Mary D. v. Watt
| Citation | 190 W.Va. 341,438 S.E.2d 521 |
| Decision Date | 29 May 1992 |
| Docket Number | No. 20453,20453 |
| Court | Supreme Court of West Virginia |
| Parties | MARY D., Petitioner, v. Honorable Clarence WATT, Judge of the Circuit Court of Putnam County, and George D., Respondents. |
Syllabus by the Court
1. Because an allegation of sexual abuse of a child involved in a divorce proceeding is extraordinary, such allegation would constitute "good cause" or grounds for a more expeditious resolution by the circuit court as contemplated by W.Va.Code, 48A-4-1(i) [1991], and accordingly, custody and visitation matters relating thereto may be retained by the circuit court, or, if already referred to a family law master, such referral may be revoked.
2. Prior to ordering supervised visitation pursuant to W.Va.Code, 48-2-15(b)(1) [1991], if there is an allegation involving whether one of the parents sexually abused the child involved, a family law master or circuit court must make a finding with respect to whether that parent sexually abused the child. A finding that sexual abuse has occurred must be supported by credible evidence. The family law master or circuit court may condition such supervised visitation upon the offending parent seeking treatment. Prior to ordering supervised visitation, the family law master or circuit court should weigh the risk of harm of such visitation or the deprivation of any visitation to the parent who allegedly committed the sexual abuse against the risk of harm of such visitation to the child. Furthermore, the family law master or circuit court should ascertain that the allegation of sexual abuse under these circumstances is meritorious and if made in the context of the family law proceeding, that such allegation is reported to the appropriate law enforcement agency or prosecutor for the county in which the alleged sexual abuse took place. Finally, if the sexual abuse allegations were previously tried in a criminal case, then the transcript of the criminal case may be utilized to determine whether credible evidence exists to support the allegations. If the transcript is utilized to determine that credible evidence does or does not exist, the transcript must be made a part of the record in the civil proceeding so that this Court, where appropriate, may adequately review the civil record to conclude whether the lower court abused its discretion.
3. Where supervised visitation is ordered pursuant to W.Va.Code, 48-2-15(b)(1) [1991], the best interests of a child include determining that the child is safe from the fear of emotional and psychological trauma which he or she may experience. The person(s) appointed to supervise the visitation should have had some prior contact with the child so that the child is sufficiently familiar with and trusting of that person in order for the child to have secure feelings and so that the visitation is not harmful to his or her emotional well being. Such a determination should be incorporated as a finding of the family law master or circuit court.
Maureen Conley, Legal Aid Soc. of Charleston, Charleston, for petitioner.
J. Stephen Max, Charleston, for Respondent, George D.
This original proceeding is before the Court upon a petition for a writ of prohibition by Mary D. 1 The respondents are Clarence Watt, Judge of the Circuit Court of Putnam County, and George D. The petitioner seeks to prohibit enforcement of the September 11, 1991 order of the circuit court, which, in effect, granted the respondent, George D., visitation with his and Mary D.'s children.
In October, 1989, the petitioner filed a complaint seeking a divorce from George D., based upon cruel and inhuman treatment and irreconcilable differences. 2 Three children were born to the parties: Sara, who, at the time of the filing of the petition in this Court, was age 12; Susan, age 9; and Jesse, age 6.
The children's pediatrician, Dr. Joan Phillips, discovered that the girls, Sara and Susan, had been sexually abused. Susan named George D. as the perpetrator of such abuse.
In July, 1990, George D. was indicted in the Circuit Court of Putnam County on eight counts, consisting of sexual abuse, sexual assault, and incest. Prior to the indictment, George D. was permitted visitation with the children.
Following trial on the criminal charges in April, 1991, the respondent was acquitted of all eight charges. 3 Accordingly, subsequent to his acquittal, George D. filed a petition with the family law master requesting visitation with the three children. The family law master granted George D.'s request in an ex parte order, but two days later, that order was reversed by the family law master. 4 The family law master then ordered that an evidentiary hearing be conducted regarding visitation.
