STATE EX REL. WVA DHHR v. Hill
| Decision Date | 24 February 2000 |
| Docket Number | No. 26844.,26844. |
| Court | West Virginia Supreme Court |
| Parties | STATE of West Virginia ex rel. the WEST VIRGINIA DEPARTMENT OF HEALTH AND HUMAN RESOURCES, and on behalf of CHASTITY D., James D., Leslie C., Rosemarie C., Jeffrey I., Priscilla I., Chrystal M., Shane M., Cynthia M., Brandy W., and Ciera S., Petitioner, v. Honorable George W. HILL, Jr., Judge of the Circuit Court of Wood County, Respondent. |
Darrell V. McGraw, Jr., Esq., Attorney General, Rocco S. Fucillo, Esq., Assistant Attorney General, Charleston, West Virginia, Attorneys for Petitioner, West Virginia Department of Health and Human Resources.
Honorable George W. Hill, Jr.
In this original-jurisdiction proceeding, the petitioner, the West Virginia Department of Health and Human Resources (hereinafter "DHHR"), seeks a writ of mandamus compelling the respondent, the Honorable George W. Hill, Jr., Judge of the Circuit Court of Wood County, to conduct disposition hearings pursuant to West Virginia Code § 49-6-5 (1999) in six child abuse and neglect cases in order to resolve the status of the parental rights of the biological fathers, who allegedly abandoned their children. In each case, the mother's parental rights have been terminated, but the respondent judge has left unresolved the issue of whether the father's parental rights should be terminated. Under the circumstances of the cases before us, we conclude that disposition hearings regarding termination of the fathers' parental rights are required as part of the abuse and neglect proceedings. Accordingly, the writ of mandamus is granted.
The six abuse and neglect cases giving rise to this mandamus action involve a combined total of eleven children, who have been adjudged abused and neglected, and seven biological fathers,1 who have allegedly abandoned their children.2 While the cases differ somewhat factually, they share two important commonalities—(1) DHHR filed a child abuse and neglect petition in the Circuit Court of Wood County seeking, inter alia, termination of the father's parental rights, and (2) the respondent judge refused and/or failed to conduct a disposition hearing on the issue of whether the father's parental rights should be terminated. The salient facts in each case are outlined below.
In four of the abuse and neglect cases, Judge Hill entered an "agreed" order terminating the parental rights of the "unknown" father without a disposition hearing. Each "agreed" order was signed by counsel for the father, the assistant prosecuting attorney, and the children's guardian ad litem.4 The children involved in these cases are Chastity D., James D., Leslie C., Rosemarie C., Jeffrey I., Jr., Priscilla I., and Brandy W.5
The four agreed orders were substantially the same, each stating that "the parties advised the Court that the respondent-unknown father waived the adjudicatory and dispositional hearings and it being in the best interests of the child the parties agree that the unknown father's parental rights should be TERMINATED to the above-named children." The orders contained specific findings, including "that the respondent-father neglected the above-named children in that he has abandoned the said child [sic]; that there is no reasonable likelihood that the conditions of neglect ... can be substantially corrected in the near future; ... and that the Court has no other recourse than to terminate the parental rights of the respondent-father. . . ." In addition, Judge Hill awarded DHHR legal and physical custody of the children and authorized DHHR to consent to their adoption.6
The fifth abuse and neglect case concerned several children, but the instant mandamus petition relates to only three of those children: Chrystal M., born March 7, 1979; Shane M., born July 10, 1986; and Cynthia M., born November 27, 1987. Because Chrystal M. is now twenty years old and no longer subject to the circuit court's jurisdiction for purposes of abuse and neglect proceedings,7 our decision herein does not pertain to her.
On March 14, 1996, DHHR filed a petition alleging, inter alia, that Shane M. and Cynthia M. were abused or neglected children. In the petition, the children's mother was identified as Donna M., and their father was identified as Steve A., address unknown. DHHR alleged that the children were residing with their mother and Phillip B.8 at a certain Parkersburg address. The petition contained specific allegations of physical abuse by Donna M. and implicated both Donna M. and Phillip B. as being guilty of neglect. At the close of the petition, DHHR requested that the "parental rights of the aforementioned parents ... be permanently terminated...."9
On March 14, 1996, Judge Hill entered an order which found imminent danger to the physical well being of the children and directed that they be delivered into the custody of DHHR, pending a preliminary hearing. In the order, notice was given of a preliminary hearing and a "final hearing" on March 21, 1996, at 3 p.m. and April 26, 1996, at 1:15 p.m., respectively. At the conclusion of the order, the clerk of the court was directed to deliver copies of the petition, order, and notice to the county sheriff to be served upon the children's mother and Phillip B., who were "made the Respondents to this cause." In addition, attorneys were appointed to represent the designated respondents and the children. This order made no mention of Steve A., the children's father.
Following the preliminary hearing on March 21, 1996, the respondent judge entered an order on March 22, 1996, awarding DHHR temporary custody of the children and granting the "respondent-parents" a six-month improvement period.
On January 16, 1997, DHHR filed a supplemental abuse and neglect petition alleging sexual abuse of the children by their mother and Phillip B. On April 4, 1997, May 21, 1997, and June 13, 1997, an adjudicatory hearing took place, and on July 9, 1997, an adjudicatory order was entered, finding the children were abused and neglected and the abuse and neglect was inflicted by Donna M. and Phillip B. Upon these findings, it was ordered that temporary legal and physical custody of the children remain with DHHR. Also, in the adjudicatory order, Judge Hill set a date and time for the disposition hearing and directed the court clerk to provide a certified copy of the order to the "parties."
On August 4, 1997, Judge Hill held a disposition hearing, and on August 20, 1997, a disposition order was entered which terminated the parental rights of Donna M. and Phillip B. The order was silent regarding the parental rights of Steve A. As indicated earlier, previous orders did not recognize Steve A. as a party to the proceeding, even though he was named in the abuse and neglect petition and DHHR requested termination of his parental rights.
On September 23, 1999, Judge Hill entered an agreed order, signed by the assistant prosecuting attorney and guardian ad litem, continuing DHHR's custody of the children.10
The sixth abuse and neglect case now in question involves Ciera Faith S. and her putative father, with regard to whom no disposition hearing has been held. On September 23, 1999, Judge Hill conducted a hearing on an amended abuse and neglect petition, filed by DHHR, pertaining to the "unknown" father of Ciera Faith S.11 At the hearing, the assistant prosecuting attorney, who was serving as counsel for DHHR, stated that DHHR sought to have the "unknown" father "adjudicated of neglect by virtue of abandonment." The prosecuting attorney acknowledged that the child's mother alleged a man named James S. was the father and that "[h]e was to come in for a [paternity] test and never did."12 In addition, the prosecuting attorney stated that Ciera Faith S. was going through an adoption. Thereafter, the following exchange ensued between Judge Hill and the prosecuting attorney:
Later during the September 23, 1999, hearing, the child's guardian ad litem expressed her concern about going through with the adoption given the unaddressed allegation that James S. was Ciera Faith S.'s father. Judge Hill abruptly dismissed this concern, stating: On October 1, 1999, Judge Hill entered an order which declared: "this proceeding with regard to the respondent-father's parental rights is moot and shall be considered at the adoption hearing." By the same order, Judge Hill dismissed the case from the circuit court's docket.
This case is before this Court on the petition of DHHR seeking the extraordinary remedy of mandamus. The standard for determining whether issuance of a writ of mandamus is proper in a particular case entails a three-prong inquiry:
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