Lindsey C., Matter of

• Decision Date: 19 July 1996
• Docket Number: No. 23065,23065
• Citation: 196 W.Va. 395,473 S.E.2d 110
• Court: West Virginia Supreme Court
• Parties: In the Matter of LINDSEY C.

Page 110

473 S.E.2d 110

196 W.Va. 395

In the Matter of LINDSEY C.

No. 23065.

Supreme Court of Appeals of West Virginia.

Submitted Oct. 31, 1995.

Decided Dec. 14, 1995.

Dissenting Opinion of Justice Workman July 19, 1996.

Syllabus by the Court

1. Any failure by litigants to observe carefully the requirements of our appellate rules is expressly disapproved; in appropriate circumstances an appeal may be dismissed by reason of a disregard of those rules.

2. The procedure in abuse and neglect cases is governed by provisions internal to W.Va.Code § 49-1-1, et seq., and such other procedural requirements of the Code or general law as obtain. Except for Rules 5(b), 5(e) and 80, the West Virginia Rules of Civil Procedure for Trial Courts of Record are not applicable to such cases.

3. In abuse and neglect proceedings the appointment of a guardian ad litem is required for adult respondents who are involuntarily hospitalized for mental illness, whether or not such adult respondents have also been adjudicated incompetent.

4. It is error to enter a decree terminating parental rights after a suggestion of involuntary hospitalization for mental illness of the affected parent or custodian without first having appointed a guardian ad litem for such parent or custodian.

5. A parent or custodian named in an abuse and neglect petition who is involuntarily hospitalized for mental illness but who retains all of his or her civil rights, must be effectively served with process, including, if service is personal or by mail, service of a copy of any petition or other pleading upon 6. In abuse and neglect cases, service of original process on a guardian ad litem appointed for a parent or custodian involuntarily hospitalized for mental illness whose legal capacity has not been terminated by law cannot be substituted in lieu of service on the hospitalized parent or custodian where the parental rights of such person may be terminated under the process to be served.

[196 W.Va. 397] which an order terminating parental rights may be based.

7. "In child neglect proceedings which may result in the termination of parental rights to the custody of natural children, indigent parents are entitled to the assistance of counsel because of the requirements of the Due Process clauses of the West Virginia and United States Constitutions." Syllabus point 1, State ex rel. LeMaster v. Oakley, 157 W.Va. 590, 203 S.E.2d 140 (1974).

8. Circuit courts should appoint counsel for parents and custodians required to be named as respondents in abuse and neglect proceedings incident to the filing of each abuse and neglect petition. Upon the appearance of such persons before the court, evidence should be promptly taken, by affidavit and otherwise, to ascertain whether the parties for whom counsel has been appointed are or are not able to pay for counsel. In those cases in which the evidence rebuts the presumption of inability to pay as to one or more of the parents or custodians, the appointment of counsel for any such party should be promptly terminated upon the substitution of other counsel or the knowing, intelligent waiver of the right to counsel. Counsel appointed in these circumstances are entitled to compensation as permitted by law.

9. If the appointment of a guardian ad litem is required for a parent or custodian, the trial court may also provide in its order appointing counsel, or in a later order, a direction that the appointment imposes on that counsel the additional status of guardian ad litem, with the attendant duties of protecting the interests of the persons for whom such counsel is appointed guardian ad litem and the attendant duty on the court to see to the protection of such person's interests until and unless it later appears that such person's circumstances do not require the continued protection of a guardian ad litem or that the two functions cannot be performed by the same attorney.

Mary Lee Moore Bizanovich, Wheeling, Guardian ad Litem for Lindsey C.

Scott R. Smith, Assistant Prosecuting Attorney, Ohio County, Wheeling, for Appellee, West Virginia Department of Health and Human Resources.

Kristin Sacco, First Judicial Circuit Public Defender Corp., Wheeling, for Appellee Zachary P.C.

Nan G. Brown, West Virginia Legal Services, Wheeling, and Michael Miskoviec, West Virginia Legal Services, Charleston, for Appellant Terri C.

