SER C.H. and S.H., Foster Parents of J.L., Jr. v. Hon. Laura v. Faircloth, Judge, et.al.

IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA

January 2018 Term

FILED

No. 18-0485 July 6, 2018

released at 3:00 p.m.

EDYTHE NASH GAISER, CLERK

SUPREME COURT OF APPEALS

OF WEST VIRGINIA

STATE OF WEST VIRGINIA ex rel. C. H. and S. H.,

Foster Parents of J. L., Jr.,

Petitioners,

v.

THE HONORABLE LAURA V. FAIRCLOTH, Judge

Of the Circuit Court of Berkeley County, West Virginia,

THE WEST VIRGINIA DEPARTMENT OF HEALTH AND HUMAN

RESOURCES, A. M., J. L., AND M. V.,

Respondents.

PETITION FOR WRIT OF PROHIBITION

WRIT GRANTED

Submitted: June 21, 2018

Filed: July 6, 2018

Stephanie E. Scales-Sherrin, Esq.

Patrick Morrisey, Esq.

Martinsburg, West Virginia

Attorney General

Attorney for Petitioners C. H. and S. H.

Melinda C. Dugas, Esq.

Assistant Attorney General

Kimberley Crockett, Esq.

Charleston, West Virginia

Martinsburg, West Virginia

Attorney for West Virginia

Attorney for Respondent Mother

Department of Health and

A. M. Human Resources

Debbie Flowers Payne, Esq.

Martinsburg, West Virginia

Guardian ad Litem for

Respondent Mother A. M.

Nicholas Forrest Colvin, Esq.

Martinsburg, West Virginia

Attorney for Respondent Father

J. L.

Jeffrey K. Matherly, Esq.

Martinsburg, West Virginia

Guardian ad Litem for J. L., Jr.

CHIEF JUSTICE WORKMAN delivered the Opinion of the Court.

JUSTICE LOUGHRY suspended and therefore not participating.

SYLLABUS BY THE COURT

1. “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).

2. “Foster parents who are granted standing to intervene in abuse and

neglect proceedings by the circuit court are parties to the action who have the right to appeal

adverse circuit court decisions.” Syl. Pt. 1, In re Harley C., 203 W. Va. 594, 509 S.E.2d

875 (1998).

i

3. “The foster parents’ involvement in abuse and neglect proceedings

should be separate and distinct from the fact-finding portion of the termination proceeding

and should be structured for the purpose of providing the circuit court with all pertinent

information regarding the child. The level and type of participation in such cases is left to

the sound discretion of the circuit court with due consideration of the length of time the

child has been cared for by the foster parents and the relationship that has developed.” Syl.

Pt. 1, in part, In re Jonathan G., 198 W. Va. 716, 482 S.E.2d 893 (1996).

4. 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. To the extent that this holding is

inconsistent with In re Jonathan G., 198 W. Va. 716, 482 S.E.2d 893 (1996), our holding

in In re Jonathan G. is hereby modified.

5. “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).

ii

6. “In a contest involving the custody of an infant the welfare of the child

is the polar star by which the discretion of the court will be guided.” Syl. Pt. 2, State ex rel.

Lipscomb v. Joplin, 131 W. Va. 302, 47 S.E.2d 221 (1948).

7. Foster parents are entitled to intervention as a matter of right when the

time limitations contained in West Virginia Code § 49-4-605(b) (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.

8. “Child abuse and neglect cases must be recognized as being among

the highest priority for the courts’ attention. Unjustified procedural delays wreak havoc on

a child’s development, stability and security.” Syl. Pt. 1, in part, In re Carlita B., 185 W.

Va. 613, 408 S.E.2d 365 (1991).

iii

WORKMAN, C. J.:

Petitioners/foster parents C. H. and S. H.1 (hereinafter “foster parents”), seek

a writ of prohibition precluding the Circuit Court of Berkeley County from enforcing its

March 23, 2018, order denying their motion to intervene and its June 7, 2018, order

granting the biological parents A. M. and J. L. (hereinafter collectively “biological parents”

and/or “biological mother” and “biological father”) post-dispositional improvement

periods. The foster parents assert that the circuit court exceeded its legitimate authority by

not granting them an evidentiary hearing on their motion to intervene and by granting the

biological parents post-dispositional improvement periods in excess of statutory time

limitations. The Department of Health and Human Resources (hereinafter “DHHR”), J.

L., Jr.’s guardian ad litem, and the biological parents argued below that intervention by the

foster parents would have been inappropriate prior to termination of the biological parents’

parental rights and that the foster parents have no standing to challenge the post-

dispositional improvement periods. Nevertheless, DHHR now maintains that the

biological parents’ parental rights should be terminated by operation of the statutory time

limitations; J. L., Jr.’s guardian ad litem likewise now concurs in that assessment as to

biological mother, for her failure to adequately demonstrate improvement.

1

Consistent with our practice in cases involving sensitive facts, we identify the

parties by initials only. See In re Jeffrey R.L., 190 W.Va. 24, 26 n.1, 435 S.E.2d 162, 164

n.1 (1993).

1

Upon careful review of the briefs, the appendix record, the arguments of the

parties, and the applicable legal authority, we find that the circuit court committed clear

error as a matter of law and that the foster parents raise important issues of first impression.

We therefore grant the writ of prohibition and remand this case with directions to the circuit

court to vacate its order granting the biological parents post-dispositional improvement

periods, grant the foster parents’ motion to intervene, and to immediately schedule this

matter for disposition, conducting any and all further proceedings as necessary and

appropriate in this matter in a timely manner.

I. FACTS AND PROCEDURAL HISTORY

Respondent biological parents A. M. and J. L. were each named in an abuse

and neglect petition shortly after infant J. L., Jr. was born prematurely. The instant petition

was based on domestic violence and contentious behavior between the biological parents

at the hospital while J. L., Jr. was in the Neonatal Intensive Care Unit (NICU). After

approximately eight weeks in the NICU, J. L., Jr. was placed into foster care with the foster

parents, where he has remained. He is currently approximately twenty-one months old and

continues to suffer from feeding and developmental issues. Biological mother A. M. has

prior terminations to three children; biological father J. L. has none. Issues of inadequate

2

housing as pertained to both biological parents 2 and biological mother A. M.’s low

intellectual functioning were later uncovered. The biological mother, who is also hard of

hearing, was provided a guardian ad litem as well as counsel, and reasonable

accommodation under the Americans with Disabilities Act of 1990, 42 U.S.C. § 12101 et

seq., and West Virginia. Code §49-4-604(a)(1) (2016).

