In Re I.M.K.
In Re I.M.K.
Opinion
*493 The instant proceeding is before this Court upon two questions certified by the Circuit Court of Lewis County. By order entered September 26, 2017, the Circuit Court of Lewis County certified the following questions for our consideration and decision:
1. When an infant child is born alive, but dies during the pendency of an Abuse and Neglect proceeding, prior to adjudication, and said infant child is the only child in the home, may the matter proceed to an adjudicatory hearing, and may the deceased child be found and adjudicated to be an abused or neglected child?
2. If an infant child is born alive, but dies during the pendency of an Abuse and Neglect proceeding, and said infant child is the only child in the home, should the Guardian ad Litem remain a party to the proceeding to advocate for the rights of the deceased child?
Upon a review of the parties' briefs, the record designated for appellate consideration, and the pertinent authorities, we answer both certified questions in the affirmative.
I.
FACTUAL AND PROCEDURAL HISTORY
The facts of the instant proceeding are straightforward and not disputed by the parties. The infant child herein, I.M.K., 1 was born in July 2017 at St. Joseph's Hospital in Buckhannon, West Virginia. At birth, the child had opiates in its system as a result of the mother's admitted prenatal drug use. Immediately following birth, I.M.K. had to be resuscitated due to respiratory distress and was transferred to the Neonatal Intensive Care Unit ("NICU") at Ruby Memorial Hospital in Morgantown, West Virginia. While in the NICU, I.M.K. was treated for severe neurological and respiratory conditions based on a diagnosis of drug-affected birth.
On July 28, 2017, while I.M.K. was still in the NICU, the petitioner herein and petitioner below, the West Virginia Department of Health and Human Resources ("DHHR") filed the underlying petition against the child's mother, the respondent herein and respondent below, K.A.L. ("Mother"), and the child's father, an additional respondent herein and respondent below, M.F.K. ("Father"). In its petition, the DHHR alleged that I.M.K. was a "neglected and abused child" as a result of the parents' illegal drug use, averring as follows:
Based upon information and belief, the Respondent Mother, [K.A.L.] made admissions to opiate use throughout her pregnancy, as well as testing positive for controlled substances during prenatal care. [K.A.L.], further admitted that her most recent drug use took place three days prior to the birth of the Infant Respondent [I.M.K.], when she "sniffed a Percocet".
Based upon information and belief, the Infant Respondent's urine tested positive for opiates following birth.
Based upon information, and belief, Respondent Father, [M.F.K.] has a history of opioid abuse, as well as abuse of other controlled substances.
Based upon information, Respondent [M.F.K.], father of infant respondent [I.M.K.], has failed to protect said infant respondent by failing to take action upon reasonable suspicion of drug use of the *494 Respondent Mother, [K.A.L.], knowing her history of drug use.
By order entered July 28, 2017, the Circuit Court of Lewis County transferred "[t]emporary legal and physical care, custody, and control" of I.M.K. to the DHHR. The circuit court also appointed counsel for each of the parents 2 and appointed a guardian ad litem 3 ("Guardian") for the minor child.
Thereafter, the circuit court held a hearing during which the parents waived their right to have a preliminary hearing within ten days so that the hearing could be concluded quickly to permit them to attend a medical appointment for I.M.K., who was in grave condition. The circuit court then found, by order entered August 15, 2017, that the child "should remain in the temporary legal and physical custody" of the DHHR and ruled that, "[i]n light of the grave condition of infant respondent [I.M.K.], this matter is continued generally, pending the outcome of [the child's] medical treatment."
Following this hearing, I.M.K. died as a result of the aforementioned medical issues; the child was approximately seventeen days old. The court then held a preliminary hearing at which time the child's parents moved to dismiss the subject abuse and neglect case based upon the child's death, which motion the DHHR and Guardian opposed. The Court refused to dismiss the case, ruling in its September 6, 2017, order as follows:
Significant questions of law and fact remain, and dismissal is not appropriate at this time. The purpose of a preliminary hearing being to make determinations as to imminent danger, and/or to order removal of the child from the home if conditions warrant such removal, the Court finds that a preliminary hearing in this matter would be moot, due to the death of the Infant Respondent.