In June, 1991, the petitioner filed a motion requesting that the circuit court appoint a guardian ad litem and transfer the hearing on the custody and visitation issues from the family law master to the circuit court. The circuit court appointed a guardian ad litem, but denied the petitioner's request to hear the custody and visitation issues. The appointed guardian ad litem is Rosalee Juba-Plumbley.
A notice was sent to the petitioner setting the date of the hearing for August 14, 1991. At that hearing, the petitioner requested a continuance, but her request was denied. The family law master heard the testimony of David Wilburn, a psychologist. Both Wilburn and the guardian ad litem, Rosalee Juba-Plumbley, recommended that the respondent, George D., be permitted supervised visitation.
On August 16, 1991, the family law master entered an order recommending supervised visitation and that the petitioner, the respondent, and the children should all undergo an independent psychiatric evaluation. 5
The petitioner filed a motion to stay the order in the circuit court. The circuit court heard the parties' arguments on the motion and recommended that further argument on the motion be scheduled for a later date, specifically, October 3, 1991. 6 The circuit court, by ore tenus order, refused to stay the family law master's order permitting visitation by George D.
Before the scheduled October 3, 1991 hearing in circuit court, specifically, on September 19, 1991, the petitioner filed this writ of prohibition in this Court, seeking to prohibit visitation by the respondent, George D. At the initial oral argument, which was held on October 2, 1991, petitioner's counsel represented that the children were to be admitted to the Pines Treatment Center in Portsmouth, Virginia, beginning October 10, 1991. Counsel for the petitioner then moved that this Court continue the matter until the treatment program could be completed.
This Court, in an order prepared on October 4, 1991, issued a stay for 75 days and reset submission of this case for January 14, 1992. 7
As of the submission of this case on January 14, 1992, this Court was made aware that the children were still at the Pines Treatment Center. 8
The petitioner primarily contends that under W.Va.Code, 48A-4-1(i) [1991], the circuit court was confronted with "good cause" for revoking referral of the custody/visitation matter to the family law master.
W.Va.Code, 48A-4-1(i) [1991] provides that a circuit court may retain jurisdiction over certain matters, including child custody and visitation for "good cause," or "if the matter will be more expeditiously and inexpensively heard by the circuit judge without substantially affecting the rights of the parties[.]"
In support of her contention, the petitioner cites the fact that the respondent, Judge Watt, who presided over the criminal trial of George D., had already heard extensive testimony from the children and experts that the children were sexually abused, and accordingly, could make a finding of abuse in the civil divorce case.
The respondent merely contends that there was no abuse on the part of the circuit court because the very purpose of the family law master system is to allow such proceedings to take place before it, and not the circuit court.
Before we address the petitioner's contention that the circuit court abused its discretion by not revoking referral of certain matters to the family law master, we must first dispose of a matter which is constantly raised by the petitioner.
Throughout her pleadings filed in this Court, the petitioner contends that the circuit court has ignored the needs of the children by refusing to follow the procedures outlined in W.Va.Code, 49-6-1, et seq. Those procedures pertain to the processing of civil cases involving child neglect and child abuse. 9
However, this is not a proceeding brought under chapter 49 of the West Virginia Code. W.Va.Code, 49-6-1 [1977] makes it very clear as to the procedures that are required for presenting a petition where it is alleged that a child is being abused or neglected. W.Va.Code, 49-6-1(a) [1977] provides, in part: "If the state department [of human services] or a reputable person believes that a child is neglected or abused, the department or the person may present a petition setting forth the facts to the circuit court in the county in which the child resides[.]" (emphasis supplied) Accordingly, the petition before this Court is not sufficient to proceed under chapter 49, and there is no authority for this Court, by its original jurisdiction power, to make a "finding" of sexual abuse by the children's father upon which the termination of his parental rights may be based. 10
With respect to the question of whether or not there was an abuse of discretion on the part of the circuit court in not deciding the custody/visitation matter and allowing the family law master to decide such, this Court does not have before it the record of the criminal trial so as to determine if there was enough evidence to believe that "good cause" existed for the circuit court to revoke referral of that matter to the family law master....
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