State ex rel. D.B. v. Bedell

874 S.E.2d 682

STATE of West Virginia EX REL. D.B. and J.N., Foster Parents of R.L., Petitioners,

v.The Honorable Thomas A. BEDELL, Judge of the Circuit Court of Harrison County; J.S. and T.S., Intervenors and Maternal Grandparents of R.L.; and the West Virginia Department of Health and Human Resources, Respondents.

No. 21-0937

Supreme Court of Appeals of West Virginia.

Submitted: April 12, 2022

Filed: April 26, 2022

Jeremy B. Cooper, Esq., Blackwater Law PLLC, Aspinwall, Pennsylvania, Attorney for Petitioners

Aimee N. Goddard, Esq., Legal Aid of West Virginia, Clarksburg, West Virginia, Attorney for Respondent Grandparents

Patrick Morrisey, Esq., Attorney General, Angela Alexander Walters, Esq., Assistant Attorney General, Caleb A. Seckman, Esq., Assistant Solicitor General, Charleston, West Virginia, Attorneys for WV DHHR

Dreama D. Sinkkanen, Esq., Sinkkanen Law Offices, Clarksburg, West Virginia, Guardian ad Litem

HUTCHISON, Chief Justice:

The petitioners, D.B.¹ and J.N., the foster parents of R.L., seek a writ of prohibition to prevent the enforcement of the October 19, 2021, order of the Circuit Court of Harrison County that granted the motion of the respondents, J.S. and T.S., the maternal grandparents, for the temporary placement of R.L. in their home.² The petitioners contend that the circuit court exceeded its legitimate powers when it ordered that R.L. be removed from their custody without giving them adequate notice and a meaningful opportunity to be heard. The petitioners also contend that the circuit court exceeded its legitimate powers by ordering R.L. to be placed with the respondent grandparents despite their failed home study and without regard for R.L.’s best interests. Upon consideration of the briefs and arguments of the parties, the appendix record, and the applicable authorities, we grant the writ of prohibition.

I. Facts and Procedural Background

An abuse and neglect proceeding was instituted by the respondent West Virginia Department of Health and Human Resources ("DHHR") against R.L.’s biological parents on April 8, 2020. Neither R.L., nor his three siblings, were initially removed from the custody of their parents because they had already been left in the care of other individuals. At that time, R.L. and one of his brothers were residing with the respondent grandparents.³ After R.L.’s mother took R.L. and his brother from the respondent grandparents’ home in mid-April 2020, the DHHR immediately removed the children from their mother's custody. At that time, the respondent grandparents sought custody of the children, but the DHHR informed them that the children could not be placed back in their home due to the maternal grandfather's 1992 conviction for sexual battery. R.L. was then placed with his maternal aunt where he resided for approximately one year. During that time, the parental rights of R.L.’s parents were terminated.

R.L. was placed with the petitioners on April 28, 2021, after his maternal aunt informed the DHHR that she did not wish to adopt him. One day later, the respondent grandparents filed a motion to intervene and a motion for an expedited home study with the circuit court. The petitioners did not receive notice of these motions, nor were they informed of the hearing on the motions that was later held by the circuit court on May 24, 2021. Following that hearing, the circuit court granted the motions of the grandparents and ordered the DHHR to perform an expedited home study. The respondent grandparents then filed a motion seeking temporary and permanent placement of R.L.⁴ Again, the petitioners did not receive notice of this motion. The petitioners eventually learned about the grandparents’ efforts to obtain custody of R.L. from the foster parents of R.L.’s siblings. The petitioners then contacted R.L.’s guardian ad litem who informed them that the circuit court had scheduled a hearing on the respondent grandparents’ motion for temporary and permanent placement of R.L.

