Kristopher O. v. the Honorable James P. Mazzone
| Citation | 227 W.Va. 184,706 S.E.2d 381 |
| Decision Date | 11 February 2011 |
| Docket Number | No. 35713.,35713. |
| Parties | KRISTOPHER O. and Christina O., Petitionersv.The Honorable James P. MAZZONE, Judge of the First Judicial Circuit, and West Virginia Department of Health and Human Resources, Respondents. |
| Court | Supreme Court of West Virginia |
OPINION TEXT STARTS HERE
Syllabus by the Court
1. “Prohibition lies only to restrain inferior courts from proceeding in causes over which they have no jurisdiction, or, in which, having jurisdiction, they are exceeding their legitimate powers and may not be used as a substitute for writ of error, appeal or certiorari.” Syllabus Point 1, Crawford v. Taylor, 138 W.Va. 207, 75 S.E.2d 370 (1953).
2. Syllabus Point 4, State ex rel. Hoover v. Berger, 199 W.Va. 12, 483 S.E.2d 12 (1996).
Teresa C. Toriseva, Esq., Toriseva Law, Wheeling, WV, Attorney for Petitioners.Joseph J. Moses, Esq., Wheeling, WV, Guardian ad Litem.Darrell V. McGraw, Jr., Esq., Attorney General, Charleston, WV, Katherine M. Bond, Esq., Assistant Attorney General, White Hall, WV, Attorneys for Respondent DHHR.
This case is before this Court upon a petition for a writ of prohibition filed by the petitioners, Kristopher and Christina O.,1 against the respondents, the Honorable James P. Mazzone, Judge of the First Judicial Circuit, and the West Virginia Department of Health and Human Resources (hereinafter, the “DHHR”). The petitioners, who were foster parents to D.D. for nearly twenty-two months, seek to prohibit the circuit court from enforcing its March 29, 2010, order granting legal and physical custody of D.D. to a paternal aunt as well as its May 18, 2010, order denying their motion to intervene. Based upon the parties' briefs and arguments in this proceeding as well as the pertinent legal authorities, the writ is hereby granted as moulded.
On April 21, 2008, D.D. was born five weeks premature to J.D., her biological mother, who admitted that she used crack cocaine during her pregnancy. D.D. tested positive for cocaine at birth. On April 28, 2008, as a result of the mother's admission of drug use, the DHHR filed a petition for relief from parental abuse and neglect with the Circuit Court of Ohio County. Upon being provided legal custody of D.D. by the circuit court, the DHHR placed the infant in the foster care of the petitioners on May 6, 2008. D.D. remained in the continuous foster care of the petitioners at all times prior to the circuit court's March 29, 2010, order, as discussed below.
While D.D. was in the foster care of the petitioners, the DHHR pursued the termination of the parental rights of her biological mother, J.D., and father, L.W.2 On November 24, 2008, J.D.'s parental rights to D.D. were involuntarily terminated. The order reflecting the termination of J.D.'s rights was entered by the circuit court on November 5, 2009. Thereafter, during a hearing held on December 29, 2009, L.W.'s parental rights to D.D. were also involuntarily terminated. The order reflecting the termination of his parental rights was entered by the circuit court on March 24, 2010.
Beginning in April 2009, when D.D. was one year old, the DHHR arranged for L.W., as well as D.D.'s paternal aunt, K.M., to have weekly ninety-minute supervised visits with the child. Prior to that time, K.M. had not had any contact with D.D. L.W.'s visits stopped upon the termination of his parental rights on December 29, 2009; however, the DHHR arranged for K.M. to continue supervised visits with D.D. for two hours per week. The DHHR then determined that the best permanent placement for D.D. would be with K.M. Pursuant to this determination, the petitioners were advised on March 25, 2010, that D.D. would be removed from their home on March 29, 2010, and placed with K.M. Following a March 29, 2010, hearing in the circuit court, D.D. was placed with K.M. 3
According to the petitioners, they verbally advised DHHR officials and the guardian ad litem 4 on numerous occasions prior to March 29, 2010, that they wished to adopt D.D. In fact, the petitioners assert that just prior to the termination of J.D.'s parental rights, Jason Prettyman, a social services supervisor for DHHR and coordinator for the multi-disciplinary treatment team (hereinafter, “MTD”) assigned to the case of D.D., asked the petitioners if they would be interested in adopting D.D. if parental termination was achieved. The petitioners contend that they responded, “Absolutely.”
