State ex rel. Paul B. v. Hill

• Decision Date: 24 October 1997
• Docket Number: No. 24438,24438
• Court: West Virginia Supreme Court
• Parties: STATE of West Virginia ex rel. PAUL and Chris B., Petitioners, v. Honorable George W. HILL, Jr., Judge of the Circuit Court of Wood County; Pete and Cynthia L. S.; and Natasha Colette B., Anatoli Josef B., Alevhnia Marie B., and Olya Tess B., Respondents.

Page 198

496 S.E.2d 198

201 W.Va. 248

STATE of West Virginia ex rel. PAUL and Chris B., Petitioners, v. Honorable George W. HILL, Jr., Judge of the Circuit Court of Wood County; Pete and Cynthia L. S.; and Natasha Colette B., Anatoli Josef B., Alevhnia Marie B., and Olya Tess B., Respondents.

No. 24438.

Supreme Court of Appeals of West Virginia.

Submitted Oct. 15, 1997.

Decided Oct. 24, 1997.

[201 W.Va. 249] Syllabus by the Court

1. "Although a 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

[201 W.Va. 250] such abuse of power." Syllabus point 2, State ex rel. State Road Commission v. Taylor, 151 W.Va. 535, 153 S.E.2d 531 (1967)

2. The inadequacy of allegations contained in an abuse and neglect petition does not, in and of itself, abrogate one's standing to file such a petition pursuant to W.Va.Code § 49-6-1(a) (1992) (Repl.Vol.1996).

3. A circuit court has jurisdiction to entertain an abuse and neglect petition and to conduct proceedings in accordance therewith as provided by W.Va.Code § 49-6-1, et seq.

4. A parent's relinquishment of his/her parental rights either in anticipation of future adoption proceedings or as a part of previously initiated adoption proceedings does not constitute abandonment for abuse and neglect purposes.

David Allen Barnette, Monika J. Hussell, Jackson & Kelly, Charleston, for Petitioners.

Michele Rusen, Parkersburg, for Respondents Pete and Cynthia L. S.

Brian D. Yost, Tom Price, Holroyd, Yost & Evans, Charleston, for Amici Curiae Childplace, Inc., and Burlington United Methodist Family Services, Inc.

Darrell V. McGraw, Jr., Attorney General, Barbara L. Baxter, Assistant Attorney General, Charleston, for West Virginia Department of Health and Human Resources.

Susan D. Simmons, Simmons & Simmons, Elizabeth, Guardian ad Litem for Respondent Minor Children, Natasha Colette B., Anatoli Josef B., Alevhnia Marie B., and Olya Tess B.

DAVIS, Justice:

In this original proceeding for a writ of prohibition, the petitioners, Paul and Chris B., ¹ request this Court to prohibit the respondent judge, the Honorable George W. Hill, Jr., Judge of the Circuit Court of Wood County, from enforcing his August 20, 1997, order. In that order, Judge Hill concluded that the respondents, Pete and Cynthia L. S., ² should receive the legal and physical custody of the respondent children, Natasha Colette B., Anatoli Josef B., Alevhnia Marie B., and Olya Tess B., pending further investigation by the West Virginia Department of Health and Human Resources. The circuit court deemed further inquiry appropriate given the S family's prior allegations that the B family had abandoned their four adoptive children by placing them in respite care with the S family and by making arrangements to re-place the children through the Texas adoption agency through which they had adopted them. We issued a rule to show cause. We now grant as moulded the writ of prohibition.

I. FACTUAL AND PROCEDURAL HISTORY

The facts underlying this proceeding began in approximately May, 1997. At that time, Paul and Chris B., having earlier decided to adopt four children from Russia, traveled to that country to meet their soon-to-be adoptive children and to finalize the adoption arrangements. ³ Throughout the adoption process, the B family had worked with the Gladney Center, an international adoption agency located in Fort Worth, Texas, and Gladney representatives had assured them that the Russian children would have no substantial emotional problems. ⁴ On May Upon their return to Parkersburg, West Virginia, the Bs and their four Russian children were reunited with the Bs' other children. ⁶ The Bs claim that, from the beginning, the relationship between the four Russian siblings and the Bs' other children was strained, at best. In this regard, the Bs indicate that the Russian children acted violently towards themselves, each other, and the other B children, would not obey, and could not be disciplined. After meeting with a family counselor in early July, 1997, the B family learned that the Russian siblings likely suffered from "attachment displacement disorder," an emotional disturbance frequently diagnosed in children who have been adopted from orphanages in foreign countries. The counselor also opined that the Russian children may or may not ever completely recover from this disorder and that the B family had little hope of establishing a cohesive family that would include these four siblings.

