State of West Virginia ex rel. B.P. and West Virginia Department of Health and Human Resources v. Mark E. Wills

FILED

STATE OF WEST VIRGINIA

March 16, 2021

SUPREME COURT OF APPEALS EDYTHE NASH GAISER, CLERK

SUPREME COURT OF APPEALS

OF WEST VIRGINIA

State of West Virginia ex rel. B.P. and West

Virginia Department of Health and Human

Resources,

Petitioners

vs.) No. 20-0974 (Mercer County 18-JA-100-MW)

The Honorable Mark E. Wills, Judge of the

Circuit Court of Mercer County; and J.C.,

Respondents

MEMORANDUM DECISION

Petitioners West Virginia Department of Health and Human Resources (“DHHR”), by

counsel Angela Alexander Walters, and maternal grandmother B.P., by counsel Raeanne

Osborne, filed a petition for a writ of prohibition related to respondent’s November 20, 2020,

order granting respondent father J.C. a post-adjudicatory improvement period. 1 Respondent

father J.C., by counsel Bobby Erickson, filed a response in opposition to the request for

prohibition. The guardian ad litem, Patricia Beavers, filed a response on behalf of the child,

M.F., in opposition to the request for prohibition. Petitioners filed a reply. On appeal, petitioners

assert that prohibition relief is appropriate because respondent’s award of an improvement period

exceeded the circuit court’s legitimate power to grant improvement periods outside the

timeframes established by the statutes governing abuse and neglect proceedings.

This Court has considered the parties’ briefs and the record on appeal. The facts and legal

arguments are adequately presented, and the decisional process would not be significantly aided

by oral argument. Upon consideration of the standard of review, the briefs, and the record

presented, the Court grants the petition for a writ of prohibition. In light of our prior precedent on

1

Consistent with our long-standing practice in cases with 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); Melinda H. v. William R. II, 230 W. Va. 731, 742 S.E.2d 419

(2013); State v. Brandon B., 218 W. Va. 324, 624 S.E.2d 761 (2005); State v. Edward Charles

L., 183 W. Va. 641, 398 S.E.2d 123 (1990).

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the dispositive issue presented in this case, we dispose of this matter under Rule 21 of the West

Virginia Rules of Appellate Procedure.

On April 10, 2018, the DHHR filed an abuse and neglect petition concerning child M.F.

According to the DHHR, the mother used illegal substances while pregnant, resulting in the

child’s premature birth and complications from drug exposure. As to the father, the DHHR

alleged that he had a history of substance abuse and was incarcerated. At the outset, we note that

the mother’s parental rights to the child were terminated in February of 2020, and she is not,

accordingly, involved in the matter currently before the Court. It is also important to note that

since the child’s release from the hospital in May of 2018, he has lived with his maternal

grandmother, intervenor below and co-petitioner on appeal. Because of the drug exposure, the

child has substantial medical issues that require extensive therapy.

In June of 2018, the circuit court granted the father a preadjudicatory improvement period

and extended the improvement period until October of 2020, at which point he was finally

adjudicated. In the interim, the DHHR filed a supplemental petition in May of 2020 alleging that

the father was either discharged unsuccessfully or left substance abuse treatment without fully

completing the program. As a result, the father was remanded to jail and then entered a new

substance abuse treatment program. In the amended petition, the DHHR alleged that the father

had done nothing to progress in his efforts to remedy the conditions of abuse and neglect at that

point. In October of 2020, the court adjudicated the father in regard to the supplemental petition

on the basis of his ongoing issues with substance abuse. However, during the hearing the DHHR

acknowledged that the father completed his substance abuse treatment in July of 2020 and fully

discharged his parole in August of 2020. The DHHR also acknowledged that it “probably should

have adjudicated before” the hearing in October of 2020, but offered no explanation for the delay

in obtaining adjudication of the father.

