State ex rel. Jeanette H. v. Pancake

• Decision Date: 24 April 2000
• Docket Number: No. 27061.,27061.
• Citation: 529 S.E.2d 865,207 W.Va. 154
• Court: West Virginia Supreme Court
• Parties: STATE of West Virginia ex rel. JEANETTE H., Petitioner, v. Honorable David M. PANCAKE, Judge of the Circuit Court of Cabell County, and the West Virginia Department of Health and Human Resources, Respondents.

529 S.E.2d 865

207 W.Va. 154

STATE of West Virginia ex rel. JEANETTE H., Petitioner, v. Honorable David M. PANCAKE, Judge of the Circuit Court of Cabell County, and the West Virginia Department of Health and Human Resources, Respondents.

No. 27061.

Supreme Court of Appeals of West Virginia.

Submitted February 22, 2000.

Decided April 24, 2000.

R. Matthew Vital, Vital & Vital, L.C., Huntington, West Virginia, Attorney for the Petitioner.

Darrell V. McGraw, Jr., Attorney General, William P. Jones, Assistant Attorney General, Bureau for Children & Families, Charleston, West Virginia, Attorney for Respondent, West Virginia Department of Health and Human Resources.

Lisa F. White, Huntington, West Virginia, Guardian ad Litem for the minor children. DAVIS, Justice:

In this original proceeding in prohibition, petitioner, Jeanette H.,¹ a parent who was incarcerated by the State of West Virginia, sought to prohibit the Honorable David M. Pancake, Judge of the Circuit Court of Cabell County, from refusing to order her transportation to a dispositional hearing where her parental rights to her five minor children might be terminated. During the pendency of the proceedings in this Court, however, Jeanette H. was granted parole. Consequently, the issue raised is technically moot and the writ, therefore, is dismissed. Nevertheless, because the important question raised in the instant petition satisfies the exception to the mootness doctrine, we address the issue on its merits. In this regard, we conclude that the decision of whether to transport an incarcerated parent to a dispositional hearing is within the circuit court's discretion, and we set forth the factors to be considered by that court in exercising its discretion.

I. FACTUAL AND PROCEDURAL HISTORY

The following facts are set forth in the Petitioner's brief, and are not disputed by the respondents. Throughout the proceedings that lead to the filing of the instant petition, Jeanette H., the petitioner, was in the custody of the West Virginia Department of Corrections. Following Jeanette H.'s arrest, for violating conditions imposed upon an earlier parole, the West Virginia Department of Health and Human Resources [hereinafter "DHHR"] filed a petition to gain immediate custody of Jeanette H.'s five minor children. In response to this petition, Judge Pancake found probable cause of abuse and neglect and granted custody of the children to the DHHR. On August 31, 1999, Jeanette H. filed a motion requesting a post-adjudicatory improvement period. Judge Pancake granted the motion on September 8, 1999. The improvement period was to commence upon Jeanette H.'s arrival at a drug rehabilitation treatment center.² Thereafter, on October 18, 1999,³ the DHHR initiated proceedings to terminate Jeanette H.'s parental rights.⁴ A termination hearing was then docketed for January 12, 2000.

After receiving notice of the termination proceedings, Jeanette H. presented Judge Pancake with a proposed order directing her transportation from the McDowell County Jail so that she might attend the proceedings. Judge Pancake declined to enter the order and responded by letter to Jeanette H.'s counsel stating "I know of no constitutional directive for your client to be present, and it is not our custom to transport persons under these circumstances." Jeanette H. then filed a motion for a writ of prohibition in this Court seeking to prohibit the circuit court from refusing to enter her proposed order. We granted a rule to show cause returnable on February 22, 2000. Subsequent thereto, on April 10, 2000, Jeanette H. filed a motion to dismiss stating that she had been released on parol and, as a consequence of her release, the issue raised in her petition for writ of prohibition had been rendered moot.

II. MOOTNESS

Due to Jeanette H.'s release from custody, her incarceration is no longer an impediment to her attendance at the hearing to take up the issue of her parental rights. For this reason, the issue herein raised is technically moot. Generally, moot questions are not proper for consideration by this Court. "`Moot questions or abstract propositions, the decision of which would avail nothing in the determination of controverted rights of persons or of property are not properly cognizable by a court.' Syllabus Point 1, State ex rel. Lilly v. Carter, 63 W.Va. 684, 60 S.E. 873 (1908)." Syl. pt. 1, State ex rel. Durkin v. Neely, 166 W.Va. 553, 276 S.E.2d 311 (1981). As with most general rules, however, there is an exception to this rule:

"A case is not rendered moot even though a party to the litigation has had a change in status such that he no longer has a legally cognizable interest in the litigation or the issues have lost their adversarial vitality, if such issues are capable of repetition and yet will evade review." Syllabus point 1, State ex rel. M.C.H. v. Kinder, 173 W.Va. 387, 317 S.E.2d 150 (1984).

