State ex rel. Diva P. v. Kaufman

Decision Date22 July 1997
Docket NumberNo. 23928,23928
Citation200 W.Va. 555,490 S.E.2d 642
CourtWest Virginia Supreme Court
PartiesSTATE of West Virginia ex rel. DIVA P., and the State of West Virginia, Petitioners, v. Honorable Tod J. KAUFMAN, Judge of the Circuit Court of Kanawha County, and Sherry P., Respondents.
Concurring Opinion of

Chief Justice Workman

July 22, 1997.

Syllabus by the Court

1. " 'Although conclusions of law reached by a circuit court are subject to de novo review, when an action, such as an abuse and neglect case, is tried upon the facts without a jury, the circuit court shall make a determination based upon the evidence and shall make findings of fact and conclusions of law as to whether such child is abused or neglected. These findings shall not be set aside by a reviewing court unless clearly erroneous. A finding is clearly erroneous when, although there is evidence to support the finding, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed. However, a reviewing court may not overturn a finding simply because it would have decided the case differently, and it must affirm a finding if the circuit court's account of the evidence is plausible in light of the record viewed in its entirety.' Syl. Pt. 1, In the Interest of Tiffany Marie S., 196 W.Va. 223, 470 S.E.2d 177 (1996)." Syl. Pt. 1, State ex rel. Virginia M. v. Virgil Eugene S. II, 197 W.Va. 456, 475 S.E.2d 548 (1996).

2. "In determining whether to grant a rule to show cause in prohibition when a court is not acting in excess of its jurisdiction, this Court will look to the adequacy of other available remedies such as appeal and to the over-all economy of effort and money among litigants, lawyers and courts; however, this Court will use prohibition in this discretionary way to correct only substantial, clear-cut, legal errors plainly in contravention of a clear statutory, constitutional, or common law mandate which may be resolved independently of any disputed facts and only in cases where there is a high probability that the trial will be completely reversed if the error is not corrected in advance." Syl. Pt. 1, Hinkle v. Black, 164 W.Va. 112, 262 S.E.2d 744 (1979).

3. "The prosecuting attorney is a constitutional officer who exercises the sovereign power of the State at the will of the people and he is at all times answerable to them. W.Va. Const., art. 2, Sec. 2; art. 3, Sec. 2; art. 9, Sec. 1." Syl. Pt. 2, State ex rel. Preissler v. Dostert, 163 W.Va. 719, 260 S.E.2d 279 (1979).

4. In civil abuse and neglect cases, the legislature has made DHHR the State's representative. In litigations that are conducted under State civil abuse and neglect statutes, DHHR is the client of county prosecutors. The legislature has specifically indicated through W.Va.Code § 49-6-10 (1996) that prosecutors must cooperate with DHHR's efforts to pursue civil abuse and neglect actions. The relationship between DHHR and county prosecutors under the statute is a pure attorney-client relationship. The legislature has not given authority to county prosecutors to litigate civil abuse and neglect actions independent of DHHR. Such authority is granted to prosecutors only under State criminal abuse and neglect statutes. Therefore, all of the legal and ethical principles that govern the attorney-client relationship in general, are applicable to the relationship that exists between DHHR and county prosecutors in civil abuse and neglect proceedings.

5. When county prosecutors represent the DHHR, they may not invoke the Supreme Court of Appeals' appellate or original jurisdiction in a civil abuse and neglect proceeding, unless they have the express consent and approval of DHHR.

6. "In the law concerning custody of minor children, no rule is more firmly established than that the right of a natural parent to the custody or his or her infant child is paramount to that of any other person; it is a fundamental personal liberty protected and guaranteed by the Due Process Clauses of the West Virginia and United States Constitutions." Syl. Pt. 1, In re Willis, 157 W.Va. 225, 207 S.E.2d 129 (1973).

7. "Prior acts of violence, physical abuse, or emotional abuse toward other children are relevant in a termination of parental 8. "Where there is clear and convincing evidence that a child has suffered physical and/or sexual abuse while in the custody of his or her parent(s), guardian, or custodian, another child residing in the home when the abuse took place who is not a direct victim of the physical and/or sexual abuse but is at risk of being abused is an abused child under W.Va.Code, 49-1-3(a) (1994)." Syl. Pt. 2, In re Christina L., 194 W.Va. 446, 460 S.E.2d 692 (1995).

                [200 W.Va. 559] rights proceeding, are not violative of W.Va.R.Evid. 404(b), and a decision regarding the admissibility thereof shall be within the sound discretion of the trial court."   Syl. Pt. 8, In Interest of Carlita B., 185 W.Va. 613, 408 S.E.2d 365 (1991)

9. "W.Va.Code, 49-6-2(b) (1984), permits a parent to move the court for an improvement period which shall be allowed unless the court finds compelling circumstances to justify a denial." Syl. Pt. 2, State ex rel. West Virginia Dep't of Human Servs. v. Cheryl M., 177 W.Va. 688, 356 S.E.2d 181 (1987).

