State ex rel. C. H. v. Faircloth, No. 18-0485

CourtSupreme Court of West Virginia
Writing for the CourtWORKMAN, C. J.
Citation815 S.E.2d 540
Parties STATE of West Virginia EX REL. C. H. and S. H., Foster Parents of J. L., Jr., Petitioners, v. The Honorable Laura V. FAIRCLOTH, Judge Of the Circuit Court of Berkeley County, West Virginia, The West Virginia Department of Health and Human Resources, A. M., J. L., AND M. V., Respondents.
Docket NumberNo. 18-0485
Decision Date06 July 2018

815 S.E.2d 540

STATE of West Virginia EX REL. C. H. and S. H., Foster Parents of J. L., Jr., Petitioners,
v.
The Honorable Laura V. FAIRCLOTH, Judge Of the Circuit Court of Berkeley County, West Virginia, The West Virginia Department of Health and Human Resources, A. M., J. L., AND M. V., Respondents.

No. 18-0485

Supreme Court of Appeals of West Virginia.

Submitted: June 21, 2018
Filed: July 6, 2018


Stephanie E. Scales-Sherrin, Esq., Martinsburg, West Virginia, Attorney for Petitioners C. H. and S. H.

Kimberley Crockett, Esq., Martinsburg, West Virginia, Attorney for Respondent Mother A. M.

Patrick Morrisey, Esq., Attorney General, Melinda C. Dugas, Esq., Assistant Attorney General, Charleston, West Virginia, Attorney for West Virginia Department of Health and Human Resources

Debbie Flowers Payne, Esq., Martinsburg, West Virginia, Guardian ad Litem for Respondent Mother A. M.

Nicholas Forrest Colvin, Esq., Martinsburg, West Virginia, Attorney for Respondent Father J. L.

Jeffrey K. Matherly, Esq., Martinsburg, West Virginia, Guardian ad Litem for J. L., Jr.

WORKMAN, C. J.:

815 S.E.2d 544

Petitioners/foster parents C. H. and S. H.1 (hereinafter "foster parents"), seek a writ of prohibition precluding the Circuit Court of Berkeley County from enforcing its March 23, 2018, order denying their motion to intervene and its June 7, 2018, order granting the biological parents A. M. and J. L. (hereinafter collectively "biological parents" and/or "biological mother" and "biological father") post-dispositional improvement periods. The foster parents assert that the circuit court exceeded its legitimate authority by not granting them an evidentiary hearing on their motion to intervene and by granting the biological parents post-dispositional improvement periods in excess of statutory time limitations. The Department of Health and Human Resources (hereinafter "DHHR"), J. L., Jr.’s guardian ad litem, and the biological parents argued below that intervention by the foster parents would have been inappropriate prior to termination of the biological parents’ parental rights and that the foster parents have no standing to challenge the post-dispositional improvement periods. Nevertheless, DHHR now maintains that the biological parents’ parental rights should be terminated by operation of the statutory time limitations; J. L., Jr.’s guardian ad litem likewise now concurs in that assessment as to biological mother, for her failure to adequately demonstrate improvement.

Upon careful review of the briefs, the appendix record, the arguments of the parties, and the applicable legal authority, we find that the circuit court committed clear error as a matter of law and that the foster parents raise important issues of first impression. We therefore grant the writ of prohibition and remand this case with directions to the circuit court to vacate its order granting the biological parents post-dispositional improvement periods, grant the foster parents’ motion to intervene, and to immediately schedule this matter for disposition, conducting any and all further proceedings as necessary and appropriate in this matter in a timely manner.

