State of West Virginia ex rel. L.D. v. The Honorable Judge Cohee, Circuit Court Judge of Berkeley County ( 2022 )

IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
September 2022 Term FILED
_______________ November 17, 2022
released at 3:00 p.m.
No. 22-559 EDYTHE NASH GAISER, CLERK
SUPREME COURT OF APPEALS
_______________ OF WEST VIRGINIA
STATE OF WEST VIRGINIA EX REL. L.D.,
Petitioner,
v.
THE HONORABLE BRIDGET COHEE, JUDGE OF THE CIRCUIT COURT OF
BERKELEY COUNTY, T.D., K.E., M.C., S.C., AND THE WEST VIRGINIA
DEPARTMENT OF HEALTH AND HUMAN RESOURCES,
Respondents.
________________________________________________________________________
Petition for a Writ of Mandamus
WRIT GRANTED
________________________________________________________________________
Submitted: November 1, 2022
Filed: November 17, 2022
Jared M. Adams, Esq. Patrick Morrissey, Esq.
Adams Law Firm, PLLC Attorney General
Martinsburg, West Virginia Randy K. Miller, Esq.
Petitioner Guardian ad Litem Assistant Attorney General
Charleston, West Virginia
Counsel for Respondent DHHR
Pamela Jean Games-Neely, Esq.
Kearneysville, West Virginia
Counsel for Respondent Mother K.E.
Michael Santa Barbara, Esq.
Martinsburg, West Virginia
Counsel for Respondent Father T.D.
Clinton R. Bischoff, Esq.
The Bischoff Law Firm PLLC
Shepherdstown, West Virginia
Counsel for Respondent Kinship Parents
M.C. and S.C.
JUSTICE WOOTON delivered the Opinion of the Court.
CHIEF JUSTICE HUTCHISON concurs and reserves the right to file a separate opinion.
SYLLABUS BY THE COURT
1. “A writ of mandamus will not issue unless three elements coexist-(1)
a clear legal right in the petitioner to the relief sought; (2) a legal duty on the part of the
respondent to do the thing which the petitioner seeks to compel; and (3) the absence of
another adequate remedy.” Syl. Pt. 2, State ex rel. Kucera v. City of Wheeling, 153 W. Va.
538, 170 S.E.2d 367 (1969).
2. “In the law concerning custody of minor children, no rule is more
firmly established than that the right of a natural parent to the custody of his or her infant
child is paramount to that of any other person; it is a fundamental personal liberty protected
and guaranteed by the Due Process Clauses of the West Virginia and United States
Constitutions.” Syl. Pt. 1, In re Willis, 157 W. Va. 225, 207 S.E.2d 129 (1973).
3. “Foster parents, pre-adoptive parents, or relative caregivers who
occupy only their statutory role as individuals entitled to a meaningful opportunity to be
heard pursuant to West Virginia Code § 49-4-601(h) (2015) are subject to discretionary
limitations on the level and type of participation as determined by the circuit court. Foster
parents who have been granted the right to intervene are entitled to all the rights and
responsibilities of any other party to the action.” Syl. Pt. 4, in part, State ex rel. C.H. v.
Faircloth, 240 W. Va. 729, 815 S.E.2d 540 (2018).
i
4. “Foster parents are entitled to intervention as a matter of right when
the time limitations contained in West Virginia Code § 49-4-605([a]) (2017) and/or West
Virginia Code § 49-4-610(9) (2015) are implicated, suggesting that termination of parental
rights is imminent and/or statutorily required.” Syl. Pt. 7, State ex rel. C.H. v. Faircloth,
240 W. Va. 729, 815 S.E.2d 540 (2018).
ii
WOOTON, Justice:
Petitioner Guardian ad Litem (“guardian”) invokes this Court’s original
jurisdiction seeking a writ of mandamus to compel the Circuit Court of Berkeley County,
West Virginia, to reunify the minor child, L.D., with the respondent parents, Mother K.E.