10. " 'Under W.Va.Code, 49-6-2(b) (1984), when an improvement period is authorized, then the court by order shall require the Department of Human Services to prepare a family case plan pursuant to W.Va.Code, 49-6D-3 (1984).' Syl. pt. 3, State ex rel. W.Va. Department of Human Services v. Cheryl M., 177 W.Va. 688, 356 S.E.2d 181 (1987)." Syl. Pt. 3, In the Interest of Tiffany Marie S., 196 W.Va. 223, 470 S.E.2d 177 (1996).

Marilyn T. McClure, McQueen, Harmon, Potter & Cleek, Charleston, for Petitioner Diva P.

William C. Forbes, Prosecuting Attorney, Brenda Waugh, Assistant Prosecuting Attorney, Charleston, for Petitioner State of West Virginia.

Julia B. Shalhoup, Campbell & Turkaly, Charleston, Mary Rich Maloy, Jackson & Kelly, Charleston, for Respondent Sherry P.

Darrell V. McGraw, Jr., Attorney General, Barbara L. Baxter, Assistant Attorney General, Joanna Bowles, Assistant Attorney General, Charleston, for Respondent Department of Health and Human Services.


DAVIS, Justice:

This case is before the Court on a petition for a writ of prohibition, mandamus and writ of error 1 against the Honorable Tod J. Kaufman, Judge of the Circuit Court of Kanawha County, by the petitioners, Diva P. (hereinafter the "child" or "Diva") 2 and the State of West Virginia. Sherry P., mother of the child, is also named as a respondent. 3 Both the State and the child's guardian ad litem 4 seek relief from the November 19, 1996, disposition order which returned Diva to her mother for a three month improvement period. Petitioners contend that an additional improvement period is not in the best interest of Diva. Petitioners seek termination of Sherry P.'s parental rights.


At the age of 16, Sherry P. gave birth to Diva on May 11, 1993. At the time of the child's birth Sherry P. lived with her mother Upon learning that the child was thrown against a wall by Shelly, Sherry P. and her mother immediately took the child to Women's and Children's Hospital. The child was diagnosed as having a closed head injury. No further diagnosis was made at that time. The record indicates that Sherry P. questioned hospital personnel about what appeared to be a soft area on the left side of the child's head. Sherry P.'s concern about the soft area was dismissed as insignificant. Sherry P. was permitted to take the child home within hours of bringing her to the hospital.

                [200 W.Va. 560] AND TWO SISters bRANdy and shElly. 5  sherry p.'s sister shelly is autistic and has extremely limited functioning capabilities.  On July 17, 1993, Sherry P. and her mother left home to go to a local store.  Diva was left in the care of Brandy.  Without Brandy's knowledge, Shelly removed baby Diva from her crib.  When Brandy attempted to take baby Diva from Shelly, Shelly threw the baby against the wall

On July 18, 1993, Sherry P. again took Diva to the hospital because of a lethargic look on her face. While at the hospital the second time, it was discovered that the child had a fractured right arm, hairline right skull fracture, as well as a depressed skull fracture. 6

The West Virginia Department of Health and Human Resources (hereinafter "DHHR") was contacted regarding the child's injuries. DHHR filed a neglect and abuse petition against Sherry P. on July 23, 1993. Diva was taken into the custody of DHHR. After successfully completing an improvement period, the circuit court entered an agreed order on May 27, 1994, dismissing the petition. Diva was returned to Sherry P. 7

On October 16, 1994, Sherry P. gave birth to a second child, Destiny P. (hereinafter "Destiny"). Destiny was born prematurely. Sherry P.'s physician recommended a heart monitor be used for the infant because of a high risk of sudden infant death syndrome. The heart monitor was designed to sound an alarm if Destiny's heart stopped beating. Sherry P. utilized the heart monitor for two months. During that two month period the evidence showed that the heart monitor was only disconnected a few days. 8 Unknown to Sherry P. the heart monitor was actually defective. Medical expert, Dr. Joseph Werthammer testified that a review of the recorded printout from the heart monitor revealed that it recorded a total of 6,000 alarms during the two month period that Sherry P. had the infant connected to the monitor. 9

There was further evidence that both the hospital and the supplier of the heart monitor were aware after the first month of use by Sherry P., that the monitor was defective. Neither took steps to inform Sherry P. of this fact. 10 On December 29, 1994, Sherry P.

[200 W.Va. 561] gave...

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