State ex rel. W.Va. Dep't of Health & Human Res. v. Bloom

• Decision Date: 17 November 2022
• Docket Number: 22-0027
• Parties: STATE OF WEST VIRGINIA EX REL. WEST VIRGINIA DEPARTMENT OF HEALTH AND HUMAN RESOURCES; BILL CROUCH, SECRETARY; AND KANAWHA COUNTY CHILD PROTECTIVE SERVICES DIVISION, Petitioners, v. THE HONORABLE LOUIS H. BLOOM, JUDGE OF THE CIRCUIT COURT OF KANAWHA COUNTY, AND JENNIFER R. VICTOR AND JENNIFER N. TAYLOR, GUARDIANS AD LITEM FOR THE CIRCUIT COURT OF KANAWHA COUNTY, Respondents.
• Court: West Virginia Supreme Court

STATE OF WEST VIRGINIA EX REL. WEST VIRGINIA DEPARTMENT OF HEALTH AND HUMAN RESOURCES; BILL CROUCH, SECRETARY; AND KANAWHA COUNTY CHILD PROTECTIVE SERVICES DIVISION, Petitioners, v. THE HONORABLE LOUIS H. BLOOM, JUDGE OF THE CIRCUIT COURT OF KANAWHA COUNTY, AND JENNIFER R. VICTOR AND JENNIFER N. TAYLOR, GUARDIANS AD LITEM FOR THE CIRCUIT COURT OF KANAWHA COUNTY, Respondents.

No. 22-0027

Supreme Court of Appeals of West Virginia

November 17, 2022

Submitted: September 13, 2022

Petition for a Writ of Prohibition

Patrick Morrisey, Esq. Attorney General Steven R. Compton Esq. Deputy Attorney General Director, Health and Human Resources Division Charleston, West Virginia Lou Ann S. Cyrus, Esq. Emily L. Lilly, Esq. Shuman McCuskey Slicer PLLC Charleston, West Virginia Attorneys for the Petitioners

Jennifer R. Victor, Esq. Victor & Victor, LLP Charleston, West Virginia Jennifer N. Taylor, Esq. Charleston, West Virginia Attorneys for the Respondents, Guardians ad Litem

BUNN JUSTICE

SYLLABUS BY THE COURT

1. "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).

2. "'Mandamus is a proper remedy to compel tribunals and officers exercising discretionary and judicial powers to act, when they refuse so to do, in violation of their duty, but it is never employed to prescribe in what manner they shall act, or to correct errors they have made.' Syl. pt. 1, State ex rel. Buxton v. O'Brien, 97 W.Va. 343, 125 S.E. 154 (1924)."

Syllabus point 2, State ex rel. Lambert v. Cortellessi, 182 W.Va. 142, 386 S.E.2d 640 (1989).

3. "'Mandamus will not issue to compel a party to perform an act which he has already begun to do, and it is apparent that he will in good faith perform.' Point 2, syllabus, State ex rel. Hall v. County Court of Mercer County, 100 W.Va. 11[, 129 S.E. 712 (1925)]." Syllabus point 1, State ex rel. Nelson v. Ritchie, 154 W.Va. 644, 177 S.E.2d 791 (1970).

4. "Stipulations or agreements made in open court by the parties in the trial of a case and acted upon are binding and a judgment founded thereon will not be reversed." Syllabus point 1, Butler v. Smith's Transfer Corp., 147 W.Va. 402, 128 S.E.2d 32 (1962).

5. "A circuit court is afforded wide discretion in determining whether or not a party should be relieved of a stipulation, and such decision should not be set aside absent an abuse of discretion." Syllabus point 6, West Virginia Department of Transportation v. Veach, 239 W.Va. 1, 799 S.E.2d 78 (2017).

BUNN Justice:

Petitioners, the West Virginia Department of Health and Human Resources; its Secretary, Bill Crouch; and Kanawha County Child Protective Services Division (collectively, "DHHR"), request this Court to issue a writ prohibiting the respondent, the Honorable Louis H. Bloom, Judge of the Circuit Court of Kanawha County, from enforcing various mandamus orders it issued against the DHHR. By "Agreed Order" entered on March 29, 2018, the circuit court established the underlying mandamus proceeding initiated by the additional respondents, Kanawha County Guardians ad Litem Jennifer R. Victor and Jennifer N. Taylor (collectively, "the GALs"), to compel the DHHR to address and remedy the limited issues of employee staffing, retention, and training in the Kanawha County Child Protective Services Division Office ("Kanawha County CPS Office"). Thereafter, the circuit court granted the GALs' request to expand the scope of the initial writ of mandamus and, by orders entered December 16, 2021, January 13, 2022, January 20, 2022, and January 25, 2022,^[1] added issues, over the DHHR's objections, pertaining to the staffing of Child Protective Services offices, adoption units, and foster care units statewide and imposed limitations on the housing of children in DHHR custody at its offices and in hotels.