and Father T.D. (collectively “respondent parents”). 1 Upon filing the underlying abuse
and neglect petition, the West Virginia Department of Health and Human Resources
(“DHHR”) removed L.D. from Father T.D.’s home and placed her with cousins M.C. and
S.C. (sometimes collectively “kinship parents”). The respondent parents successfully
completed post-adjudicatory improvement periods and all parties recommended
reunification of the family pursuant to West Virginia Code § 49-4-604(c)(1) (2022). The
circuit court declined to do so, stating that the child had been in “foster care” for more than
fifteen months, and therefore the DHHR was required to move for termination of the
parents’ parental rights under West Virginia Code § 49-4-605(a)(1) (2018). The court then
sua sponte appointed counsel for and made the kinship parents parties to the underlying
action, before directing that the child, respondent parents, and kinship parents undergo a
“bonding assessment.” The guardian filed a petition for writ of mandamus with this Court
seeking to compel the circuit court to reunify the family, and to remove the kinship parents’
1
Consistent with our practice in cases involving sensitive facts, we use initials
where necessary to protect the identities of those involved in this case. See In re K.H., 235
W. Va. 254, 773 S.E.2d 20 (2015).
1
party status in the underlying action. Upon review of the parties’ arguments, the appendix
record, and the applicable law, we grant the writ of mandamus.
I. FACTUAL AND PROCEDURAL BACKGROUND
In January 2021, the DHHR opened an investigation into potential child
abuse after L.D. presented at Winchester Medical Center with various bruises. 2 The most
concerning of these bruises were located on L.D.’s torso, which Father T.D. explained as
having resulted from the child falling from his arms onto a tricycle while he was carrying
her down a flight of stairs. A forensic nurse examined the bruising and the tricycle and
determined that this explanation was plausible.
Subsequent to the investigation, Father T.D. and his then-girlfriend, A.S., 3
admitted to engaging in excessive corporal punishment which caused some of the other
bruises. Both also admitted to failing to seek prompt medical care for L.D. As a result of
these admissions, on February 5, 2021, the DHHR filed the underlying abuse and neglect
2
The underlying abuse and neglect petition also encompassed three additional
children who are not parties to the instant petition. Those children were returned to the
legal and physical custody of their biological mother A.S. and father D.S. upon A.S. and
D.S. successfully completing their improvement periods. We note that A.S. is in a
relationship with Father T.D.
3
The appendix record is unclear regarding the present status of Father T.D.’s and
A.S.’s relationship.
2
petition. 4 Also on February 5, 2021, L.D. was removed from the home and placed with
Father T.D.’s cousins, the kinship parents.
The parties appeared for an adjudicatory hearing before the Honorable R.
Steven Redding on May 5, 2021. At that time, Judge Redding informed the parties that he
had a prior relationship with the kinship parents, as he had worked with them in a prior
case where he served as a guardian ad litem. None of the parties objected to Judge
Redding’s continuing to preside over this case. Thereafter, the respondent parents admitted
to the allegations of abuse and neglect and were accordingly adjudicated.
At a hearing on June 2, 2021, the circuit court granted the respondent parents
post-adjudicatory improvement periods. It is undisputed that the respondent parents
successfully completed their improvement periods. In fact, the circuit court described them
as having “done extremely well” in this endeavor, and the record bears out that
characterization.
Mother K.E. actively participated in the underlying proceedings, attending
all MDT meetings and maintaining consistent contact with the DHHR. She ceased using
illegal drugs, and her drug screens have been consistently negative for some time. She
4
The abuse and neglect petition also alleged that Mother K.E. engaged in drug use
(marijuana) that affected her parenting abilities and that she did not have stable housing or
employment such that she could care for the child.
3
obtained and maintained employment, which resulted in her being able to secure stable
housing appropriate for L.D.’s care. She also completed a psychological evaluation and
subsequent individual counseling with the National Youth Advocate Program (“NYAP”),
and on December 6, 2021, Mother K.E. completed parenting classes through Homebase.
