W. Va. Dep't of Health & Human Res. v. C. P., No. 19-0802

CourtSupreme Court of West Virginia
Writing for the CourtWOOTON, J.
Citation857 S.E.2d 622,245 W.Va. 130
Parties WEST VIRGINIA DEPARTMENT OF HEALTH AND HUMAN RESOURCES, Respondent Below, Petitioner v. C. P., Petitioner Below, Respondent
Decision Date23 April 2021
Docket NumberNo. 19-0802

245 W.Va. 130
857 S.E.2d 622

WEST VIRGINIA DEPARTMENT OF HEALTH AND HUMAN RESOURCES, Respondent Below, Petitioner
v.
C. P., Petitioner Below, Respondent

No. 19-0802

Supreme Court of Appeals of West Virginia.

Submitted: January 26, 2021
Filed: April 23, 2021


Patrick Morrisey, Esq., Attorney General, Lindsay S. See, Esq., Solicitor General, Thomas T. Lampman, Esq., Assistant Solicitor General, Charleston, West Virginia, Counsel for Petitioner.

James R. Milam II, Esq., James R. Milam II Attorney at Law, PLLC, Summersville, West Virginia, Counsel for Respondent.

Colleen C. McCulloch, Esq., Chair, J. Zak Ritchie, Esq., Vice Chair, Unlawful Practice of Law Committee, West Virginia State Bar, Charleston, West Virginia, Counsel for Amicus Curiae Unlawful Practice, Of Law Committee of the West Virginia State Bar.

Rebecca D. McDonald, Esq., West Virginia Department of Transportation, Charleston, West Virginia, Counsel for Amicus Curiae West Virginia, Department of Transportation.

WOOTON, J.:

857 S.E.2d 624

This is an appeal from the August 9, 2019, order of the Circuit Court of Webster County vacating the West Virginia Department of Health and Human Resources’ ("DHHR") 2005 finding of maltreatment by respondent C. P. as to her then-twelve-year-old son, A. C.1 The circuit court concluded that the decision of the Administrative Law Judge ("ALJ") upholding the maltreatment finding was erroneous, in part, because it was not supported by a witness with personal knowledge and was based upon inadmissible DHHR records. Primarily, however, the circuit court concluded that the administrative hearing before DHHR's Board of Review was conducted in an unlawful manner because DHHR's non-lawyer representative engaged in the unauthorized practice of law.

After careful review of the briefs of the parties and amici curiae,2 their oral arguments, the appendix record, and the applicable law, we find that the circuit court correctly determined that the conduct engaged in by DHHR's lay representative at the administrative hearing constituted the unauthorized practice of law. Finding all other matters mooted by the death of respondent C. P.,3 we therefore affirm the August 9, 2019, order of the Circuit Court of Webster County.

I. FACTS AND PROCEDURAL HISTORY

According to DHHR records, in October 2005 an investigation was opened with respect to C. P. and her twelve-year-old son, A. C. The initial report stated that A. C. did "whatever he want[ed]" and there was "no one [ ] to look after him[.]" The investigation was assigned to Child Protective Services ("CPS") worker Charles Myers, who the records indicate conducted interviews of C. P., A. C., A. C.’s father, and A. C.’s sister, C. C.4 Mr. Myers’ investigation was documented in an "Initial Assessment and Safety Evaluation

857 S.E.2d 625

Worksheet and Conclusion" (the "assessment").

Based upon these interviews and as set forth in the assessment, Mr. Myers found no maltreatment due to lack of supervision but did find maltreatment arising from A. C.’s alcohol use. However, it appears that no abuse and neglect petition was ever filed as a result of Mr. Myers’ investigation and finding, no services or further intervention of any sort was initiated, and C. P. was apparently not notified of the maltreatment finding at that time.5

At some point in 2017—twelve years later—C. P. learned of the finding in conjunction with "an unrelated adoption or guardianship proceeding[.]" She then filed a form "Request for Removal of CPS Finding and Hearing" with DHHR on December 7, 2017. The request for removal was received and denied on February 23, 2018, and a Board of Review proceeding opened on that date. A hearing was conducted on March 21, 2018, before David Bishop, a licensed attorney and ALJ for DHHR's Board of Review. An informational sheet was provided to C. P. prior to the hearing, advising her she had "the right to ... [p]resent your own case or have someone present your case for you, such as a lawyer, friend, relative, or a community worker."