During the hearing, the DHHR and the grandmother both moved to set the matter for a

dispositional hearing and to permit the DHHR to file a motion to terminate the father’s parental

rights. The guardian, however, indicated that termination of the father’s parental rights was not

appropriate, given his successful completion of substance abuse treatment and his other efforts to

achieve stability. Ultimately, the circuit court denied petitioners’ motion regarding disposition

and, instead, granted the father a post-adjudicatory improvement period. The court’s order,

however, is incredibly sparse and in regard to the father’s improvement period, it sets forth only

the following: “The [c]ourt GRANTS a post-adjudicatory improvement period due to the

[r]espondent father’s completion of the drug program. The [r]espondent father is on zero

tolerance.” The transcript of the adjudicatory hearing similarly reveals a lack of findings in

regard to the granting of the improvement period at issue. The circuit court entered the order

granting the father a post-adjudicatory improvement period on November 20, 2020, and

petitioners thereafter sought prohibition relief from this Court.

A “writ of prohibition shall lie as a matter of right in all cases of usurpation and abuse of

power, when the inferior court has not jurisdiction of the subject matter in controversy, or,

having such jurisdiction, exceeds its legitimate powers.” W. Va. Code § 53-1-1; accord Syl. Pt.

2, in part, State ex rel. Peacher v. Sencindiver, 160 W. Va. 314, 233 S.E.2d 425 (1977) (“A writ

of prohibition will not issue to prevent a simple abuse of discretion by a trial court. It will only

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issue where the trial court has no jurisdiction or having such jurisdiction exceeds its legitimate

powers.”). To evaluate whether a lower court has acted in excess of its legitimate powers, we

consider the following factors:

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). Finally, while

the decision to grant or deny an improvement period is an act within the discretion of the circuit

court, “a discretionary act is certainly not immune from the extraordinary remedy of a writ of

prohibition.” State ex rel. W. Va. Dep’t of Health and Human Res. v. Dyer, 242 W. Va. 505, 514,

836 S.E.2d 472, 481 (2019). With these principles in mind, we proceed to determine whether a

writ of prohibition should issue.

Petitioners argue that the circuit court exceeded its legitimate powers when it granted the

father an improvement period well beyond the applicable timeframes set forth in West Virginia

Code § 49-4-610. 2 We agree. As set forth above, the circuit court permitted the father’s

preadjudicatory improvement to continue for approximately twenty-eight months. Such a lengthy

preadjudicatory improvement period far exceeds the allotted statutory timeframe, which permits

such improvement periods to continue for no longer than three months. W. Va. Code § 49-4-

610(1) (permitting circuit courts to grant preadjudicatory improvement periods “not to exceed

2

Petitioners raise a second assignment of error asserting that the father did not establish a

substantial change in circumstances sufficient to warrant the granting of a second improvement

period. See W. Va. Code § 49-4-610(2)(D) (requiring that in order to obtain a post-adjudicatory

improvement period after having already received an improvement period, the parent must

establish “that since the initial improvement period, the [parent] has experienced a substantial

change in circumstances”). It is unnecessary to resolve this issue, however, because even if the

father established the necessary substantial change in circumstance, the circuit court still

exceeded its legitimate authority in permitting him to proceed under an improvement period in

gross excess of the timeframes set forth in West Virginia Code § 49-4-610, as more fully set

forth above.

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three months”). Additionally, unlike post-adjudicatory improvement periods governed by West

Virginia Code § 49-4-610(2) and post-dispositional improvement periods governed by West

Virginia Code § 49-4-610(3), preadjudicatory improvement periods cannot be extended. W. Va.

Code § 49-4-610(6) (permitting a circuit court to extend “any improvement period granted

pursuant to subdivision (2) or (3) of this section for a period not to exceed three months”).

We have clearly explained that improvement 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 abuse and neglect proceedings generally.” In

re Emily, 208 W. Va. 325, 334, 540 S.E.2d 542, 551 (2000). Here, the circuit court not only

permitted the father to proceed on a preadjudicatory improvement period for over two years, it

then took the additional step of granting him a post-adjudicatory improvement period. This is in

direct contradiction to West Virginia Code § 49-4-610(9), which sets forth the following:

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.

By the time the circuit court granted the father a post-adjudicatory improvement period, the child

had already been in foster care approximately twenty-nine months. 3 By granting the father a

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We further note the DHHR’s failure to comply with its statutory duty to seek termination

of the father’s parental rights, despite the child’s extended placement in foster care. According to

West Virginia Code § 49-4-605(a)(1),

[e]xcept as provided in § 49-4-605(b) of this code, 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 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.