Father T.D. similarly took an active role in the underlying proceedings. He
maintained consistent contact with his caseworker and attended all multidisciplinary team
(“MDT”) meetings. He completed a psychological evaluation and subsequent counseling
through both NYAP and Callahan Counselling Services. The record also indicates that he
attended couples counseling with A.S. to rectify concerns about the stability of their
relationship. 5 Moreover, Father T.D. completed thirty-two classes with Community
Alternatives to Violence, and the court was informed by the program director that he
actively participated in those classes and improved as a result of that participation. In
November 2021, he also successfully completed parenting classes through Homebase—
including classes specifically related to appropriate child discipline.
5
It is apparent from the record that the circuit court had some concerns regarding
this relationship, specifically A.S.’s interactions with the child, L.D. Early in the
proceedings, L.D. was described as “fearful” of A.S, but the record indicates that this is no
longer the case. We note that A.S. successfully completed her own improvement period
and was dismissed from the case after being reunified with her biological children, and that
she has been gradually, successfully reintroduced into L.D.’s life. No problems appear to
remain in this regard.
4
Both respondent parents had visitation with L.D. throughout these
proceedings. In the beginning, both participated in supervised visits with the child, and
those quickly transitioned to unsupervised visits. By early 2022 the respondent parents
were engaging in extended visits with the child—one day with Father T.D. and two days
with Mother K.E.—including overnight stays. In May 2022, the circuit court increased
these overnight visits to two nights with Father T.D., two nights with Mother K.E., and
three nights with the kinship parents. The guardian’s report indicates that L.D. enjoys
spending time with her mother and father, and that she is bonded with both of them. 6
Ultimately, on May 4, 2022, the circuit court held a dispositional hearing to
consider disposition in this matter. At that hearing the DHHR, the guardian, and the Court
Appointed Special Advocate (“CASA”) volunteer all agreed that it was in L.D.’s best
interest to be reunified with her parents, and accordingly recommended reunification and
dismissal of the petition. The court, adhering to the statutory mandate that relative
caregivers be afforded a meaningful opportunity to be heard, asked M.C. if he had anything
he wished to add with regard to disposition. At that point, M.C. objected to reunification,
arguing that L.D. was established in his home and had become bonded with his family. As
a result of this objection, the court found that the disposition was contested, so Judge
6
The parties’ briefs further indicate that, after the court ordered a bonding
assessment on June 16, 2022, discussed further infra, the existence of this bond has been
reaffirmed.
5
Redding voluntarily recused himself from this matter and transferred the case to The
Honorable Bridget Cohee. 7
Judge Cohee held a scheduling hearing on June 16, 2022, at which time the
DHHR, the guardian, and the CASA volunteer reiterated their recommendations that the
child be reunified with her parents. The circuit court declined, over the objections of
counsel, to order reunification at that time. Instead the court questioned whether
reunification was in the child’s best interest, and whether the DHHR was permitted to
recommend reunification under West Virginia Code section 49-4-605(a)(1) because the
child had allegedly been in “foster care” for fifteen of the last twenty-two months.
Thereafter, the court sua sponte—and without a motion to intervene pending before the
court—appointed counsel for and granted party status to the kinship parents. In so doing,
the court opined that, because the child had been with them for fifteen months, the court
“should give the folks who have been caring for the child counsel and an opportunity to be
heard.” The court also ordered that L.D., the respondent parents, and the kinship parents
undergo a bonding assessment with a clinical psychologist. Immediately thereafter, the
guardian filed the instant petition for writ of mandamus.
7
See West Virginia Trial Court Rules 17.02 and 17.03 (permitting transfer of a
matter in a multi-judge circuit upon voluntary recusal of the presiding circuit judge).
6
II. STANDARD OF REVIEW
This Court’s standard for issuing a writ of mandamus is well-settled. “A writ
of mandamus will not issue unless three elements coexist-(1) a clear legal right in the
petitioner to the relief sought; (2) a legal duty on the part of the respondent to do the thing
which the petitioner seeks to compel; and (3) the absence of another adequate remedy.”
Syl. Pt. 2, State ex rel. Kucera v. City of Wheeling, 153 W. Va. 538, 170 S.E.2d 367 (1969).
With this standard in mind, we proceed to address the instant petition.
III. DISCUSSION
The guardian seeks a writ of mandamus compelling the circuit court to: (1)
reunify L.D. with the respondent parents; and (2) remove the kinship parents from party
status in these proceedings. To the first point, the guardian argues that the child has a clear
legal right to be returned to her parents where the parents have corrected the conditions
that led to the filing of the abuse and neglect petition. To the second, he argues that the
kinship parents should not have been made parties to this action insofar as they never filed
a motion to intervene and the circuit court lacks authority to sua sponte afford them party
status. The DHHR and the respondent parents join in these arguments. The kinship
parents, however, contend that the child has a deep emotional bond with them, such that
reunification would not be in her best interest, and that the circuit court did not exceed its
authority in making them parties to the action because it is “unreasonable” to expect the
unrepresented kinship parents to have understood the need to file a motion to intervene.
7
Upon review of the parties’ arguments and the applicable law, we agree with the guardian
that the writ should issue.
A. The circuit court erred in failing to reunify the family.
The first issue for our consideration is the circuit court’s refusal to reunify
L.D. with the respondent parents. By the court’s own assessment, the respondent parents
successfully completed their improvement periods and did “extremely well” throughout
that process. In fact, the court even indicated that “we are nearly to the stage of
[reunification] being granted[.]” Despite these acknowledgments, the court refused to
reunify the family and instead further delayed permanency by ordering that the parties
undergo a “bonding assessment.” Having reviewed the court’s order and the transcript of
the June 16, 2022, hearing, we conclude that the court predicated this refusal almost
exclusively on the fact that the child had been in the custody of the DHHR for “just over
fifteen months” at the time of the hearing, such that the DHHR was “required” to move for
termination of parental rights pursuant to West Virginia Code section 49-4-605(a)(1)
(2018). The court’s reliance on that statute is misplaced for several reasons, but the most
significant of which is that the statute is simply inapplicable to the case at bar.
West Virginia Code section 49-4-605 states, in relevant part:
(a) Except as provided in subsection (b) of this section, the
department shall file or join in a petition or otherwise seek a
ruling in any pending proceeding to terminate parental rights:
(1) If a child has been in foster care for fifteen of the most
recent twenty-two months as determined by the earlier of the
8
date of the first judicial finding that the child is subjected to
abuse or neglect or the date which is sixty days after the child
is removed from the home[.]
....
(b) The department may determine not to file a petition to
terminate parental rights when:
....
(2) The department has documented in the case plan made
available for court review a compelling reason. . .that filing the
petition would not be in the best interests of the child[.]
Id. As a preliminary matter, we want to make clear that the circuit court’s contention that
the DHHR was “required” to file a petition to terminate parental rights here is incorrect.
While it is true that the DHHR must file or join in a petition to terminate parental rights
when the child has been in foster care for fifteen of the most recent twenty two months, see
syllabus point four, In re C.S., ___ W. Va. ___, 875 S.E.2d 350 (2022),8 the statute provides
three clear exceptions to that obligation, including where the DHHR has identified reasons
8
We held in syllabus point four of C.S. that
[p]ursuant to West Virginia Code § 49-4-605(a)(1) (2018), the
Department of Health and Human Resources has a duty to file,
join, or participate in proceedings to terminate parental rights
when “a child has been in foster care for 15 of the most recent
22 months as determined by the earlier of the date of the first
judicial finding that the child is subjected to abuse or neglect
or the date which is 60 days after the child is removed from the
home.” West Virginia Code § 49-4-605(a)(1) (2018) does not
relieve the Department of its burden of proof in abuse and
neglect cases.
___ W. Va. at ___, 875 S.E.2d at 353.
9
why termination would not be in the child’s best interest. Here, the DHHR identified such
reasons in the case plan, in the court summary, and in arguments to the court when it
recommended reunification of the family.
