State ex rel. P.G.-1 v. Wilson, 21-0266

Citation21-0266
Case DateNovember 17, 2021
CourtSupreme Court of Virginia

STATE OF WEST VIRGINIA EX REL. P.G.-1, P.G.-2, and K.G., JR., Petitioners
v.

THE HONORABLE RONALD E. WILSON, JUDGE OF THE CIRCUIT COURT OFHANCOCK COUNTY, A.G., and THE WESTVIRGINIA DEPARTMENT OF HEALTHAND HUMAN RESOURCES, Respondents

No. 21-0266

Supreme Court of Appeals of West Virginia

November 17, 2021


Submitted: September 28, 2021

ORIGINAL PROCEEDINGS IN PROHIBITION WRIT GRANTED

Amy Pigg Shafer, Esq. Shafer Law Offices Wheeling, West Virginia Guardian Ad Litem.

Christopher Alan Scheetz, Esq. Follansbee, West Virginia Counsel for Respondent A.G.

Patrick Morrisey, Esq. Attorney General Charleston, West Virginia Chaelyn W. Casteel, Esq. Assistant Attorney General Fairmont, West Virginia Counsel for Respondent West Virginia Department of Health and Human Resources.

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OPINION

ARMSTEAD JUSTICE.

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SYLLABUS BY THE COURT

1. "Prohibition is available to abused and/or neglected children to restrain courts from granting improvement periods of a greater extent and duration than permitted under [ W.Va. Code §§ 49-4-601 et seq.]." Syl. Pt. 2, in part, State ex rel. S.W. v. Wilson, 243 W.Va. 515, 845 S.E.2d 290 (2020).

2. "'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.' Syllabus Point 4, State ex rel. Hoover v. Berger, 199 W.Va. 12, 483 S.E.2d 12 (1996)." Syl. Pt. 1, State ex rel. S.W. v. Wilson, 243 W.Va. 515, 845 S.E.2d 290 (2020).

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3. "A cardinal rule of statutory construction is that significance and effect must, if possible, be given to every section, clause, word or part of the statute." Syl. Pt. 6, in part, Davis Mem'l Hosp. v. W.Va. State Tax Comm'r, 222 W.Va. 677, 671 S.E.2d 682 (2008).

4. A circuit court may not grant a post-adjudicatory improvement period under W.Va. Code § 49-4-610(2) (eff. 2015) unless the respondent to the abuse and neglect petition files a written motion requesting the improvement period.

5. West Virginia Code § 49-4-610(6) (eff. 2015) authorizes only one extension of a post-adjudicatory improvement period.

6. West Virginia Code § 49-4-610(6) (eff. 2015) provides that when a circuit court extends a post-adjudicatory improvement period, the extension must be for a period that does not exceed three months.

7. "Pursuant to West Virginia Code § 49-[4-610(6) (eff. 2015)], before a circuit court can grant an extension of a post-adjudicatory improvement period, the court must first find that the respondent has substantially complied with the terms of the improvement period; that the continuation of the improvement period would not substantially impair the ability of the Department of Health and Human Resources to permanently place the child; and that such extension is otherwise consistent with the best interest of the child." Syl. Pt. 7, in part, In re Isaiah A., 228 W.Va. 176, 718 S.E.2d 775 (2010) (per curiam).

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Armstead, Justice:

This original jurisdiction proceeding stems from an abuse and neglect petition filed in the Circuit Court of Hancock County. Petitioners are three boys, P.G.-1, [1]P.G.-2, and K.G., Jr. (the "G Children"), who, by their guardian ad litem, ask the Court to issue a writ prohibiting the circuit court from extending the improvement period of their mother, Respondent A.G. The G Children request, in particular, a writ that either (a) commands the circuit court to set their case for a dispositional hearing or (b) commands the circuit court to terminate A.G.'s parental rights.

Based on the record before us, the arguments of the parties, and the applicable law, we find that A.G.'s improvement period was improper from the beginning and that, even if A.G.'s improvement period had been proper, the circuit court committed clear error in extending her improvement period. Accordingly, we grant the writ of prohibition and remand this case to the circuit court for the limited purpose of holding an immediate evidentiary hearing and determining an appropriate disposition.