Syl. pt. 2, State ex rel. Davis v. Vieweg, 207 W.Va. 83, 529 S.E.2d 103 (2000). Elaborating on this exception, we have explained:

Three factors to be considered in deciding whether to address technically moot issues are as follows: first, the court will determine whether sufficient collateral consequences will result from determination of the questions presented so as to justify relief; second, while technically moot in the immediate context, questions of great public interest may nevertheless be addressed for the future guidance of the bar and of the public; and third, issues which may be repeatedly presented to the trial court, yet escape review at the appellate level because of their fleeting and determinate nature, may appropriately be decided.

Syl. pt. 1, Israel by Israel v. West Virginia Secondary Sch. Activities Comm'n, 182 W.Va. 454, 388 S.E.2d 480 (1989)

. Applying these criteria to the circumstances presently before us, we conclude that the issue raised is proper for our consideration. Therefore, after reviewing the appropriate standard for our consideration of Jeanette H.'s petition, we will address the issue on its merits.

III. STANDARD FOR WRIT OF PROHIBITION

We have frequently expressed the limits to our exercise of our original jurisdiction in prohibition by explaining that "[a] writ of prohibition will not issue to prevent a simple abuse of discretion by a trial court. It will only issue where the trial court has no jurisdiction or having such jurisdiction exceeds its legitimate powers. W. Va.Code, 53-1-1." Syl. pt. 2, State ex rel. Peacher v. Sencindiver, 160 W.Va. 314, 233 S.E.2d 425 (1977).

Jeanette H. fails to explicitly state why prohibition is appropriate in this instance. Having observed that her arguments in support of her petition raise no jurisdictional issues, however, we conclude that she claims the lower court exceeded its legitimate powers. We have previously defined the factors to be considered by this Court in determining whether prohibition should issue where it is asserted that a court has exceeded its legitimate powers:

In determining whether to entertain and issue the writ of prohibition for cases not involving an absence of jurisdiction but only where it is claimed that the lower tribunal exceeded its legitimate powers, this Court will examine five factors: (1) whether the party seeking the writ has no other adequate means, such as direct appeal, to obtain the desired relief; (2) whether the petitioner will be damaged or prejudiced in a way that is not correctable on appeal; (3) whether the lower tribunal's order is clearly erroneous as a matter of law; (4) whether the lower tribunal's order is an oft repeated error or manifests persistent disregard for either procedural or substantive law; and (5) whether the lower tribunal's order raises new and important problems or issues of law of first impression. These factors are general guidelines that serve as a useful starting point for determining whether a discretionary writ of prohibition should issue. Although all five factors need not be satisfied, it is clear that the third factor, the existence of clear error as a matter of law, should be given substantial weight.

Syl. pt. 4, State ex rel. Hoover v. Berger, 199 W.Va. 12, 483 S.E.2d 12 (1996). Finally, we have repeatedly declared that "`[m]andamus, prohibition and injunction against judges are drastic and extraordinary remedies.... As extraordinary remedies, they are reserved for really extraordinary causes.'" State ex rel. Lawson v. Wilkes, 202 W.Va. 34, 38, 501 S.E.2d 470, 474 (1998) (quoting State ex rel. Suriano v. Gaughan, 198 W.Va. 339, 345, 480 S.E.2d 548, 554 (1996)). See also State ex rel. United States Fidelity & Guar. Co. v. Canady, 194 W.Va. 431, 436, 460 S.E.2d 677, 682 (1995)

; State ex rel. Doe v. Troisi, 194 W.Va. 28, 31, 459 S.E.2d 139, 142 (1995). Because Jeanette H. has raised a new and important issue of law of first impression in this jurisdiction, we find it may properly be considered in the context of a writ of prohibition.

IV. DISCUSSION

Jeanette H. contends that the circuit court erred by declining to enter her proposed order authorizing her transportation to the Cabell County Courthouse to attend a dispositional hearing addressing the possible termination of her parental rights.⁵ She argues that a parent is entitled to certain due process protections flowing from the fundamental interests associated with the parent/child relationship. The specific issue raised by Jeanette H., whether an incarcerated parent has a due process right to be present at a hearing on the termination of his or her parental rights, is a question of first impression for this Court.⁶ Although the specific issue herein raised is novel in this jurisdiction, it is, nevertheless, well established that a parent has a constitutionally protected liberty interest in retaining custody of his or her child and is, therefore, entitled to certain due process protections when the State seeks to terminate the parent/child relationship:

"In the law

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