Both biological parents admitted to abuse and neglect, whereupon a post-

adjudicatory improvement period was ordered for each. None of the orders entered herein

are specific about the length of any of the improvement periods, but both biological parents

were granted subsequent extensions of their respective improvement periods. They

continued on general post-adjudication improvement periods until March 28, 2018, at

which point the biological mother had been provided an approximate eleven-month

2

Biological father J. L. resided and continues to reside with his parents throughout

these proceedings. He apparently maintained at some point that this residence was

inappropriate for J. L., Jr.:

Q. You’ve reported consistently that while living in the

home of your parents [J. L., Jr.] couldn’t come there but you’ve

had housing this entire time, is that right?

A. Yes, ma’am.

3

improvement period and the biological father had been provided a one-year, three-month

improvement period.3

During their respective improvement periods each biological parent had

issues with visitation consistency—the biological father due to transportation issues and

the biological mother due to a Virginia-based anonymous DHHR report resulting in

termination of her visits in Virginia, where she lived with her father. Both biological

parents were eventually compliant with services, but continually struggled to obtain

consistent and appropriate housing. During their respective improvement periods, J. L.,

Jr.’s then-guardian ad litem4 sought to revoke their improvement periods based on weight

loss and illness by J. L., Jr. after visits with biological mother A. M.

In December 2017, the foster parents retained counsel who noticed her

appearance; the circuit court ordered her removed from the e-filing system, 5 however,

3

The biological father and biological mother were adjudicated at different times;

therefore, their improvement periods began at different times. Both general post-

adjudication improvement periods ended with the circuit court’s grant of a post-

dispositional improvement period on March 28, 2018.

4

Four guardians ad litem have been assigned to this case during its pendency. The

guardian ad litem at the time revocation was sought was Christine Glover, who obtained a

new job during the pendency of the case ultimately withdrawing. She was replaced by the

current guardian ad litem, Jeffrey Matherly.

5

Such a removal thereby precluded the foster parents’ access to the confidential

court file.

4

given that the foster parents were not parties. Shortly thereafter, the foster parents moved

to intervene. A hearing was conducted on the motion to intervene on February 14, 2018,

whereupon the circuit court denied the motion. The circuit court found that the intervention

was premature since it was still in the “fact-finding,” pre-termination stage but that the

foster parents would be permitted to participate fully in the MDT meetings and attend

hearings.6 The circuit court found there was nothing more the foster parents could offer

as parties than they could in their capacity as participants. The foster parents’ counsel did

not specifically request to introduce evidence at the time the hearing was conducted;

however, the foster parents had previously moved to introduce testimony from their

pediatric dietician by telephone. The circuit court denied that motion, finding that

telephone testimony inhibited the court’s ability to observe the witness’ demeanor and was

unfair to the biological mother who was intellectually challenged and hard of hearing.

Other than this motion, the foster parents did not seek to introduce any other evidence on

the record, nor did they object specifically to not being permitted to introduce evidence.7

J. L., Jr.’s then-guardian ad litem supported the foster parents’ intervention.

6

The court stated “[Y]ou have provided and will continue to provide excellent

representation for the foster parents. You’re welcome to participate in all of the

proceedings from MDTs to the court hearings but the Court does agree with the department

that at this point to grant intervenor status would be premature[.]” The court further stated

that the foster parents were welcome to renew their motion at a later date.

7

The record reflects that the foster parents’ counsel objected simply to the denial of

the foster parents’ motion to intervene.

5

Also at this hearing, the circuit court took evidence on the previous request

of the guardian ad litem to revoke the biological parents’ improvement periods.8 The then-

guardian ad litem’s request to revoke the improvement periods was based on the biological

mother’s lack of care during visits, causing the child to be returned sickly and having lost

weight and the biological father’s ostensible abandonment of his other child, who was also

subject of this proceeding.9 The circuit court found no reason to revoke the improvement

period after hearing the testimony of the biological mother’s separately-retained physician

who opined that J. L., Jr. was healthy and not medically fragile, as had been suggested.

The circuit court further found that any slight weight loss that had occurred was negligible

and potentially due to weighing discrepancies and/or recent illness of the child.

The hearing on the motion to revoke was continued to a later date generally

for “anything further” on the revocation. It was then sua sponte rescheduled for a later

8

While the appendix record reveals no formally filed motion, a report of the then-

guardian ad litem requests revocation of the improvement periods.

9

Despite the fact that the biological father’s as-yet-adjudicated abandonment of his

older child may well ultimately serve to establish aggravated circumstances obviating the

need for the DHHR to use reasonable efforts to reunify with J. L., Jr., the circuit court

refused to allow the guardian ad litem to broach issues regarding the older child during the

hearing on the biological parents’ revocation. See W. Va. Code § 49-4-604(7) (“For

purposes of the court’s consideration of the disposition custody of a child pursuant to this

subsection, the department is not required to make reasonable efforts to preserve the family

if the court determines: . . . (C) The parental rights of the parent to another child have been

terminated involuntarily[.]”). Moreover, the biological father’s treatment of the older

child—adjudication notwithstanding—is unquestionably a relevant consideration

regarding the revocation of his improvement period.

6

date due to a family emergency of the court. Apparently, the foster parents’ counsel

provided notice of a scheduling conflict with the new date and was advised by court staff

that the court would wait on her arrival at the hearing; however, that apparently did not

occur. The hearing was resumed without the foster parents or their counsel being present,

nor was their absence noted. During this hearing, which was presumably to be a

continuation of the motion to revoke improvement period, the circuit court proceeded to

award a six-month post-dispositional improvement period to the biological parents. No

objection was made by any parties in attendance, including the new guardian ad litem.10

As of that date, neither biological parent had independent housing, but the biological father

was purportedly being permitted to reside permanently with his parents. The foster parents

thereafter filed the instant writ.

