State ex rel. D.S. v. Facemire (In re J.S.)

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In re J.S., LS., and H.S. And State ex rel. D.S. and V.S., Petitioners, v. The Honorable Richard A. Facemire, Judge of the Circuit Court of Braxton County, and The West Virginia Department of Health and Human Resources, Respondents.

Nos. 21-0627, 21-0857

Supreme Court of Appeals of West Virginia

May 27, 2022

(Jackson County, 20-JA-85, 20-JA-86, 20-JA-87)

(Braxton County, 20-JA-37)

MEMORANDUM DECISION

In the first of these consolidated cases, petitioner J.S ("J.S."), ^[1] by counsel Ryanne A. Ball, appeals the Circuit Court of Jackson County's July 8, 2021, order entered in an abuse and neglect proceeding instituted on J.S.'s behalf by his counsel. The order memorialized the court's rulings in the case, refusing to adjudicate J.S.'s adoptive parents D.S. and V.S. ("the parents") as abusing or neglecting, accepting the parents' relinquishment of their parental rights to J.S leaving the issue of sibling visitation between J.S. and his sisters, H.S. and L.S., in the parents' sole discretion, and transferring permanency proceedings for J.S. to the Circuit Court of Braxton County. Responses in support of the circuit court's order were filed by the West Virginia Department of Health and Human Resources ("DHHR"), by counsel Patrick Morrisey and Lee Niezgoda; the parents, by counsel Erica Brannon Gunn; guardian ad litem for J.S., Calvin C. Honaker; and guardian ad litem for J.S.'s siblings H.S. and L.S., Julia R. Callaghan.

In the second of the consolidated cases, No. 21-0857, the parents, by counsel Erica Brannon Gunn, filed a petition for writ of prohibition seeking to prevent the Circuit Court of Braxton County from enforcing its October 18, 2021, order entered in the permanency proceedings for J.S., requiring the parents to pay child support and facilitate visitation between J.S. and his siblings, H.S. and L.S. Responses to the petition were filed by J.R., by counsel Ryanne A. Ball; the DHHR, by counsel Patrick Morrisey and Lee Niezgoda; the guardian ad litem for J.S., Kevin W. Hughart; and the guardian ad litem for H.S. and L.S., Julia R. Callaghan.

After considering the parties' written and oral arguments, as well as the appendix records and the applicable law, this Court finds no substantial question of law and no prejudicial error. Upon consideration of the same, we conclude that a memorandum decision affirming the circuit court's order in No. 21-0627 and dismissing the petition for a writ of prohibition in No. 21-0857 as moot is appropriate under Rule 21 of the Rules of Appellate Procedure.

We begin with an overview of the facts and procedural history underlying both cases. Petitioner J.S., ^[2] H.S. and L.S. are half-siblings; all have the same mother, but each has a different father. On November 23, 2015, when J.S. was six years old, H.S. was four years old, and L.S. was two years old, abuse and neglect proceedings were instituted against all of their biological parents, which proceedings concluded with the termination of the parental rights of all the biological parents. The appendix record indicates that while they were with their biological parents all of the children, and particularly J.S., had been subjected to abuse and neglect that caused significant trauma and left deep psychological and emotional scars. Respondent D.S. is the paternal grandfather of L.S., the youngest child; he has no biological tie to either J.S. or H.S., and his wife, respondent V.S., has no biological tie to any of the children. Nonetheless, D.S. and V.S. agreed to foster all three children during the pendency of the abuse and neglect proceedings, ^[3] and on August 22, 2016, the children were ordered to be moved into their home. The parents entered into an Adoption Placement Agreement on August 26, 2016, in regard to the children, and they were ultimately adopted by the parents on January 26, 2018.

