In re Brandon H.S.

• Decision Date: 06 April 2006
• Docket Number: No. 32872.,32872.
• Citation: 629 S.E.2d 783
• Parties: In re: BRANDON LEE H.S.
• Court: West Virginia Supreme Court

629 S.E.2d 783

In re: BRANDON LEE H.S.

No. 32872.

Supreme Court of Appeals of West Virginia.

Submitted March 1, 2006.

Decided April 6, 2006.

COPYRIGHT MATERIAL OMITTED

Syllabus by the Court

1. "In reviewing the findings of fact and conclusions of law of a circuit court supporting a civil contempt order, we apply a three-pronged standard of review. We review the contempt order under an abuse of discretion standard; the underlying factual findings are reviewed under a clearly erroneous standard; and questions of law and statutory interpretations are subject to a de novo review." Syl. Pt. 1, Carter v. Carter, 196 W.Va. 239, 470 S.E.2d 193 (1996).

2. "[W]hether a contempt is civil or criminal depends upon the purpose to be served by imposing a sanction for the contempt and such purpose also determines the type of sanction which is appropriate." Syl. Pt. 1, in part, State ex rel. Robinson v. Michael, 166 W.Va. 660, 276 S.E.2d 812 (1981).

3. "Where the purpose to be served by imposing a sanction for contempt is to compel compliance with a court order by the contemner so as to benefit the party bringing the contempt action by enforcing, protecting, or assuring the right of that party under the order, the contempt is civil." Syl. Pt. 2, State ex rel. Robinson v. Michael, 166 W.Va. 660, 276 S.E.2d 812 (1981).

Darrell V. McGraw, Attorney General, C. Carter Williams, Assistant Attorney General, Petersburg, Attorneys for the Appellant.

Margaret B. Gordon, Berkeley Springs, Guardian Ad Litem.

Tracy Weese, Shepherdstown, Attorney for the Appellee.

PER CURIAM:

The West Virginia Department of Health and Human Resources (hereinafter referred to as "DHHR" or the "Department") appeals from the January 26, 2005, order¹ entered by the Circuit Court of Berkeley County holding it in contempt due to its failure to provide sufficient staff resources to enable the Child Protective Services unit of the Martinsburg, West Virginia, DHHR office to fulfill its mandatory responsibilities. The entry of the circuit court's order was stayed for sixty days to permit DHHR to purge itself of the contempt ruling. Upon our review of the record in this matter, DHHR has implemented the necessary measures to purge itself of the contempt ruling.

I. Factual and Procedural Background

The contempt order that is the subject of this action arose out of an abuse and neglect proceeding that evidenced specific staffing problems that the Child Protective Services unit was experiencing in the Eastern Panhandle counties of this state. The abuse and neglect proceeding was initiated following the positive testing of infant Brandon Lee H.S.² for traces of cocaine, marijuana, and amphetamines upon his premature birth on October 22, 2004. As a result of this testing, an immediate referral was made to Child Protective Services. The circuit court awarded DHHR emergency temporary custody of Brandon on October 26, 2004, and Brandon was placed in foster care upon his discharge from the hospital.³

A preliminary hearing was scheduled for November 5, 2004, to address whether there was probable cause for continuing the award of emergency custody to DHHR. When both of Brandon's parents waived their rights to this preliminary hearing, the circuit court confirmed the actions of DHHR in acquiring legal custody of Brandon. Through its order entered on November 5, 2004, the trial court ordered that Brandon's parents be subjected to random drug screens and directed that visitation with Brandon be arranged at the discretion of DHHR. In this same order, the circuit court included the following language:

In reviewing this case, the Court finds that D.H.H.R. located in the Eastern Panhandle of West Virginia is dangerously understaffed, with as many as 12 unfilled staff positions. The Court finds that this may be putting infants in the Eastern Panhandle at risk. Further, the Court finds that this interferes with the proper oversight that D.H.H.R. should be giving to this case, including proper visitation and considerations of placement.

