Mary Lee Moore Bizanovich
Wheeling, West Virginia
Guardian ad Litem for Lindsey C.
Scott R. Smith
Assistant Prosecuting Attorney, Ohio County
Wheeling, West Virginia
Attorney for Appellee,
West Virginia Department of
Health and Human Resources
First Judicial Circuit Public Defender Corp.
Wheeling, West Virginia
Attorney for Appellee, Zachary P. C.
Nan G. Brown
West Virginia Legal Services
Wheeling, West Virginia
West Virginia Legal Services
Charleston, West Virginia
Attorneys for Appellant, Terri C.
JUSTICE ALBRIGHT delivered the Opinion of the Court.
JUSTICE WORKMAN concurs in part and dissents in part and reserves the right to file a
1. Any failure by litigants to observe carefully the requirements of our
appellate rules is expressly disapproved; in appropriate circumstances an appeal may be
dismissed by reason of a disregard of those rules.
2. The procedure in abuse and neglect cases is governed by provisions internal
to W.Va. Code § 49-1-1, et seq., and such other procedural requirements of the Code or
general law as obtain. Except for Rules 5(b), 5(e) and 80, the West Virginia Rules of Civil
Procedure for Trial Courts of Record are not applicable to such cases.
3. In abuse and neglect proceedings the appointment of a guardian ad litem is
required for adult respondents who are involuntarily hospitalized for mental illness, whether
or not such adult respondents have also been adjudicated incompetent.
4. It is error to enter a decree terminating parental rights after a suggestion of
involuntary hospitalization for mental illness of the affected parent or custodian without first
having appointed a guardian ad litem for such parent or custodian.
5. A parent or custodian named in an abuse and neglect petition who is involuntarily hospitalized for mental illness but who retains all of his or her civil rights, must be effectively served with process, including, if service is personal or by mail, service of a copy of any petition or other pleading upon which an order terminating parental rights may be based.
6. In abuse and neglect cases, service of original process on a guardian ad
litem appointed for a parent or custodian involuntarily hospitalized for mental illness whose
legal capacity has not been terminated by law cannot be substituted in lieu of service on the
hospitalized parent or custodian where the parental rights of such person may be terminated
under the process to be served.
7. "In child neglect proceedings which may result in the termination of
parental rights to the custody of natural children, indigent parents are entitled to the
assistance of counsel because of the requirements of the Due Process clauses of the West
Virginia and United States Constitutions." Syllabus point 1, State ex rel. LeMaster v.
Oakley, 157 W.Va. 590, 203 S.E.2d 140 (1974).
8. Circuit courts should appoint counsel for parents and custodians required
to be named as respondents in abuse and neglect proceedings as an incident of the making
of the order filing each abuse and neglect petition. Upon the appearance of such persons
before the court, evidence should be promptly taken, by affidavit and otherwise, to ascertain
whether the parties for whom counsel has been appointed are or are not able to pay for
counsel. In those cases in which the evidence rebuts the presumption of inability to pay as to one or more of the parents or custodians, the appointment of counsel for any such party
should be promptly terminated upon the substitution of other counsel or the knowing,
intelligent waiver of the right to counsel. Counsel appointed in these circumstances are
entitled to compensation as permitted by law.
9. If the appointment of a guardian ad litem is required for a parent or custodian, the trial court may also provide in its order appointing counsel or in a later order, a direction that the appointment imposes on that counsel the additional status of guardian ad litem, with the attendant duties of protecting the interests of the persons for whom such counsel is appointed guardian ad litem and the attendant duty on the court to see to the protection of such person's interests until and unless it later appears that such person's circumstances do not require the continued protection of a guardian ad litem or that the two functions cannot be performed by the same attorney.
This is an appeal of a juvenile abuse and neglect case conducted under the
authority of W.Va. Code § 49-1-1, et seq. Appellant, Terri C., the natural mother of the
infant, Lindsey C., born June 1, 1992, now appeals an order entered March 1, 1995,
terminating her parental rights after a hearing held by the Circuit Court of Ohio County,
West Virginia, February 1, 1995. Appellant argues that the lower court erred in failing to
appoint counsel for her in the proceedings below and in terminating her parental rights
without properly serving her with copies of the original petition and proper notice. The only
appearances noted for appellant in the proceedings below are by letter dated April 17, 1995,
filed below May 26, 1995, authorizing appellant's counsel here to investigate the file, and
by the filing of this appeal in the circuit clerk's office, June 30, 1995.
A recitation of the factual and procedural history of the case is necessary
before we discuss the law as it applies in this instance.
