State ex rel. McCartney v. Nuzum, s. 14220

Citation161 W.Va. 740,248 S.E.2d 318
Decision Date26 October 1978
Docket Number14221,Nos. 14220,s. 14220
PartiesSTATE ex rel. Beverly Ann McCARTNEY et al. v. Jack R. NUZUM, Judge, etc., et al.
CourtSupreme Court of West Virginia

Syllabus by the Court

1. W.Va.Code, 49-1-3, in defining an "abused" and "neglected" child, is premised on the concept that the person who has the actual custody of a child either directly abuses or neglects the child, or allows the same to occur indirectly as a result of inadequate supervision.

2. W.Va.Code, 49-1-3, does not apply where the natural parent has not had actual custody of his child and the alleged act of "psychological abuse" is occasioned by his attempt to obtain lawful custody of his child under a court order.

3. A writ of prohibition will lie where the trial court does not have jurisdiction or, having jurisdiction, exceeds its legitimate powers.

4. "Mandamus is an appropriate remedy to compel compliance with a mandate of this Court." Syllabus Point 1, State ex rel. Emery v. Rodgers, 138 W.Va. 562, 76 S.E.2d 690 (1953).

William W. Talbott, Talbott & Alsop, Webster Springs, for relators.

James A. Kent, Jr., Elkins, for respondents.

MILLER, Justice:

Petitioners Beverly Ann McCartney and Clyde L. Howell, the natural mother and father of Nadine McCartney, invoke the original jurisdiction of this Court in prohibition and mandamus to prevent the respondent circuit judge from proceeding to hear a child neglect petition and to require him to transfer custody of Nadine to the mother, Mrs. McCartney. We award the writs.

This case is a sequel to the case of McCartney v. Coberly, --- W.Va. ---, (1978) (No. 14042), in which we held that Mrs. McCartney was entitled to the custody of her daughter, Nadine, because she had placed her only in the temporary custody of the Coberlys.

After the decision was handed down, the Coberlys filed a child neglect petition against the natural parents in the Circuit Court of Randolph County under the provisions of W.Va.Code, 49-6-1, Et seq., claiming the child is neglected and abused as these terms are used in W.Va.Code, 49-1-3. 1

In regard to the prohibition, the natural parents contend that the child neglect petition demonstrates on its face that the trial court is without jurisdiction to hear the matter, in that the facts alleged do not constitute "abuse" or "neglect" as those terms are defined in W.Va.Code, 49-1-3.

The neglect petition recites that the Coberlys have had custody of the infant child since February, 1975. It asserts that the child has become psychologically dependent on the Coberlys and that a removal of the child from their custody will result in severe mental and psychological injury to her. Documenting this claim, they attach a medical report from Dr. John F. Kelley, a child psychiatrist at the West Virginia University Medical Center.

Dr. Kelley states that he has seen the child on eight occasions and is of the view that she is attached to her foster parents and that a severance of this bond "would be reacted to by the child with emotional distress and a setback of ongoing development." He equates this severance with that experienced by a child "faced with the loss from death of natural parents."

The critical legal thrust of the neglect petition is that the natural mother, by threatening and attempting the removal of the child, will cause mental and psychological damage to the child, which in turn constitutes neglect and abuse. The precise statement in the neglect petition on this point is:

"Respondents (the natural parents) are threatening and attempting to remove custody of Nadine McCartney from the petitioners (the Coberlys) and such removal or threatened removal will result in serious mental and physical injury to Nadine as a result of the loss of her psychological parents as is more particularly explained in the affidavit of Dr. John Kelley which is attached hereto as Exhibit A and included herein by reference."

The legal issue thus framed in the neglect petition was whether:

"(T)he threat to transfer custody or the actual transfer of custody would constitute neglect and abuse within the meaning of the statute."

