
shall have original jurisdiction in the areas of family law and related matters as may hereafter
be established by law. Family courts may also have such further jurisdiction as established
by law.” In recognition of these jurisdictional limits, we have expressly held that “[t]he
jurisdiction of family courts is limited to only those matters specifically authorized by the
Legislature, while circuit courts have original and general jurisdiction and other powers as
set forth in Article VIII, § 6 of the Constitution of West Virginia.” Syl. pt. 5, in part, Lindsie
D.L. v. Richard W.S., 214 W. Va. 750, 591 S.E.2d 308 (2003).
W. Va. Code § 51-2A-2 (2012) (Supp. 2014) defines the precise parameters
of the family court’s jurisdiction. Of particular relevance to our resolution of the case sub
judice is the express recognition that the ambit of authority granted to family courts is limited
and particularly defined:
A family court is a court of limited jurisdiction. A family
court is a court of record only for the purpose of exercising
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jurisdiction in the matters for which the jurisdiction of the
family court is specifically authorized in this section and in
chapter forty-eight [§§ 48-1-101 et seq.] of this code. A family
court may not exercise the powers given courts of record in
section one [§ 51-5-1], article five, chapter fifty-one of this code
or exercise any other powers provided for courts of record in
this code unless specifically authorized by the Legislature. A
family court judge is not a “judge of any court of record” or a
“judge of a court of record” as the terms are defined and used in
article nine [§§ 51-9-1 et seq.] of this chapter.
W. Va. Code § 51-2A-2(e). Among such limits imposed upon a family court’s jurisdiction
are the inability of a family court to hear a matter involving child abuse or neglect insofar as
such cases are within the exclusive authority of the circuit court and the corresponding
directive to the family courts to stay proceedings pending therein when a related abuse and
neglect case is simultaneously pending before the circuit court:
If an action for divorce, annulment or separate
maintenance is pending and a petition is filed pursuant to the
provisions of article six [§§ 49-6-1 et seq.], chapter forty-nine of
this code alleging abuse or neglect of a child by either of the
parties to the divorce, annulment or separate maintenance
action, the orders of the circuit court in which the abuse or
neglect petition is filed shall supercede and take precedence
over an order of the family court respecting the allocation of
custodial and decision-making responsibility for the child
between the parents. If no order for the allocation of custodial
and decision-making responsibility for the child between the
parents has been entered by the family court in the pending
action for divorce, annulment or separate maintenance, the
family court shall stay any further proceedings concerning the
allocation of custodial and decision-making responsibility for
the child between the parents and defer to the orders of the
circuit court in the abuse or neglect proceedings.
W. Va. Code § 51-2A-2(c).
8
By contrast, circuit courts, being courts of general jurisdiction, have more
expansive authority. See Syl. pt. 5, in part, Lindsie D.L. v. Richard W.S., 214 W. Va. 750,
591 S.E.2d 308. Of relevance to the case sub judice is the exclusive authority of circuit
courts to hear cases alleging the abuse and/or neglect of a child. In this regard, we
specifically have recognized that “[a] circuit court has jurisdiction to entertain an abuse and
neglect petition and to conduct proceedings in accordance therewith as provided by W. Va.
Code § 49-6-1, et seq.” Syl. pt. 3, State ex rel. Paul B. v. Hill, 201 W. Va. 248, 496 S.E.2d
198 (1997). See also W. Va. Code § 49-6-1(a) (2005) (Repl. Vol. 2014) (specifying that
abuse and neglect petition is to be presented to circuit court of county in which subject child
resides). Because child and abuse proceedings are confidential in nature, access to the
records of such cases is limited, with even the family court being afforded restricted access
to only certain documents in an abuse and neglect case file:
All records and information maintained by the courts in
child abuse and neglect proceedings shall be kept confidential
except as otherwise provided in W. Va. Code, Chapter 49 and
this rule. In the interest of assuring that any determination made
in proceedings before a family court arising under W. Va. Code,
Chapter 48, or W. Va. Code § 44-10-3, does not contravene any
determination made by a circuit court in a related prior or
pending child abuse and neglect case arising under W. Va.
Code, Chapter 49, family courts and staff shall have access to all
circuit court orders and case indexes in this State in all such
related Chapter 49 proceedings.
