2. “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.” Syllabus Point 4 of State ex rel. Hoover v. Berger, 199 W.Va. 12, 483
S.E.2d 12 (1996).
3. “Three factors to be considered in deciding whether to address
technically moot issues are as follows: first, the court will determine whether sufficient
collateral consequences will result from determination of the questions presented so as to
justify relief; second, while technically moot in the immediate context, questions of great
public interest may nevertheless be addressed for the future guidance of the bar and of the
public; and third, issues which may be repeatedly presented to the trial court, yet escape
review at the appellate level because of their fleeting and determinate nature, may
appropriately be decided.” Syllabus Point 1 of Israel by Israel v. West Virginia Secondary
Schools Activities Commission, 182 W.Va. 454, 388 S.E.2d 480 (1989).
4. “Where the issue on appeal from the circuit court is clearly a question
of law or involving an interpretation of a statute, we apply a de novo standard of review.”
Syllabus Point 1 of Chrystal R.M. v. Charlie A.L., 194 W.Va. 138, 459 S.E.2d 415 (1995).
7. When a minor, without a next friend or guardian, files a petition for a
protective order under W.Va. Code, 48-27-101, et. seq., the court in which the petition is filed
shall immediately upon filing of the petition appoint a guardian ad litem for the minor.
8. When any circuit court judge, family court judge, or magistrate has
reasonable cause to suspect that a child is neglected or abused, the circuit court judge, family
court judge, or magistrate shall immediately report the suspected neglect or abuse to the state
child protective services agency pursuant to W.Va. Code, 49-6A-2 (2006) and, if applicable,
Rule 48 of the Rules of Practice and Procedure for Family Court.
Starcher J. :
Appellant appeals from an order entered by the circuit court of Jefferson
County denying her petition for a writ of prohibition. The appellant claims in her petition
that a family court judge exceeded the jurisdiction of the family court by issuing a domestic
violence protective order upon a petition filed by a minor. For the reasons set forth below,
we affirm the dismissal of appellant's petition.
I.
Facts & Background
At the time of the filing of the petition Richard B. was a minor _ fifteen years
old. Also, at the time of the filing of the petition Richard B. was accompanied by his sister,
Jennifer M., a twenty-seven year old married woman who is the mother of two children.
Jennifer M., however, was not named in the petition as next friend.
On January 11, 2005, the family court of Jefferson County, West Virginia,
conducted a final hearing on the petition. At the beginning of the hearing the court
recognized the petitioner's sister, Jennifer M., as next friend and treated her as such by
allowing her to remain in the hearing as a party while other witnesses were segregated. The
minor petitioner was represented by counsel, Robert D. Aitcheson, and the respondent
Katherine B. T. (petitioner on appeal) appeared pro se.
On January 13, 2005, the respondent mother appealed the order of the family
court to the circuit court, claiming that false statements were made against her by her son and
daughter. The circuit court conducted a hearing on the appeal on January 25, 2005, and
reviewed the record of the family court. The circuit court affirmed the family court's
protective order on January 25, 2005. The respondent mother, Katherine B. T., immediately
filed a petition in the family court to modify the protective order. No specific relief was
requested in the petition.
On February 3, 2005, the minor son, Richard B., by counsel filed a petition for
contempt against his mother, Katherine B. T., alleging that his mother violated the protective
order by making excessive phone calls to him. On February 8, 2005, the respondent mother,
Katherine B. T., filed a second petition in the family court to modify the protective order, this
time seeking visitation with Richard B. On the same day, the family court considered the
son's petition for contempt, and found the respondent mother, Katherine B. T., in contempt.
The family court also considered the mother's motion to modify the protective order, and
issued a modified protective order which permitted the petitioner, Richard B., to spend time
with his mother, Katherine B. T., as “he [Richard B.] desires.”
On March 9, 2005, the respondent mother, Katherine B. T., for the first time,
appeared by counsel, by filing a motion in the family court to dismiss the original petition,
or in the alternative, that the court enter an order placing the custody of Richard B. with an
appropriate adult in West Virginia. On April 11, 2005, Richard B. filed a motion for drug
testing of his mother, Katherine B. T. By order dated April 12, 2005, the family court denied
the mother's motion to dismiss and the son's motion for drug testing.
On April 13, 2005, Katherine B. T., the respondent below and appellant in the
instant case, filed a petition for a writ of prohibition in the circuit court against Sally G.
