In re Michael Ray T.

• Decision Date: 03 December 1999
• Docket Number: No. 26639.,26639.
• Citation: 206 W.Va. 434,525 S.E.2d 315
• Court: West Virginia Supreme Court
• Parties: In re MICHAEL RAY T., Scottie Lee T., and Tonya Lynn T.

525 S.E.2d 315

206 W.Va. 434

In re MICHAEL RAY T., Scottie Lee T., and Tonya Lynn T.

No. 26639.

Supreme Court of Appeals of West Virginia.

Submitted November 2, 1999.

Decided December 3, 1999.

Harold B. Wolfe, III, Akers & Wolfe, Princeton, West Virginia, Attorney for the Appellants, Paul and Virginia Williams.

Darrell V. McGraw, Jr., Attorney General, Katherine M. Mason, Assistant Attorney General, Beckley, West Virginia, Thomas L. Berry, Assistant Prosecutor, Princeton, West Virginia, Attorneys for the Appellee, West Virginia Department of Health and Human Resources.

Mary Ellen Griffith, Bell & Griffith, L.C., Princeton, West Virginia, Guardian ad Litem for the Appellees, Michael Ray T., Scottie Lee T., and Tonya Lynn T.

DAVIS, Justice:

The appellants herein, and plaintiffs below, Paul and Virginia Williams [hereinafter collectively referred to as "the Williamses"], appeal from an order entered May 11, 1999, by the Circuit Court of Mercer County. By that order, the court denied the Williamses' motion to intervene in the abuse and neglect proceedings concerning their former foster children, Michael Ray T.¹ [hereinafter referred to as "Michael"], Scottie Lee T. [hereinafter referred to as "Scottie"], and Tonya Lynn T. [hereinafter referred to as "Tonya"]. The court further refused to consider the Williamses' motion for custody, wherein they sought the return of these children to their care following the youngsters' removal from their foster care by the West Virginia Department of Health and Human Resources [hereinafter referred to as "DHHR"]. Upon a review of the parties' arguments, the appellate record, and the pertinent authorities, we conclude that the circuit court did not abuse its discretion by refusing the requested intervention. Therefore, we affirm the decision of the Circuit Court of Mercer County.

I. FACTUAL AND PROCEDURAL HISTORY

The facts underlying the instant appeal are as follows. On April 8, 1998, the DHHR filed a petition in the Circuit Court of Mercer County requesting the immediate and temporary transfer of custody of Michael,² Scottie,³ and Tonya⁴ to the DHHR as a result of the perceived imminent danger the children would face if they remained in the home of their biological parents, Frank T. and Lizzie T. The incidents leading to this petition centered around the life-threatening injuries sustained by then six-week-old Michael when he was repeatedly and viciously attacked by rodents in his parents' home on April 4, 1998. Additionally, the DHHR remained concerned that Lizzie would again return to the family home with Michael's siblings despite the persistence of the rodent infestation and warnings by DHHR officials that the home was not safe for children. The circuit court found that "[t]he danger presented by the child(ren)'s present circumstances creates an emergency situation which has made efforts to avoid removing the child(ren) from the home unreasonable or impossible," and transferred their temporary custody to the DHHR.

As a result of the critical injuries he sustained, Michael was hospitalized for an extended period of time at Women and Children's Hospital, in Charleston, West Virginia. His siblings, Tonya and Scottie, were placed with a foster family⁵ following their removal from their parents' home. After Michael's partial recovery and release from the hospital, he was placed into foster care with the Williamses⁶ on April 16, 1998. Due to the severity of Michael's injuries, Tonya and Scottie were not placed with the Williamses until July, 1998, when their younger brother had recovered further.⁷ By order entered August 14, 1998, the circuit court adjudicated the children to have been neglected by their biological parents.⁸ On September 11, 1998, the circuit court, during a dispositional hearing, granted Frank and Lizzie a six-month post-adjudicatory improvement period, and continued legal and physical custody of the children with the DHHR.

From the time of her placement into the Williamses' home, Tonya exhibited various behavioral and disciplinary problems, believed to be the result of parentification.⁹ Although Tonya and Scottie had been having regular supervised visitation with their biological parents since their removal in April, 1998,¹⁰ following one such supervised visit on October 14, 1998, Tonya's conduct worsened dramatically.¹¹ In an attempt to protect Scottie and Michael from their sister, Mrs. Williams requested respite care for Tonya.¹² Around the same time, Tonya confided in her foster parents that, during the recent supervised visit, she had been sexually abused by her biological mother. The Williamses reported this incident to the Child Protective Services [hereinafter referred to as "CPS"] caseworker who formerly had handled the children's case.¹³ Nevertheless, Mr. and Mrs. Williams received the impression that the allegation would not be investigated and that no further action would be taken with regard thereto, due in large part to Tonya's failure to cooperate with DHHR officials by telling them her story.

