Per Curiam:
The West Virginia Department of Health and
Human Resources (hereinafter “WVDHHR”) seeks a writ of prohibition
to prevent the enforcement of an order of the Circuit Court of Marion County
dated August 8, 2005, returning physical and legal custody of the infant child,
Sean M. (hereinafter “Sean”), (See
footnote 1) to his parents. The WVDHHR argues that the father, Charles
M. (hereinafter “Charles”), was responsible for the death of Dominic
M. (hereinafter “Dominic”), the sibling of Sean; therefore, Sean should
not be returned to the custody of his parents, Charles and Miranda M. (hereinafter “Miranda”).
Based upon the parties' arguments, the record designated for our consideration,
and the pertinent authorities, we deny the writ of prohibition.
1. The
infant's brother, Dominic . . . suffered from symptoms consistent with Shaken
Baby Impact Syndrome.
2. The
parents have offered no explanation for how the symptoms occurred.
3. The
infant, Sean . . . should not be returned to the custody of his parents at this
time.
Adjudicatory hearings were held on July 13, 2004, and October 26, 2004. The
circuit court never made a finding as to whether the parents were guilty of
abuse in the death of Dominic, and therefore, never made the predicate determination
of whether Sean was an abused child. As the hearings progressed, more medical
evidence was presented contradicting Dominic's diagnosis of SBIS. Thereafter,
on April 18, 2005, the circuit court granted the parents a pre-adjudicatory improvement period.
The circuit court based its decision to grant
a pre-adjudicatory improvement period, in part, on the reports submitted by the
Guardian Ad Litem (hereinafter “GAL”) (See
footnote 6) and the Court Appointed Special Advocate (hereinafter “CASA”).
The GAL, as well as the CASA representative, held the opinion that Sean should
be returned to the physical custody of his parents. This opinion was based on
the fact that both parents had complied with all parameters of the pre-adjudicatory
improvement period, and evidence that Sean would best be served by reunification
with his parents. In addition to their compliance with the pre-adjudicatory improvement
period and their cooperation with the authorities regarding the abuse and neglect
investigation, the record further illustrated that Charles and Miranda had not
been involved before with the WVDHHR. There were no allegations of any prior
abuse or neglect, nor were there any allegations of drug or alcohol abuse. Both
parents held steady employment and appeared to provide a loving and stable home
for their children.
Moreover, in regard to the death of Dominic,
evidence was introduced that his
symptoms at death were more consistent with a subdural hematoma caused by a
fall from bed (See footnote
7) three weeks prior to his death, and were not consistent with
shaken baby syndrome. Two experts testified regarding evidence of an old bleed
in Dominic's head consistent with the timing of the fall, and they further
testified that the death was caused by a slow bleed that worsened or that a
re-bleed was triggered by slight movement on Dominic's part. Significantly,
there was a lack of evidence to confirm shaken baby syndrome because the hallmark
damage to the brain stem nerves was absent, as well as the absence of any neck
tissue damage or rib bruising that is generally present in shaken baby syndrome.
Based on this evidence, and based on the parents' compliance with the parameters
set forth in the pre- adjudicatory improvement period, the circuit court (See
footnote 8) returned custody of Sean to his parents on July 19,
2005. The written order was entered August 8, 2005, and the WVDHHR filed a
petition seeking a writ of prohibition to prevent the enforcement of this order.
We issued a rule to show cause and now deny the petition.
“'Although
conclusions of law reached by a circuit court are subject to de novo review,
when an action, such as an abuse and neglect case, is tried upon the facts without
a jury, the circuit court shall make a determination based upon the evidence
and shall make findings of fact and conclusions of law as to whether such child
is abused or neglected. These findings shall not be set aside by a reviewing
court unless clearly erroneous. A finding is clearly erroneous when, although
there is evidence to support the finding, the reviewing court on the entire evidence
is left with the definite and firm conviction that a mistake has been committed.
However, a reviewing court may not overturn a finding simply because it would
have decided the case differently, and it must affirm a finding if the circuit
court's account of the evidence is plausible in light of the record viewed in
its entirety.' Syl. Pt. 1, In the Interest of Tiffany Marie S., 196 W. Va.
223, 470 S.E.2d 177 (1996).” Syl. Pt. 1, State ex rel. Virginia M. v.
Virgil Eugene S. II, 197 W. Va. 456, 475 S.E.2d 548 (1996).
Syl. pt. 1, State ex rel. Diva P. v. Kaufman, 200 W. Va. 555, 490
S.E.2d 642 (1997).
Because this case was filed as a writ of
prohibition seeking to prevent the enforcement of the circuit court's order,
resolution of this case also necessitates our examination of the applicable standard
for writs of prohibition. A writ of prohibition is an appropriate remedy “when
the inferior court has not jurisdiction of the subject matter in controversy,
or, having such jurisdiction, exceeds its legitimate powers.” W. Va.
Code § 53-1- 1 (1923) (Repl. Vol. 2000). It is undisputed that the
circuit court has jurisdiction over civil abuse and neglect proceedings; therefore,
“[i]n
determining whether to grant a rule to show cause in prohibition when a court
is not acting in excess of its jurisdiction, this Court will look to the adequacy
of other available remedies
such as appeal and to the over-all economy of effort and money among litigants,
lawyers and courts; however, this Court will use prohibition in this discretionary
way to correct only substantial, clear-cut, legal errors plainly in contravention
of a clear statutory, constitutional, or common law mandate which may be resolved
independently of any disputed facts and only in cases where there is a high
probability that the trial will be completely reversed if the error is not
corrected in advance.” Syl. Pt. 1, Hinkle v. Black, 164 W. Va.