II. STANDARD OF REVIEW

The factors for the issuance of a writ of prohibition are well-established:

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

10

In response to the post-dispositional improvement periods, guardian ad litem

Matherly stated

I have no objection to that. I have slowly been, you know, I

was only appointed to substitute as guardian ad litem in this

case recently. There’s a long history here. A lot of

documentation that I have to wade through. . . . So there’s still

some catching up I need to do but based on everything I know

today I have no objections to granting the post-dispositional

improvement period and having an MDT so we can discuss it

further.

7

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 turn to the foster parents’ assignments of error.

III. DISCUSSION

The foster parents make three assignments of error; however, the last two are

effectively the same.11 First, the foster parents argue that the circuit court erred in denying

their motion to intervene without an evidentiary hearing. Secondly, the foster parents argue

that the circuit court erred in awarding a post-dispositional improvement period which

purportedly violates the time limitations set forth in West Virginia Code § 49-4-601 et seq.

11

In their third and final assignment of error, the foster parents argue that “the

Department erred” in supporting extension of the improvement periods. Obviously, as

characterized, purported “errors” of parties are not redressable on appeal.

8

and lacks sufficient findings to support such an improvement period. We will address each

error in turn.

A. INTERVENTION BY FOSTER PARENTS

As indicated, the foster parents first claim that the circuit court exceeded its

legitimate powers by denying their motion to intervene in absence of an evidentiary

hearing. Although the foster parents frame this issue procedurally, in terms of the circuit

court’s failure to hold an evidentiary hearing on their motion to intervene, it is clear from

the parties’ arguments that the crux of the legal issue presented is the more substantial issue

of a foster parent’s entitlement to intervene in a pending abuse and neglect proceeding.

Although, as examined more fully infra, this Court has discussed the proper role of foster

parents in abuse and neglect proceedings generally, the Court has not squarely addressed

the issue of entitlement to party-intervention of foster parents and when such entitlement,

if any, vests.

The biological parents assert that the foster parents are not entitled to a writ

of prohibition inasmuch as intervention is a matter of discretion with the circuit court and

that the foster parents were nevertheless provided a meaningful opportunity to be heard

through their involvement in court proceedings and MDT meetings. More pointedly, the

biological father accuses the foster parents of seeking “to act as a surreptitious co-petitioner

to work actively against the interests of the Respondent Parents and the appropriate goal of

reunification so that they may obtain legal as well as physical custody[.]” In a similar vein,

9

the biological mother insists that granting intervenor status to the foster parents “would

only seek to impose more delays, more contention, and more interference and malfeasance

into the proceedings.” The DHHR likewise contends that foster parents do not have a

“right” to party status and that any suggestion that the foster parents were constrained in

their ability to advocate for themselves and/or the best interests of J. L., Jr. is disingenuous.

These claims require us to review the degree of involvement available to foster parents in

abuse and neglect proceedings and the measure of participation thereby afforded.

1. Intervention and the Statutory “Right to be Heard”

We must necessarily begin our analysis by reviewing the statutory

framework for abuse and neglect proceedings to ascertain whether the Legislature has

spoken to the issue of foster parent intervention.12 West Virginia Code § 49-4-601(h)

(2015) provides that

12

We note that the West Virginia Rules of Civil Procedure regarding intervention

generally do not apply to abuse and neglect proceedings under Chapter 49 and therefore

are not controlling. See W.V.R.C.P. 81(a)(7) (“Only rules 5(b), 5(e), and 80 apply in

juvenile proceedings.”). Nevertheless, the Rule provides useful guidelines for the issue of

intervention, generally. Rule 24(a) of the West Virginia Rules of Civil Procedure states:

Intervention of Right. Upon timely application anyone shall be

permitted to intervene in an action: (1) when a statute of this

State confers an unconditional right to intervene; or (2) when

the applicant claims an interest relating to the property or

transaction which is the subject of the action and the applicant

is so situated that the disposition of the action may as a

practical matter impair or impede the applicant’s ability to

protect that interest, unless the applicant’s interest is

adequately represented by existing parties.

10

[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, preadoptive parents,

and relative caregivers shall also have a meaningful

opportunity to be heard.

(emphasis added). This statute makes clear two things: 1) that foster parents must be given

a “meaningful opportunity to be heard,” but 2) that this statutorily-mandated “right to be

heard” involves something less than testifying, presenting, and cross-examining witnesses,

which are rights provided to “[a] party or parties having custodial or other parental rights

or responsibilities[.]” Id. These various “tiers” of participation set forth in this statute were

recently examined by the Court.

In State ex rel. H. S. v. Beane, 2018 WL 2467794 *5 (W. Va. May 30, 2018),

this Court found that non-party foster parents who were not informed of or permitted to

participate in a parental relative visitation issue were denied their “meaningful opportunity

to be heard.” Relying primarily on Rule 46 of the Rules of Procedure for Child Abuse and

Neglect, the Court found that the foster parents were definitional “persons entitled to

notice” and therefore should have been notified of the hearing, which qualified as a “motion

for modification” under Rule 46. Id. The Court discussed West Virginia Code § 49-4-

601(h)’s “two-tiered” format, concluding that non-party foster parents must be given a

meaningful opportunity to be heard. Observing that the foster parents were subsequently

granted intervenor status, the Court made clear that since they were not parties at the time

of the hearing, they would not have been permitted to call or question witnesses. Id. n.12.

11

See also Kristopher O. v. Mazzone, 227 W. Va. 184, 70 S.E.2d 381 (2011) (granting writ

of prohibition to non-party foster parents who were excluded from permanency hearing).