Jackson, Judge of the Family Court, claiming, among other things, that the family court
exceeded its legitimate powers by granting relief to the minor, Richard B., in the underlying
case. The circuit court considered the petition for a writ of prohibition at a hearing on June
29, 2005, and entered an order denying the petition. It is from this order that the petitioner,
Katherine B. T., appeals.
II.
Standard of Review
We first turn our attention to the standard of review to be applied in the
instant case. We held in Syllabus point 2 of State ex rel. Peacher v. Sencindiver, 160
W.Va. 314, 233 S.E.2d 425 (1977) that:
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. W.Va. Code, 53-1-1.
Furthermore, we held in Syllabus Point 4 of State ex rel. Hoover v. Berger, 199
W.Va. 12, 483 S.E.2d 12 (1996) that:
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.
Finally, we held in Syllabus Point 1 of Chrystal R.M. v. Charlie A.L., 194
W.Va. 138, 459 S.E.2d 415 (1995) that: Where the issue on appeal from the circuit court is clearly a
question of law or involving an interpretation of a statute, we
apply a de novo standard of review.
We consider these principles applicable to the instant case.
III.
Discussion
We begin our discussion by noting that since the protective order in the
underlying domestic violence case expired by its own terms and by operation of law
(See footnote 6) on July
10, 2005, it would appear that the instant case is moot. The petition for appeal was received
by this Court on October 31, 2005, nearly three months after the expiration of the underlying
domestic violence protective order issued by the family court.
Complicating our consideration of the instant case is the fact that in oral
argument we learned that on July 7, 2005, three days before the expiration of the underlying
domestic violence protective order, Richard B., by his next friend, Randall W., filed a new
and separate petition in the family court of Jefferson County against the minor's mother,
Katherine B. T., requesting that emergency and permanent custody be placed in Randall W.
We further learned that on July 8, 2005, the family court entered an order granting
emergency temporary custody to Randall W. until further order of the court.
(See footnote 7) This order was
in effect at the time of the oral argument in the instant case.
We have also learned since oral argument, and take judicial notice thereof, that
a final hearing was conducted in the aforesaid pending custody case in the family court of
Jefferson County on June 13, 2006. At the hearing the parties reported to the family court
that the parties had reached an agreed settlement regarding the custody of Richard B.
Additionally, we note that a guardian ad litem had been appointed for Richard B. in the
custody case and that the guardian ad litem participated in the June 13 hearing.
The agreed settlement announced by the parties to the court at the June 13,
2006 custody hearing was reduced to writing and incorporated into a final order
(See footnote 8) which, in
part, granted shared custody to Randall W. and Katherine B. T. The order also provides that
Katherine B. T. shall have custodial time with Richard B. for a minimum of three days per
week, or as she and the child otherwise agree. The order of the family court was entered on
October 16, 2006, after the oral argument in the instant case.
The appellant encourages this Court to consider the issues in this case
notwithstanding that the domestic violence order in issue has expired. Appellant cites to
Syllabus Point 1 of Israel by Israel v. West Virginia Secondary Schools Activities
Commission, 182 W.Va. 454, 388 S.E.2d 480 (1989) for the proposition that this Court may
consider issues that are technically moot.
Three factors to be considered in deciding whether to address
technically moot issues are as follows: first, the court will
determine whether sufficient collateral consequences will result
from determination of the questions presented so as to justify
relief; second, while technically moot in the immediate context,
questions of great public interest may nevertheless be addressed
for the future guidance of the bar and of the public; and third,
issues which may be repeatedly presented to the trial court, yet
escape review at the appellate level because of their fleeting and
determinate nature, may appropriately be decided.
Syllabus Point 1 of Israel, supra.
In examining whether the instant case satisfies the three factors of Israel, supra, we first consider potential collateral consequences. If minor children were allowed
to file domestic violence petitions without the necessity of doing so by a next friend or
having a guardian ad litem appointed, it would be reasonable to expect to some children to
use the domestic violence laws to escape legitimate parental supervision. We believe this
potentiality alone satisfies the first prong of Israel, supra.
Secondly, it is axiomatic that taking minor children from under parental
supervision is a matter of sufficient public interest. We also believe that the public interest
will be served by providing guidance regarding this matter to the public, the bar and the court
system. The issue clearly involves a vital public function _ serving the best interest of our
minor children. The second prong of Israel, supra, is therefore satisfied.
Finally, because domestic violence protective orders are, by statute, limited in
duration, it is likely that instances of similar circumstances as raised in this appeal have and
will in the future escape appellate review “because of their fleeting and determinative
nature.” The third prong of Israel, supra, is also satisfied.
For the reasons stated above, and because it is foreseeable that minor children
in the future may attempt to file domestic violence petitions, the questions raised in the
instant appeal remain justiciable. See White v. Linkinoggor, 176 W.Va. 410, 412, 344 S.E.2d
633, 635 (1986).
The principle of mootness has proper application in this case because the
underlying domestic violence protective order has expired and the custody issue raised has
been resolved. We therefore find that the instant case is moot; however, we decline to
dismiss the appeal.
A.
The appellant mother, Katherine B. T., challenges the fact that Richard B., a
minor, filed a domestic violence petition on his own behalf and asserts that the family court
exceeded its legitimate authority by failing to dismiss the petition. We disagree.
This issue involves, in part, a matter of statutory interpretation. We held in
Syllabus Point 5 of State v. General Daniel Morgan Post No. 548, Veterans of Foreign Wars,
144 W.Va. 137, 107 S.E.2d 353 (1959) that:
When a statute is clear and unambiguous and the legislative
intent is plain, the statute should not be interpreted by the courts,
and in such case it is the duty of the courts not to construe but to
apply the statute.
The appellant first cites to W.Va. Code, 48-27-305(2) (2001), which states:
A petition for a protective order may be filed by:
. . .
(2) An adult family or household member for the protection of
the victim or for any family or household member who is a
minor child or physically or mentally incapacitated to the extent
that he or she cannot file on his or her own behalf[.]
The appellant, however, fails to consider the first paragraph of W.Va. Code, 48-
27-305(1) (2001), which states:
A petition for a protective order may be filed by:
(1) A person seeking relief under this article [W.Va. Code, 48-
27-1 et seq.] for herself or himself.
(Emphasis added.)
The appellant further fails to consider the express language of W.Va. Code, 48-
27-304(b) (2001) which states:
(b) No person shall be refused the right to file a petition under
the provisions of this article. No person shall be denied relief
under the provisions of this article if she or he presents facts
sufficient under the provisions of this article for the relief
sought.
(Emphasis added.)
In order to resolve the question of whether or not a minor may file a domestic
violence petition, we need only determine whether or not the legislature intended to include
minors as persons who may file a domestic violence petition and thus obtain relief under the
statute.
A person is defined as a “human being.”
(See footnote 9) W.Va. Code, 48-27-204 (2002), in
defining the term “Family or household member” recognizes “child or stepchild” as a
person.
(See footnote 10) Finally, we look to legislative findings and purposes in the enactment of the
domestic violence statute.
W.Va. Code, 48-27-101 (2001) states, in part, as follows:
§48-27-101. Findings and purposes. (a) The Legislature of this state finds that:
(1) Every person has a right to be safe and secure in his or her
home and family and to be free from domestic violence.
(2) Children are often physically assaulted or witness violence
against one of their parents or other family or household
members, violence which too often ultimately results in death.
These children may suffer deep and lasting emotional harm from
victimization and from exposure to domestic violence;
. . .
(Emphasis added.)
This section clearly expresses a legislative concern that children be protected
from domestic violence and that they be treated as
persons entitled to the protections of the
domestic violence laws. We are persuaded that the language in this section is intended to
include the protection of all victims of domestic violence, including minors.
(See footnote 11)
We believe that the clear and unambiguous intention of the legislature was to
create a system for addressing domestic violence issues which would be open to all persons.
Because we find that the statute is clear and unambiguous and that the legislative intent is
plain, our duty is simply to apply the statute.
We therefore hold that under W.Va. Code, 48-27-305 (2002), a minor may file
a petition for a domestic violence protective order.
B.
Having answered the question as to whether or not a minor may file a domestic
violence petition, we next turn to the procedure to be applied under these circumstances.
The appellant cites to
W.Va. Code, 56-4-9 (1923) which states that “. . . any
minor entitled to sue may do so by next friend or guardian.”
(See footnote 12) The appellant also asserts the
application of
W.Va. Code, 50-5-3 (1978) which requires that infants proceed or be
proceeded against by a next friend or guardian in civil actions in magistrate court.
(See footnote 13) Finally,
the appellant also cites Rule 17(c) of the
West Virginia Rules of Civil Procedure as support
for requiring a minor to proceed in a domestic violence case by a next friend or guardian.
