West Virginia Dept. of Health and Human Resources ex rel. Wright v. David L.

• Decision Date: 15 December 1994
• Docket Number: No. 22311,22311
• Citation: 192 W.Va. 663,453 S.E.2d 646
• Parties: WEST VIRGINIA DEPARTMENT OF HEALTH AND HUMAN RESOURCES ex rel. Brenda WRIGHT, Social Service Worker, Petitioner, v. DAVID L., Jill L., Chelsea L., Ashley L., and Joshua L., Respondents.
• Court: West Virginia Supreme Court

Page 646

453 S.E.2d 646

192 W.Va. 663

WEST VIRGINIA DEPARTMENT OF HEALTH AND HUMAN RESOURCES ex

rel. Brenda WRIGHT, Social Service Worker, Petitioner, v. DAVID L., Jill L., Chelsea L., Ashley L., and Joshua L., Respondents.

No. 22311.

Supreme Court of Appeals of

West Virginia.

Submitted Sept. 20, 1994.

Decided Dec. 15, 1994.

[192 W.Va. 664] Syllabus by the Court

1. "One spouse's interception of telephone communications by the other is a violation of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. § 2510, et seq., which by its terms renders them inadmissible." Syllabus Point 15, Marano v. Holland, 179 W.Va. 156, 366 S.E.2d 117 (1988).

2. " 'Courts always endeavor to give effect to the legislative intent, but a statute that is clear and unambiguous will be applied and not construed.' Syllabus Point 1, State v. Elder, 152 W.Va. 571, 165 S.E.2d 108 (1968)." Syllabus Point 1 of State v. Boatright, 184 W.Va. 27, 399 S.E.2d 57 (1990).

3. Any recordings of conversations made in violation of W.Va.Code, 62-1D-3(a)(1) (1987), and 18 U.S.C. § 2511(1)(a) (1988) are inadmissible under W.Va.Code, 62-1D-6 (1987), and 18 U.S.C. § 2515 (1968).

4. A parent has no right on behalf of his or her children to give consent under W.Va.Code, 62-1D-3(c)(2) (1987), or 18 U.S.C. § 2511(2)(d) (1988) to have the children's conversations with the other parent recorded while the children are in the other parent's house.

5. "In domestic cases involving allegations of abuse and neglect, a circuit court or family law master may order that a home study be performed to investigate the allegations under Rule 34(b) of the Rules of Practice and Procedure for Family Law." Syllabus Point 5, John D.K. v. Polly A.S., 190 W.Va. 254, 438 S.E.2d 46 (1993).

Margaret Phipps Brown, Asst. Pros. Atty. for Cabell County, Huntington, for petitioner.

James B. Lees, Jr., Hunt, Lees, Farrell & Kessler, Charleston, for respondent David L.

William D. Levine, J. William St Clair, St Clair & Levine, Huntington, for respondent Jill L CLECKLEY, Justice:

This case involves two certified questions relating to the Wiretapping and Electronic Surveillance Act, W.Va.Code, 62-1D-1, et seq., and its federal counterpart in Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. § 2510, et seq. The certified questions involve whether a husband, who no longer lives with his wife, but who suspects his wife of abusing their children, may use a third person with access to the wife's house to place a voice-activated tape recorder in the wife's house to record conversations between his wife and their children. We hold such conduct violates W.Va.Code, 62-1D-3(a)(1) (1987), and 18 U.S.C. § 2511(1)(a) (1988). Therefore, the audiotapes are inadmissible under W.Va.Code, 62-1D-6 (1987), and 18 U.S.C. § 2515 (1968).

I. FACTS

Jill L. ¹ filed for a divorce from David L. in October, 1993, and she was given temporary custody of their twin daughters, Ashley L. and Chelsea L., ages 6, and their son, Joshua L., age 5. Jill L. continued to reside in the marital home, and David L. moved. After the couple separated, but prior to their divorce, David L. asserts he became concerned that the children were being abused by Jill L., so he asked his mother, the children's paternal grandmother, to place a voice-activated tape recorder in the children's bedroom to record conversations between Jill L. and the children. The paternal grandmother had access to the home because she babysat the children. Through his mother, David L. retrieved a series of tape-recorded conversations. Jill L. was unaware the recordings were being made.

After listening to these conversations, David L. gave the tapes to his lawyer ² who approached the Cabell County Prosecuting Attorney's Office. A therapist for Family Services, Inc., and a child protective service worker for the Department of Health and Human Resources (DHHR) listened to at least some of the tapes. Thereafter, on April 29, 1994, the DHHR filed a petition in the Circuit Court of Cabell County, and, by an order dated the same day, the DHHR, inter alia, was granted temporary legal and physical custody of the children. The order also authorized the DHHR to place physical custody of the children with David L.