Beyond this, even if the DHHR had not identified any reasons for finding
that termination was not in L.D.’s best interest, section 49-4-605 does not apply because
fifteen months had not passed at the time the recommendation to reunify the family was
made. At the June 16, 2022, hearing the circuit court determined that the child had been
with the relative caregivers for fifteen months. Our review, however, reveals this was not
correct. The earliest determination that the child was subject to abuse and neglect was
made on February 5, 2021. The various parties recommended reunification on May 4,
2022. That is, by our calculation, just under the fifteen-month threshold. The delay
between the May 4 hearing and the June 16 hearing cannot be attributed to the respondent
parents. Instead, it is solely attributable to the circuit court due to Judge Redding’s recusal
and transfer of this matter to Judge Cohee. We have made clear that procedural delays of
this kind cannot work to the detriment of the persons seeking custody of the child, in this
case the respondent parents. See In re J.P., 243 W. Va. 394, 844 S.E.2d 165 (2020)
(declining to attribute procedural delays to the party seeking custody). 9
9
Given our determination that West Virginia Code section 49-4-605(a)(1) was
inapplicable because the requisite time threshold had not passed, this Court need not reach
the question of whether that statute applies when a child is in a relative or kinship
placement. See, e.g., In re H.W., ___ W. Va. ___, 875 S.E.2d 247 (2022) (Walker, J.,
10
The only remaining question, then, is whether the circuit court had any
justification in the law for so failing to reunify the family. Our review leads us to conclude
that it did not.
One of the most fundamental principles of law that this Court has recognized
is that
[i]n the law concerning custody of minor children, no rule is
more firmly established than that the right of a natural parent
to the custody of his or her infant child is paramount to that of
any other person; it is a fundamental personal liberty protected
and guaranteed by the Due Process Clauses of the West
Virginia and United States Constitutions.
Syl. Pt. 1, In re Willis, 157 W. Va. 225, 207 S.E.2d 129 (1973). Of course, we have also
made clear that this right is not absolute, as it is necessarily limited by the parent’s fitness
to care for the child. See Syl. Pt. 2, In re Timber M., 231 W. Va. 44, 743 S.E.2d 352 (2013)
(“‘Although parents have substantial rights that must be protected, the primary goal in
cases involving abuse and neglect, as in all family law matters, must be the health and
welfare of the children.’ Syl. Pt. 3, In re Katie S., 198 W.Va. 79, 479 S.E.2d 589 (1996).”).
Even so, the Legislature and this Court have made clear that abuse and
neglect proceedings are, first and foremost, remedial in nature. This is more than apparent
from the consistent emphasis the Legislature places on “reunification” throughout Chapter
concurring) (analyzing the Legislature’s amendments to Chapter 49 of the West Virginia
Code distinguishing between foster care and kinship placement).
11
49 of the West Virginia Code. See, e.g., W. Va. Code § 49-4-604(a)(2) (“The [permanency]
plan must document efforts to ensure that the child is returned home within approximate
time lines for reunification as set out in the plan.”); Id. § 49-4-604(c) (giving precedence
to reunification and dismissal of the petition in dispositional decisions); Id. § 49-4-
604(c)(6) (requiring findings regarding the DHHR’s efforts to “preserve the family. . .or. .
. to make it possible for the child to safely return home”); Id. § 49-4-604(c)(7)(enumerating
the limited circumstances in which the DHHR is not required to make reasonable efforts
to reunify the family); see also W. Va. R. P. Child Abuse & Neglect Proc. 28(b)(2)
(requiring the case plan to include a description of the DHHR’s efforts to reunify the
family).
To effectuate this reunification, the court has discretion to grant offending
parents improvement periods, which allows the parents to engage in conduct—including
participation in services provided by the DHHR—geared toward remediation and
reunification. W. Va. Code § 49-4-610 (2015); W. Va. Dept. of Human Serv. v. Peggy F.,
184 W. Va. 60, 64, 399 S.E.2d 460, 464 (1990) (“The improvement period is granted to
allow the parent an opportunity to remedy the existing problems. . .the ultimate goal is
restoration of a stable family environment[.]”). Here, it is undisputed that the respondent
parents successfully completed their respective improvement periods; indeed, they did so
well the circuit court acknowledged that they had excelled in their efforts. Moreover, there
are no facts indicating that the respondent parents engaged in other behaviors that would
preclude reunification. While we have long recognized that “judgment regarding the
12
success of an improvement period is within the court’s discretion regardless of whether or
not the individual has completed all suggestions or goals set forth in the family case plans,”
In Interest of Carlita B., 185 W. Va. 613, 626, 408 S.E.2d 365, 378 (1991), the circuit court
was unable to identify any aspect of the improvement period in which the parents failed to
succeed. Accordingly, there is no evidentiary basis supporting the court’s denial of
reunification at the time of either the May 4, 2022, hearing or the June 16, 2022, hearing.10
Based on the foregoing, we grant the requested writ of mandamus and order
the circuit court to reunify L.D. with the respondent parents. Consideration may be given
to the need for a gradual transition in accordance with the Court’s holding in In re Hunter
H., 227 W. Va. 699, 715 S.E.2d 397 (2011), but we note that the gradual transition already
10
To the extent the circuit court asserted that a bond may have formed between L.D.