The Court further finds that should the parties hereto wish to prepare a certified question for submission and review by the West Virginia Supreme Court of Appeals, they should confer and submit that certified question to this Court for review.
The court then set the matter for an adjudicatory hearing.
Before the scheduled adjudicatory hearing, the court decided to certify questions for this Court's resolution. By certification order entered September 26, 2017, the court ruled as follows:
The allegations in the petition of this matter are related to prenatal use of opiates. No abuse is alleged to have occurred subsequent to the birth of the child. In light of the ruling by the Supreme Court of Appeals of West Virginia in the case of: In Re: A.L.C.M. No. 16-0786 [239 W.Va. 382 ,801 S.E.2d 260 ] (2017), [ 4 ] further guidance from the Supreme Court of Appeals of West Virginia would be relevant in the matter at hand.
This Court submits the following certified questions for review to the honorable Supreme Court of Appeals of West Virginia:
When an infant child is born alive, but dies during the pendency of an Abuse and Neglect proceeding, prior to adjudication, and said infant child is the only child in the home, may the matter proceed to an adjudicatory hearing, and may the deceased child be found and adjudicated to be an abused or neglected child?
If an infant child is born alive, but dies during the pendency of an Abuse and Neglect proceeding, and said infant child is the only child in the home, should the Guardian ad Litem remain a party to the proceeding to advocate for the rights of the deceased child?
*495 (Emphasis in original; footnote added). The circuit court did not provide an answer for either of these questions. Additionally, the court determined that the child's Guardian ad Litem should remain in the case despite the child's death and stayed adjudication pending resolution of the questions certified. This Court then accepted these certified questions for consideration.
II.
STANDARD OF REVIEW
The instant proceeding is before this Court on questions certified by the Circuit Court of Lewis County. We previously have held that we accord a plenary review to the circuit court's rulings in this regard. "The appellate standard of review of questions of law answered and certified by a circuit court is
de novo
." Syl. pt. 1,
Gallapoo v. Wal-Mart Stores, Inc.
,
III.
DISCUSSION
The instant proceeding comes to this Court upon two questions certified by the Circuit Court of Lewis County. We will address each certified question in turn.
A. Adjudication
The first question the circuit court certified to this Court is as follows:
When an infant child is born alive, but dies during the pendency of an Abuse and Neglect proceeding, prior to adjudication, and said infant child is the only child in the home, may the matter proceed to an adjudicatory hearing, and may the deceased child be found and adjudicated to be an abused or neglected child?
Although the circuit court did not provide an answer to this question, it presumably answered it in the affirmative insofar as the court earlier had denied the parents' motion to dismiss the pending abuse and neglect case following the child's death and has stayed their adjudicatory hearing pending this Court's resolution of the case sub judice .
Before this Court, the DHHR argues that the abuse and neglect proceeding should continue in spite of the child's death because, otherwise, the goal of abuse and neglect proceedings, i.e. , to protect children from abuse and neglect and early identification thereof, would be frustrated. In this regard, the DHHR focuses upon the fact that the allegations of abuse and/or neglect are required, by statute, to be proven as they existed at the time the petition was filed. Here, the DHHR asserts that, at the time the petition was filed, I.M.K. was still alive; thus, the DHHR argues, whether the parents abused and/or neglected the child is not based upon the facts that exist at the time of their adjudication. Finally, the DHHR says that the fact that the case may now be moot due to the child's death does not prohibit this Court from considering it as this fact pattern is capable of repetition and may evade review.
The Guardian agrees with the position advanced by the DHHR and argues that the case should proceed to adjudication following the death of the subject child. Because the circuit court must consider whether the child is abused and/or neglected based upon the circumstances existing at the time the petition was filed at the adjudicatory stage of the proceedings, the child's death after the petition has been filed does not affect the circuit court's adjudication. In this case, the Guardian contends that the petition adequately describes conditions indicative of abuse and/or neglect of I.M.K. sufficient to adjudicate the parents as abusive and/or neglectful.
Citing
In Re: A.L.C.M.
