State ex rel. Moore v. Munchmeyer

• Decision Date: 03 July 1973
• Docket Number: No. 13224,13224
• Citation: 197 S.E.2d 648,156 W.Va. 820
• Court: West Virginia Supreme Court
• Parties: STATE of West Virginia ex rel. Robert Dale MOORE v. Thomas M. MUNCHMEYER.

Page 648

197 S.E.2d 648

156 W.Va. 820

STATE of West Virginia ex rel. Robert Dale MOORE v. Thomas M. MUNCHMEYER.

No. 13224.

Supreme Court of Appeals of West Virginia.

Submitted May 8, 1973.

Decided July 3, 1973.

Syllabus by the Court

1. 'The petition to the juvenile court in cases involving neglected children should set forth the facts constituting the neglect and not merely state conclusions in connection therewith.' Pt. 2 Syllabus, In Re Simmons Children, W.Va., 177 S.E.2d 19 (1970).

2. In a juvenile neglect petition brought pursuant to Chapter 49, Article 6, Section 1 of the Code of West Virginia, 1931, as amended, the allegations of fact are adequate if they are sufficiently specific to inform the custodian of the infants of the basis upon which the petition is brought, and thus afford a reasonable opportunity to prepare a rebuttal.

3. Adjudicatory language within a written opinion of a trial judge and made a part of the record by order, will be considered to point out the specific grounds on which the trial court acted.

William L. Jacobs, Parkersburg, for plaintiff in error.

Albright & Richmond, Richard M. Richmond, Joseph P. Albright, Parkersburg, for defendant in error.

NEELY, Justice:

This is an appeal from a final order of the Circuit Court of Wood County, West Virginia, entered on August 27, 1971, denying appellant's writ of prohibition. The appellant sought to prohibit Thomas M. Munchmeyer as Special Judge of the Intermediate Court of Wood County from enforcing a juvenile court order which had awarded permanent custody of the appellant's nine infant children to the Wood County Department of Welfare. The circuit court's final order of August 27, 1971, found that the Intermediate Court of Wood County, sitting as a juvenile court, had jurisdiction of all parties to the proceeding and had jurisdiction of the subject matter in Juvenile Neglect and Delinquency proceeding No. 2293, at the time an order divesting appellant of custody of the infant children was entered on December 8, 1967. This final order also found that the intermediate court did not usurp or abuse its jurisdiction in entering the December 8, 1967 order, and therefore, an enforcement order entered on August 16, 1971 by appellee Judge Munchmeyer was valid. The question presented in this appeal is whether the Circuit Court of Wood County erred in denying the writ of prohibition.

It is agreed that the sole issues before the circuit court in the prohibition proceeding were whether the December 8, 1967 order of the juvenile court was void because the petition upon which it was based was legally insufficient for failure to state facts and whether it was void because the order divesting appellant of custody failed to find that the children were neglected.

Chapter 49, Article 6, Section 1 of the Code of West Virginia, 1931, as amended, which governs the form of petitions to a juvenile court states in relevant part:

'If the State department, or a reputable person, believes that a child is neglected, the department or the person may present a petition Setting forth the facts to the juvenile court in the county in which the child resides, . . .' (emphasis supplied)

The original child neglect petition in this case alleged the following facts which have been numbered in the brackets by this Court:

'By virtue of a prior order of this Court, the said infants are in the sole custody of Robert Moore; evidencing a mental instability, the father, Robert D. Moore, (1) has repeatedly exposed said infants to wrangling and argument with his estranged wife, officials of the Department of Welfare and others, (2) and has failed to provide needed and adequate medical care for one or more of said infants, (3) and has permitted one or more of said infants, and specifically Stephen, to operate a motor vehicle on a public highway, in his presence and when said infant was below the legal driving age; upon information and belief, (4) the home provided by the said Robert Moore is without (4a) indoor toilet and (4b) bath facilities; that upon information and belief, and at least on the 5th day of June, 1967, (5) the said home was not supplied with natural gas service, which was the mode of cooking, (6) and had not a kitchen sink attached to the sanitary sewer or any sewer system; (7) that the source of water in the main living area of said home consists of a pipe protruding from the floor with a spiggot attached thereto; that upon information and belief, (8) the said named infants are frequently left without adult supervision and in the care of the older two or three or more said infants; . . .'

Other than the case of In re Simmons Children, W.Va., 177 S.E.2d 19 (1970), in which this Court stated in point 2 syllabus, 'The petition to the juvenile court in cases involving neglected children should set forth the facts constituting the neglect and not merely state conclusions in connection therewith,' there is no statutory or case law which establishes the required degree of factual specificity in a juvenile neglect petition. The child neglect petition in this case was more specific than the petition in In re Simmons, supra. The Simmons petition alleged that the seven Simmons children, with ages ranging from three to thirteen years, were neglected because their school attendance was irregular, and because they were not receiving proper parental supervision. This Court held that the Simmons petition was fatally defective since, '(I)t states no facts with regard to the improper supervision of the parents and the failure to attend school. It contains only general statements which are conclusions.' However, the petition in the case at bar sets forth eight specific facts from which a reasonable inference of neglect could be drawn.

Neglect is not a term of fixed and measured meaning; its meaning varies as circumstances change. People ex rel. Wallace v. Lambrenz, 411 Ill. 618, 104 N.E.2d 769, cert. denied, 344 U.S. 824, 73 S.Ct. 24, 97 L.Ed. 642 (1952). Each case involving allegedly neglected children must be determined on the facts as they are developed. Each petition must be evaluated individually. If the allegations of fact in a child neglect petition are sufficiently specific to inform the custodian of the infants of the basis upon which the petition is brought, and thus afford a reasonable opportunity to prepare a rebuttal, the child neglect petition is legally sufficient. Under this test, the petition in this case was legally sufficient, and we hold, therefore, that the Circuit Court of Wood County did not err when it found the...