For the reasons set forth below, we find that the DHHR is entitled to a writ of prohibition in this case. The parties agree that the DHHR undertook significant efforts to correct the staffing issues in the Kanawha County CPS Office after the initiation of the 2018 mandamus proceeding and it continues to work towards improving these conditions. Consequently, the DHHR has performed, and continues to perform, the nondiscretionary duty the GALs originally sought to compel. Additionally, the circuit court erred by expanding the scope of the mandamus proceeding to include statewide staffing issues and child housing concerns. The parties originally agreed to the scope of the mandamus proceeding; the circuit court ratified that agreement by order entered March 29, 2018; and the circuit court exceeded the scope of that agreed order in its December 2021 and January 2022 orders.

I. FACTUAL AND PROCEDURAL HISTORY

This case began in 2017 when one of the GALs, Ms. Victor, filed a "Petition for Contempt" in an abuse and neglect case, in which she served as the children's guardian ad litem, alleging that

[t]he DHHR should be held in contempt for its persistent failure to: (1) manage its child abuse and neglect cases as required by this [c]ourt and the relevant rules and code provisions; (2) file reports and permanency plans in a timely fashion; (3) submit discovery in a timely fashion; and (4) achieve permanency in a timely fashion for the children in its custody in child abuse and neglect cases.

Ms. Victor claimed that the DHHR's delays in submitting documentation hampered her ability to adequately prepare for hearings in several abuse and neglect cases in which she served as guardian ad litem, and similarly adversely affected counsel for the respondent parents in that action. Finally, Ms. Victor opined that "[i]nadequate staffing levels, high turnover, heavy caseloads, state budget delays, drastic increases in the number of referrals and petitions, and the opioid abuse epidemic have wreaked havoc upon the limited resources of the DHHR," and "[i]t appears that a lot of the problems identified . . . could be ameliorated by hiring and maintaining an adequate workforce for Kanawha County Child Protective Services ('CPS')." In support of this statement, Ms. Victor averred that, at the time of her contempt petition, and "[u]pon information and belief, there are more than twenty vacancies in the Kanawha County office."

In June 2017, the circuit court issued a "Rule to Show Cause Order"; then the DHHR filed responsive pleadings; and the GALs filed an amended contempt petition.^[2]During a December 2017 review hearing, the parties agreed to transfer the contempt motion in the abuse and neglect proceeding to a separate mandamus action before the circuit court. The parties' agreement was memorialized by a "Stipulation Agreement," which the circuit court approved and incorporated into an "Agreed Order," both of which were entered and filed on March 29, 2018. Despite agreement as to many issues as reflected in the "Agreed Order" and the "Stipulation Agreement," the GALs and the DHHR could not reach an agreement as to the specific scope of the mandamus proceeding. The circuit court decided this issue, noting that "[t]he [c]ourt ruled upon the one unresolved issue, namely, that the agreement would apply only to the DHHR's Kanawha County Division of Child Protective Services, and would not apply statewide." The parties' stipulation, which was signed after this hearing and the circuit court's announcement of the limitation of the scope of the mandamus action, identifies specific shortcomings in the Kanawha County CPS Office and suggested proposals to remedy those issues.^[3]

On April 25, 2018, the GALs filed a "Petition for Writ of Mandamus," limiting the scope of the proceeding to issues concerning staffing the Kanawha County CPS Office, and specifying, in pertinent part that

The Petitioners maintained that the Department failed to fully staff, train and operate the Kanawha County Child Protective Services Division, as required by applicable state and federal laws, rules and regulations, and all internal policies and procedures of the Department. The KC CPS Division failed to meet timelines and deadlines established by statute, rule, regulation, policy or procedure, and the children charged to the care and custody of the Department in abuse and neglect proceedings ultimately suffered from delayed proceedings, multiple placements and lack of permanency.

As a result of various hearings and meetings, the Petitioners and the Department entered into a stipulation and agreement in which the Department acknowledged that the KC CPS office was not fully or effectively staffed, resulting in the failures noted by the Petitioners and negatively affecting the children charged to the care of the Department.

Over the next two...