I. FACTUAL AND PROCEDURAL BACKGROUND

A.G. is the mother of eight children, three of whom-the G Children-are the subjects of this petition. She is married to the G Children's father, K.G. Her other children include H.W., J.W.-1, L.W., and J.W.-2 (the "W Children"), who live with their

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father, J.W.-3.[2] The eighth child, H.K.G., was born while this action was pending in circuit court. Paternity testing revealed that J.W.-4 is her father. The W Children and H.K.G. are not subjects of this petition.

In November 2018, Child Protective Services ("CPS") received a referral accusing K.G. of domestic violence. The G Children were removed and placed in foster care. In February 2019, DHHR filed an abuse and neglect petition. The petition accused K.G. of domestic violence and abusing drugs and alcohol; it accused A. G. of participating in domestic violence with K.G. and failing to protect the children.[3]

A.G. signed a written post-adjudicatory improvement plan in May 2019.[4]Though the improvement plan was filed with the circuit court, there is no indication that A.G. ever filed a written motion seeking an improvement period. Nevertheless, the improvement period plan provided for (a) drug screens, (b) a psychological evaluation (and compliance with recommendations), (c) a healthy relationships class (to address the domestic violence), (d) parent education classes, and (e) life skills classes. The plan further required A.G. to (f) participate in supervised visits, (g) maintain suitable housing, (h)

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maintain employment, (i) execute releases, (j) work with DHHR to establish medical insurance, (k) be honest with the multi-disciplinary team ("MDT"), (1) refrain from associating with drug or alcohol abusers, and (m) comply with all services.

In July 2019, A.G. submitted to a parental fitness examination. According to the psychologist's report, A.G. denied that there was "any" domestic violence in her home, and she professed not to know why CPS came to her house. According to her, the children "told too many stories[.]" The psychologist concluded that A.G.'s prognosis was "poor" and that she did not "have the intellectual capacity to care for her children." Indeed, the psychologist opined that her "intellectual disabilities"-which included an IQ of 45- were "not likely to improve." Nevertheless, the psychologist recommended that A.G. attend a domestic violence group and counseling to address her parenting deficiencies.

The guardian ad litem submitted an extensive report in January 2020. The report noted that the G Children were doing well and had "clearly bonded with their foster family." A.G., however, was not "making satisfactory progress" on her improvement plan. She remained unemployed and without housing of her own. Her service provider wished to terminate services due to her failure to communicate properly with the provider.

At a status hearing in February 2020, the guardian advised that A.G. had performed poorly from October to January but was doing better at attending life skills and parenting classes. However, the guardian also reported that the W Children had refused contact with A.G. after they observed K.G. leaving A.G.'s home. The guardian further noted that A.G. had not followed through on counseling and domestic violence group

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attendance. The circuit court ordered A.G. to produce proof of attendance and to have no contact with K.G. Though the circuit court ordered that A.G. would "continue on her post-adjudicatory plan of improvement[, ]" the court did not find that A.G. had substantially complied with her improvement period, or that compelling circumstances were present that rendered an extension in the children's best interests.

In March 2020, this Court entered the first of several administrative orders in response to the COVID-19 pandemic. The administrative orders substantially curtailed activity at the circuit court level.[5] These orders remained in effect until May 2020.[6]

The MDT convened remotely in May 2020. Notes from the meeting[7]indicate that A.G.'s progress was inconsistent. She reported that she would begin therapy in June. Though A.G. had experienced a lapse in parenting and life skills training due to the COVID-19 pandemic, those services were set to resume. A.G. had regularly visited the G Children by video conference. Unfortunately, the report also indicated K.G. had been arrested at A.G.'s residence on drug-related charges. Ultimately, the MDT reported a "lack of positive progress" on A.G.'s improvement plan.

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The day after the MDT meeting, the guardian ad litem served a written motion to terminate A.G.'s improvement period. The motion cited A.G.'s failure to regularly attend parenting and life skills classes and supervised visits from October 2019 to January 2020, failure to obtain suitable housing, failure to maintain consistent employment, her failure-until May 2020-to begin therapy, and failure to refrain from contact...

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