State ex rel. Lemaster v. Oakley

• Decision Date: 12 March 1974
• Docket Number: No. 13446,13446
• Parties: STATE ex rel. Clyde E. LEMASTER et al. v. Honorable Harvey OAKLEY, Judge, etc. and Edwin F. Flowers, Commissioner, etc.
• Court: West Virginia Supreme Court

Page 140

203 S.E.2d 140

157 W.Va. 590

STATE ex rel. Clyde E. LEMASTER et al. v. Honorable Harvey OAKLEY, Judge, etc. and Edwin F. Flowers Commissioner, etc.

No. 13446.

Supreme Court of Appeals of West Virginia.

Submitted Jan. 15, 1974.

Decided March 12, 1974.

Syllabus by the Court

1. In child neglect proceedings which may result in the termination of parental rights to the custody of natural children, indigent parents are entitled to the assistance of counsel because of the requirements of the Due Process clauses of the West Virginia and United States Constitutions.

2. Due Process standards, however, do not always require the appointment of counsel to assist indigent parents when the State seeks temporary custody of a child in an emergency pursuant to West Virginia Code, Chapter 49, Article 6, Section 3, as amended, where the child's welfare, health or life is imminently threatened.

Daniel F. Hedges, Charleston, James M. Cagle, Appalachian Research and Defense Fund, Logan, for relators.

Chauncey H. Browning, Jr., Atty. Gen., Cletus B. Hanley, Deputy Atty. Gen., Phillip D. Gaujot, Asst. Atty. Gen., Charleston, for respondents.

HADEN, Justice:

Clyde E. and Patricia A. Lemaster, indigent parents of Billy Joe, their infant son of almost three years, invoke the original jurisdiction of this Court and seek a writ of habeas corpus against the Honorable Edwin F. Flowers, Commissioner of the Department of Welfare. The object of their petition is to regain the custody of the infant from the department, which has held temporary custody of Billy Joe since June 1971, pursuant to intermittent orders of the Juvenile Court of Logan County.

The relators also contend that, as indigents whose fundamental rights of parenthood are being abridged by State action, they are entitled to the assistance of court-appointed counsel to protect their interest in a pending neglect proceeding in the same juvenile court which could result in the termination of their parental rights to the custody, care and companionship of Billy Joe.

The department originally acquired custody of Billy Joe after Sharon L. Winkler, a social caseworker with the department, filed a petition in the juvenile court on May 21, 1971, alleging that the Lemaster child, born April 8, 1971, was a neglected child as defined in West Virginia Code, Chapter 49, Article 1, Section 3 (Michie 1931), as amended. After inspection of the petition, the juvenile court entered an order on June 2, 1971, finding Billy Joe Lemaster to be a neglected child, and temporarily awarding his custody to the Division of Child Services of the department. The order set a hearing on the petition on June 11, 1971.

The parents appeared on June 11th without counsel. The court heard no testimony and continued the hearing until July 2, 1971, at which date and by joint motion of the State and the parents, the hearing was rescheduled again for August 16, 1971.

At the August 16th hearing, the State presented certain evidence concerning the alleged neglect of the infant, the father's drinking habits, and the parents' inability to adequately care for the child. This evidence was introduced through the testimony of Ms. Winkler based upon her personal observations and her expertise as a professional social worker. The court also considered a written case summary filed by the caseworker concerning the Lemaster family. The relators were not represented by counsel at that hearing.

On September 28, 1971, the juvenile court entered an order by which the court determined again, based upon the evidence presented by the State and the written summary of the social worker, that the infant was a neglected child within the meaning of the laws of the State and that the temporary custody of the child should remain with the department.

As an addendum to that order, the court provided the Lemasters with the opportunity to petition the court for review within ninety days of the temporary award and indicated that the court would reconsider its order: 'If the natural parents . . . can show that they have established a proper home and suitable environment for the care of said child.'

Pursuant to the juvenile court's suggestion, the petitioners say they obtained new and better housing in an effort to satisfy the demands of the welfare department. Although Lemaster informed the department of the purchase of the newer home, its representatives failed to visit and inspect the residence. The relators also contend they made repeated inquiries of both the department and the court as to the method of reobtaining custody of their child and that, with the permission of the court pursuant to arrangements made by the welfare department, they regularly visited Billy Joe for thirty minutes one day each month at a foster home some one hundred and thirty miles from the Lemaster home.'

No further court action occurred until November 22, 1972, when Fran Hoyt, another social caseworker with the department, filed an amended petition with the juvenile court requesting that the department be given permanent custody of the child and the court's approval to consent to his adoption. In addition to the reasons previously alleged, the department sought termination of parental rights because the Lemasters had requested the return of the child. The court held no formal hearing on the amended petition but entered an Ex parte order continuing the temporary custody of the child in the department.

The respondent alleges in his return that a hearing was intended to be held upon the amended petition but it was continued indefinitely because the parents objected to the proceedings being held without their being afforded court-appointed counsel. The commissioner further alleges that an attempt was made by the court to appoint such counsel but it failed. The relators contend that the court later directed them to counsel willing to represent them, but that counsel had demanded a fee of four hundred and seventy-five dollars for his services. They alleged the fee was beyond their means and state that they were then, and are presently, pecuniarily unable to afford counsel.

The termination proceeding petition remains pending in the Juvenile Court of Logan County and final proceedings on that petition appear to be imminent, pending the outcome of this original proceeding. It has also been brought to the attention of this Court that during the pendency of the juvenile proceedings, the Lemasters have become parents of a second child, whose name is Betty Joe. She is now eight months old and she is in the care of her natural parents.

The relators contend that the conduct of the neglect proceedings in the Juvenile Court of Logan County without resolution for a period of at least two and one-half years has resulted in an unreasonable denial of lawful custody of Billy Joe to them. Secondly, they contend that by reason of their ignorance of the law and its procedures and because they were unrepresented by counsel and were not advised they could offer evidence at previous hearings, they were prevented from adequately defending their interests at the several temporary custody hearings. Further, that any final hearing which may result in the permanent loss of their custody of Billy Joe without affording them the right to counsel denies them due process of law afforded under Article III, Section 10 of the West Virginia Constitution, and the Fourteenth Amendment to the United States Constitution. They also contend that Code 59--2--1, as amended, secures indigents with the right of appointment of counsel.

In his return, the commissioner admits that the retention of custody of Billy Joe Lemaster without extending a full hearing is an unconstitutional application of Code 1931, 49--6--3, as amended. This Court agrees. The writ must be awarded on this basis in accordance with the extended discussion and rules announced in the recent case of In Re: Willis, W.Va., (Decided December 11, 1973, reh. den., February 5, 1974). After the passage of a reasonable time necessarily required to effectuate the State's interest in protecting a child's health and welfare in an emergent situation, the onus for continued retention of the child from the custody of his natural parents falls upon the State and not upon the parents. Clearly, the emergency provision of Section 3 of the statute, has been unconstitutionally applied, in derogation of the rights of the Lemaster parents. Accord, State ex rel. Bowen v. Flowers, W.Va., 184 S.E.2d 611 (1971).

We also note our continuing disapproval of a juvenile court's reliance upon unsworn reports of caseworkers employed by the department, whose testimony is not subjected to cross-examination:

'Reports of the State Welfare Department are not by themselves admissible in evidence at a juvenile court hearing, and any report based on hearsay evidence is generally inadmissible.' Syllabus Point 5, In re: Simmons Children, 154 W.Va. 491, 177 S.E.2d 19 (1970).

The new question presented in this case is whether indigent parents are entitled to assistance of counsel in child neglect proceedings which may result...