State ex rel. George B. W. v. Kaufman

• Decision Date: 03 March 1997
• Docket Number: No. 23927,23927
• Citation: State ex rel. George B. W. v. Kaufman, 199 W.Va. 269, 483 S.E.2d 852 (W. Va. 1997)
• Parties: STATE of West Virginia ex rel. GEORGE B. W., Petitioner, v. Honorable Tod J. KAUFMAN, Judge of the Circuit Court of Kanawha County, and Sharon B. W., Respondents.
• Court: West Virginia Supreme Court

Page 852

483 S.E.2d 852

199 W.Va. 269

STATE of West Virginia ex rel. GEORGE B. W., Petitioner, v. Honorable Tod J. KAUFMAN, Judge of the Circuit Court of Kanawha County, and Sharon B. W., Respondents.

No. 23927.

Supreme Court of Appeals of West Virginia.

Submitted Jan. 15, 1997.

Decided March 3, 1997.

Syllabus by the Court

1. Although a court may enter an emergency order transferring custody where there are allegations of abuse or neglect without notice and full hearing if the court deems such an order necessary for the immediate protection of the child(ren), such order should be of limited duration, should set a prompt and full hearing on the allegations and should apprise both parties of the scope of the hearing. In the event such emergency change is found to be warranted, the court should immediately appoint a guardian ad litem for the child.

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. "In visitation as well as custody matters, we have traditionally held paramount the best interests of the child." Syl. Pt. 5, Carter v. Carter, 196 W.Va. 239, 470 S.E.2d 193 (1996).

4. "Because of the extraordinary nature of supervised visitation, such visitation should be ordered when necessary to protect the best interests of the children. In determining the best interests of the children when there are allegations of sexual or child abuse, the circuit court should weigh the risk of harm of supervised visitation or the deprivation of any visitation to the parent who allegedly committed the abuse if the allegations are false against the risk of harm of unsupervised visitation to the child if the allegations are true." Syl. Pt. 3, Carter v. Carter, 196 W.Va. 239, 470 S.E.2d 193 (1996).

5. "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." Syl. Pt. 3, Mary D. v. Watt, 190 W.Va. 341, 438 S.E.2d 521 (1992).

6. "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." Syl. Pt. 2, Mary D. v. Watt, 190 W.Va. 341, 438 S.E.2d 521 (1992).

7. "In order for a trial court to determine whether to grant a party's request for additional physical or psychological examinations, the requesting party must present the judge with evidence that he has a compelling need or reason for the additional examinations. In making the determination, the judge should consider: (1) the nature of the examination requested and the intrusiveness inherent in that examination; (2) the victim's age; (3) the resulting physical and/or emotional effects of the examination on the victim; (4) the probative value of the examination to the issue before the court; (5) the remoteness in time of the examination to the alleged criminal act; and (6) the evidence already available for the defendant's use." Syl. Pt. 3, State v. Delaney, 187 W.Va. 212, 417 S.E.2d 903 (1992).

Michael T. Clifford, Clifford, Mann & Swisher, James T. Cooper, Lovett, Cooper & Glass, Charleston, for George B. W.

Thomas J. Gillooly, Charleston, Parrish McKittrick, St. Albans, for Sharon B. W.

Beverly S. Selby, Charleston, Guardian Ad Litem.

WORKMAN, Justice:

In this petition for a writ of prohibition and emergency stay of an order of the Circuit Court of Kanawha County, we grant the writ as moulded and direct that a hearing be held within ten days on the issues of visitation and whether additional examinations should be conducted on the subject child. ¹

I. Factual Background

Subsequent to the Respondent Sharon B. W.'s (hereinafter "Respondent"), August 1995 petition for divorce from Petitioner George B.W. (hereinafter "Petitioner"), temporary custody of the parties' only child, four-year-old Ben W. (hereinafter "the child"), was granted to the Respondent. During visitation with the Petitioner in the summer of 1996, the child allegedly accused his mother's boyfriend of sexual abuse, ² and the Petitioner immediately retained the services of Dr. Timothy Freeman. ³ Dr. Freeman interviewed the child and summarized the allegations of abuse in a document which was presented to the lower court on August 16, 1996. The Petitioner requested an emergency order relieving him of the obligation to return the child to the Respondent, and based upon the allegations of sexual abuse, the lower court entered an emergency order providing that the Petitioner should temporarily retain custody of the child. ⁴ On August 19, 1996, Dr. Freeman wrote to the Respondent's attorney, informing him of Dr. Freeman's recommendation that the child should not be in the company of his mother until "a point in ... [his] therapy warrants his ability to sustain such visit without psychological discomfort."

Both parties thereafter moved for the appointment of a guardian ad litem for the child, and the matter was assigned to Family Law Master Charles Phalen, Jr. During a September 11, 1996, hearing, the family law master and the parties' attorneys discussed issues of the appointment of a guardian ad litem, the arrangements for psychiatric examination of the parents and the child, and the equitable distribution and alimony issues which had been pending prior to the allegations of sexual abuse. The only testimony taken was from the Petitioner and the Respondent for the purpose of establishing the jurisdictional information sufficient to grant a divorce. Subsequent to that hearing, the family law master directed as follows:

Both parties and the minor child shall be made available for evaluation by an expert or experts concerning issues of custody, visitation, and allegations of sexual abuse. The parties may select their own experts, or they may jointly select one expert, for purposes of evaluation. Any session with the parties or the minor child conducted as part of such evaluation shall be audio and video taped. The professional conducting the evaluation may elect to have present at any session such other persons, including but not limited to the parties and the minor child, as the professional may consider appropriate for purposes of the evaluation process.

Pursuant to the discussions between the parties' attorneys and the family law master during the September 11, 1996, hearing, attorney Beverly Selby was appointed as guardian ad litem for the child by order dated September 19, 1996. In her interim report dated September 26, 1996, Ms. Selby discussed the child's fear of his mother and discomfort with the thought of seeing her. Ms. Selby also indicated that she had spoken with Katheryne Smith of Directional Analysis, Incorporated, regarding her willingness to supervise the visitation.

By letter dated October 3, 1996, Dr. Freeman informed Family Law Master Phalen of the deleterious effects of supervised visitation or even telephone contact with the mother upon the child's therapy regarding the sexual abuse. Dr. Freeman's letter also addressed the child's opposition to any telephone or personal contact. By letter dated November 6, 1996, guardian ad litem Beverly Selby apprised family law master Phalen of her position that telephone calls with the Respondent, even if supervised, were not in the best interests of the child. Her conclusions in this regard...