From the time the children came to live with D.S. and V.S., ^[4] J.S. exhibited worrying behaviors which, if not entirely the result of physical, emotional, and possible sexual abuse he suffered at the hands of his biological parents, were certainly exacerbated by such abuse and were deeply entrenched. Although the parents took a variety of actions designed to help J.S. deal with his emotional and behavioral issues, those issues continued to escalate and, according to the parents, ultimately posed a danger to every member of the family. The parents testified, inter alia, that J.S. tried to burn down the family home on two occasions; that he would hit, choke, and/or threaten his sisters; and that he stated on more than one occasion that he wanted to kill the family. The parents sought help from law enforcement but were told that J.S. was too young to be the subject of a juvenile delinquency petition. They also sought help from the DHHR but were told that "the adoption is final so there's nothing we can do," and that no help was available to the parents unless and until DHHR filed an abuse and neglect petition against them.^[5]

After J.S.'s second attempt to burn down the house, which he admitted he had done in order to kill the family, the parents placed him at Highland Hospital in Charleston, West Virginia, where he remained for approximately six weeks. Immediately thereafter, on August 12, 2019, the parents placed him at the Fox Run Center for Adolescents ("Fox Run" in St. Clairsville, Ohio, where he remains to this day. On October 9, 2019, the parents filed a juvenile status petition against J.S., which began the sequence of legal events leading to the instant appeal and petition for writ of prohibition.

Following a number of continuances - at least six - the parties convened for a status hearing on March 6, 2020, at which time the parents informed the court that they intended to relinquish their parental rights to J.S. Following several more continuances, at least two of which were attributable to the COVID-19 pandemic, the parties convened again for a hearing at which the parents tendered written voluntary relinquishments of their parental rights to J.S. to the court. Counsel for J.S. objected, arguing that a juvenile status proceeding was an inappropriate forum for relinquishment and that in any event, relinquishment was not in J.S.'s best interests. The court held the matter in abeyance and ordered the parties to submit briefs on the legal issue; however, before the court issued a ruling, counsel for J.S. tendered a verified abuse and neglect petition to the court.^[6] The petition alleged that the parents had abandoned J.S., and further alleged that the parents were guilty of abuse and neglect of J.S., H.S., and L.S. by denying them sibling visitation. The court did not enter an order filing the petition; rather, it transferred both the unfiled petition and the pending juvenile status case to the Circuit Court of Braxton County, the county of origin, i.e., the county where the abuse and neglect case against the children's biological parents had been litigated.

On September 17, 2020, the Circuit Court of Braxton County held a hearing, after which it ordered that the abuse and neglect petition be filed. By separate order, the court transferred the juvenile status case back to the Circuit Court of Jackson County, where it is now listed as "Closed" despite the fact that no hearings have ever been held or orders entered in the matter.

On October 7, 2020, on a motion of the parents, the abuse and neglect case was transferred back to the Circuit Court of Jackson County, where it was assigned Case Numbers 20-JA 85, 20-JA-86, and 20-JA-87. On December 22, 2020, the court^[7] convened a hearing, held in abeyance J.S.'s counsel's motion to designate the DHHR as a co-petitioner; ordered updated psychological evaluations for all three children; and set the matter for an evidentiary hearing. On January 25, 2021, J.S.'s counsel moved to amend the petition based on information provided to her by D.S. indicating that he intended to travel to the Fox Run facility to tell J.S. that "he and [V.S.] were 'reversing the adoption.'" Counsel immediately sought and was granted an emergency order prohibiting contact between the parents and J.S., and counsel alleged that "since that time, the respondent parents have made no attempt whatsoever to have the Court reverse that order so they could have contact with [J.S.] and instead have focused their entire efforts on voluntarily terminating their rights to him." Counsel cited information contained in the updated psychological reports which suggested the possibility that H.S. and L.S. were being coached by the parents to express fear of their brother, and further alleged that the parents attempted to persuade a forensic interviewer to say that H.S. and L.S. should not have contact with J.S.^[8] Immediately thereafter, on January 26, 2021, the parents moved for pre-adjudicatory improvement periods. At a hearing held that same day, the court ordered that the amended petition be filed, that the parties convene a multidisciplinary team ("MDT") meeting to discuss the new allegations and the parents' motion, and that sibling visitation begin in a therapeutic setting.

On March 2, 2021, at the conclusion of a four-hour evidentiary hearing, the circuit court held the parents' request to relinquish their parental rights to J.S. in abeyance, but granted them an improvement period as to the two younger children, L.S. and H.S.^[9]Significantly, for purposes of this appeal, the court declined to set the matter for adjudication, as requested by counsel for J.S. Thereafter, on July 6, 2021, another hearing was held at which the court made the following rulings, later memorialized in its July 8 2021, order: that the court would not adjudicate D.S. and V.S. as abusing parents; that the parents' written voluntary...