[201 W.Va. 251] 15, 1997, the Bs' adoption of the four siblings, Natasha Colette, Anatoli Josef, Alevhnia Marie, and Olya Tess, ⁵ was finalized in Russia. After retrieving the children from the orphanage in which they had been residing, the Bs and their four Russian children resided temporarily in Russia, first with a Russian host family and, later, in a youth hostel, to permit the new family unit to become acquainted with one another before returning to the United States. The Bs claim that once the adoption had been finalized, the orphanage informed them that Natasha had exhibited some anti-social behavior and had had occasional outbursts. While residing in Russia, the Bs experienced difficulty interacting with the children, and the children would not obey them.

At this juncture, the Bs concluded that the Gladney Center had misrepresented the emotional and mental condition of the Russian children. ⁷ Determining that they could not continue to jeopardize their family stability and the safety of their other children, ⁸ the Bs pursued the option of relinquishing their parental rights to the Russian siblings and re-placing them with the Gladney Center for a second adoption. The arrangements with the Gladney Center apparently have contemplated that, unlike the B family situated in Parkersburg, West Virginia, Gladney, in Texas, can secure the appropriate treatment for children with such severe attachment displacement disorder. These preparations also contemplate the continuation of the sibship unit by placing all four children in the same adoptive home.

Toward the end of July, 1997, Mr. B was scheduled to take an out-of-town weekend trip. Based in large part upon Mrs. Bs' inability to control their newly adopted children and fearing for her own safety and that of her remaining children, the Bs sought temporary respite care ⁹ for their Russian children during Mr. Bs' absence. The B family, having contacted Burlington United Methodist Family Services, Inc., was advised On July 17, 1997, the B family delivered their four Russian children to the S household. ¹² The S family indicates that, while the children exhibited some emotional disturbance, they were not violent or in any other way disobedient during their stay. On the following Sunday, July 20, 1997, the B family requested the S family to extend the respite care, to which the Ss agreed. The next day, Mrs. S contacted the Gladney Center and inquired whether she and her husband could adopt these children. Gladney, in turn, contacted the B family who strongly opposed the proposal, particularly because they were purchasing a house in the same subdivision where the S family lives and feared the consequences of living in such close proximity to these children. In addition, the B § disapproved permanent adoptive placement of the children in the Parkersburg, West Virginia, area because this region is not equipped with services to meet the needs of children with attachment displacement disorder. ¹³

[201 W.Va. 252] to contact the Ss to see if they could provide such care. Mr. and Mrs. S, who have provided respite care to numerous children, ¹⁰ agreed to temporarily house the Bs' four Russian children from Thursday, July 17, 1997, to Sunday, July 20, 1997. ¹¹

On Wednesday, July 23, 1997, the B family traveled to the S household to pick up their four children, as the Bs believed the parties had previously agreed to extend the respite care to this date. ¹⁴ En route, the Bs called the Ss to let them know they were on their way; a person in the S household indicated that the children were not at home because Mrs. S had taken all of the children to the library. Upon approaching the S household, the Bs observed Mr. S driving quickly through the neighborhood with the Bs' children in his car. Apparently, Mr. S continued his journey, without stopping, even though the Bs attempted to flag him down. ¹⁵ The Bs then called the Wood County Sheriff's Department, and, when the police arrived, proceeded to the S residence. At the S household, the Bs were informed that Mr. S had taken the children out for ice cream. Approximately one hour later, the sheriff's department was informed, by the Ss' attorney, that Mr. and Mrs. S had obtained an emergency temporary custody order covering these children. ¹⁶

On July 25, 1997, the Ss filed a "Petition for Appointment of Guardian and for Intervention by the West Virginia Department of Health and Human Resources" [hereinafter abuse and neglect petition], essentially requesting the Circuit Court of Wood County to appoint a guardian ad litem for the children and charging the B family with abandonment of the children constituting abuse and neglect. During the July 25, 1997, hearing of this matter, counsel for the B family contended that the S family lacked standing On September 2, 1997, the Bs petitioned this Court for a writ of prohibition to prevent Judge Hill from enforcing his order and to permit them to continue with their planned relinquishment and re-placement. We issued a rule to show cause and now proceed to determine the propriety of the requested relief. ¹⁸

[201 W.Va. 253] to charge the Bs with abuse and neglect by abandonment, claiming that the Bs' intentions to relinquish their parental rights and to re-place the children for adoption did not rise to the...