What Beane properly illustrates is that the right to be heard afforded under

West Virginia Code § 49-4-601(h) exists and operates independently of the rights and

privileges afforded to intervening parties. Foster parents and others designated in the

statute have a right to be heard without the necessity of requesting intervenor status. We

find nothing, however, in West Virginia Code § 49-4-601 et seq. which precludes foster

parents from likewise procedurally being granted party-intervenor status where

appropriate. Moreover, by noting that the foster parents’ right to call or question witnesses

was necessarily curtailed by the fact that their motion to intervene was not granted until

after the hearing on the visitation issue, Beane establishes by implication that party-

intervenors have greater rights of participation than do parties merely given a statutory

“right to be heard.” It is, in fact, those greater rights of participation, i.e. the ability to call

witnesses, have proper notice of court proceedings, and access to the court file, which the

foster parents herein specifically sought in moving for intervention.13

13

The foster parents purportedly intended to call various service providers and

expert witnesses regarding J. L., Jr.’s state of health and special needs during the hearing

on the motion to revoke the biological parents’ improvement periods. Additionally, upon

initially noticing her appearance in the case, the foster parents’ counsel was placed in the

court’s e-filing system, but subsequently ordered to be removed from that system inasmuch

as her clients were not parties. Finally, the foster parents bemoan the state of the appendix

record submitted in support of their writ as being directly attributable to their lack of access

to the official court record as non-parties.

12

This Court has addressed, at least in part, what participating rights

intervening foster parents have in In re Harley C., 203 W. Va. 594, 509 S.E.2d 875 (1998).

In Harley C., the biological parents contended that the foster parents, who had been granted

intervenor status, had no right to appeal the circuit court’s disposition of the abuse and

neglect proceedings. Id. at 595, 509 S.E.2d at 876. The Court observed that

[b]y the very definition of intervention the intervenor is a party

to the action. After intervention, he or she is as much a party to

the action as the original parties, and renders himself

vulnerable to complete adjudication of the issues in litigation

between himself and the adverse party. To make his rights

effectual he must necessarily have the same power as the

original parties, subject to the authority of the court reasonably

to control the proceedings in the case.

Id. at 598, 509 S.E.2d at 879 (quoting 59 Am.Jur.2d Parties § 170 (1987)). Accordingly,

the Court specifically found that “[intervenors] have all the rights and responsibilities of

any other party to the action, including the right to appeal to this Court.” Id. Accord A.M.

v. A.C., 296 P.3d 1026, 1032 (Colo. 2013), as modified on denial of reh’g (Mar. 18, 2013)

(“[I]ntervention by a foster parent entitles the foster parent to the full panoply of rights that

the existing parties enjoy. The designation ‘intervenor’ signifies how a party came to be

involved in a case. By itself, the term does not restrict participation. Generally, courts grant

intervenors the same rights as all other parties.”). The Court therefore held that “[f]oster

parents who are granted standing to intervene in abuse and neglect proceedings by the

circuit court are parties to the action who have the right to appeal adverse circuit court

decisions.” Syl. Pt. 1, Harley C., 203 W. Va. 594, 509 S.E.2d 875.

13

With the understanding that these cases establish that foster parents may

occupy either a “right to be heard” participant role or a full party-intervenor role in abuse

and neglect proceedings, we turn now to the case that all parties—both the foster parents

and the biological parents—claim resolves these issues. The foster parents contend that In

re Jonathan G., 198 W. Va. 716, 482 S.E.2d 893 (1996) requires the circuit court to take

evidence to consider the foster parents’ relationship with the child to determine if

intervention is appropriate. The biological parents, however, maintain that Jonathan G.

makes clear that there is no absolute right to intervention and that the circuit court may

restrict, as it sees fit, the level of participation of foster parents under any circumstance.

Moreover, the circuit court likewise appeared to rely on the language of Jonathan G. to

conclude that intervention prior to termination is impermissible on the whole.

In Jonathan G., the circuit court in an abuse and neglect matter granted foster

parents “standing in th[e] matter, in order to present another perspective on the best

interests of the minor[,]” but cautioned them that “their involvement . . . should not create

the false impression that they have parental rights equivalent to [the biological parents],

nor coequivalent rights of any sort with regard to [the infant].” Id. at 723, 482 S.E.2d at

900. As a result, at the termination hearing, the circuit court permitted their counsel to be

present, but did not allow them to present evidence or cross-examine witnesses. Id. at 727,

482 S.E.2d at 904.

14

The Jonathan G. Court did not examine the propriety of the “standing”

granted to the foster parents nor discuss requirements for party-intervention, but rather

focused on the larger issue of the foster parents’ “role” in the proceedings. This

examination was necessitated by the broad, sweeping language contained in the statute at

that time: “In any proceeding pursuant to the provisions of 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.” W. Va. Code § 49-6-2(c) (1996). The Court contrasted this

language with the United States Supreme Court’s admonition that “‘[h]owever substantial

the foster parents’ interests may be, they are not implicated directly in the factfinding stage

of a state-initiated permanent neglect proceeding against the natural parents.’” Id. at 729,

482 S.E.2d at 906 (quoting Santosky v. Kramer, 455 U.S. 745, 761 (1982)). In an attempt

to balance these interests, the Court held:

The foster parents’ involvement in abuse and neglect

proceedings should be separate and distinct from the fact-

finding portion of the termination proceeding and should be

structured for the purpose of providing the circuit court with

all pertinent information regarding the child. The level and

type of participation in such cases is left to the sound discretion

of the circuit court with due consideration of the length of time

the child has been cared for by the foster parents and the

relationship that has developed.

Syl. Pt. 1, Jonathan G., 198 W. Va. 716, 482 S.E.2d 893. The Court cautioned that “[w]hen

foster parents are involved in these proceedings, however, the circuit court must assure that

the proceeding does not evolve into a comparison of the relative fitness of the foster parents

15

versus the biological parents.” Id. at 729, 482 S.E.2d at 906. Scarcely the primer on foster

parent intervention that the parties contend, Jonathan G. was, at base, an effort to curtail

the overly-broad syllabus point contained in Bowens v. Maynard, 174 W. Va. 184, 324

S.E.2d 145 (1984), which permitted intervention by anyone with physical custody of a

child.14 In attempting to counter-act the effective “open door” policy created by Bowens,

the Court deemed it appropriate to place discretionary limitations on foster parents’

involvement in such proceedings.

In view of the fact that Jonathan G. pre-dates our current statutory right of

foster parents to be heard, it is necessary to clarify the continued vitality and scope of its

holding. As indicated, when Jonathan G. was authored, the counterpart to our current

“right to be heard” statute provided that seemingly full participation was afforded to those

with “custodial or other parental rights or responsibilities[.]” W. Va. Code § 49-6-2.

