State ex rel. L.D. v. Cohee, 22-559

CourtSupreme Court of West Virginia
Writing for the CourtWOOTON, Justice
PartiesSTATE OF WEST VIRGINIA EX REL. L.D., Petitioner, v. THE HONORABLE BRIDGET COHEE, JUDGE OF THE CIRCUIT COURT OF BERKELEY COUNTY, T.D., K.E., M.C., S.C., AND THE WEST VIRGINIA DEPARTMENT OF HEALTH AND HUMAN RESOURCES, Respondents.
Docket Number22-559
Decision Date17 November 2022

STATE OF WEST VIRGINIA EX REL. L.D., Petitioner,
v.

THE HONORABLE BRIDGET COHEE, JUDGE OF THE CIRCUIT COURT OF BERKELEY COUNTY, T.D., K.E., M.C., S.C., AND THE WEST VIRGINIA DEPARTMENT OF HEALTH AND HUMAN RESOURCES, Respondents.

No. 22-559

Supreme Court of Appeals of West Virginia

November 17, 2022


Submitted: November 1, 2022.

Petition for a Writ of Mandamus.

WRIT GRANTED

Jared M. Adams, Esq. Adams Law Firm, PLLC Martinsburg, West Virginia Petitioner Guardian ad Litem.

Patrick Morrissey, Esq. Attorney General Randy K. Miller, Esq. Assistant Attorney General Charleston, West Virginia Counsel for Respondent DHHR.

Pamela Jean Games-Neely, Esq. Kearneysville, West Virginia Counsel for Respondent Mother K.E.

Michael Santa Barbara, Esq. Martinsburg, West Virginia Counsel for Respondent Father T.D.

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Clinton R. Bischoff, Esq. The Bischoff Law Firm PLLC Shepherdstown, West Virginia Counsel for Respondent Kinship Parents M.C. and S.C.

JUSTICE WOOTON delivered the Opinion of the Court. CHIEF JUSTICE HUTCHISON concurs and reserves the right to file a separate opinion.

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SYLLABUS

1. "A writ of mandamus will not issue unless three elements coexist-(1) a clear legal right in the petitioner to the relief sought; (2) a legal duty on the part of the respondent to do the thing which the petitioner seeks to compel; and (3) the absence of another adequate remedy." Syl. Pt. 2, State ex rel. Kucera v. City of Wheeling, 153 W.Va. 538, 170 S.E.2d 367 (1969).

2. "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 of 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).

3. "Foster parents, pre-adoptive parents, or relative caregivers who occupy only their statutory role as individuals entitled to a meaningful opportunity to be heard pursuant to West Virginia Code § 49-4-601(h) (2015) are subject to discretionary limitations on the level and type of participation as determined by the circuit court. Foster parents who have been granted the right to intervene are entitled to all the rights and responsibilities of any other party to the action." Syl. Pt. 4, in part, State ex rel. C.H. v. Faircloth, 240 W.Va. 729, 815 S.E.2d 540 (2018).

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4. "Foster parents are entitled to intervention as a matter of right when the time limitations contained in West Virginia Code § 49-4-605([a]) (2017) and/or West Virginia Code § 49-4-610(9) (2015) are implicated, suggesting that termination of parental rights is imminent and/or statutorily required." Syl. Pt. 7, State ex rel. C.H. v. Faircloth, 240 W.Va. 729, 815 S.E.2d 540 (2018).

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OPINION

WOOTON, Justice

Petitioner Guardian ad Litem ("guardian") invokes this Court's original jurisdiction seeking a writ of mandamus to compel the Circuit Court of Berkeley County, West Virginia, to reunify the minor child, L.D., with the respondent parents, Mother K.E. and Father T.D. (collectively "respondent parents").[1] Upon filing the underlying abuse and neglect petition, the West Virginia Department of Health and Human Resources ("DHHR") removed L.D. from Father T.D.'s home and placed her with cousins M.C. and S.C. (sometimes collectively "kinship parents"). The respondent parents successfully completed post-adjudicatory improvement periods and all parties recommended reunification of the family pursuant to West Virginia Code § 49-4-604(c)(1) (2022). The circuit court declined to do so, stating that the child had been in "foster care" for more than fifteen months, and therefore the DHHR was required to move for termination of the parents' parental rights under West Virginia Code § 49-4-605(a)(1) (2018). The court then sua sponte appointed counsel for and made the kinship parents parties to the underlying action, before directing that the child, respondent parents, and kinship parents undergo a "bonding assessment." The guardian filed a petition for writ of mandamus with this Court seeking to compel the circuit court to reunify the family, and to remove the kinship parents'

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party status in the underlying action. Upon review of the parties' arguments, the appendix record, and the applicable law, we grant the writ of mandamus.