At the hearing, Joe Sorrent, a CPS supervisor and non-attorney, appeared on behalf of DHHR. C. P. appeared on her own behalf. Mr. Sorrent produced and submitted the CPS investigation file, including the assessment completed by Mr. Myers summarizing his interviews and findings. The ALJ invited Mr. Sorrent to "introduce [the file] into evidence" and asked C. P. if she had "any objection" to admission of the file.

Because Mr. Myers apparently no longer worked for DHHR, Mr. Sorrent testified to the contents of Mr. Myers’ assessment, including the interviews, but called no other witnesses in support of DHHR's case. Mr. Sorrent was asked no questions by C. P. C. P. then testified on her own behalf, stating that the investigation was initiated by her call to CPS requesting assistance with A. C. because he was getting into trouble at school. C. P. testified that she had no recollection of any of the events recounted in the assessment. See supra n.4. She specifically denied any awareness of A. C.’s alcohol use and denied having an in-person interview with Mr. Myers. C. P. also called C. C. as a witness, who testified by telephone. C. C. similarly denied having an interview with Mr. Myers regarding A. C. and denied knowledge of any of the events described in the interview summaries. In her summary presented to the ALJ, C. P. challenged the veracity of the alleged maltreatment finding, emphasizing that she was never notified of the finding and that no action was ever taken against her with regard to A. C.

Upon invitation of the ALJ, Mr. Sorrent then cross-examined C. P. with questions regarding whether she was aware of being under investigation in 2005, challenging her denial of that fact and inquiring as to why she had contacted CPS for assistance rather than A. C.’s school. He inquired as to whether she was aware of A. C.’s admitted alcohol use and leaving the home without permission, utilizing the submitted documents to attempt to impeach her denial of having any such recollection. He cross-examined her concerning allegations that she had left A. C. at home alone to go on a trip, leaving him with friends, and why she had failed to seek community intervention or services for A. C. During this cross-examination, C. P. admitted that she had a suspicion about A. C. drinking but stated that she had never actually observed him drinking.

Mr. Sorrent also cross-examined C. C. He inquired about her awareness of A. C.’s drinking and trouble in school. He challenged her lack of recall of the interview with Mr. Myers and impeached her with the assessment. Mr. Sorrent argued with C. C. about whether Mr. Myers’ interview summary contained facts that he "would just randomly know without getting any type of information" and whether she "would agree that the documentation that Mr. Myers placed in the initial assessment was accurate, somewhat accurate," which she denied.

857 S.E.2d 626

Mr. Sorrent was then invited to provide a closing "argument or summary," in which he highlighted the contents of Mr. Myers’ assessment and admissions made during C. P.’s testimony, including her admission that she did not attempt to obtain intervention prior to contacting CPS. Mr. Sorrent emphasized the "threat of harm, that [C. P.] did not protect her child with regards to his age inappropriate behaviors and the risk and the threat that means that this child could have hurt himself[.]" He further stated that "the Department substantiated [its] finding with regards to the lack of supervision and the child knowingly drinking alcohol." He concluded by asking the ALJ to "uphold the Department's position that maltreatment did occur, that again [C. P.] knowingly knew of this child's behavior at the young age of 12 and did not seek any type of help prior to talking to Mr. Myers[.]"

On March 27, 2018, the ALJ issued a "Decision of State Hearing Officer" upholding DHHR's substantiation of the maltreatment finding. Specifically, the ALJ determined that C. P.’s denial of awareness of A. C.’s alcohol use was "not credible or persuasive when coupled with the assessment, in which [she] reported she was aware of Child A. C.’s alcohol use." Citing West Virginia Code § 49-1-3(11)(A)(i) (2012) setting forth the definition of "neglected child," the ALJ further concluded that that DHHR "proved by a preponderance of evidence that [C. P.] neglected Child A. C. by failing to provide necessary supervision, threatening his health and safety."6

C. P. then appealed to the Circuit Court of Webster County, arguing in her petition that, at best, the investigation revealed that A. C. was incorrigible, rather than maltreated. The circuit court held a hearing and emphasized the lack of notice of the maltreatment finding to C. P. The court further expressed its concern that Mr. Myers did not testify at the administrative hearing and that the ALJ's credibility findings as to C. P. were likely occasioned by the thirteen-year delay caused by DHHR's failure to provide notice.7 DHHR conceded that Mr. Myers "could have been" subpoenaed, but that because the investigative records were admissible under the business record exception, his testimony was unnecessary.

The circuit court entered an order vacating the ALJ's decision, finding that...

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