Limitations on that participation were naturally in order, as discussed hereinabove. Those

limitations—the discretionary “level and type of participation” to be determined by the

circuit court discussed in Jonathan G.—are still clearly needed when a foster parent or

other statutorily designated individual is participating in a statutory “right to be heard” role.

That role is limited by statute and the precise contours of such involvement must

necessarily be crafted by the circuit court inasmuch as the statute does not specifically

14

See Syl. Pt. 1, Bowens, 174 W. Va. 184, 324 S.E.2d 145 (“If a party has lawful

physical custody of a child, she has the right to . . . be heard in any proceeding that concerns

the child.”).

16

delineate the activities permitted. Our precedent makes clear, however, that whatever

evidentiary limitations are placed on such parties, a meaningful opportunity to be heard

includes notice of and the right to be heard on all proceedings insofar as “pertinent

information regarding the child” is relevant to the circuit court’s consideration. See Syl.

Pt. 1, Jonathan G., 198 W. Va. 716, 482 S.E.2d 893; Kristopher O., 227 W. Va. 184, 70

S.E.2d 381; Beane, 2018 WL 2467794.

However, as indicated above, there is little support for the notion that an

intervening party is not entitled to all the participatory rights and privileges of any other

named party; in fact, Harley C. holds precisely the opposite. Therefore, we modify our

holding in Jonathan G. as follows: 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) 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.

Turning to the case at bar, it is clear that the foster parents were denied a

meaningful opportunity to be heard at the March 28, 2018, hearing wherein the biological

parents were granted a post-dispositional improvement period. The foster parents’ counsel

maintains that she provided a notice of scheduling conflict and was assured by circuit court

staff that the hearing would not proceed until she arrived. No party disputes this

17

representation and the hearing transcript plainly reveals that neither she nor the foster

parents were present. No party alerted the circuit court to their absence before proceeding.

In fact, the hearing transcript reveals that the circuit court had apparently lost any

awareness of their involvement or interests at the time of the hearing, despite plainly ruling

that they were “welcome” to participate in all court proceedings.15 This Court finds that

the foster parents should not have merely been “welcome” to participate, but were

absolutely entitled to participate by virtue of West Virginia Code § 49-4-601(h),

irrespective of the circuit court’s previous denial of their motion to intervene.

2. Temporal Requirements for Intervention of Right

While our conclusion that the foster parents were denied their right to be

heard through their absence at the March 28, 2018, hearing, we nevertheless find it

appropriate to evaluate the basis of the circuit court’s denial of their motion to become

party-intervenors. In that vein, we must assess the accuracy of the biological parents’

contention that Jonathan G. sets a temporal limitation on when a foster parent may be

permitted intervention. The biological parents maintain that granting intervention prior to

termination is per se inappropriate by virtue of the Court’s holding in Jonathan G. and as

a practical matter. The biological parents collectively assert that permitting intervention

prior to termination would result in a free-for-all contest of parental superiority designed

15

Following the guardian ad litem’s recommendation on the post-dispositional

improvement period, the circuit court inquired “And where is the child right now?”

Guardian ad litem Matherly replied, “Foster care.”

18

to undermine the statutory goals of reunification. The circuit court likewise appeared to

rely on Jonathan G.’s warning that foster parents’ involvement should be “separate and

distinct” from the fact-finding portion of the termination proceeding to conclude that since

termination had not occurred, intervention was prohibited.

We observe initially that certainly this Court has encountered numerous

cases where foster parents were granted intervention before termination occurred. See,

e.g., Jonathan G., 198 W. Va. 716, 482 S.E.2d 893 (intervention granted prior to motion

to terminate); In re J. G., II, 240 W. Va. 194, 809 S.E.2d 453 (2018) (same); Harley C.

(intervention granted after reunification ordered and petition dismissed). Accordingly,

neither the practice of other circuit courts nor this Court’s published opinions would vouch

for such a reading of Jonathan G. 16

16

In a handful of memo decisions, this Court has upheld the denial of intervention

where participation was otherwise permitted. In most instances, however, intervention was

sought by aggrieved relatives unlikely to be viable concurrent placements. See, e.g,, In re

A.C., No. 12-0726, 2012 WL 5205707, at *3 (W. Va. Oct. 22, 2012) (circuit court noted

concerns regarding placement with foster parents, including lack of bond, instability of

home, prior domestic violence allegations); In re S.S., No. 14-1039, 2015 WL 1332668, at

*5 (W. Va. Mar. 16, 2015) (petitioner grandparents found not suitable placement); In re

M.H., No. 15-0804, 2016 WL 3449231, at *3 (W. Va. June 16, 2016) (DHHR instituted

actions against petitioner due to allegations of child sexual abuse, drug abuse, and failure

to protect child). But see In re A.M., No. 14-0698, 2014 WL 6635067, at *3 (W. Va. Nov.

24, 2014) (upholding denial of intervention where parents wished to argue court granted

“too much deference” in completing improvement periods and provide evidence of effect

of parents’ drug abuse on children); State ex rel. R.H. v. Bloom, No. 17-0002, 2017 WL

1788946, at *5 (W. Va. May 5, 2017) (upholding denial of intervention where petitioner

permitted to testify at adjudicatory hearing, lawyer was permitted to monitor remainder of

hearing, and petitioner personally participated in MDT meeting).

19

Moreover, it is clear that such a construction of Jonathan G. reads far too

much into its holding. As indicated, the analysis contained in Jonathan G. does not

specifically address the propriety or timing of intervention, nor does syllabus point one

purport to do so. Our holding states merely that foster parents’ “involvement” should be

distinct from “the fact-finding portion of the termination proceeding.” (emphasis added).

Plainly read, and in context with its further admonition that the Court resist any urge to

compare the relative fitness of the parties, this syllabus point simply directs the Court to

give foster parents’ contributions only their due consideration as pertains to information

regarding the child(ren), rather than the relative fitness of their biological parent(s).

