In re I.M.K.

Decision Date04 June 2018
Docket NumberNo. 17-0989,17-0989
Citation815 S.E.2d 490
Parties IN RE I.M.K.
CourtWest 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.

Davis, Justice:

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:

1. 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?
2. If an infant child is born alive, but dies during the pendency of an Abuse and Neglect proceeding, and said infant child is the only child in the home, should the Guardian ad Litem remain a party to the proceeding to advocate for the rights of the deceased child?

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.

I.FACTUAL AND PROCEDURAL HISTORY

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 Respondent Mother, [K.A.L.] made admissions to opiate use throughout her pregnancy, as well as testing positive for controlled substances during prenatal care. [K.A.L.], further admitted that her most recent drug use took place three days prior to the birth of the Infant Respondent [I.M.K.], when she "sniffed a Percocet

".

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.

Based upon information, Respondent [M.F.K.], father of infant respondent [I.M.K.], has failed to protect said infant respondent by failing to take action upon reasonable suspicion of drug use of the

Respondent Mother, [K.A.L.], knowing her history of drug use.

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:

Significant questions of law and fact remain, and dismissal is not appropriate at this time. The purpose of a preliminary hearing being to make determinations as to imminent danger, and/or to order removal of the child from the home if conditions warrant such removal, the Court finds that a preliminary hearing in this matter would be moot, due to the death of the Infant Respondent.
The Court further finds that should the parties hereto wish to prepare a certified question for submission and review by the West Virginia Supreme Court of Appeals, they should confer and submit that certified question to this Court for review.

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:

The allegations in the petition of this matter are related to prenatal use of opiates. No abuse is alleged to have occurred subsequent to the birth of the child. In light of the ruling by the Supreme Court of Appeals of West Virginia in the case of: In Re: A.L.C.M. No. 16-0786 [239 W.Va. 382, 801 S.E.2d 260] (2017),[4] further guidance from the Supreme Court of Appeals of West Virginia would be relevant in the matter at hand.
This Court submits the following certified questions for review to the honorable Supreme Court of Appeals of West Virginia:
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?
If an infant child is born alive, but dies during the pendency of an Abuse and Neglect proceeding, and said infant child is the only child in the home, should the Guardian ad Litem remain a party to the proceeding to advocate for the rights of the deceased child?

(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.

II.STANDARD OF REVIEW

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.

III.DISCUSSION

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.

A. Adjudication

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...

To continue reading

Request your trial
12 cases
  • Goldstein v. Peacemaker Props., LLC, 17-0796
    • United States
    • Supreme Court of West Virginia
    • March 15, 2019
    ...Syl. Pt. 1, Smith v. State Workmen’s Comp. Comm’r , 159 W. Va. 108, 219 S.E.2d 361 (1975).17 In re I.M.K. , 240 W. Va. 679, 685, 815 S.E.2d 490, 496 (2018) (quoting Dan’s Carworld, LLC v. Serian , 223 W. Va. 478, 484, 677 S.E.2d 914, 920 (2009) ).18 Id . at 686, 815 S.E.2d at 497.19 Syl. Pt......
  • Terrence E. v. Julie R.
    • United States
    • Supreme Court of West Virginia
    • April 6, 2020
    ...only. See W. Va. R. App. P. 40(e) (restricting use of personal identifiers in cases involving children); In re I.M.K. , 240 W. Va. 679, 682 n.1, 815 S.E.2d 490, 493 n.1 (2018) ; In re S.H. , 237 W. Va. 626, 628 n.1, 789 S.E.2d 163, 165 n.1 (2016).2 See infra note 3 regarding the nature of t......
  • Goldstein v. Peacemaker Props., LLC, 17-0796
    • United States
    • Supreme Court of West Virginia
    • March 15, 2019
    ...Syl. Pt. 1, Smith v. State Workmen’s Comp. Comm’r , 159 W. Va. 108, 219 S.E.2d 361 (1975).17 In re I.M.K. , 240 W. Va. 679, 685, 815 S.E.2d 490, 496 (2018) (quoting Dan’s Carworld, LLC v. Serian , 223 W. Va. 478, 484, 677 S.E.2d 914, 920 (2009) ).18 Id . at 686, 815 S.E.2d at 497.19 Syl. Pt......
  • In re A. P.
    • United States
    • Supreme Court of West Virginia
    • June 2, 2021
    ...rights under the statutory dispositional alternatives was implicitly permitted by this Court's holding in In re I.M.K. , 240 W. Va. 679, 815 S.E.2d 490 (2018) and the overall purposes of the abuse and neglect statutory scheme.Upon careful review of the briefs, the appendix record, the argum......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT