In re G.S.
| Decision Date | 02 April 2021 |
| Docket Number | No. 20-0247,20-0247 |
| Court | West Virginia Supreme Court |
| Parties | IN RE: G.S. |
Kelly A. Stepp, Esq., Stepp Law Offices, Waynesburg, Pennsylvania, Counsel for Petitioners.
David C. White, Esq., Law Office of Neiswonger and White, Moundsville, West Virginia, Guardian Ad Litem.
Patrick Morrisey, Esq., Attorney General, Mindy M. Parsley, Esq., Assistant Attorney General, Charleston, West Virginia, Counsel for Respondent Department of Health and Human Resources.
R. Jared Lowe, Esq., Assistant Public Defender, Moundsville, West Virginia.
Petitioners are the paternal grandparents of an infant, G.S. Soon after G.S. was born, Petitioners filed a petition for guardianship in the Circuit Court of Wetzel County. In support of their petition, Petitioners filed written agreements—signed by both parents—that purported to transfer custody of the newborn to Petitioners. Days later, the Department of Health and Human Resources ("DHHR") filed an abuse and neglect petition against the parents. When Petitioners promptly moved to intervene, the circuit court denied their motion and, despite the written agreements of record purporting to convey custody of G.S. to Petitioners, held no evidentiary hearing to consider them for temporary placement. The child remains in foster care, and Petitioners filed this appeal.
After careful review, we hold that Petitioners had a right to a timely evidentiary hearing to determine their suitability for temporary placement in light of the written agreements of record that purported to convey custody of the child to Petitioners. Accordingly, we reverse the circuit court's order and remand this case for an expedited hearing in accordance with this opinion.
Petitioners, K.S.1 and A.S., are the paternal grandparents of an infant girl, G.S., who was born in January 2020, both premature and severely exposed to addictive drugs. Though G.S. was born at home, she was soon hospitalized. She remained in the hospital for twenty-one days. Nine days later, she was hospitalized again, this time for eleven days.
Petitioners represent that they were preparing to seek guardianship before G.S. was born. When G.S. was two days old, they filed a petition for guardianship in the Circuit Court of Wetzel County. In support of their petition, they filed "guardianship" agreements that were signed by both parents. The agreements, which were acknowledged before a notary on the day after the child was born, recited that the child's "welfare and best interests" would be promoted if she lived in Petitioners’ home under their "care, custody, and control[.]" Each agreement purported to appoint Petitioners as guardians of G.S. and authorized them to make educational and medical decisions, and was to remain in effect until a parent "files and is granted an order terminating guardianship and restoring parental rights or until otherwise ordered by the [c]ourt." The agreements further provided that the child was to "reside in the home of the [Petitioners] and ... be treated the same as ... [Petitioners’] natural child."
Meanwhile, on the same day Petitioners filed the petition for guardianship, DHHR filed an application for emergency custody of G.S., which was granted by the magistrate court.2 Five days after DHHR applied for emergency custody,3 DHHR filed an abuse and neglect petition against the parents in circuit court. The petition accused G.S.’s mother of using controlled substances during pregnancy and G.S.’s father of knowingly allowing this to occur. The abuse and neglect petition also acknowledged that Petitioners had filed a guardianship petition. The circuit court entered an initial order on the abuse and neglect petition and scheduled a preliminary hearing for February 4, 2020.
The circuit court, however, dismissed Petitioners’ guardianship petition.4 Three days later, Petitioners moved to intervene in the abuse and neglect matter and be named as co-petitioners5 with DHHR. Petitioners’ motion reminded the court that they had petitioned for guardianship and advised that, since the child's birth, they had "visited the child in the hospital" and had "been fully involved in her care and well-being[.]" According to Petitioners, DHHR had represented to Petitioner grandmother that Petitioners would be considered for placement and had visited their home. Petitioners affirmed that they wished to care for G.S. and were able to do so.