A hearing on the petition was held on May 2, 1994. At the hearing, the child protective service worker testified she spoke with the children for about twenty minutes. She said the children indicated to her that Jill L. screams excessively at them and made a comment to the effect "she would kill them." One of the girls said she hides in the basement or behind a chair and covers her ears when her mother screams. In addition, all the children indicated Jill L. sometimes uses a belt, and Joshua L. indicated he suffered a bruise on his buttocks from a belt at least once. The child protective service worker stated she saw no signs of physical abuse on the children at the time she met with them, and she said they did not appear to be malnourished.

The child protective service worker also spoke with David L. and the children's paternal grandmother. ³ It was reported to her that Jill L.'s screams could be overheard by neighbors and Jill L. did not keep adequate food in the house. She attempted unsuccessfully to contact Jill L. After the child protective service worker testified, the circuit court judge stated the hearing could continue, but he wanted to speak personally with the children the next day. The hearing then concluded, and no one else testified.

According to the brief on behalf of the DHHR, after the circuit court judge interviewed the children, but before the hearing resumed, the judge, Jill L., and her lawyer learned of the audiotapes. Jill L. and her lawyer, David L. and his lawyer, and the guardian ad litem for the children listened to the tapes. Afterwards, Jill L. agreed to maintain the custody arrangement as per the temporary order dated April 29, 1994. The circuit court judge apparently did not listen to the tapes and ordered them sealed.

On May 16, 1994, Jill L. filed a motion to vacate the order dated April 29, 1994, and award her custody of the children. In support of her motion, Jill L. asserted the DHHR failed to show by admissible evidence that she abused her children. The circuit court heard arguments on the admissibility of the audiotapes, and, by order dated May 26, 1994, the circuit court certified the following two questions to this Court:

"1. Does W.Va.Code 62-1D-3(a)(1) and its federal equivalent, 18 U.S.C. 2511, apply to a custody dispute where a father, upon suspicion of abusive behavior toward his children, procures a third party with access to the marital home to place a self-activating tape recorder in the children's bedroom for the purpose of recording conversations and interactions between the wife/mother and children?

"2. Are tape recordings which are the product of such interceptions admissible as evidence in a hearing to determine both temporary and permanent physical and legal custody?"

The circuit court ruled the tape recordings violated W.Va.Code, 62-1D-3(a)(1), and were inadmissible under W.Va.Code, 62-1D-6. ⁴ This Court reviews questions of statutory interpretation de novo. See Mildred L.M. v. John O.F., 192 W.Va. 345, 452 S.E.2d 436 (1994).

II. DISCUSSION

As the circuit court indicates in its first certified question, this case specifically is controlled by W.Va.Code, 62-1D-3(a)(1), and 18 U.S.C. § 2511 (1988). W.Va.Code, 62-1D-3(a)(1), provides: "(a) Except as otherwise specifically provided in this article, it is unlawful for any person to: (1) Intentionally intercept, attempt to intercept or procure any other person to intercept or attempt to intercept, any wire, oral or electronic communication[.]" The federal version of the statute set forth in 18 U.S.C. § 2511(1)(a) is substantially similar. ⁵ If communications are intercepted in violation of the provisions of W.Va.Code, 62-1D-3(a)(1), or 18 U.S.C. 2511(1)(a), such communications are inadmissible as evidence under W.Va.Code, 62-1D-6, and 18 U.S.C. § 2515. ⁶ West Virginia's Wiretapping and Electronic Surveillance Act was adopted in 1987. Since its adoption, we have not addressed the issue of whether the Act prohibits the type of audiotaping at issue in this case. We did, however, address the parallel federal version of the Act in Marano v. Holland, 179 W.Va. 156, 366 S.E.2d 117 (1988), where we stated in Syllabus Point 15:

"One spouse's interception of telephone communications by the other is a violation of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. § 2510, et seq., which by its terms renders them inadmissible."

David L. argues the facts of the present case are significantly different from the facts in Marano and the facts of the cases cited by Marano. Therefore, David L. asserts that Syllabus Point 15 of Marano should not apply to this case. Although we generally agree with David L. that the facts of the present case are different from the others, we find the holding in Marano and the holdings of several other federal courts are sufficiently analogous to conclude David L.'s conduct, via his mother, is prohibited under W.Va.Code, 62-1D-3(a)(1), and 18 U.S.C. § 2511(1)(a).

In Marano, a criminal defendant argued he was denied effective assistance of counsel, in part, by his lawyer's failure to seek the admission of certain audiotapes. The defendant surreptitiously audiotaped his wife's telephone conversations which revealed his wife was engaged in several extramarital relationships. Upon listening to some of the audiotapes, the defendant learned his wife was sexually involved with a close friend and business partner. The defendant then killed the man.

Upon review of the habeas corpus relief granted to the defendant by the Circuit Court of Ohio County, we disagreed with the circuit court's finding "that the failure to introduce the tapes 'seriously jeopardized' the defendant's case, in...