Importantly, Jonathan G. must also be placed into its proper historical

context. It is critically important to note the changes that our abuse and neglect laws have

undergone, particularly as pertains to the goal of reunification and the importance of the

role of concurrent planning for permanency. See West Virginia Code § 49-4-604(a)(2)

(2016). Certainly the over-arching purpose of our abuse and neglect statutory construct

continues to be the correction of conditions of abuse and neglect and the return, if

reasonably possible, of the children to their homes. However, reunification is no longer

viewed as an “at all costs” goal. Instead, the Court has recognized that the aim of

reunification does not require the courts to test the boundaries of opportunity provided to

parents during improvement periods. Our more recent caselaw over the past ten to fifteen

years regarding improvement periods illustrates the point.

20

This Court has endeavored to curtail perpetual improvement periods based

upon only minimal improvement by holding that “‘courts are not required to exhaust every

speculative possibility of parental improvement before terminating parental rights where it

appears that the welfare of the child will be seriously threatened. . . .’” Syl. Pt. 7, in part,

In re Carlita B., 185 W.Va. 613, 408 S.E.2d 365 (1991) (quoting Syl. Pt. 1, In re R. J. M.,

164 W.Va. 496, 266 S.E.2d 114 (1980)); see also In re Isaiah A., 228 W. Va. 176, 185,

718 S.E.2d 775, 784 (2010) (finding “glimmer of hope” standard inconsistent with criteria

expressly provided by statute). We have more explicitly required that parental rights to

improvement periods must give way to the bests interests of the child by holding that “[i]n

making the final disposition in a child abuse and neglect proceeding, the level of a parent’s

compliance with the terms and conditions of an improvement period is just one factor to

be considered. The controlling standard that governs any dispositional decision remains

the best interests of the child.” Syl. Pt. 4, In re B. H., 233 W. Va. 57, 754 S.E.2d 743

(2014). These cases illustrate a more recent recognition that only when reunification fully

serves the best interests of the child do statutorily required efforts to reunite the family

dovetail with the goal of abuse and neglect proceedings.

In terms of the more recent appreciation of the significant stake foster parents

have in these proceedings, one need look no further than the subsequent addition of “foster

parents, preadoptive parents, and relative caregivers” to West Virginia Code § 49-4-601(h)

as those who must be given a meaningful opportunity to be heard in these matters. Foster

parents are also statutorily-mandated members of the multidisciplinary team and

21

statutorily-defined “person[s] entitled to notice and the right to be heard,” regarding

modifications of dispositional orders, receipt of permanency planning reports, and

permanency hearings.17 These statutory provisions reflect a Legislative recognition that

foster parents, pre-adoptive parents and/or relative caregivers should occupy a specially

designated posture in abuse and neglect proceedings that affords them involvement

commensurate with their commitment to the process and the child. See also A.M., 296 P.3d

at 1037 (identifying similar statutory provisions involving foster parents and recognizing

them as crucial to “government’s interest to maintain a fair proceeding and protect the long-

term welfare of children”).

In that regard, the development of concurrent planning requirements has

dramatically sharpened the interest foster parents have in the post-adjudicatory process.

West Virginia Code § 49-4-604(a)(2) requires concurrent permanent placement planning

with specific timelines “for when the placement is expected to become a permanent

placement.” Indeed, this Court has expressly held that “[c]oncurrent planning, wherein a

permanent placement plan for the child(ren) in the event reunification with the family is

unsuccessful is developed contemporaneously with reunification efforts, is in the best

interests of children in abuse and neglect proceedings.” Syl. Pt. 5, In re Billy Joe M., 206

W. Va. 1, 521 S.E.2d 173 (1999); see also In Interest of Micah Alyn R., 202 W. Va. 400,

409, 504 S.E.2d 635, 644 (1998) (Workman, J., concurring) (“[C]oncurrent planning for

17

See W. Va. Code §§ 49-4-405(b)(3), 606(a), and 49-4-608(b) (2015),

respectively.

22

permanency should occur even where parental rights are not terminated. This should be the

practice in all abuse and neglect cases, so that there is a permanency plan for children where

family reconciliation efforts are not successful for whatever reason.”).

Concurrent planning, therefore,—where foster parents are anticipated to be

the alternate permanent placement—naturally heightens the vested interest foster parents

have in these proceedings. It is the goal of this planning to ensure that the concurrent

placement is ready, willing, and able to proceed to permanency with the subject child if

and when termination occurs. What being a concurrent placement requires of foster parents

then is that they commit themselves fully to the anticipatory permanent physical and legal

custody of the child and be appropriately bonded with and invested in the well-being of the

child. Naturally, this results in attachment and a desire to maintain a loving bond and

involvement in the child’s life, even with an understanding that the child could be reunified

with one or more parents. We should expect and desire nothing less of people who may

ultimately share their lives, homes, and families with an abused or neglected child.

This vested interest naturally spikes when termination appears imminent, or

more importantly, is statutorily mandated. To that end, the foster parents assert that their

intervention became “ripe” when the DHHR was statutorily required to seek termination.

West Virginia Code § 49-4-605 (2017) provides that

the department shall file or join in a petition or otherwise seek

a ruling in any pending proceeding to terminate parental rights

. . . . [i]f a child has been in foster care for fifteen of the most

23

recent twenty-two 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 sixty days after the child

is removed from the home[.]

The only exceptions to this requirement are if the child has been permanently placed with

a relative, a “compelling reason,” or the DHHR “has not provided, when reasonable efforts

to return a child to the family are required, the services to the child’s family as the

department deems necessary for the safe return of the child to the home.” W. Va. Code §

49-4-605(b). DHHR has established none of those exceptions and appears to concede the

foster parents’ position on this point inasmuch as it has now represented to the Court that

it must move for termination at this point in the proceedings.18

The foster parents further cite to West Virginia Code § 49-4-610(9) (2015)

as necessitating termination, thereby giving rise to their entitlement to intervene. West

Virginia Code § 49-4-610(9) states:

Notwithstanding any other provision of this section, no

combination of any improvement periods or extensions thereto

may cause a child to be in foster care more than fifteen months

of the most recent twenty-two months, unless the court finds

compelling circumstances by clear and convincing evidence

that it is in the child’s best interests to extend the time limits

contained in this paragraph.