On February 4, 2020, Petitioners appeared for a hearing on their motion to intervene and be named as co-petitioners. The hearing on Petitioners’ motion was set for the same date and time as the preliminary hearing. However, the circuit court soon removed them from the courtroom,6 leaving their attorney to argue in their absence. The assistant prosecuting attorney reported that G.S. remained in the hospital and that DHHR intended—barring a contrary order from the court—to place G.S. in foster care with her half-siblings, who had been the subject of a prior adoption.7 When Petitioners’ attorney argued that the half-siblings had no bond with G.S., the circuit court reminded Petitioners’ attorney that it was considering the motion to intervene, "not placement at the moment." Petitioners’ attorney responded, however, that Petitioners wished to intervene "so that they can be part of the process in whatever is decided for the infant at the end of the day" and that they wanted G.S. placed with them when she was discharged from the hospital. Petitioners’ attorney also noted that DHHR was seeking a decision about sibling separation and contended that placement with Petitioners was in the child's best interest, given the possibility that Petitioners’ son, the child's father, might regain custody. After further colloquy, the circuit court took the matter under advisement and excused Petitioners’ attorney from the courtroom.
The circuit court denied Petitioners’ motion in an order entered on February 13, 2020, finding that Petitioners did "not meet the statutory definition as persons entitled to notice of hearings as a parent or relative providing care for th[e] child" and that Petitioners "did not cite specific allegations of abusive or neglectful conduct by the parents" but, rather, had sought guardianship. Nevertheless, the circuit court found that Petitioners’ "home should be considered as a potential foster placement" and ordered DHHR to "conduct an appropriate home study and other assessment to consider the paternal grandparents as placement for the child in the Department's custody."
On March 16, 2020, Petitioners filed a notice of appeal from the circuit court's February 13, 2020 order. Before oral argument before this Court, Petitioners and DHHR filed updates regarding the child's status.8 DHHR's update advised that DHHR intended to seek the termination of the father's parental rights. Petitioners’ update reported that the mother relinquished her parental rights in June 2020. Petitioners further advised that they renewed their motion to intervene in November 2020 and that the circuit court had since granted that motion.
However, Petitioners also reported that DHHR continued to deny them visitation with the child and that the circuit court had "deferred the issue of placement" despite DHHR issuing a favorable kinship/relative safety screen with regard to Petitioners in April 2020.
This appeal stems from Petitioners’ attempt to participate in an ongoing abuse and neglect proceeding filed against the child's parents. Petitioners are properly before us, however, because an order denying a motion to intervene in an abuse and neglect matter is a final appealable order with respect to the moving party. See In re P.F. , 243 W. Va. 569, 573 n.4, 848 S.E.2d 826, 830 n.4 (2020) (); see also Bhd. of R.R. Trainmen v. Baltimore & O. R. Co. , 331 U.S. 519, 524 (1947) ().
" Syl. Pt. 1, in part, Napoleon S. v. Walker , 217 W. Va. 254, 617 S.E.2d 801 (2005).
In re P.F. , 243 W. Va. at 571, 848 S.E.2d at 827, syl. pt. 1. On review, we also consider whether the circuit court's action "substantially disregarded or frustrated" procedures contained in our rules and the relevant statutes. In re J.A. , 242 W. Va. 226, 238, 833 S.E.2d 487, 499 (2019) . We have a constitutional duty to "supervise the administration of justice in the circuit courts to ensure that fair standards of procedure are maintained." Stern v. Chemtall Inc. , 217 W. Va. 329, 337, 617 S.E.2d 876, 884 (2005) (citing W. Va. Const. art. VIII, § 3 ). This supervisory duty carries with it the "inherent power to do all things that are reasonably necessary for the administration of justice within the scope of [our] jurisdiction." Id . (quoting Syl. Pt. 1, State ex rel. Rees v. Hatcher, 214 W. Va. 746, 591 S.E.2d 304 (2003) ). With these principles in mind, we will consider Petitioners’ assignments of error.
Petitioners raise four assignments of error. Petitioners contend that the circuit court erred by: (1) denying their motion to intervene, (2) denying their right to be heard, (3) failing to place the child with them, and (4) denying their motion to be joined as co-petitioners with DHHR. However, the circuit court has since granted Petitioners’ renewed motion to intervene, and, as intervenors, Petitioners now enjoy the right to be heard and...
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In re C.S.
...opinion of this Court, In re G.S., 244 W.Va. 614, 855 S.E.2d 922 (2021), is dispositive of this jurisdictional question. We disagree. In G.S., there was court-ordered permanent legal guardianship in place and jurisdiction was not at issue. --------- ...
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In re C.S.
...infra.15 The guardian ad litem makes an equally unpersuasive argument. He contends that a recent opinion of this Court, In re G.S. , 244 W. Va. 614, 855 S.E.2d 922 (2021), is dispositive of this jurisdictional question. We disagree. In G.S. , there was no court-ordered permanent legal guard......