W. Va. R. P. Child Abuse & Neglect Proceed. 6a(b). See also W. Va. R. P. Child Abuse &
Neglect Proceed. 3a(d) (similarly restricting access to pre-petition investigation in abuse and
9
neglect cases). Therefore, it is clear that exclusive jurisdiction over abuse and neglect cases
is reposed in the circuit courts of this State, and that the family courts are required to defer
to the circuit courts’ rulings in such matters.
Included within a circuit court’s abuse and neglect jurisdiction is the authority
to decide child support issues arising in an abuse and neglect case. Recognizing that circuit
courts, and not family courts, are vested with jurisdiction over child abuse and neglect cases,
we previously have held that “[w]hen a child is the subject of an abuse or neglect or other
proceeding in a circuit court pursuant to Chapter 49 of the West Virginia Code, the circuit
court, and not the family court, has jurisdiction to establish a child support obligation for that
child.” Syl. pt. 3, West Virginia Dep’t of Health & Human Res., Bureau for Child Support
Enforcement v. Smith, 218 W. Va. 480, 624 S.E.2d 917 (2005). This holding serves to clarify
not only that the circuit court has exclusive jurisdiction over abuse and neglect matters but
also that the establishment of an award of child support is a necessary and integral part of the
resolution of an abuse and neglect proceeding: “A circuit court terminating a parent’s
parental rights pursuant to W. Va. Code, § 49-6-5(a)(6), must ordinarily require that the
terminated parent continue paying child support for the child, pursuant to the Guidelines for
Child Support Awards found in W. Va. Code, § 48-13-101, et seq. [2001].” Syl. pt. 2, in part,
In re Ryan B., 224 W. Va. 461, 686 S.E.2d 601 (2009). See Syl. pt. 4, Smith, 218 W. Va.
480, 624 S.E.2d 917 (“When a circuit judge enters an order on an abuse or neglect petition
10
filed pursuant to Chapter 49 of the West Virginia Code, and in so doing alters the custodial
and decision-making responsibility for the child and/or commits the child to the custody of
the Department of Health and Human Resources, W. Va. Code, 49-7-5 [1936] requires the
circuit judge to impose a support obligation upon one or both parents for the support,
maintenance and education of the child. The entry of an order establishing a support
obligation is mandatory; it is not optional.” (emphasis added)). See also Syl. pt. 1, In re
Ryan B., 224 W. Va. 461, 686 S.E.2d 601 (“The Legislature’s 2006 amendment of W. Va.
Code, § 49-6-5(a)(6), changing the statute’s “guardianship rights and/or responsibilities”
language to “guardianship rights and responsibilities” was not intended to relieve parents
who have their parental rights terminated in an abuse and neglect proceeding from providing
their child(ren) with child support.”). The requisite imposition of a child support obligation
in an abuse and neglect case also is detailed in Rule 16a of the West Virginia Rules of
Procedure for Child Abuse and Neglect Proceedings:
(a) Entry of support orders. – Every order in a child
abuse and neglect proceeding that alters the custodial and
decision-making responsibility for a child and/or commits the
child to the custody of the Department of Health and Human
Resources must impose a support obligation upon one or both
parents for the support, maintenance and education of the child.
(b) Use of guidelines. – Any order establishing a child
support obligation in an abuse and neglect proceeding must use
the Guidelines for Child Support Awards found in W. Va. Code
§ 48-13-101, et seq. The Guidelines may be disregarded, or the
calculation of an award under the Guidelines may be adjusted,
only if the court makes specific findings that use of the
Guidelines is inappropriate.
11
(c) Modifications. – Any order establishing a child
support obligation in a child abuse and neglect proceeding may
be modified by the court upon motion of any party. An order
granting modification of a support obligation must use the
Guidelines for Child Support Awards found in W. Va. Code
§ 48-13-101, et seq. . . .
(Emphasis in original).
Insofar as the authority to determine matters involving the abuse and/or neglect
of a child is reposed in the circuit court, not the family court, continuing jurisdiction over
such cases likewise is vested in the circuit court:
Each civil child abuse and neglect proceeding shall be
maintained on the circuit court’s docket until permanent
placement of the child has been achieved. The court retains
exclusive jurisdiction over placement of the child while the case
is pending, as well as over any subsequent requests for
modification, including, but not limited to, changes in
permanent placement or visitation, except that (1) if the petition
is dismissed for failure to state a claim under Chapter 49 of the
W. Va. Code, or (2) if the petition is dismissed, and the child is
thereby ordered placed in the legal and physical custody of both
his/her cohabiting parents without any visitation or child support
provisions, then any future child custody, visitation, and/or child
support proceedings between the parents may be brought in
family court. However, should allegations of child abuse and/or
neglect arise in the family court proceedings, then the matter
shall proceed in compliance with Rule 3a.