(emphasis added). J. L., Jr. was in foster care fifteen of the most recent twenty-two months

as of January 18, 2018, yet the circuit court made no finding of compelling circumstances

18

In fact, this would appear to have been required of the DHHR at the time that it

agreed to a post-dispositional improvement period as well, given that J. L., Jr. had been in

foster care fifteen of the most recent twenty-two months prior to that hearing.

24

to justify the continual improvement periods. J. L., Jr. has now been in the foster parents’

care twenty of his twenty-one months of life.

Consistent with our preeminent principle that “the primary goal in cases

involving abuse and neglect . . . must be the health and welfare of the children” and that

“the welfare of the child is the polar star by which the discretion of the court will be

guided,” we find that the intervention of foster parents when termination is imminent or

required furthers these goals. Syl. Pt. 3, in part, In re Katie S., 198 W. Va. 79, 479 S.E.2d

589 (1996); Syl. Pt. 2, in part, State ex rel. Lipscomb v. Joplin, 131 W. Va. 302, 47 S.E.2d

221 (1948). We observe that intervention of right prior to adjudication or early on in a

post-adjudicatory time period has little utility given the underdeveloped nature of the

proceedings and the need to permit the statutory process to proceed as intended. However,

at such time as termination appears imminent due to lapse of statutory improvement period

time frames or other factors requiring the DHHR to seek termination, it is in the interests

of all parties that the foster parents be recognized as occupying a critically important

position relative to the child and that such position be dignified with full intervenor status

if sought.19

19

As previously indicated, although the Rules of Civil Procedure do not apply to

these proceedings, we find instructive this Court’s holding on the “interest” required to

substantiate intervention of right. The Court has held that

25

We find this triggering time frame of imminent termination consistent with

the point in time when foster parents attain “a statutorily recognized expectancy in a

continued relationship between themselves and their foster children[.]” In re Dependency

of J.H., 815 P.2d 1380, 1388 (Wash. 1991). We note further the practical necessity of

permitting foster parents to intervene to compel compliance with statutory time frames

where neither the DHHR nor guardian ad litem have done so.20 This is an issue this Court

has repeatedly encountered; invariably it is the foster parents who seek to bring the matter

before the Court. See, e.g., J. G., II, 240 W. Va. 194, 809 S.E.2d 453 (foster parents

appealed where circuit court failed to make findings, disregarded lack of substantial

improvement, and time limitations on improvement periods). The reason for this is

[t]o justify intervention of right under West Virginia Rule of

Civil Procedure 24(a)(2), the interest claimed by the proposed

intervenor must be direct and substantial. A direct interest is

one of such immediate character that the intervenor will either

gain or lose by the direct legal operation and effect of the

judgment to be rendered between the original parties. A

substantial interest is one that is capable of definition,

protectable under some law, and specific to the intervenor. In

determining the adequacy of the interest in a motion to

intervene of right, courts should also give due regard to the

efficient conduct of the litigation.

Syl. Pt. 4, State ex rel. Ball v. Cummings, 208 W. Va. 393, 540 S.E.2d 917 (1999). We

find that these considerations are amply fulfilled as pertains to concurrent placement foster

parents when termination of parental rights appears imminent.

20

See Syl. Pt. 2, State ex rel. Amy M. v. Kaufman, 196 W. Va. 251, 470 S.E.2d 205

(1996) (“Prohibition is available to abused and/or neglected children to restrain courts from

granting improvement periods of a greater extent and duration than permitted under West

Virginia Code §§ 49-6-2(b) and 49-6-5(c) (1995).”).

26

obvious—at the point in time when the DHHR must by statute seek termination and/or the

circuit court has permitted the matter to linger past the Legislatively-determined outer limit

of “fifteen of the most recent twenty-two months,” the foster parents have an undeniable

interest and expectancy in the permanency aspect of the proceeding.

Accordingly, we hold that foster parents are entitled to intervention as a

matter of right when the time limitations contained in West Virginia Code §49-4-605(b)

and/or West Virginia Code § 49-4-610(9) are implicated, suggesting that termination of

parental rights is imminent and/or statutorily required. We hold little concern that this

intervention will inject an additional adversarial component to the proceedings, cause

unnecessary delay, or prompt the circuit court to conflate the goals of abuse and neglect

proceedings with selecting a superior caregiver. As the Supreme Court of Colorado

observed,

the presentation of evidence by any party is limited by familiar

principles of evidence. The prohibition on irrelevant or

needlessly cumulative evidence should ameliorate the

potentially significant increase in the volume of information at

the termination hearing. Juvenile courts act as gatekeepers so

that, in cases where additional parties have intervened, the

termination hearing ought not become awash with unnecessary

evidence or devolve into a contested custody hearing.

A.M., 296 P.3d at 1034 (citation omitted). The A. M. Court wisely observed that precluding

intervention prior to termination may

actually serve to diminish the accuracy of decisions by

withholding admissible, highly relevant information from a

juvenile court’s consideration merely because it comes from a

foster parent. Exclusion of relevant information that foster

27

parent intervenors might provide would therefore heighten, not

mitigate, the risk of an erroneous decision at the termination

hearing.

Id. at 1037. The Court is confident that our lower courts can properly utilize the vitally

important information regarding the child held exclusively by foster parents for its intended

purpose rather than a means to deprive the biological parents of the protections of the abuse

and neglect process.

Despite our extension of the right of intervention to foster parents when

termination is imminent or required, we strongly caution that this right bestows no

additional entitlements or procedural or substantive rights to foster parents above those

granted by statute. As well-stated by the Supreme Court of Nebraska regarding its

grandparent intervention statute,

[a]lthough grandparents have a right to intervene in

dependency proceedings involving their minor grandchildren

prior to final disposition, this right “does not confer any special

entitlements or priorities upon them with respect to temporary

custody, placement, or any other issue before the juvenile

court.” Rather, “[e]xercising their right of intervention simply

enables those grandparents wanting to keep abreast of

dependency proceedings to receive notice and have an

opportunity to be heard with respect to actions taken by a

juvenile court which could significantly affect their

relationship with their grandchildren.”