Following this incident, Tonya's weekly counseling sessions increased in number, and the guardian ad litem and the State jointly moved to temporarily suspend Tonya's visits with Frank and Lizzie. By order entered December 15, 1998, the circuit court suspended, for sixty days, supervised visitation between Tonya and her biological parents.¹⁴ In late December, 1998, the Williamses again requested respite care for Tonya because of her continued defiance of family rules. Upon Tonya's return to the Williamses' home, her demeanor improved.

Thereafter, the DHHR alleges that, as a result of their continuing difficulties with Tonya, the Williamses were admonished and instructed as to acceptable forms of discipline during a multidisciplinary treatment team [hereinafter referred to as "MDT"] meeting on January 12, 1999. Because of the persistent "power struggle" between Tonya and Mrs. Williams, arising from Tonya's defiance and attempt to obtain and retain control, and concerns that the Williamses had inappropriately and negatively discussed Frank and Lizzie in the child's presence, the team also discussed the possibility of removing the children from the Williamses' care.¹⁵ By letter to Mr. and Mrs. Williams dated January 21, 1999, the CPS worker assigned to the children's case reiterated the tenor of the MDT meeting:

The team members agreed that corrections needed to be made in your approach to dealing with Tonya and that if these corrections can not be made a team meeting will be held to discuss the removal of the T[.] children....

The Department [DHHR] looks forward to maintaining these children in your home as long as it is in the best interest of the children.

(Emphasis added).

In February, 1999, the circuit court ordered the gradual resumption of visits between Tonya and her biological parents. On March 26, 1999, the circuit court ordered the extension of the biological parents' improvement period to coincide with the expiration of their period of probation¹⁶ in October, 2002. The circuit court also allegedly ordered the commencement of in-home visitation, whereby the children would visit Frank and Lizzie in their home. The Williamses submit that, upon explaining these visits to Tonya, she revealed that she had sustained numerous additional instances of sexual abuse, involving both of her biological parents and other relatives, before she had been removed from her parents' home.¹⁷ Apparently out of concern for Tonya's safety and as a result of the perceived inaction by the DHHR in response to the October report of sexual abuse, the Williamses penned a nine-page letter, disclosing the children's full names, revealing certain confidences about them, and detailing Tonya's allegations, and sent it to various government officials and agencies on March 30, 1999.¹⁸ Neither the DHHR nor the children's guardian ad litem had prior knowledge of this correspondence.

Presumably perceiving the letter to be a breach of the Williamses' duty of confidentiality and apparently due to growing concern about their care of the children, the DHHR removed the sibship from the Williamses' home on April 5, 1999, believing such removal to be in the children's best interests. The children subsequently were placed with another foster family. Following the children's removal from the Williamses' home, Try-Again Homes, Inc., terminated its sponsorship of the Williamses as foster care providers, effective April 5, 1999, citing "the major breach of confidentiality demonstrated by the letter [the Williamses] disseminated to people who are not covered by Try-Again Homes and/or Department of Health and Human Resources release of information."

As a result of the children's removal from their home, the Williamses filed a Motion to Intervene in the children's abuse and neglect proceedings and a motion requesting the circuit court to return the children to their foster care. By order entered May 11, 1999, the circuit court denied intervention and declined to consider whether the children should be returned to the Williamses' care. In so ruling, the circuit court noted that

a court has the discretion to allow foster parents who have physical custody of a child to intervene in abuse and neglect proceedings. See In re Jonathan G., 198 W.Va. 716, 482 S.E.2d 893 (1996)

. However, in the present case, the Williams [sic] no longer have physical custody of the children.

In their Motion, the Williams [sic] allege that the DHHR "improperly and unlawfully removed" the children from their home. This alleged improper removal, and the request to file a motion to have the three children returned to their foster care would be more appropriately addressed through an extraordinary remedy such as a writ of mandamus.¹⁹ Therefore, this Court will not address whether the DHHR should return the children to the foster care of the Williams [sic] at this time.

[T]his Court does not find that the Williams

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