We believe a domestic violence proceeding under W.Va. Code, 48-27-101, et.
seq., is a remedial statute designed for the protection of the persons as defined in the statute
and is to be liberally construed to accomplish its purposes. The Court has also adopted a
comprehensive set of rules to govern the practice and procedure in civil domestic violence
cases; however, the rules do not address whether or not a minor is required to proceed by
next friend or guardian.
We agree with the appellant that both our statute and our rules provide that a
minor must have either a next friend or guardian in order to prosecute or defend civil actions
generally.
The record in the instant case reflects that the minor was accompanied by an
adult, namely his sister Jennifer M., at the time of the filing of the domestic violence petition
and at the final hearing on the petition. Also, the family court judge recognized the minor's
adult sister, Jennifer M., as his next friend at the final hearing and allowed her to remain in
the hearing as a party while other witnesses were segregated from the hearing. Jennifer M.
was, therefore, acting and recognized by the court as the de facto next friend of her minor
brother Richard B.
Because our domestic violence rules do not speak specifically to domestic
violence petitions that may be initiated by minors, we believe it would be helpful to our
courts and to litigants for this Court to adopt a procedure to be applied in such cases. We,
therefore, hold that when a minor, without a next friend or guardian, files a petition for a
protective order under W.Va. Code, 48-27-101, et. seq., the court in which the petition is filed
shall immediately upon filing of the petition appoint a guardian ad litem for the minor.
C.
Finally, we turn to the appellant's argument that the family court abused its
discretion when it did not report to the DHHR suspected abuse claimed by the appellant.
The appellant argues that this issue is governed by Rule 47(a) of the
Rules of
Practice and Procedure for Family Courts (See footnote 14) which states:
(a) Reports by family court judges. _ If a family court judge has
reasonable cause to suspect any minor child involved in family
court proceedings has been abused or neglected, that family
court judge shall immediately report to the state child protective
services agency and the circuit court.
In the instant case the record reflects that the magistrate notified the Jefferson
County Department of Health and Human Resources office by FAX of the domestic violence
petition and the emergency protective order when the order was issued. The record also
reflects that the magistrate called the “hotline” and spoke to a DHHR worker to report the
incident. From the record, it also appears that the FAX was sent to the family court judge.
We believe that since the magistrate reported the matter to the DHHR and also
notified the family court judge that the report was made, there was no necessity for the family
court judge to duplicate the report to the DHHR.
We do, however, believe that the better practice would be to follow the strict
language of Rule 47 of the
Rules of Practice and Procedure for Family Court (See footnote 15) even if the
petition and incident had been previously reported to the DHHR. This practice could help
assure that no case “slips through the cracks.”
We therefore hold that in any domestic violence case, when any circuit court
judge, family court judge, or magistrate has reasonable cause to suspect that a child is
neglected or abused, the circuit court judge, family court judge, or magistrate shall
immediately report the suspected neglect or abuse to the state child protective services
agency pursuant to W.Va. Code, 49-6A-2 (2006) and, if applicable, Rule 48 of the Rules of
Practice and Procedure for Family Court. When a petition for domestic violence is filed
(typically magistrate court) and the judge or magistrate has reasonable cause to suspect that
a child is neglected or abused, it would also be the better practice for the court to require the
attendance of a representative of the DHHR at all proceedings.
IV.
Conclusion
In consideration of the foregoing, we affirm the circuit court's dismissal of the
appellant's petition for a writ of prohibition and deny the requested relief. We further hold
that in any domestic violence case which is initiated by a minor, our courts shall be guided
by the holdings of this case.
We follow our traditional practice in cases involving sensitive facts and use initials
to identify the last names of the parties.
See In re Jeffrey R. L., 190 W.Va. 24, 435 S.E.2d
162 (1993).
Footnote: 2
The magistrate made findings which included the following:
. . .
C. Petitioner has proven the allegations of domestic violence or
abuse by clear and convincing evidence of immediate and
present danger of abuse, and is entitled to mandatory relief as
provided by W.Va. Code § 48-27-502.
D. (Initial if applicable) mpr That Petitioner has proven by clear
and convincing evidence the need for the permissive relief
granted in this ORDER as provided by W.Va. Code § 48-27-
503.
The court makes the following findings of fact which support
the conclusion stated in section C & D:
Petr's [Petitioner's] sworn statement; physical evidence of abuse
[;] Statements & information from sister ie [sic]: history of
violence between mother and children
. . .
PERMISSIVE RELIEF
. . .