It is important to note that the attempt on the part of the natural mother to regain custody of her child began less than a week after she had given custody to the Coberlys. It was not until this Court's opinion in McCartney v. Coberly, supra, rendered on March 14, 1978, that her right to the custody was finally resolved. Thus, her move to obtain her child is sanctioned by a prior opinion of this Court. 2

We do not read W.Va.Code, 49-1-3, as applying to the case at hand. This statute, in defining an "abused" and "neglected" child, is premised on the concept that the person who has the actual custody of a child either directly abuses or neglects the child, or allows the same to occur indirectly as a result of inadequate supervision. Here, the natural mother never had the actual custody of the child, since custody was with the Coberlys during the entire period that the issue was litigated.

The psychological damage occasioned by the return of the child to her natural mother results from a judicial determination that the mother is entitled to her child. We do not doubt that the child has grown attached to her foster parents, but it would be a perverse and self-contradictory rule that would permit the natural parent to recover custody of her child, but then deny her the custody on the basis that it would be psychologically damaging. 3

The threshold issue of the right to custody was decided in the earlier case of McCartney v. Coberly, supra. We find that the concepts of "abused" and "neglected" under W.Va.Code, 49-1-3, do not apply to the situation of the natural mother in this case because she did not have the actual custody of her child, and the alleged act of "psychological abuse" was occasioned by her attempt to obtain lawful custody of her child under a court order.

A writ of prohibition will lie where the trial court does not have jurisdiction or, having jurisdiction, exceeds its legitimate powers. W.Va.Code, 53-1-1; State ex rel. West Virginia Truck Stops, Inc. v. McHugh, --- W.Va. ---, 233 S.E.2d 729 (1977); State ex rel. Lynn v. Eddy, 152 W.Va. 345, 163 S.E.2d 472 (1968); State ex rel. Scott v. Taylor, 152 W.Va. 151, 160 S.E.2d 146 (1968).

In the ninth syllabus of Lynn, supra, Judge Haymond, speaking for a unanimous Court, stated:

"Although the court has jurisdiction of the subject matter in controversy and of the parties, if it clearly appears that in the conduct of the case it has exceeded its legitimate powers with respect to some pertinent question a writ of prohibition will lie to prevent such abuse of power."

In Scott, supra, the trial court misconstrued a joint stipulation filed by the parties in a civil action and by order, over objection of the plaintiffs, reduced the amount of the Ad damnum clause. This Court awarded prohibition on the basis that the trial court had clearly exceeded its legitimate powers.

In Jennings v. McDougle, 83 W.Va. 186, 98 S.E. 162 (1919), this Court awarded a prohibition to prevent further prosecution of a divorce action where essential jurisdictional facts were lacking on the face of the bill for divorce. The Court relied heavily on its earlier opinion in City of Charleston v. Littlepage, 73 W.Va. 156, 80 S.E. 131 (1913), in which it had concluded that prohibition was appropriate to bar an injunction suit upon a bill that failed to contain allegations essential to give the court jurisdiction for an injunction.

Here, the trial court acted in excess of its powers when it ordered a hearing on the petition for neglect. The neglect petition brought under W.Va.Code, 49-6-1, of necessity has to show facts which constitute an "abused" or "neglected" child as these terms are defined in W.Va.Code, 49-1-3. As we have previously observed, the facts in the petition do not come within the provisions of W.Va.Code, 49-1-3.

Once it is determined that the trial court has exceeded its legitimate powers in proceeding to hear the neglect petition, prohibition becomes appropriate to bar further prosecution of that action on the factual basis on which it was brought. 4

The writ of mandamus was sought on the theory that the Circuit Court had misconceived the import of our prior opinion in McCartney v. Coberly, supra, and had failed to order transfer of the custody of the child to the natural mother. It is firmly established that mandamus will lie to compel a trial court to comply with the mandate of an appellate court. 52 Am.Jur.2d Mandamus § 355. In State ex rel. Emery v. Rodgers, 138 W.Va. 562, 76 S.E.2d 690 (1953), the Court discussed this principle at some length:

"Mandamus is an appropriate remedy to compel the Judge of a Circuit Court or other Court of record to comply...

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