W. Va. R. P. Child Abuse & Neglect Proceed. 6. Moreover, the exclusivity of such
jurisdiction in the circuit court precludes the transfer of any portion of an abuse and neglect
case to the family court, even if the issue involved concerns a matter usually within the
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purview of the family court’s jurisdiction. Rule 16a(d) of the West Virginia Rules of
Procedure for Child Abuse and Neglect Proceedings makes it patently clear that circuit
courts, and not family courts, possess and retain abuse and neglect jurisdiction and
specifically prohibits circuit courts from transferring abuse and neglect matters to family
court: “No portion of a child abuse and neglect proceeding may be transferred or remanded
to a family court for assessment of a child support obligation.”
Based upon the foregoing authorities, we therefore hold that, pursuant to Rule
6 of the West Virginia Rules of Procedure for Child Abuse and Neglect Proceedings, when
a circuit court enters an order awarding or modifying child support in an abuse and neglect
case, the circuit court retains jurisdiction over such child support order. We further hold that,
pursuant to Rule 16a(d) of the West Virginia Rules of Procedure for Child Abuse and
Neglect Proceedings, a circuit court cannot transfer or remand a child support order that it
has entered in an abuse and neglect case to the family court for enforcement or modification.
Applying these holdings and the foregoing authorities to the facts of the case
sub judice, it is clear that the circuit court did not have the authority to remand this case to
the family court for enforcement of its modified order of support through contempt
proceedings or for the family court’s determination of future child support matters herein
insofar as the circuit court entered its modified order in the instant abuse and neglect
13
proceeding and, thus, retained jurisdiction over the same. Moreover, it goes without saying
that, as a tribunal of limited jurisdiction, the family court neither has full access to the record
giving rise to the order of modified support in the abuse and neglect case nor the authority
to modify or reverse the circuit court’s child support order. Accordingly, we reverse the July
16, 2013, order of the Circuit Court of Wood County that remanded the case to the Family
Court of Wood County for the enforcement of the circuit court’s modified child support order
through contempt proceedings and directed the family court to hear all future proceedings
concerning the enforcement and modification of child support. We further remand this case
to the circuit court with directions that it retain jurisdiction over its modified order of child
support that it entered in the underlying abuse and neglect case and instructions to the circuit
court to see to fruition the pending contempt proceedings as well as any future proceedings
concerning the enforcement or modification of said child support order.
Finally, we would be remiss if we did not address the many procedural issues
that have come to our attention during our review of the underlying abuse and neglect
proceedings. First, and foremost, the order from whence the contempt petition in this case
originates, the circuit court’s November 21, 2012, “Order of Modified Support” very tersely
describes the respondent father’s modified support obligation as follows: “Jason L[.]’s
current child support obligation shall be reduced in that his current child support obligation
shall be Eighty-Two and 83/100 dollars ($82.83) per month effective on the first day of
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August 1st [sic], 2012[,] and arrearages in the amount of $50.00 (Fifty) dollars per month
until paid.”
As we noted previously in this opinion, Rule 16a(b) of the West Virginia Rules
of Procedure for Child Abuse and Neglect Proceedings requires the use of the child support
Guidelines to calculate an award of child support:
Any order establishing a child support obligation in an
abuse and neglect proceeding must use the Guidelines for Child
Support Awards found in W. Va. Code § 48-13-101, et seq. The
Guidelines may be disregarded, or the calculation of an award
under the Guidelines may be adjusted, only if the court makes
specific findings that use of the Guidelines is inappropriate.
W. Va. R. P. Child Abuse & Neglect Proceed. 16a(b) (emphasis added). Use of the
Guidelines is mandatory. “Any order establishing a child support obligation in an abuse or
neglect action filed pursuant to Chapter 49 of the West Virginia Code must use the
Guidelines for Child Support Awards found in W. Va. Code, 48-13-101, et seq.” Syl. pt. 5,
Smith, 218 W. Va. 480, 624 S.E.2d 917 (emphasis added).
