In re I.M.K.
Decision Date | 04 June 2018 |
Docket Number | No. 17-0989,17-0989 |
Citation | 815 S.E.2d 490 |
Parties | IN RE I.M.K. |
Court | West Virginia Supreme Court |
James C. Clevenger, Assistant Prosecuting Attorney for Lewis County, West Virginia, Weston, West Virginia, Attorney for the Petitioner, West Virginia Department of Health and Human Resources.
Thomas J. Prall, Buckhannon, West Virginia, Attorney for the Respondent Mother, K.A.L.
G. Phillip Davis, Arthurdale, West Virginia, Attorney for the Respondent Father, M.F.K.
Alexandria Solomon, Davis, West Virginia and Bryan S. Hinkle, Buckhannon, West Virginia, Guardians ad Litem for the Minor Child, I.M.K.
The instant proceeding is before this Court upon two questions certified by the Circuit Court of Lewis County. By order entered September 26, 2017, the Circuit Court of Lewis County certified the following questions for our consideration and decision:
Upon a review of the parties' briefs, the record designated for appellate consideration, and the pertinent authorities, we answer both certified questions in the affirmative.
The facts of the instant proceeding are straightforward and not disputed by the parties. The infant child herein, I.M.K.,1 was born in July 2017 at St. Joseph's Hospital in Buckhannon, West Virginia. At birth, the child had opiates in its system as a result of the mother's admitted prenatal drug use. Immediately following birth, I.M.K. had to be resuscitated due to respiratory distress and was transferred to the Neonatal Intensive Care Unit ("NICU") at Ruby Memorial Hospital in Morgantown, West Virginia. While in the NICU, I.M.K. was treated for severe neurological and respiratory conditions based on a diagnosis of drug-affected birth.
On July 28, 2017, while I.M.K. was still in the NICU, the petitioner herein and petitioner below, the West Virginia Department of Health and Human Resources ("DHHR") filed the underlying petition against the child's mother, the respondent herein and respondent below, K.A.L. ("Mother"), and the child's father, an additional respondent herein and respondent below, M.F.K. ("Father"). In its petition, the DHHR alleged that I.M.K. was a "neglected and abused child" as a result of the parents' illegal drug use, averring as follows:
Based upon information and belief, the Infant Respondent's urine tested positive for opiates following birth.
Based upon information, and belief, Respondent Father, [M.F.K.] has a history of opioid abuse, as well as abuse of other controlled substances.
By order entered July 28, 2017, the Circuit Court of Lewis County transferred "[t]emporary legal and physical care, custody, and control" of I.M.K. to the DHHR. The circuit court also appointed counsel for each of the parents2 and appointed a guardian ad litem3 ("Guardian") for the minor child.
Thereafter, the circuit court held a hearing during which the parents waived their right to have a preliminary hearing within ten days so that the hearing could be concluded quickly to permit them to attend a medical appointment for I.M.K., who was in grave condition. The circuit court then found, by order entered August 15, 2017, that the child "should remain in the temporary legal and physical custody" of the DHHR and ruled that, "[i]n light of the grave condition of infant respondent [I.M.K.], this matter is continued generally, pending the outcome of [the child's] medical treatment."
Following this hearing, I.M.K. died as a result of the aforementioned medical issues; the child was approximately seventeen days old. The court then held a preliminary hearing at which time the child's parents moved to dismiss the subject abuse and neglect case based upon the child's death, which motion the DHHR and Guardian opposed. The Court refused to dismiss the case, ruling in its September 6, 2017, order as follows:
The court then set the matter for an adjudicatory hearing.
Before the scheduled adjudicatory hearing, the court decided to certify questions for this Court's resolution. By certification order entered September 26, 2017, the court ruled as follows:
(Emphasis in original; footnote added). The circuit court did not provide an answer for either of these questions. Additionally, the court determined that the child's Guardian ad Litem should remain in the case despite the child's death and stayed adjudication pending resolution of the questions certified. This Court then accepted these certified questions for consideration.
The instant proceeding is before this Court on questions certified by the Circuit Court of Lewis County. We previously have held that we accord a plenary review to the circuit court's rulings in this regard. "The appellate standard of review of questions of law answered and certified by a circuit court is de novo ." Syl. pt. 1, Gallapoo v. Wal-Mart Stores, Inc. , 197 W. Va. 172, 475 S.E.2d 172 (1996). Mindful of this standard, we proceed to consider the parties' arguments.
The instant proceeding comes to this Court upon two questions certified by the Circuit Court of Lewis County. We will address each certified question in turn.
The first question the circuit court certified to this Court is as follows:
When an infant child is born alive, but dies during the pendency of an Abuse and Neglect proceeding, prior to adjudication, and said infant child is the only child in the home, may the matter proceed to an adjudicatory hearing, and may the deceased child be found and adjudicated to be an abused or neglected child?
Although the circuit court did not provide an answer to this question, it presumably answered it in the affirmative insofar as the court earlier had denied the parents' motion to dismiss the pending abuse and neglect case following the child's death and has stayed their adjudicatory hearing pending this Court's resolution of the case sub judice .
Before this Court, the DHHR argues that the abuse and neglect proceeding should continue in spite of the child's death because, otherwise, the goal of abuse and neglect proceedings, i.e. , to protect children from abuse and neglect and early identification thereof, would be frustrated. In this regard, the DHHR focuses upon the fact that the allegations of abuse and/or neglect are required, by statute, to be proven as they existed at the time the petition was filed. Here, the DHHR asserts that, at the time the petition was filed, I.M.K. was still alive; thus, the DHHR argues, whether the parents abused and/or neglected the child is not based upon the facts that exist at the time of their adjudication. Finally, the DHHR says that the fact that the case may now be moot due to the child's death does not prohibit this Court from considering it as this fact pattern is capable of repetition and may evade review.
The Guardian agrees with the position advanced by the DHHR and argues that the case should proceed to adjudication following the death of the subject child. Because the circuit court must consider whether the child is abused...
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