12.
mpr OTHER as allowed by W.Va. Code § 48-27-403: Petr
[Petitioner] is going to stay w/ his sister, Jennifer M[.] (27 yr.
Old) in Burnie, MD
The record reflects that the following was sent by FAX to the Department of Health
and Human Resources:
December 31, 2004
Jefferson County DHHR Office
BY FAX: 267-0121
Attached for your information is a copy of a Domestic Violence
Petition and Emergency Protective Order that was issued about
2:30 a m. today
I called the Hotline to report the incident. I spoke with Terry
and told her I woul fax this paperwork to you Hope it helps.
Thank you.
[signature]
Mary Paul Rissler, Magistrate
Jefferson County
cc: Family Ct. Judge
Footnote: 4 The order by its terms expired on July 10, 2005.
Footnote: 5 Paragraph 5 of the order granting custody states:
PERMISSIVE RELIEF:
The following items initialed by the family law master [family
court judge] are further
ORDERED:
. . .
5.
. Temporary custody of (
list names of children, if any)
Richard [B.] is awarded to
(check one if granted) *
Petitioner * Respondent. his sister Jennifer [M.]. She
may place him with Randall [W.], a family friend.
Footnote: 6 See W.Va. Code, 48-27-505(a) (2001) which limits protective orders to 180 days.
Footnote: 7
We take judicial notice of a July 8, 2005, order in Jefferson County Civil Action No.
05-D-210, in which custody of Richard B. was granted to Randall W. after the court
concluded that Randall W. was fit to have custody.
In the July 8, 2005, order the family court stated:
This Court has previously found that . . . C. Randall [W.] is fit
to have custody of the child . . ..
Footnote: 8 We take judicial notice of the June 13, 2006 hearing order in Jefferson County Civil
Action No. 05-D-210 in which the agreement of the parties was memorialized. The order
was entered on October 16, 2006. The following is a portion of the order:
1. Randall [W.] and Katherine [B.T.] shall have shared custody
of Richard [B.], who shall live primarily with Randall [W.] in
Hagerstown, Maryland.
2. Katherine [B. T]. shall have custodial time with the minor
child for a minimum of three days per week or as she & child
otherwise agree. Child is over 14 yrs & has the right to
determine a custodial schedule.
Footnote: 9 Black's Law Dictionary, Eight Edition, West Publishing Co., 2004.
Footnote: 10
W.Va. Code, 48-27-204 (2002) states:
“Family or household members” means persons who: . . .
(7) Have the following relationships to another person: . . .
(H) Child or stepchild; . . ..
Footnote: 11
W.Va. Code, 48-27-101(2001), states, in part, as follows:
§48-27-101. Findings and purposes. (b) This article shall be liberally construed and applied to
promote the following purposes:
(1) To assure victims of domestic violence the maximum
protection from abuse that the law can provide; . . .
Footnote: 12
W.Va. Code, 56-4-9 (1923) states:
Minors may sue by next friend or guardian; substitution of
plaintiffs.
Any minor entitled to sue may do so by next friend or guardian.
When the action or suit is brought by his next friend, the court
may, for good cause, substitute the guardian in lieu of the next
friend, or any other person as the next friend.
Footnote: 13
W.Va. Code, 50-5-3 (1978) states:
§50-5-3. Appointment of guardian ad litem. No infant, incompetent person or incarcerated convict shall
proceed or be proceeded against in a civil action in magistrate
court unless the provisions of this section are complied with.
Whenever an infant, incompetent person or incarcerated
convict has a duly qualified representative, such as a guardian,
curator, committee or other like fiduciary, such representative
may sue or defend on behalf of the infant, incompetent person
or convict. If a person under any disability does not have a duly
qualified representative he may sue by his next friend. The
magistrate shall appoint some suitable person who shall not be
required to be an attorney-at-law as guardian ad litem for an
infant, incompetent person or incarcerated convict not otherwise
represented in an action.
This Court has adopted changes to Court rules effective April 3, 2006, regarding
reporting of suspected abuse and neglect and accountability which, when followed, should
minimize the probability of any instances of abuse and neglect escaping prompt attention by
the Department of Health and Human Resources.
See Rule 48 of the
Rules of Practice and
Procedure for Family Court; Rule 3a. of the
Rules of Procedure For Child Abuse and
Neglect Proceedings; and Rule 16a of
Rules of Practice and Procedure for Domestic
Violence Civil Proceedings.
Footnote: 15
Rule 48 of the Rules of Practice and Procedure for Family Courts, effective April
3, 2006.