Although both Rule 16a(b) and our prior precedent recognize that use of the
Guidelines may not be appropriate in a given case, a court still is required to explain why it
has chosen not to follow them.
A circuit court terminating a parent’s parental rights
pursuant to W. Va. Code, § 49-6-5(a)(6), must ordinarily require
that the terminated parent continue paying child support for the
15
child, pursuant to the Guidelines for Child Support Awards
found in W. Va. Code, § 48-13-101, et seq. [2001]. If the circuit
court finds, in a rare instance, that it is not in the child’s best
interest to order the parent to pay child support pursuant to the
Guidelines in a specific case, it may disregard the Guidelines to
accommodate the needs of the child if the court makes that
finding on the record and explains its reasons for deviating from
the Guidelines pursuant to W. Va. Code, § 48-13-702 [2001].
Syl. pt. 2, In re Ryan B., 224 W. Va. 461, 686 S.E.2d 601.
In the circuit court’s modified support order, no explanation is given as to
whether the Guidelines were used or were not used, and, if they were not used, why the court
found them to be inapplicable to this case. Therefore, on remand, the circuit court should
correct its November 21, 2012, order awarding modified child support to comply with this
Court’s directives for the calculation of child support in abuse and neglect cases in
accordance with the Guidelines for Child Support Awards as set forth in Syllabus point 5 of
West Virginia Department of Health and Human Resources, Bureau for Child Support
Enforcement v. Smith, 218 W. Va. 480, 624 S.E.2d 917 (2005), and Syllabus point 2 of In re
Ryan B., 224 W. Va. 461, 686 S.E.2d 601 (2009).
Moreover, while it is apparent to this Court that the respondent father’s
parental rights have been terminated in the circuit court’s order of modified support, we are
unable to locate an order finally concluding the abuse and neglect proceedings. Rather, the
circuit court’s November 21, 2012, “Order of Modified Support” succinctly terminates the
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respondent father’s parental rights with a passing reference to the fact that this disposition
was achieved by the agreement of the parties. In so ruling, the circuit court states that
[c]ounsels for both Mary . . . P[.] and Jason L[.] have
entered into an agreement wherein Jason L[.]’s parental rights
should be terminated and Jason L[.]’s current child support
obligation established by Family Court should be reduced in
half.
....
Therefore, it is hereby Adjudged and Ordered:
Jason L[.]’s parental rights shall be terminated.
While we do not believe that the circuit court’s failure to render more detailed findings of
fact regarding the termination of Jason’s parental rights warrants reversal on this point where
none of the parties have raised the issue on appeal, we do instruct the circuit court, when
composing its corrected order of child support, to thoroughly detail the factual findings
giving rise to its termination of Jason’s parental rights. See Syl. pt. 2, State v. T.C., 172
W. Va. 47, 303 S.E.2d 685 (1983) (“W. Va. Code, 49-6-1 et seq., does not foreclose the
ability of the parties, properly counseled, in a child abuse or neglect proceeding, to make
some voluntary dispositional plan. However, such arrangements are not without restrictions.
First, the plan is subject to the approval of the court. Second, and of greater importance, the
parties cannot circumvent the threshold question which is the issue of abuse or neglect.”).
See also Syl. pt. 5, In re Edward B., 210 W. Va. 621, 558 S.E.2d 620 (2001) (“Where it
appears from the record that the process established by the Rules of Procedure for Child
17
Abuse and Neglect Proceedings and related statutes for the disposition of cases involving
children adjudicated to be abused or neglected has been substantially disregarded or
frustrated, the resulting order of disposition will be vacated and the case remanded for
compliance with that process and entry of an appropriate dispositional order.”).
Lastly, we cannot discern from the record in this case whether a guardian ad
litem has been appointed to represent the subject child. If no such guardian has been
appointed, we remind the circuit court of the child’s entitlement to such representation and
direct that a guardian be so appointed for the minor child in this case. See Syl. pt. 5, in part,
In re Jeffrey R.L., 190 W. Va. 24, 435 S.E.2d 162 (1993) (“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] 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.”).
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IV.
CONCLUSION
For the foregoing reasons, we reverse the July 16, 2013, order of the Circuit
Court of Wood County and remand this case for further proceedings consistent with this
opinion.
Reversed and Remanded.
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