I. FACTS AND PROCEDURAL HISTORY

Respondent biological parents A. M. and J. L. were each named in an abuse and neglect petition shortly after infant J. L., Jr. was born prematurely. The instant petition was based on domestic violence and contentious behavior between the biological parents at the hospital while J. L., Jr. was in the Neonatal Intensive Care Unit (NICU). After approximately eight weeks in the NICU, J. L.,

815 S.E.2d 545

Jr. was placed into foster care with the foster parents, where he has remained. He is currently approximately twenty-one months old and continues to suffer from feeding and developmental issues. Biological mother A. M. has prior terminations to three children; biological father J. L. has none. Issues of inadequate housing as pertained to both biological parents2 and biological mother A. M.’s low intellectual functioning were later uncovered. The biological mother, who is also hard of hearing, was provided a guardian ad litem as well as counsel, and reasonable accommodation under the Americans with Disabilities Act of 1990, 42 U.S.C. § 12101 et seq. , and West Virginia. Code § 49-4-604(a)(1) (2016).

Both biological parents admitted to abuse and neglect, whereupon a post-adjudicatory improvement period was ordered for each. None of the orders entered herein are specific about the length of any of the improvement periods, but both biological parents were granted subsequent extensions of their respective improvement periods. They continued on general post-adjudication improvement periods until March 28, 2018, at which point the biological mother had been provided an approximate eleven-month improvement period and the biological father had been provided a one-year, three-month improvement period.3

During their respective improvement periods each biological parent had issues with visitation consistency—the biological father due to transportation issues and the biological mother due to a Virginia-based anonymous DHHR report resulting in termination of her visits in Virginia, where she lived with her father. Both biological parents were eventually compliant with services, but continually struggled to obtain consistent and appropriate housing. During their respective improvement periods, J. L., Jr.’s then-guardian ad litem4 sought to revoke their improvement periods based on weight loss and illness by J. L., Jr. after visits with biological mother A. M.

In December 2017, the foster parents retained counsel who noticed her appearance; the circuit court ordered her removed from the e-filing system,5 however, given that the foster parents were not parties. Shortly thereafter, the foster parents moved to intervene. A hearing was conducted on the motion to intervene on February 14, 2018, whereupon the circuit court denied the motion. The circuit court found that the intervention was premature since it was still in the "fact-finding," pre-termination stage but that the foster parents would be permitted to participate fully in the MDT meetings and attend hearings.6 The circuit court found there was nothing more the foster parents could offer as parties than they could in their capacity as participants. The foster parents’ counsel did not specifically request to introduce evidence at the time the hearing was conducted; however, the foster parents had previously moved to introduce testimony from their pediatric dietician by telephone. The circuit court denied that motion, finding that telephone

815 S.E.2d 546

testimony inhibited the court’s ability to observe the witness’ demeanor and was unfair to the biological mother who was intellectually challenged and hard of hearing. Other than this motion, the foster parents did not seek to introduce any other evidence on the record, nor did they object specifically to not being permitted to introduce evidence.7 J. L., Jr.’s then-guardian ad litem supported the foster parents’ intervention.

Also at this hearing, the circuit court took evidence on the previous request of the guardian ad litem to revoke the biological parents’ improvement periods.8 The then-guardian ad litem’s request to revoke the improvement periods was based on the biological mother’s lack of care during visits, causing the child to be returned sickly and having lost weight and the biological father’s ostensible abandonment of his other child, who was also subject of this proceeding.9 The circuit court found no reason to revoke the improvement period after hearing the testimony of the biological mother’s separately-retained physician who opined that J. L., Jr. was healthy and not medically fragile, as had been suggested. The circuit court further found that any slight weight loss that had occurred was negligible and potentially due to weighing discrepancies and/or recent illness of the child.

The hearing on the motion to revoke was continued to a later date generally for "anything further" on the revocation. It was then sua sponte rescheduled for a later date due to a family emergency of the court. Apparently, the foster parents’ counsel provided notice of a scheduling conflict with the new date and was advised by court staff that the court would wait on her arrival at the hearing; however, that apparently did not occur. The hearing was resumed without the foster parents or their counsel being present, nor was their absence noted. During this hearing, which was presumably to be a continuation of the motion to revoke improvement period, the circuit court proceeded to award a six-month post-dispositional improvement period to the biological parents. No objection was made by any parties in attendance, including the new guardian ad litem.10 As of that date, neither biological parent had independent housing, but the biological father was purportedly being permitted to reside permanently with his parents. The foster parents thereafter filed the instant writ.