,
By contrast, Mother argues that the case should be dismissed because whether I.M.K. was an abused and/or neglected child is now moot due to the child's unfortunate death. Because the purpose of an adjudication is to protect the subject child, and any other children in the home, and because the subject child in this case has died, and there are no other children in the household, Mother states there is no reason to proceed with adjudication in this case. Moreover, Mother contends that, because the child has died, there is no need to develop a case plan for the child. Finally, Mother urges that given *496 that the purpose of an adjudication is to reach disposition, and the purpose of a disposition is the development of a case plan and the attainment of permanency for the child, none of these purposes can be satisfied where, as here, the subject child has died prior to adjudication.
Father also asserts that the subject petition should be dismissed when the child dies prior to adjudication. Given that the purpose of an abuse and neglect proceeding is to ensure the welfare of the subject child, such purpose cannot be achieved when the child has died prior to adjudication. Moreover, Father suggests that the best interests of the child can no longer be determined due to the child's death; thus, there is no polar star to guide the court's resolution of the abuse and neglect proceedings. As such, Father contends that the purpose of the subject abuse and neglect proceeding has been rendered moot. Father also rejects the DHHR's argument that the issue is not moot because it is capable of repetition because each child is a unique individual and, thus, there can never be another I.M.K.
To answer this query, we necessarily must look to the law governing abuse and neglect proceedings.
Where relevant, the court shall consider the efforts of the department to remedy the alleged circumstances. At the conclusion of the adjudicatory hearing, the court shall make a determination based upon the evidence and shall make findings of fact and conclusions of law as to whether the child is abused or neglected and whether the respondent is abusing, neglecting, or, if applicable, a battered parent, all of which shall be incorporated into the order of the court. The findings must be based upon conditions existing at the time of the filing of the petition and proven by clear and convincing evidence.
This process of adjudication enables the presiding tribunal to identify what abuse and/or neglect the subject children have sustained and to implement procedures to help the parents remedy these conditions to prevent future incidences thereof in the future.
See
When construing a statute, we first look to the statute's language to determine whether the Legislature's intention is plain. In this regard, we have held that "[t]he primary object in construing a statute is to ascertain and give effect to the intent of the Legislature." Syl. pt. 1,
Smith v. State Workmen's Comp. Comm'r
,
In enacting the West Virginia Child Welfare Act,
Here, it is apparent that holding an adjudicatory hearing upon the abuse and neglect petition that the DHHR filed regarding I.M.K. is consistent with the statute defining adjudicatory hearing procedures, this Court's prior precedent, and the legislative intent underlying abuse and neglect proceedings generally. First, all of the objectives contemplated by
Moreover, our prior precedent also necessitates holding an adjudicatory hearing in this case. In the case of
In Re: A.L.C.M.
,
*499 [w]hen a child is born alive, the presence of illegal drugs in the child's system at birth constitutes sufficient evidence that the child is an abused and/or neglected child, as those terms are defined byW. Va. Code § 49-1-201 (2015) (Repl. Vol. 2015), to support the filing of an abuse and neglect petition pursuant toW. Va. Code § 49-4-601 (2015) (Repl. Vol. 2015).
Syl. pt. 1,
In Re: A.L.C.M.
,
Here, as in A.L.C.M. , the subject child was born with drugs in its system and sustained injuries therefrom sufficient to form the basis of the DHHR's petition alleging that the child had been abused and/or neglected by the parents' drug abuse. Insofar as substantially the same fact pattern exists in this case, there is sufficient authority upon which the circuit court could base findings of fact and conclusions of law that I.M.K. is an abused and/or neglected child following an adjudicatory hearing. Furthermore, because the allegations of abuse and/or neglect to be considered during adjudication are those that existed at the time the petition was filed, I.M.K.'s tragic passing does not preclude the circuit court from considering such facts during an adjudicatory hearing. Finally, the factual distinction regarding the death of the child after the abuse and neglect petition was filed in the case sub judice does not lessen or ameliorate the conditions alleged in the petition to have constituted abuse and/or neglect at the time the petition was filed; rather, if the subject petition is amended to reference the fact of and circumstances leading to the child's death, the fatal consequences of the child's injuries may serve as further proof that the conduct alleged therein was abusive and/or neglectful.