In re Interest of Jackson E., 875 N.W.2d 863, 866-67 (Neb. 2016) (quoting In re Interest

of Kayle C., 574 N.W.2d 473, 478 (Neb. 1998)). Furthermore, our holding today in no way

undermines our conviction that it is in a child’s best interests to be unified with his or her

natural family if reasonably possible and that foster parents serve a vital role in fulfilling

28

that specific goal. See In re G.C., 735 A.2d 1226, 1229 (Pa. 1999) (citations omitted) (“[I]f

possible, a child should grow up with its parents. . . . It is the foster parents’ responsibility

to help to achieve these purposes—not to subvert them.”). However, at the point in time

when termination is imminent or required, those goals have plainly already given way to

the paramount necessity of attaining permanency for the child in a home environment

which serves his or her best interests. Where foster parents are designated as a concurrent

permanent placement, there is little question that their interests in the proceedings evolve

in a decidedly more substantial way, just as our concurrent planning system contemplates.

Turning now to the foster parents’ requested writ of prohibition, we find that

this case presents “new and important problems or issues of law of first impression,”

sufficient to satisfy the standard for issuance of a writ. Syl. Pt. 4, in part, Hoover, 199 W.

Va. 12, 483 S.E.2d 12. As indicated above, we easily conclude that the foster parents were

denied a meaningful opportunity to be heard as required by West Virginia Code § 49-4-

601(h) insofar as the biological parents were granted post-dispositional improvement

periods without the foster parents’ presence or participation at the hearing. We further

find, however, that the foster parents are entitled to intervene as parties to the action

inasmuch as J. L., Jr. has been in their care for fifteen of the most recent twenty-two months

and the time frames requiring the DHHR’s efforts to seek termination are squarely

implicated. We therefore grant the writ of prohibition to require the circuit court to vacate

its order granting the biological parents post-dispositional improvement periods and grant

the foster parents’ motion to intervene.

29

B. EXCEEDING IMPROVEMENT PERIOD TIME STANDARDS

In their final assignment of error, the foster parents attack directly the circuit

court’s award of a post-dispositional improvement period, which they assert is in excess of

statutory limitations. The biological parents contend that the foster parents simply have no

standing to attack a disposition as non-party foster parents. 21 However, as a practical

matter, our resolution hereinabove vacates the biological parents’ post-dispositional

improvement periods, thereby requiring the circuit court to revisit the disposition of this

matter. Our requirement that the foster parents be granted intervenor status therefore

permits them to assert their objections to the award of any further improvement periods

directly to the circuit court.

We remind the circuit court and the parties, however, that “[i]mprovement

periods are [] regulated, both in their allowance and in their duration, by the West Virginia

Legislature, which has assumed the responsibility of implementing guidelines for child

21

While we decline to address the standing issue raised by the biological parents,

as pertains to our holding regarding intervention, we note that “a majority of courts argue

that the interest required for intervention is not as weighty as the interest required for

standing[.]” Elizabeth Zwickert Timmermans, Has the Bowsher Doctrine Solved the

Debate?: The Relationship Between Standing and Intervention As of Right, 84 Notre Dame

L. Rev. 1411, 1412 (2009). Cf. W. Va. Code § 48-9-103(b) (2001) (authorizing court’s

discretion to “grant permission to intervene to other persons or public agencies whose

participation in [child custody] proceedings . . . it determines is likely to serve the child’s

best interests[,]” but stating “[s]uch persons or public agencies do not have standing to

initiate an action under this article.”).

30

abuse and neglect proceedings generally.” In re Emily, 208 W. Va. 325, 334, 540 S.E.2d

542, 551 (2000). More importantly and as well-illustrated in this case,

the early, most formative years of a child’s life are crucial to

his or her development. There would be no adequate remedy at

law for these children were they permitted to continue in this

abyss of uncertainty. We have repeatedly emphasized that

children have a right to resolution of their life situations, to a

basic level of nurturance, protection, and security, and to a

permanent placement. The legislature has recognized this by

limiting the extent and duration of improvement periods a

court may grant in an abuse and neglect case.

Amy M., 196 W. Va. at 257-58, 470 S.E.2d at 211-12 (emphasis added). Further, it is

necessary to reiterate the self-evident instruction the Court articulated earlier in this Court

term:

The procedural and substantive requirements of West Virginia

Code § 49-4-601 et seq., the Rules of Procedure for Child

Abuse and Neglect, and our extensive body of caselaw are not

mere guidelines. The requirements contained therein are not

simply window dressing for orders which substantively fail to

reach the issues and detail the findings and conclusions

necessary to substantiate a court’s actions. The time limitations

and standards contained therein are mandatory and may not be

casually disregarded or enlarged without detailed findings

demonstrating exercise of clear-cut statutory authority.

Discretion granted to the circuit court within this framework is

intended to allow the court to fashion appropriate measures and

remedies to highly complex familial and inter-personal

issues—it does not serve as a blanket of immunity for the

circuit court to manage abuse and neglect cases as its whim,

personal desire, or docket may fancy.

J. G., II, 240 W. Va. at ___, 809 S.E.2d at 463.

31

Finally, we take note of the parties’ representations during oral argument that

the circuit court has scheduled a dispositional hearing for September 2018. We find this

delay wholly unacceptable and observe that, upon our review of the supplemental hearing

transcript, the delay is occasioned by the competing calendars of the court and counsel.

We remind both the circuit court and the parties that “[c]hild abuse and neglect cases must

be recognized as being among the highest priority for the courts’ attention. Unjustified

procedural delays wreak havoc on a child’s development, stability and security.” Syl. Pt.

1, in part, Carlita B., 185 W.Va. 613, 408 S.E.2d 365. Accordingly, upon issuance of the

writ, the circuit court is directed to schedule this matter for disposition at its earliest

opportunity and direct counsel that they are to manage their schedules in a manner which

facilitates this immediate scheduling.

IV. CONCLUSION

Accordingly, for the reasons stated herein, the Court grants the requested writ

of prohibition. The Clerk is hereby directed to issue the mandate contemporaneously

herewith.

Writ granted.

32