2. “Child abuse and neglect cases must be recognized as being among the highest priority for the courts' attention. Unjustified procedural delays wreak havoc on a child's development, stability and security. Consequently, in order to assure that all entities are actively pursuing the goals of the child abuse and neglect statutes, the Administrative Director of this Court is hereby directed to work with the clerks of the circuit court to develop systems to monitor the status and progress of child neglect and abuse cases in the courts.” Syllabus Point 1, In Interest of Carlita B., 185 W.Va. 613, 408 S.E.2d 365 (1991).
3. “The clear import of the statute [West Virginia Code § 49-6-2(d) ] is that
matters involving the abuse and neglect of children shall take precedence over almost every
other matter with which a court deals on a daily basis, and it clearly reflects the goal that such
proceedings must be resolved as expeditiously as possible.” Syllabus Point 5, In Interest of
Carlita B., 185 W.Va. 613, 408 S.E.2d 365 (1991).
Per curiam:
In this case, the West Virginia Department of Health and Human Resources
(“the DHHR”) seeks a writ of prohibition to halt the enforcement of a circuit court order
dismissing an abuse and neglect petition. The circuit court dismissed the petition as a
sanction against the DHHR for failing to timely file an expert's report with the circuit court.
As set forth below, we grant the requested writ.
The DHHR moved to terminate Angela H.'s improvement period _ ostensibly
because she was not complying with drug treatment programs and because of concerns about
her parenting skills _ and moved to terminate her parental rights to K.M. On August 6, 2008,
the circuit court ordered the DHHR to perform a psychological evaluation of Angela H., and
set the matter for a final disposition hearing on October 1, 2008.
However, at the October 1, 2008 hearing, counsel for the DHHR announced
that it had not yet begun to conduct a psychological examination of the respondent mother,
Angela H. The circuit court then continued the disposition hearing to November 19, 2008.
The circuit court also ordered that the DHHR complete the psychological evaluation of
Angela H., and file a report of that evaluation with the court, by November 7, 2008. The
circuit court explicitly stated that, if the evaluation was not filed by that date, then “the
petition will be dismissed as to the respondent mother.” (See footnote 1)
The DHHR filed the required psychological report on November 14, 2008. At
the November 19th hearing, the circuit court noted that the report had not been timely filed,
as the circuit court had explicitly ordered, and the circuit court announced that the petition
was being dismissed. The circuit court expressed frustration with the DHHR's failure to
comply with scheduling deadlines, and indicated that it was “an ongoing problem” that this
Court should recognize. (See footnote 2)
In a written order filed December 12, 2008, the circuit court ordered that the abuse and neglect petition against Angela H. be “dismissed for failure to file the psychological report by November 7, 2008.” The circuit court also ordered that the child, K.M., be returned to his mother Angela H.'s custody.
The DHHR immediately petitioned (See footnote 3) this Court for a writ of prohibition to stop
the enforcement of the circuit court's oral and written orders dismissing the abuse and
neglect petition. (See footnote 4)
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.
W.Va. Code, 49-6-6 requires a trial court to conduct a hearing on any motion
made to modify a child's disposition. W.Va. Code, 49-6-6 states, in pertinent part:
Upon motion of a child, a child's parent or custodian or
the state department alleging a change of circumstances
requiring a different disposition, the court shall conduct a
hearing . . . Adequate and timely notice of any motion for
modification shall be given to the child's counsel, counsel for
the child's parent or custodian and to the state department.
In the instant case, the circuit court refused to allow the DHHR to present evidence or
witness testimony in a disposition hearing. The circuit court was clearly in error, and should
have conducted a hearing to take evidence and testimony in support of the DHHR's motion
seeking to alter Angela H.'s and K.M.'s disposition.
This is not to say, however, that the circuit court erred in attempting to assess sanctions. The transcript of the November 19, 2008 hearing plainly reflects the circuit court's frustration with the DHHR and its counsel arising from their repeated failures to comply with the circuit court's orders. Our concern is that the remedy of dismissing the petition, without first considering other sanctions, fails to take into consideration the best interests of the child who is the subject of the abuse and neglect petition. (See footnote 5) As we stated in Syllabus Point 3 of In re Katie S., 198 W.Va. 79, 479 S.E.2d 589 (1996):
Although parents have substantial rights that must be protected, the primary goal in cases involving abuse and neglect, as in all family law matters, must be the health and welfare of the children.
The early, most formative years of a child's life are crucial to his or her development. In re Carlita B., 185 W.Va. 613, 623, 408 S.E.2d 365, 375 (1991). We have repeatedly emphasized that “children have a right to resolution of their life situations, to a basic level of nurturance, protection, and security, and to a permanent placement.” State ex rel. Amy M. v. Kaufman, 196 W.Va. 251, 257, 470 S.E.2d 205, 211 (1996). We therefore concluded, in Syllabus Point 1 of In re Carlita B., supra:
Child abuse and neglect cases must be recognized as
being among the highest priority for the courts' attention.
Unjustified procedural delays wreak havoc on a child's
development, stability and security.
The central theme of the statutes which pertain to abuse and neglect is that “matters involving
the abuse and neglect of children shall take precedence over almost every other matter with
which a court deals on a daily basis, and it clearly reflects the goal that such proceedings
must be resolved as expeditiously as possible.” Syllabus Point 5, In re Carlita B, supra.
The record in the instant case shows that the circuit court attempted to give this
abuse and neglect matter precedence, and attempted to resolve the case as expeditiously as
possible. However, the DHHR and its counsel did not comply with the circuit court's
directions to timely file a report with the circuit clerk. If the circuit court perceived that the
delays in resolving the case resulted from action (or inaction) by the DHHR or its counsel,
then any sanctions should first have been directed to the party or to the attorney at fault. But
the overarching rule is that any sanctions first should take into account the health and welfare
of the child.