112, 262 S.E.2d 744 (1979).
Syl. pt. 2, State ex rel. Diva P. v. Kaufman, 200 W. Va. 555, 490
S.E.2d 642 (1997). See also State ex rel. Chafin v. Halbritter,
191 W. Va. 741, 743-44, 448 S.E.2d 428, 430-31 (1994) (“[P]rohibition
may be substituted for a writ of error or appeal when the latter alternatives
would provide an inadequate remedy.”) (internal citations omitted). Mindful
of these applicable standards, we now consider the parties' arguments.
In
the law concerning custody of minor children, no rule is more firmly established
than that the right of a natural parent to the custody of his or her infant child
is paramount to that of any other person; it is a fundamental personal liberty
protected and guaranteed by the Due Process Clauses of the West Virginia and
United States Constitutions.
Syl. pt. 1, In re Willis, 157 W. Va. 225, 207 S.E.2d 129 (1973).
Notwithstanding this Court's recognition of the constitutional rights afforded
a natural parent to the custody of his or her child, we have also recognized
that such a right is not absolute when we stated “[t]hough constitutionally
protected, the right of the natural parent to the custody of minor children
is not absolute and it may be limited or terminated by the State, as parens
patriae, if the parent is proved unfit to be entrusted with child care.” Syl.
pt. 5, id.
The WVDHHR sought custody of Sean pursuant
to W. Va. Code § 49-1-3(e) (1999) (Repl. Vol. 2004), which states:
“Imminent danger to the physical well-being of the child” means an emergency situation in which the welfare or the life of the child is threatened. Such emergency situation exists when there is . . . reasonable cause to believe that the following conditions threaten the health or life of any child in the home: (1) Nonaccidental trauma inflicted by a parent, guardian, custodian, sibling or a babysitter or other caretaker[.]
While there has been no specific finding that Sean was the personal victim of abuse, we have previously recognized that
“'[w]here
there is clear and convincing evidence that a child has suffered physical and/or
sexual abuse while in the custody of his or her parent(s), guardian, or custodian,
another child residing in the home when the abuse took place who is not a direct
victim of the physical and/or sexual abuse but is at risk of being abused is
an abused child under W. Va. Code, 49-1-3(a) (1994).' Syl. Pt. 2, In
re Christina L., 194 W. Va. 446, 460 S.E.2d 692 (1995).”
Syl. pt. 8, State ex rel. Diva P. v. Kaufman, 200 W. Va. 555, 490
S.E.2d 642 (1997). Therefore, if Dominic was abused, then Sean also qualifies
as an abused child (See
footnote 9) because he resided in the same home where the alleged
abuse occurred.
The circuit court concluded that there was
no evidence that Sean had ever been the victim of abuse and returned him to his
parents' custody on July 19, 2005. In determining whether the circuit court's
conclusion was clearly wrong, we are guided by the proposition that
“'“W. Va.
Code, 49-6-2(c) [1980], requires the State Department of Welfare [now the Department
of Health and Human Resources], in a child abuse or neglect case, to prove 'conditions
existing at the time of the filing of the petition . . . by clear and
convincing proof.' . . . . Syllabus Point 1, In Interest of S.C., 168
W. Va. 366, 284 S.E.2d 867 (1981).' Syllabus Point 1, West Virginia Department
of Human Services v. Peggy F., 184
W. Va. 60, 399 S.E.2d 460 (1990).” Syllabus Point 1, In re Beth,
192 W. Va. 656, 453 S.E.2d 639 (1994).
Syl. pt. 3, in part, In re Christina L., 194 W. Va. 446, 460 S.E.2d
692 (1995).
In examining the record, we first note that
there is no evidence to support a finding that Sean was ever personally a victim
of direct child abuse. Therefore, we look to the evidence surrounding Dominic's
death to see if Sean lived in the home with an abused child, and, therefore,
also qualifies as an abused child. While medical evidence was submitted that
Dominic suffered from SBIS, evidence was also submitted to the contrary. The
treating doctors diagnosed Dominic with SBIS; however, we find it significant
that the fall from bed was never mentioned as a possible cause of Dominic's problems.
It appears that, upon presentation to the hospital, no other option besides SBIS
was considered as a possible source of Dominic's problems. (See
footnote 10) As the abuse and neglect case progressed and the GAL
became involved, medical evidence was introduced by experts who examined Dominic's
medical records and autopsy slides. (See
footnote 11) These experts opined that Dominic actually suffered
from a head injury that was about fifteen days old, and that his death was caused
by a re-bleed (See footnote
12) of the
injured area. Importantly, the timing of this old injury correlates with Dominic's
fall from bed onto carpet while visiting at his grandparents' house. The defense
experts also explained that Dominic suffered from a coagulation disorder, and
this defect would have contributed to the likelihood of a slight fall causing
a subdural hematoma, and would further contribute to its likelihood to re-bleed
with any trivial movement. In light of the medical evidence, it is impossible
to definitively state that Dominic was the victim of SBIS. Substantial evidence
suggests Dominic fell from bed and that a chronic subdural hematoma formed
that re-bled and caused his death.
In view of the facts presented, the evidence
did not establish by clear and convincing proof that Charles abused Dominic.
Therefore, there is no basis to find that Sean was an abused child as there is
no allegation that he was the direct victim of abuse, and there is an absence
of evidence showing that he lived in the same residence as another abused child.
Therefore, the circuit court did not clearly err when it returned physical and
legal custody of Sean to his parents, Charles and Miranda.