This statute is clear that the DHHR is required to seek a ruling if a petition is pending and the

child has been in foster care for the required time. Other than the DHHR’s admission that it

“probably should have adjudicated before” the hearing in October of 2020, there is no

explanation in the record or in the DHHR’s petition to this Court as to why it permitted the child

to continue in foster care well in excess of the timeframe in this statute without seeking a ruling.

According to the record, the DHHR sought leave to file a motion to terminate the father’s

parental rights, but it is unclear why it believed that such leave was necessary given the statutory

language set forth above. It is also clear that by failing to ensure that the father was adjudicated

in a timely manner, the DHHR contributed to the continued delay in the proceedings, given that

it could not obtain a dispositional ruling until adjudication was concluded. While the prohibition

relief herein is granted because of the circuit court’s disregard of the applicable timeframes for

(continued . . . )

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second improvement period, the court only permitted this gross excess to continue to the child’s

detriment.

In addressing abuse and neglect proceedings, we have unequivocally explained that

[t]he procedural and substantive requirements of West Virginia Code § 49-4-601

et seq., the Rules of Procedure for Child Abuse and Neglect [Proceedings], 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.

In re J.G., 240 W. Va. 194, 204, 809 S.E.2d 453, 463 (2018) (emphasis added). Further, in

addressing the granting of improvement periods, we have explained that “[o]nly where such an

improvement period does not jeopardize a child’s best interests should one be granted and the

circuit court’s order granting an improvement period should set forth findings demonstrating the

lack of prejudice or harm to the child.” Dyer, 242 W. Va. at 507, 836 S.E.2d at 474, Syl. Pt. 3, in

part (emphasis added). As set forth above, the court made almost no findings in regard to the

granting of the father’s post-adjudicatory improvement period, in direct contradiction to West

Virginia Code § 49-4-610(9) and this Court’s explicit instruction. Further, the lone finding the

circuit court made gave no insight into how the child’s best interests were served by the father

being permitted to participate in yet another improvement period outside the time allowed by

statute. Certainly, this lack of findings cannot support the circuit court’s duty to find “compelling

circumstances by clear and convincing evidence that it is in the child’s best interests to extend

the time limits” for such improvement period. See W. Va. Code § 49-4-610(9). As such, it is

clear that the court exceeded its legitimate power in the granting of this improvement period and

a writ of prohibition is appropriate.

“This Court has not hesitated to grant extraordinary relief when the circuit court has so

misapprehended the evidence or law in its allowance of an improvement period such that it has

jeopardized a child’s well-being, best interests, or right to permanency.” Dyer, 242 W. Va. at

514, 836 S.E.2d at 481 (citing State ex rel. J.E.H.G. v. Kaufman, No. 16-0931, 2017 WL 526398,

at *4 (W. Va. Feb. 8, 2017)(memorandum decision); State ex rel. P. T. v. Wilson, No. 12-1489,

2013 WL 645815, at *5 (W. Va. Feb. 21, 2013)(memorandum decision)). The Court has also

cautioned that the discretion afforded to circuit courts in granting improvement periods “does not

serve as a blanket of immunity for the circuit court . . . .” In re J.G., 240 W. Va. 194, 204, 809

S.E.2d 453, 463 (2018).

these proceedings, we nonetheless caution the DHHR to ensure that it also complies with the

applicable timeframes and mandatory duties imposed upon it by the statutes and rules governing

abuse and neglect proceedings.

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For the foregoing reasons, we find that the circuit court’s granting of a post-adjudicatory

improvement period for the father was clearly erroneous as a matter of law. Because the child’s

best interests do not support further delay in reaching permanency, we grant the requested writ of

prohibition and remand this case with instructions to forthwith hold a dispositional hearing to

fully resolve the matter. The Clerk is hereby directed to issue the mandate contemporaneously

herewith.

Writ Granted.

ISSUED: March 16, 2021

CONCURRED IN BY:

Chief Justice Evan H. Jenkins

Justice Elizabeth D. Walker

Justice Tim Armstead

Justice John A. Hutchison

Justice William R. Wooton

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