I. FACTUAL AND PROCEDURAL BACKGROUND

In January 2021, the DHHR opened an investigation into potential child abuse after L.D. presented at Winchester Medical Center with various bruises.[2] The most concerning of these bruises were located on L.D.'s torso, which Father T.D. explained as having resulted from the child falling from his arms onto a tricycle while he was carrying her down a flight of stairs. A forensic nurse examined the bruising and the tricycle and determined that this explanation was plausible.

Subsequent to the investigation, Father T.D. and his then-girlfriend, A.S.,[3]admitted to engaging in excessive corporal punishment which caused some of the other bruises. Both also admitted to failing to seek prompt medical care for L.D. As a result of these admissions, on February 5, 2021, the DHHR filed the underlying abuse and neglect

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petition.[4] Also on February 5, 2021, L.D. was removed from the home and placed with Father T.D.'s cousins, the kinship parents.

The parties appeared for an adjudicatory hearing before the Honorable R. Steven Redding on May 5, 2021. At that time, Judge Redding informed the parties that he had a prior relationship with the kinship parents, as he had worked with them in a prior case where he served as a guardian ad litem. None of the parties objected to Judge Redding's continuing to preside over this case. Thereafter, the respondent parents admitted to the allegations of abuse and neglect and were accordingly adjudicated.

At a hearing on June 2, 2021, the circuit court granted the respondent parents post-adjudicatory improvement periods. It is undisputed that the respondent parents successfully completed their improvement periods. In fact, the circuit court described them as having "done extremely well" in this endeavor, and the record bears out that characterization.

Mother K.E. actively participated in the underlying proceedings, attending all MDT meetings and maintaining consistent contact with the DHHR. She ceased using illegal drugs, and her drug screens have been consistently negative for some time. She

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obtained and maintained employment, which resulted in her being able to secure stable housing appropriate for L.D.'s care. She also completed a psychological evaluation and subsequent individual counseling with the National Youth Advocate Program ("NYAP"), and on December 6, 2021, Mother K.E. completed parenting classes through Homebase.

Father T.D. similarly took an active role in the underlying proceedings. He maintained consistent contact with his caseworker and attended all multidisciplinary team ("MDT") meetings. He completed a psychological evaluation and subsequent counseling through both NYAP and Callahan Counselling Services. The record also indicates that he attended couples counseling with A.S. to rectify concerns about the stability of their relationship.[5] Moreover, Father T.D. completed thirty-two classes with Community Alternatives to Violence, and the court was informed by the program director that he actively participated in those classes and improved as a result of that participation. In November 2021, he also successfully completed parenting classes through Homebase- including classes specifically related to appropriate child discipline.

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Both respondent parents had visitation with L.D. throughout these proceedings. In the beginning, both participated in supervised visits with the child, and those quickly transitioned to unsupervised visits. By early 2022 the respondent parents were engaging in extended visits with the child-one day with Father T.D. and two days with Mother K.E.-including overnight stays. In May 2022, the circuit court increased these overnight visits to two nights with Father T.D., two nights with Mother K.E., and three nights with the kinship parents. The guardian's report indicates that L.D. enjoys spending time with her mother and father, and that she is bonded with both of them.[6]

Ultimately, on May 4, 2022, the circuit court held a dispositional hearing to consider disposition in this matter. At that hearing the DHHR, the guardian, and the Court Appointed Special Advocate ("CASA") volunteer all agreed that it was in L.D.'s best interest to be reunified with her parents, and accordingly recommended reunification and dismissal of the petition. The court, adhering to the statutory mandate that relative caregivers be afforded a meaningful opportunity to be heard, asked M.C. if he had anything he wished to add with regard to disposition. At that point, M.C. objected to reunification, arguing that L.D. was established in his home and had become bonded with his family. As a result of this objection, the court found that the disposition was contested, so Judge

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Redding voluntarily recused himself from this matter and transferred the case to The Honorable Bridget Cohee.[7]

Judge Cohee held a scheduling hearing on June 16, 2022, at which time the DHHR, the guardian, and the CASA volunteer reiterated their recommendations that the child be reunified with her parents. The circuit court declined, over the objections of counsel, to order reunification at that time. Instead the court questioned whether reunification was in the child's best interest, and whether the DHHR was permitted to recommend reunification under West Virginia Code section 49-4-605(a)(1) because the child had allegedly been in "foster care" for fifteen of the last twenty-two months. Thereafter, the court sua sponte-and without a...

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