Summary
The Supreme Court of Appeals of West Virginia held that a circuit court may not dismiss an abuse and neglect petition without conducting the hearing required by statute. The court vacated the dismissal, reinstated the petition, and remanded for a hearing. It also directed the circuit court to grant intervenor status to the Department of Health and Human Resources and appoint counsel for the child and her biological parents.
Topics
Practice areas
Questions Presented
- Whether a circuit court may dismiss an abuse and neglect petition without holding the hearing required by West Virginia Code § 49-6-1(a).
- Whether the circuit court's failure to follow the statutory and procedural requirements for an abuse and neglect petition required vacatur and remand.
- Whether the circuit court was required on remand to provide for participation by the Department of Health and Human Resources and appoint counsel for the child and her biological parents.
Holdings
- A circuit court presented with a properly filed abuse and neglect petition must set a time and place for a hearing; it may not dismiss the petition without holding the statutorily required hearing.
- When the statutory and procedural process governing an abuse and neglect case is substantially disregarded, the resulting order must be vacated and the case remanded for compliance with that process.
- On remand, the circuit court must grant the Wood County Department of Health and Human Resources intervenor status and appoint counsel for Emily and her biological parents in accordance with the governing statutes.
Key quotations
“Pursuant to this statutory language, once a petition has been filed alleging a child to be abused and/or neglected, the court in which such petition is filed is required to "set a time and place for a hearing."” (46)
“Dismissal of the petition without a hearing is a direct violation of the statutory mandate to hold a hearing on abuse and/or neglect petitions.” (47)
“Therefore, on remand, the circuit court is directed to appoint counsel to represent Emily in her abuse and neglect proceedings.” (48)
Factual background
Emily G. was born in 2006 to Sylvia and Carl, who had a tumultuous relationship marked by numerous domestic violence petitions, protective orders, and a brief marriage and divorce. Emily's maternal grandmother and stepgrandfather received temporary guardianship and later primary residential custody, while Sylvia and Carl received supervised visitation subject to conditions intended to address domestic violence and parenting concerns. The grandparents then filed an abuse and neglect petition alleging that the ongoing domestic violence between Emily's parents supported a finding of abuse or neglect and seeking termination of parental rights and adoption. The circuit court dismissed the petition without holding the hearing required by statute.
Procedural history
Donna and John M. obtained temporary and later primary residential custody of Emily through Wood County Family Court proceedings. They filed an abuse and neglect petition in the Wood County Circuit Court on September 8, 2008. The circuit court dismissed the petition on September 23, 2008, finding that it did not allege sufficient facts and noting that it did not allege that domestic violence occurred in the child's presence. The Supreme Court of Appeals vacated the dismissal, reinstated the petition, and remanded for a hearing and compliance with statutory participation and appointment-of-counsel requirements.
Remand instructions
Vacate the September 23, 2008 dismissal, reinstate the abuse and neglect petition, and hold a hearing on the petition. Ensure compliance with W. Va. Code § 49-6-1, including DHHR participation and required notice, appoint counsel for Emily, appoint counsel for Sylvia and Carl under W. Va. Code § 49-6-2(a), and grant DHHR intervenor status.