The hearing on the respondent grandparents’ motion for placement of R.L. in their home was held on August 20, 2021. The petitioners, having only learned about the hearing from the guardian ad litem, appeared, but they were unrepresented by counsel. According to the petitioners, the circuit court permitted them to attend the hearing but only allowed one of them to make a brief proffer.⁵

Two months after the placement hearing, the circuit court entered its October 19, 2021, order granting the motion of the respondent grandparents for temporary placement of R.L., with a finding that his best interests would be served by achieving permanency through adoption by them. It is clear from the circuit court's order that the primary focus of the hearing was the respondent grandfather's sexual battery conviction and whether it precluded the respondent grandparents from obtaining custody of R.L. According to the circuit court's order, Meaghen Broadwater, a DHHR home finding specialist, testified that the respondent grandparents did not receive an approved home study only because of the respondent grandfather's conviction for sexual battery, which she indicated is a non-waivable offense under the DHHR's home finding policy. The circuit court's order states, however, that Ms. Broadwater did not testify that she informed the respondent grandparents of their right to grieve their denial of a favorable home study pursuant to the DHHR's policy.

The circuit court's order indicates that the respondent grandfather also testified and provided details about his criminal history and the events that led to his conviction. According to the order, the respondent grandfather stated that the offense occurred when he was nineteen years old and while he was in college. He further testified that both he and the victim, another college student, were intoxicated. In its findings of fact, the circuit court indicated that

[The respondent grandfather] expressed extreme remorse for his actions and disgust at the selfish person he was while in college. Although he testified about his intoxicated condition, he repeatedly stated that he does not blame the incident on alcohol and that he knew the victim could not consent.

The circuit court further found that the respondent grandfather was "sufficiently regretful of his past crime and there was no evidence presented to suggest that [he] poses a danger to the infant children herein or any other person." Based on these findings and others, including the fact that the respondent grandfather has never been arrested or charged with any other crime, the circuit court concluded that "[d]espite the denial of their home study and [the respondent grandfather's] criminal history, the Intervenors [respondent grandparents] are suitable adoptive parents and adoption by the [respondent grandparents] is in [R.L.’s] best interests." Thus, the circuit court granted the respondent grandparents’ motion for temporary placement of R.L. with a finding that he should achieve permanency through adoption by them.

According to the petitioners, they did not receive notice of the circuit court's decision until ten days after the order was entered. They then obtained counsel and filed this petition for a writ of prohibition.

II. Standard for Granting Writ of Prohibition

West Virginia Code § 53-1-1 (1923) provides that a "writ of prohibition shall lie as a matter of right in all cases of usurpation and abuse of power, when the inferior court has not jurisdiction of the subject matter in controversy, or, having such jurisdiction, exceeds its legitimate powers." See also Syl. Pt. 2, in part, State ex rel. Peacher v. Sencindiver , 160 W. Va. 314, 233 S.E.2d 425 (1977) ("A writ of prohibition will not issue to prevent a simple abuse of discretion by a trial court. It will only issue where the trial court has no jurisdiction or having such jurisdiction exceeds its legitimate powers."). In this case, the petitioners assert that the circuit court exceeded its legitimate powers when it ordered R.L. to be removed from their home and placed with the respondent grandparents.

In determining whether to entertain and issue the writ of prohibition for cases not involving an absence of jurisdiction but only where it is claimed that the lower tribunal exceeded its legitimate powers, this Court will examine five factors: (1) whether the party seeking the writ has no other adequate means, such as direct appeal, to obtain the desired relief; (2) whether the petitioner will be damaged or prejudiced in a way that is not correctable on appeal; (3) whether the lower tribunal's order is clearly erroneous as a matter of law; (4) whether the lower tribunal's order is an oft repeated error or manifests persistent disregard for either procedural or substantive law; and (5) whether the lower tribunal's order raises new and important problems or issues of law of first impression. These factors are general guidelines that serve as a useful starting point for determining whether a discretionary writ of prohibition should issue. Although all five factors need not be satisfied, it is clear that the third factor, the existence of clear error as a matter of law, should be given substantial weight.

Syl. Pt. 4, State ex rel. Hoover v. Berger , 199 W. Va. 12, 483 S.E.2d 12 (1996). With this standard in mind, we consider the parties’ arguments.

III. Discussion

The petitioners argue that the circuit court exceeded its legitimate powers in two ways: first, by ruling upon the respondent grandparents’ motions for intervention and custody of R.L. without giving them adequate notice and a meaningful opportunity to be heard and, second, by ordering R.L. to be placed in the respondent grandparents’ home despite their failed home study and without regard for R.L.’s best interests. The petitioners contend that they satisfy the first two Hoover factors because they lack any other method to seek redress of the circuit court's order as they had not moved to intervene in the proceedings below...