II. STANDARD OF REVIEW

The factors for the issuance of a writ of prohibition are well-established:

In determining whether to entertain and issue the writ of prohibition for cases not involving an
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14 practice notes
  • State v. Zander B., Supreme Court No. S-17399
    • United States
    • Supreme Court of Alaska (US)
    • October 30, 2020
    ...to request and receive notice of a hearing at which they could not present evidence"); State ex rel. C.H. v. Faircloth , 240 W.Va. 729, 815 S.E.2d 540, 554 (2018) ("[A]t such time as termination appears imminent ..., it is in the interests of all parties that the foster parents be recognize......
  • In re J.S., No. 20-0185
    • United States
    • Supreme Court of West Virginia
    • May 14, 2021
    ...existence of derivative action by a director against a nonprofit corporation); State ex rel. C.H. v. Faircloth , 240 W. Va. 729, 745, 815 S.E.2d 540, 556 (2018) (findings and conclusions in abuse and neglect case must "demonstrat[e] exercise of clear-cut statutory authority.") (citing In re......
  • In re P.F., No. 20-0113
    • United States
    • Supreme Court of West Virginia
    • October 14, 2020
    ...provisions of R. Civ. P. 54(b)." We find no merit to this argument. In State ex rel. C. H. v. Faircloth , 240 W. Va. 729, 736-37 n.12, 815 S.E.2d 540, 547-48 n.12 (2018), the Court provided:We note that the West Virginia Rules of Civil Procedure regarding intervention generally do not apply......
  • State ex rel. W. Va. Dep't of Health & Human Res. v. Dyer, No. 19-0331
    • United States
    • Supreme Court of West Virginia
    • November 21, 2019
    ...and the importance of the role of concurrent planning for permanency." State ex rel. C. H. and S. H. v. Faircloth , 240 W. Va. 729, 741, 815 S.E.2d 540, 552 (2018). We explained that,Certainly the over-arching purpose of our abuse and neglect statutory construct continues to be the correcti......
  • Request a trial to view additional results
14 cases
  • State v. Zander B., Supreme Court No. S-17399
    • United States
    • Supreme Court of Alaska (US)
    • October 30, 2020
    ...to request and receive notice of a hearing at which they could not present evidence"); State ex rel. C.H. v. Faircloth , 240 W.Va. 729, 815 S.E.2d 540, 554 (2018) ("[A]t such time as termination appears imminent ..., it is in the interests of all parties that the foster parents be recognize......
  • In re J.S., No. 20-0185
    • United States
    • Supreme Court of West Virginia
    • May 14, 2021
    ...existence of derivative action by a director against a nonprofit corporation); State ex rel. C.H. v. Faircloth , 240 W. Va. 729, 745, 815 S.E.2d 540, 556 (2018) (findings and conclusions in abuse and neglect case must "demonstrat[e] exercise of clear-cut statutory authority.") (citing In re......
  • In re P.F., No. 20-0113
    • United States
    • Supreme Court of West Virginia
    • October 14, 2020
    ...provisions of R. Civ. P. 54(b)." We find no merit to this argument. In State ex rel. C. H. v. Faircloth , 240 W. Va. 729, 736-37 n.12, 815 S.E.2d 540, 547-48 n.12 (2018), the Court provided:We note that the West Virginia Rules of Civil Procedure regarding intervention generally do not apply......
  • State ex rel. W. Va. Dep't of Health & Human Res. v. Dyer, No. 19-0331
    • United States
    • Supreme Court of West Virginia
    • November 21, 2019
    ...and the importance of the role of concurrent planning for permanency." State ex rel. C. H. and S. H. v. Faircloth , 240 W. Va. 729, 741, 815 S.E.2d 540, 552 (2018). We explained that,Certainly the over-arching purpose of our abuse and neglect statutory construct continues to be the correcti......
  • Request a trial to view additional results

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