The opinion
FILED
March 21, 2019
DHHR v. V.P., 17-1088 released at 3:00 p.m.
EDYTHE NASH GAISER, CLERK
SUPREME COURT OF APPEALS
Hutchison, J., concurring: OF WEST VIRGINIA
In its October 2006 Final Order in the abuse and neglect case, the circuit
court directed the DHHR to pursue a subsidized guardianship for the three children:
[T]he WVDHHR shall take whatever steps appropriate to
pursue subsidized guardianship for the infant respondents,
[J.T.] and [S.T.], and of [L.T.] is [sic] so requested by [V.P.].
Subsidized Guardianship is in the best interest of the infant
respondents and is an appropriate final disposition of this
matter.
This directive was mandatory—the DHHR “shall take whatever steps appropriate to
pursue”—and was supported by a finding that subsidized guardianships would be in the
best interests of the children. Although the circuit court narrowed its instructions regarding
L.T., ordering that a subsidized guardianship shall be sought “if so requested by” V.P., 1
nobody ever told V.P. about this provision in the order. As a non-party to the abuse and
neglect case, V.P. had no access to this order and thus no way of knowing that the court
had allowed her this opportunity. It is obvious to me that the DHHR and the guardian ad
litem failed to completely follow through on the circuit court’s order when they did not
even ask V.P. whether she was interested in pursuing a subsidized guardianship of L.T.
Because V.P. was not timely notified of the contents of the order, the child lost the benefit
of several years of support payments.
1
Clearly, the circuit court’s use of the word “is” in this sentence was a
typographical error that should read “if.”
1
However, for purposes of this lawsuit, there is nothing to indicate that this
failure was anything other than negligence in the exercise of the DHHR’s duties. There is
no indication of intentional misconduct, and, admittedly, the circuit court’s order was not
a model of clarity. The majority has correctly recognized that the DHHR and its employees
enjoy qualified immunity from suit for their negligent acts. See e.g., Syl. Pt. 6, in part,
Clark v. Dunn, 195 W.Va. 272, 465 S.E.2d 374 (1995). Accordingly, I concur in the
majority’s conclusion that summary judgment on the basis of qualified immunity should
be awarded to the DHHR and its two employees.
I write separately to remind the DHHR and guardians ad litem of the
importance of following through on all issues pertaining to children in abuse and neglect
cases. If there is any question about a court’s directions, the DHHR and guardians ad litem
must always err on the side of the children. “It ain’t over ‘til it’s over,”2 should be the
mantra for all parties in these ultra-sensitive cases.
For these reasons, I respectfully concur.
2
This slogan originated with Yogi Berra. Nate Scott, The 50 Greatest Yogi
Berra Quotes, USA Today Sports (Sept. 23, 2015), https://ftw.usatoday.com/2015/09/the-
50-greatest-yogi-berra-quotes (retrieved Mar. 13, 2019).
2