and the kinship parents, that bond alone is not sufficient to prevent reunification with the
natural parents who have a constitutional interest in parenting their child. See J.P., 243 W.
Va. 394, 844 S.E.2d 165 (reversing placement of a child with foster parents with whom he
had bonded instead of with paternal grandfather for whom there was a statutory
preference). That said, we recognize that a child may develop a significant bond with the
persons with whom they are placed, as that is the natural course of early childhood
development. The Legislature is also cognizant of that fact and has created a mechanism
to protect the child’s interests in that regard while also allowing for reunification with the
natural parents. See W. Va. Code § 49-2-126(a)(11) (2022) (contemplating that a child has
a right to continued contact with previous caregivers); see also Syl. Pt. 11, In re Jonathan
G., 198 W. Va. 716, 482 S.E.2d 893 (1996) (“A child has a right to continued association
with individuals with whom he has formed a close emotional bond, including foster
parents, provided that a determination is made that such continued contact is in the best
interests of the child.”).
13
began prior to the May 4, 2022, hearing, and therefore the process should be expedited as
much as practicable to prevent further delays which are harmful to the child.
B. The circuit court exceeded its authority in joining the kinship parents as parties
absent a motion to intervene.
The remaining issue for this Court’s consideration is the circuit court’s sua
sponte joinder of the kinship parents as parties to this action. While it is not entirely clear
upon what authority the circuit court acted, we presume the court sought to add the kinship
parents as intervenors under West Virginia Code section 49-4-601(h) (2022). As discussed
below, this was error on the court’s part.
Before we delve into the analysis of this issue, it bears repeating that the
kinship parents never filed a motion to intervene in the proceedings below. While this
Court has acknowledged that “the West Virginia Rules of Civil Procedure regarding
intervention generally do not apply to abuse and neglect proceedings under Chapter 49[,]”
the rules are instructive in our analysis. State ex rel. C.H. v. Faircloth, 240 W. Va. 729,
736 n.12, 815 S.E.2d 540, 547 n.12 (2018). In that regard, what is clear from the West
Virginia Rules of Civil Procedure is that no party may intervene—whether permissively or
as of right—unless they do so “upon timely application,” meaning by filing a motion. W.
Va. R. Civ. P. 24. The only scenario in the civil context in which the court may add a party
sua sponte is via joinder, which requires either: (1) that complete relief cannot be accorded
amongst the existing parties in that person’s absence; or (2) that the person to be joined
14
claims an interest relating to the subject of the action that would be impeded if the person
were not joined or would result in inconsistent obligations for the existing parties. Id. at
Rule 19.
There is no direct counterpart to mandatory joinder in the abuse and neglect
context, and the closest corollary is found in West Virginia Code section 49-4-601(b),
which sets out the list of persons who must be named in the abuse and neglect petition.
Aside from the children, that list is limited to “each parent, guardian, custodian, other
person standing in loco parentis of or to the child allegedly neglected or abused[.]” Id. The
language of the statute makes clear that those are persons who had custody of the child
prior to the filing of the petition, because it further requires allegations in the petition as to
whether those persons have abused or neglected the child. Id.Notably absent from that list of persons who are required to be made parties
are foster parents, kinship parents, relative caregivers, and pre-adoptive parents. Rather,
those persons are statutorily afforded a different status in abuse and neglect proceedings.