While an adjudicatory hearing has been described as a prerequisite to a final disposition of the abuse and neglect proceeding and establishment of permanency for the subject child
13
-sadly both of which goals have been hampered by the tragic circumstances of the instant case-this procedural stepping stone is not the only reason an adjudicatory hearing is held. Rather, an adjudication also enables a court to identify those who are responsible for the subject abuse and/or neglect and allows the parties and the DHHR to work towards ameliorating these conditions to prevent such abuse or neglect from occurring in the future. In this regard, we have recognized that "[t]he primary purpose of making an initial finding of abuse or neglect is to protect the interest of all parties and to justify the continued jurisdiction under W. Va. Code, 49-6-1 [now
It is apparent that the state's right to intervene is predicated upon its initial showing that there has been child abuse or neglect, which constitutes unfitness on the part of the parents to continue, either temporarily or permanently, in their custodial *500 role. ... [Thus] the parties cannot circumvent the threshold question, which is the issue of abuse or neglect.
State v. T.C.
,
A further function of the adjudicatory hearing is to identify and document instances of abuse and neglect to ensure the safety of additional children in the household.
See, e.g.,
Syl. pt. 2,
In re Christina L.
,
In light of the foregoing analysis, we therefore hold that when an infant child is born alive and becomes the subject of an abuse and neglect petition, but the child dies during the pendency of the abuse and neglect proceedings, the matter may proceed to an adjudicatory hearing, and the presiding circuit court may make findings of fact and conclusions of law as to whether the subject child is an abused and/or neglected child and whether the respondents are abusing and/or neglectful as contemplated by
B. Guardian ad Litem
The second question the circuit court certified to this Court is as follows:
If an infant child is born alive, but dies during the pendency of an Abuse and Neglect proceeding, and said infant child is the only child in the home, should the Guardian ad Litem remain a party to the proceeding to advocate for the rights of the deceased child?
Although the circuit court did not provide an answer to this question, it presumably answered it in the affirmative insofar as it required the Guardian to remain a party to the case.
As to this issue, the DHHR argues that the Guardian ad Litem should remain in the case through adjudication of the parents as abusive and/or neglectful because the Guardian's independent investigation of the child's condition and circumstances is instructive to the court. After adjudication, however, the DHHR suggests that the Guardian is no longer needed because the child would not be impacted by any of the dispositional alternatives for the parents and permanency for the child is no longer at issue.
For her part, the Guardian requests that whether she should remain in an abuse and neglect case following the death of the child she represents should be left to the sound discretion of the circuit court to be determined on a case-by-case basis.
By contrast, Mother asserts that the Guardian ad Litem should be dismissed from the case following the child's death because the case, itself, should be dismissed. Moreover, Mother contends that, in light of the child's death, the Guardian no longer has a client to represent in these proceedings.
Father echoes Mother's argument and states that the Guardian should not remain a party to abuse and neglect proceedings following the death of the subject child because there is no live client to represent, and there no longer is a polar star of the child's best interests to guide the court's decision of the case.
With respect to the second certified question, we are asked to determine whether a guardian ad litem should remain a party to an abuse and neglect proceeding when the child subject thereto dies during the pendency of the case. Pursuant to
In any proceeding under this article, the child ... has the right to be represented by counsel at every stage of the proceedings and shall be informed by the court of their right to be so represented and that if they cannot pay for the services of counsel, that counsel will be appointed.
We previously have found this statutory language to be plain insofar as it guarantees a child's statutory right to legal representation during abuse and neglect proceedings:
Each child in an abuse and neglect case is entitled to effective representation of counsel. To further that goal, W. Va. Code , 49-6-2(a) [1992] [nowW. Va. Code § 49-4-601 (f) ] mandates that a child has a right to be represented by counsel in every stage of abuse and neglect proceedings. Furthermore, Rule XIII of the West Virginia Rules for Trial Courts of Record provides that a guardian ad litem shall make a full and independent investigation of the facts involved in the proceeding, and shall make his or her recommendations known to the court. Rules 1.1 and 1.3 of the West Virginia Rules of Professional Conduct , respectively, require an attorney to provide competent representation to a client, and to act with reasonable diligence and promptness in representing a client.
Syl. pt. 5, in part,
In re Jeffrey R.L.
,
Integral to the child's right to counsel is that such representation be effective and permit the guardian ad litem to serve as an advocate for the child he/she represents. "During the proceedings, in an abuse and neglect case, a guardian ad litem is charged with the duty to faithfully represent the interests of the child and effectively advocate on the child's behalf."