In addition to expressing their desire to adopt D.D. to DHHR officials many times, the petitioners state they requested that the DHHR conduct a bonding assessment to establish the bond D.D. had formed with them. The petitioners contend that while D.D. was in their custody, they were never advised by the DHHR that they were required to submit a written application to convey their intent to adopt D.D. upon the termination of parental rights. As such, the petitioners maintain they believed in good faith that they had made their intention to adopt D.D. known to the DHHR.
As previously noted, the petitioners state that they were first advised by the DHHR that on March 25, 2010, D.D. would be taken out of their custody on March 29, 2010, and that she would be permanently placed into the custody of K.M. At that point, they sought legal counsel who filed a petition to intervene on their behalf. The petitioners contend they were not notified by the DHHR that a permanency hearing for D.D. would be held in the circuit court on March 29, 2010. Instead, the petitioners' counsel maintains that she learned of the permanency hearing on March 26, 2010, but only after contacting the circuit judge's secretary to request a hearing regarding the motion to intervene in the ongoing proceedings.5
On March 29, 2010, the circuit court held a permanency hearing in the matter of D.D., but the petitioners were not provided an opportunity to be heard at that hearing, nor was their motion to intervene considered at that time. According to the petitioners' counsel, upon entering the courtroom during the March 29, 2010, permanency hearing, the petitioners were asked to leave as they were advised by the circuit court that the hearing was closed. The record reflects that at that hearing, the circuit court ordered that D.D. be immediately placed in the physical and legal custody of K.M.
On April 27, 2010, almost a month after the permanency hearing, the circuit court held a hearing to consider the petitioners' motion to intervene, and on May 18, 2010, it entered an order denying that motion. Within its May 18, 2010, order, the circuit court found that: the petitioners, as former foster parents, lacked standing to intervene in the matter; that intervention by the petitioners would be contrary to the best interests of D.D.; that the petitioners had failed to submit a written application for adoption of the child to the DHHR within thirty days following the termination of the father's parental rights; and that the DHHR is required to pursue, and West Virginia law favors, placement with blood relatives for abused and neglected children. The petitioners did not appeal the circuit court's May 18, 2010, order. Instead, the petitioners filed a September 20, 2010, petition for a writ of prohibition with this Court.
A writ of “[p]rohibition lies only to restrain inferior courts from proceeding in causes over which they have no jurisdiction, or, in which, having jurisdiction, they are exceeding their legitimate powers and may not be used as a substitute for writ of error, appeal or certiorari.” Syllabus Point 1, Crawford v. Taylor, 138 W.Va. 207, 75 S.E.2d 370 (1953). In order to determine whether the writ of prohibition should be granted, we apply the following standard of review:
In determining whether to entertain and issue the writ of prohibition for cases not involving an absence of jurisdiction but only where it is claimed that the lower tribunal exceeded its legitimate powers, this Court will examine five factors: (1) whether the party seeking the writ has no other adequate means, such as direct appeal, to obtain the desired relief; (2) whether the petitioner will be damaged or prejudiced in a way that is not correctable on appeal; (3) whether the lower tribunal's order is clearly erroneous as a matter of law; (4) whether the lower tribunal's order is an oft repeated error or manifests persistent disregard for either procedural or substantive law; and (5) whether the lower tribunal's order raises new and important problems or issues of law of first impression. These factors are general guidelines that serve as a useful starting point for determining whether a discretionary writ of prohibition should issue. Although all five factors need not be satisfied, it is clear that the third factor, the...
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