West Virginia Code section 49-4-601(h) states that
[i]n any proceeding pursuant to this article, the party or parties
having custodial or other parental rights or responsibilities to
the child shall be afforded a meaningful opportunity to be
heard, including the opportunity to testify and to present and
cross-examine witnesses. Foster parents, pre-adoptive parents,
and relative caregivers shall also have a meaningful
opportunity to be heard.
Id. This Court has explained that this statute creates a two-tiered framework:
15
Parties having “custodial or other parental rights or
responsibilities” are entitled to both “a meaningful opportunity
to be heard” and “the opportunity to testify and to present and
cross-examine witnesses.” In contrast, however, “[f]oster
parents, preadoptive parents, and relative caregivers” are only
granted the right to a “meaningful opportunity to be heard.”
Moreover, for purposes of this statute, the term “custodial”
refers to a person who became a child’s custodian “prior to the
initiation of the abuse and neglect proceedings[.]”
State ex rel. H.S. v. Beane, 240 W. Va. 643, 647, 814 S.E.2d 660, 664 (2018) (internal
citations omitted). In short, those persons enumerated in section 49-4-601(h) have certain
rights, but are not mandatory parties to the abuse and neglect petition.
Even so, we have explained that those persons may become parties by filing
motions to intervene in the proceedings. Specifically, we have held that
[f]oster parents, pre-adoptive parents, or relative caregivers
who occupy only their statutory role as individuals entitled to
a meaningful opportunity to be heard pursuant to West Virginia
Code § 49-4-601(h) (2015) are subject to discretionary
limitations on the level and type of participation as determined
by the circuit court. Foster parents who have been granted the
right to intervene are entitled to all the rights and
responsibilities of any other party to the action.
C.H., 240 W. Va. at 732, 815 S.E.2d at 542, syl. pt. 4, in part. Moreover, “[f]oster parents
are entitled to intervention as a matter of right when the time limitations contained in West
Virginia Code § 49-4-605([a]) (2017) and/or West Virginia Code § 49-4-610(9) (2015) are
implicated, suggesting that termination of parental rights is imminent and/or statutorily
required.” Id., syl. pt. 7.
16
As explained supra, M.C. and S.C. are not foster parents; they are kinship
parents or relative caregivers. As kinship parents, they were not entitled to intervene as a
matter of right under syllabus point seven of C.H.. 240 W. Va. at 732, 815 S.E.2d at 542.
Had they filed a motion to intervene—which they did not—the intervention would have
been permissive and within the discretion of the circuit court. In the absence of a motion,
however, there was no mechanism by which the court could grant them intervenor status,
and we conclude that the circuit court erred by sua sponte elevating the kinship parents to
party status in the proceedings below. 11 Accordingly, we grant the writ of mandamus and
order the circuit court to remove M.C. and S.C. from party status in these proceedings.
IV. CONCLUSION
For all the foregoing reasons, we conclude that the minor child, L.D., and her
parents have a clear legal right to reunification, and there is no other adequate remedy
available. Moreover, the circuit court has a clear legal duty to order that reunification. See
State ex rel. Kucera, 153 W. Va. at 539, 170 S.E.2d at 367, Syl. Pt. 2. Accordingly, we
grant the guardian’s requested writ of mandamus and order that the circuit court commence
the reunification between the child and her parents immediately upon remand. That
process is to be expedited as much as is practicable, giving due regard to the possible need
11
Because we find that the kinship parents should have never been made parties to
this action, it is equally clear that they should not have been appointed counsel. W. Va.
Code § 49-4-601(f)(8) (permitting sua sponte appointment of counsel to “any
unrepresented party”)(emphasis added).
17
for a gradual transition period for the child from the kinship parents’ home to the
respondent parents’ homes. Further, we conclude that the circuit court did not have
authority to sua sponte join the kinship parents as parties to this action. For that reason,
we direct that the circuit court remove the kinship parents’ party status in these
proceedings. The Clerk is hereby directed to issue the mandate of the Court
contemporaneously with this opinion.
Writ Granted.
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