ALBRIGHT, Justice:

This is an appeal of a juvenile abuse and neglect case conducted under the authority of W.Va.Code § 49-1-1, et seq. Appellant, Terri C., the natural mother of the infant, Lindsey C., born June 1, 1992, now appeals an order entered March 1, 1995, terminating her parental rights after a hearing held by the Circuit Court of Ohio County, West Virginia, February 1, 1995. Appellant argues that the lower court erred in failing to appoint counsel for her in the proceedings below and in terminating her parental rights without properly serving her with copies of the original petition and proper notice. The only appearances noted for appellant in the proceedings below are by letter dated April 17, 1995, filed below May 26, 1995, authorizing appellant's counsel here to investigate the file, and by the filing of this appeal in the circuit clerk's office, June 30, 1995.

A recitation of the factual and procedural history of the case is necessary before we discuss the law as it applies in this instance.

In January, 1992, appellant was committed to a mental hospital in Pennsylvania from which she was released June 8, 1992, following the birth of Lindsey C., June 1, 1992. The discharge summary for that hospitalization, a copy of which was filed in the court record in this proceeding August 24, 1994, discloses that appellant was suffering from a In March, 1993, appellant was admitted to Weston State Hospital in West Virginia for psychiatric problems. She remained hospitalized approximately thirty days, during which time her child, Lindsey C., stayed in the actual custody of her father, Zachary C., to whom appellant was married. After appellant's return from Weston she apparently resided in an apartment in Wheeling with her husband. In May of 1993, appellant filed a domestic violence petition against her husband, Zachary C., and an Ohio County magistrate awarded appellant temporary custody of Lindsey C., after which it appears that appellant and her husband did not reside together.

[196 W.Va. 398] serious mental disorder, controllable at least in part by medication but complicated by "a chronic history of noncompliance with after care treatment and additional stress of bringing up a newborn child". She was discharged to return to West Virginia and, according to the discharge summary, "the Base Service Unit in West Virginia was informed as well as Children and Youth Services...."

In August, 1993, the Department of Health & Human Resources (hereafter "DHHR" or "the Department") received a referral regarding suspected neglect of Lindsey C. by appellant. According to a DHHR Court Summary dated May 6, 1994, within two days of that referral appellant was again committed to Weston State Hospital. Lindsey C. was delivered into the actual custody of her father, Zachary C., who then apparently occupied the apartment vacated by appellant incident to her hospitalization, probably the apartment from which the child was later removed. The record does not disclose whether any action was taken at that time to vest or confirm legal custody of Lindsey C. in Zachary C. incident to the transfer to him of her actual custody. The record does not disclose any further orders regarding the legal custody of Lindsey C. except those entered in this proceeding, later described. The DHHR commenced a series of visitations to the father's apartment. After several such visits, the DHHR was satisfied with the circumstances in which Zachary C. was maintaining the child and ceased visitations and all other child protective services. During this time, while hospitalized at Weston, Terri C. claimed that Zachary C. had sexually abused their child, but the DHHR found those allegations to be without merit and took no other action with respect to such allegations.

The DHHR Court Summary previously mentioned states that at approximately 9:00 p.m. on Thursday, April 21, 1994, Wheeling police officers received a report that Zachary C. had been seen intoxicated on the street near his residence with Lindsey C. in his custody. Police officers found Lindsey C. in her father's apartment at about 9:55 p.m. that same evening. She was unharmed and with her father, who was said to be drunk and unconscious. The police immediately took Lindsey C. to the home of an acquaintance of her father. According to the summary, Lindsey C.'s father was expected to pick her up from the home of the acquaintance about 5:00 p.m. the next day and had commented that he soon planned to take Lindsey C. to live in Kansas. The DHHR believed the child had been in a dangerous situation in her father's apartment and faced imminent danger if returned to his custody, so the DHHR decided to take immediate custody of Lindsey C. At about 3:30 p.m. that next day, Friday, April 22, 1994, Wheeling police officers removed the child from the home of her father's acquaintance and delivered her to a DHHR child protective service worker, who then placed her in a foster home licensed by the DHHR. The record is silent as to the whereabouts of appellant at that time except that the DHHR Court Summary of May 6, 1994, reports that the nearest relative then known who might have been able to take custody of Lindsey C. was M.B., the maternal grandmother, who lived over one hundred miles away in another state.

On Friday, April 29, 1994, the Circuit Court of Ohio County entered an order, styled an order nunc pro tunc as of Tuesday, April 26, 1994, awarding temporary emergency custody of Lindsey C. to the DHHR. This emergency order recites that on Monday, April 25, 1994, the DHHR filed a petition...