The trial court set this matter for adjudication on December 6, 2004.⁴

On November 30, 2004, the Child Protective Services supervisor learned that Brandon's case had not yet been assigned within the Department.⁵ Brandon's father and the guardian ad litem appointed to represent Brandon's interests filed a petition for contempt in which they alleged that the Department failed to properly staff this case and complained of the resulting delay in scheduling visitation, as well as in initiating drug-related services. Brandon's father raised an additional complaint concerning the Department's failure to conduct a home visit to determine if placement with him would be appropriate.⁶

On December 15, 2004, the hearing on the contempt petition began.⁷ With respect to the underlying allegations of contempt pertaining to the failure of the Martinsburg Child Protective Services unit to staff Brandon's case, the trial court found that these failures were "not the result of any `willful, intentional, or contumacious act' on the part" of the local DHHR employees. However, based upon testimony offered by several DHHR workers regarding the status of conditions at the Martinsburg Child Protective Services office, the circuit court ruled that

the Secretary of the Bureau for Children and Families and the Commissioner and Deputy Interim Commissioner of the West Virginia Department of Health and Human Resources are in contempt of their obligation under West Virginia law to provide sufficient resources so that the Martinsburg CPS Unit of D.H.H.R. can fulfill its obligations in the present case, as well as to assure the "safety and guidance" of other children in its custody and in the Eastern Panhandle of West Virginia.

The trial court expressly concluded that the ongoing failure to provide sufficient staffing was "willful, intentional, and contumacious" in light of the fact that "the Secretary has known of the problem at the CPS unit at D.H.H.R. in Martinsburg since 2000, and more particularly since the beginning of 2004, but has taken no action to remedy the situation."

In fashioning the conduct required by the Department to purge the contempt finding, the trial court identified specific directives all aimed at solving the staffing crisis at the Martinsburg Child Protective Services office. The dictates required by the circuit court included the immediate hiring of workers to fill the numerous office vacancies and various measures designed to expedite the training of new hires, as well as certain salary incentives, including the use of geographic pay differentials designed to forestall the heavy attrition rate purportedly due to workers leaving to work in contiguous states. The trial court provided for a sixty-day stay of its order to provide the Department with sufficient time to implement the necessary measures to purge itself of the contempt finding. Arguing that it timely effectuated the actions required of it to be purged from the contempt order, DHHR seeks relief from this Court.

II. Standard of Review

The standard pursuant to which we review civil contempt orders was identified in syllabus point one of Carter v. Carter, 196 W.Va. 239, 470 S.E.2d 193 (1996):

In reviewing the findings of fact and conclusions of law of a circuit court supporting a civil contempt order, we apply a three-pronged standard of review. We review the contempt order under an abuse of discretion standard; the underlying factual findings are reviewed under a clearly erroneous standard; and questions of law and statutory interpretations are subject to a de novo review.

Accordingly, we proceed to determine whether error was committed by the trial court in entering the contempt order that is the subject of this proceeding or in refusing to purge the Department of the contempt order.

III. Discussion

In challenging the entry of the contempt order that is the subject of this appeal, DHHR maintains that it had corrected the inaction relative to Brandon's case concerning both visitation and services and had complied, to the extent possible, with the trial court's directives concerning staff-related issues by the time of the hearing on the contempt petition. As a result, DHHR maintains the trial court erred in refusing to enter an order finding that the Department purged itself of the contempt rulings set forth in the January 26, 2005, order.⁸ In addition, the Department contends that certain procedural infirmities exist with regard to the contempt ruling due to the lack of service of process that was effectuated on the agency directors who were held in contempt individually.

We begin our analysis of this matter with a review of civil contempt. In State ex rel. Robinson v. Michael, 166 W.Va. 660, 276 S.E.2d 812 (1981), we explored the distinction between civil and criminal contempt, and found that "whether a contempt is civil or criminal depends upon the purpose to be served by imposing a sanction for the contempt and such purpose also determines the type of sanction which is appropriate." Id. at 660, 276 S.E.2d at 813, syl. pt. 1, in part. We further instructed that

[w]here the purpose to be served by imposing a sanction for contempt is to compel compliance with a court order by the contemner so as to benefit the party bringing the contempt action by enforcing, protecting, or assuring the right of that party under the order, the contempt is civil.

Id. at 660, 276 S.E.2d at 813, syl. pt. 2.

The Department argues that the court order necessary to serve as the predicate for a civil contempt ruling is the November 5, 2004, order. Maintaining that the terms of that order solely control the issue of whether it has purged itself of non-compliant conduct, the Department argues that the November 5, 2004, order contained only two specific directives with regard to Brandon's case. Those directives were:

(1) "It is further Ordered that the Respondents shall cooperate with ASI⁹ evaluations...