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

247 W.Va. 433

880 S.E.2d 899

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.

Submitted: September 13, 2022

Filed: November 17, 2022

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:

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 he 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 years, the circuit court held periodic review hearings in accordance with an agreed-upon schedule set forth in the parties’ "Stipulation Agreement." During these review hearings, the circuit court frequently commended the DHHR for the efforts it had undertaken to remedy the Kanawha County CPS Office staffing issues. The DHHR periodically moved to dismiss the ongoing mandamus proceedings claiming that it had remedied the conditions that had led to the petition's filing. In January 2020, the GALs moved to amend their petition for writ of mandamus to expand the scope of the staffing issue from Kanawha County, as previously determined by the circuit court and agreed to by the parties, to the staffing of DHHR offices for Child Protective Services statewide, and also to include the additional issues of the staffing of adoption and foster care units.

By order entered December 16, 2021, the circuit court granted the GALs’ motion to amend the mandamus proceeding on both bases, ruling as follows:

After the parties presented evidence at the September 29, 2021, evidentiary hearing, the Petitioners orally renewed their motion for leave to file an Amended Petition for Writ of Mandamus, to broaden their claims to apply to CPS offices statewide, and to encompass the adoption and foster care units within the Department. The [c]ourt heard the arguments of Petitioners in favor of broadening the focus of this mandamus action and of Respondents’ counsel's opposition to same.

The evidence presented by the Petitioners established that, while the Department has made significant efforts since the filing of the original pleadings in this matter, many unresolved issues remain in the Child Protective [S]ervices offices, not only in Kanawha County, but throughout the State of West Virginia.

....

The evidence presented by Petitioners is sufficient to establish a basis for permitting Petitioners to amend their Petition for Writ of Mandamus to encompass the adoption and foster care units of the Department and to broaden the focus of this action to include the entire state of West Virginia. Accordingly, the Petitioners’ Motion for Leave to file the Amended Writ of Mandamus should be granted.

....

The Petitioners’ Motion for Leave to file their Amended Writ of Mandamus against the West Virginia Department of Health and Human Resources and others shall be, and it is hereby, GRANTED .

....

The Petitioners’ Amended Petition for Writ of Mandamus shall include all West Virginia Department of Health and Human Resources Child Protective Service staffing issues statewide.

The Petitioners’ Amended Petition for Writ of Mandamus shall also include the issues involving the adoption and foster care units within the Bureau for Social Services, permanency placements for children in the care of the Department, and other abuse and neglect

...