In re Elizabeth A.
,
[t]here is a clear legislative directive that guardians ad litem and counsel for both sides be given an opportunity to advocate for their clients in child abuse or neglect proceedings. West Virginia Code § 49-6-5(a) (1995) [nowW. Va. Code § 49-4-601 (h) ] states that the circuit court shall give both the petitioner and respondents an opportunity to be heard when proceeding to the disposition of the case. This right must be understood to mean that the circuit court may not impose unreasonable limitations upon the function of guardians ad litem in representing their clients in accord with the traditions of the adversarial fact-finding process.
Syl. pt. 3,
State ex rel. Amy M. v. Kaufman
,
As for the duration of the guardian ad litem's representation of an allegedly abused and/or neglected child, we have held that "[t]he guardian ad litem's role in abuse and neglect proceedings does not actually cease until such time as the child is placed in a permanent home." Syl. pt. 5,
James M. v. Maynard
,
IV.
CONCLUSION
In response to the two questions certified by the Circuit Court of Lewis County by order entered September 26, 2017, we answer both questions in the affirmative and remand this case for further proceedings consistent with this opinion.
Certified Questions Answered.
In cases involving sensitive facts, we follow our longstanding practice and refer to the child by his/her initials only.
See, e.g.
,
In re: S.H.
,
Current counsel for the Mother did not appear in the proceedings below but was appointed after her initial counsel had to withdraw from the case due to a change in employment.
By order entered April 4, 2018, the circuit court allowed the child's former Guardian ad Litem, Bryan S. Hinkle, who authored the brief in this case, to withdraw due to "an actual conflict of interest" resulting from his change of employment and appointed the child's current Guardian ad Litem, Alexandria Solomon, who appeared before the Court for oral argument.
See
Section III.A.,
infra
, for further treatment of
In Re: A.L.C.M.
,
Such later occurring circumstances may, however, be considered by the court if the DHHR files an amended petition setting forth such new allegations of abuse and/or neglect.
See
W. Va. R. Proc. for Child Abuse & Neglect Proceeds. 19 (providing for amendments to petition alleging child has been abused and/or neglected); Syl. pt. 2, in part,
State v. Julie G.
,
The infant's critical condition in the case of
In Re: A.L.C.M.
,
The definition of an "abused child" is set forth in
"Abused child" means a child whose health or welfare is being harmed or threatened by:
(A) A parent, guardian or custodian who knowingly or intentionally inflicts, attempts to inflict or knowingly allows another person to inflict, physical injury or mental or emotional injury, upon the child or another child in the home. Physical injury may include an injury to the child as a result of excessive corporal punishment;
(B) Sexual abuse or sexual exploitation;
(C) The sale or attempted sale of a child by a parent, guardian or custodian in violation of section fourteen-h, article two, chapter sixty-one of this code; or
(D) Domestic violence as defined in section two hundred two, article twenty-seven, chapter forty-eight of this code.
"Neglected child" means a child:
(A) Whose physical or mental health is harmed or threatened by a present refusal, failure or inability of the child's parent, guardian or custodian to supply the child with necessary food, clothing, shelter, supervision, medical care or education, when that refusal, failure or inability is not due primarily to a lack of financial means on the part of the parent, guardian or custodian;
(B) Who is presently without necessary food, clothing, shelter, medical care, education or supervision because of the disappearance or absence of the child's parent or custodian;
(C) "Neglected child" does not mean a child whose education is conducted within the provisions of section one [§ 18-8-1], article eight, chapter eighteen of this code.
See
Syl. pt. 3, in part,
In re Betty J.W.
,
See
Syl. pt. 1,
State v. T.C.
,
It goes without saying that services aimed at remedying the conditions giving rise to a child welfare proceeding cannot be provided to fractured families if there is not first an adjudicatory determination that abuse and/or neglect has occurred so as to warrant the provision of such assistance.
See
Syl. pt. 5,
State ex rel. W. Va. Dep't of Human Servs. v. Cheryl M.
,
Guardians ad litem continuing their representation of children in abuse and neglect proceedings are directed to comply with the requirements of Rule 18a of the West Virginia Rules of Procedure for Child Abuse and Neglect Proceedings as well as Appendix A thereto.
Reference
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