In January, 1992, appellant was committed to a mental hospital in Pennsylvania
from which she was released June 8, 1992, following the birth of Lindsey C., June 1, 1992.
The discharge summary for that hospitalization, a copy of which was filed in the court record
in this proceeding August 24, 1994, discloses that appellant was suffering from a serious
mental disorder, controllable at least in part by medication but complicated by "a chronic history of noncompliance with after care treatment and additional stress of bringing up a
newborn child". She was discharged to return to West Virginia and, according to the
discharge summary, "the Base Service Unit in West Virginia was informed as well as
Children and Youth Services . . . ."
In March, 1993, appellant was admitted to Weston State Hospital in West Virginia for psychiatric problems. She remained hospitalized approximately thirty days, during which time her child, Lindsey C., stayed in the actual custody of her father, Zachary C., to whom appellant was married. After appellant's return from Weston she apparently resided in an apartment in Wheeling with her husband. In May of 1993, appellant filed a domestic violence petition against her husband, Zachary C., and an Ohio County magistrate awarded appellant temporary custody of Lindsey C., after which it appears that appellant and her husband did not reside together.
In August, 1993, the Department of Health & Human Resources (hereafter
"DHHR" or "the Department") received a referral regarding suspected neglect of Lindsey C.
by appellant. According to a DHHR Court Summary dated May 6, 1994, within two days
of that referral appellant was again committed to Weston State Hospital. Lindsey C. was
delivered into the actual custody of her father, Zachary C., who then apparently occupied the
apartment vacated by appellant incident to her hospitalization, probably the apartment from
which the child was later removed. The record does not disclose whether any action was taken at that time to vest or confirm legal custody of Lindsey C. in Zachary C. incident to
the transfer to him of her actual custody. The record does not disclose any further orders
regarding the legal custody of Lindsey C. except those entered in this proceeding, later
described. The DHHR commenced a series of visitations to the father's apartment. After
several such visits, the DHHR was satisfied with the circumstances in which Zachary C. was
maintaining the child and ceased visitations and all other child protective services. During
this time, while hospitalized at Weston, Terri C. claimed that Zachary C. had sexually abused
their child, but the DHHR found those allegations to be without merit and took no other
action with respect to such allegations.
The DHHR Court Summary previously mentioned states that at approximately
9:00 p.m. on Thursday, April 21, 1994, Wheeling police officers received a report that
Zachary C. had been seen intoxicated on the street near his residence with Lindsey C. in his
custody. Police officers found Lindsey C. in her father's apartment at about 9:55 p.m. that
same evening. She was unharmed and with her father, who was said to be drunk and
unconscious. The police immediately took Lindsey C. to the home of an acquaintance of her
father. According to the summary, Lindsey C.'s father was expected to pick her up from the
home of the acquaintance about 5:00 p.m. the next day and had commented that he soon
planned to take Lindsey C. to live in Kansas. The DHHR believed the child had been in a
dangerous situation in her father's apartment and faced imminent danger if returned to his
custody, so the DHHR decided to take immediate custody of Lindsey C. At about 3:30 p.m. that next day, Friday, April 22, 1994, Wheeling police officers removed the child from the
home of her father's acquaintance and delivered her to a DHHR child protective service
worker, who then placed her in a foster home licensed by the DHHR. The record is silent
as to the whereabouts of appellant at that time except that the DHHR Court Summary of May
6, 1994, reports that the nearest relative then known who might have been able to take
custody of Lindsey C. was M.B., the maternal grandmother, who lived over one hundred
miles away in another state.
On Friday, April 29, 1994, the Circuit Court of Ohio County entered an order,
styled an order nunc pro tunc as of Tuesday, April 26, 1994, awarding temporary emergency
custody of Lindsey C. to the DHHR. This emergency order recites that on Monday, April
25, 1994, the DHHR filed a petition requesting ratification of emergency custody of the
child, Lindsey C., because the parents, Zachary C. and Terri C., the appellant, had neglected
and abused the child. Specifically, the petition alleged that appellant abused and neglected
the child by abandoning her.
The DHHR petition, which apparently was actually filed Friday, April 29,
1994,See footnote 1 asked the court, inter alia, to ratify removal of the child from her parents' custody and place the child in the custody of the DHHR and, ultimately, to terminate the
parental rights of both parents.
In the nunc pro tunc order entered Friday, April 29, 1994, the circuit court set
a hearing for May 6, 1994, and appointed counsel for the child and the father. The order
states that an attorney for the mother/appellant "shall be selected later". The order does not
address the issue of appointment of a guardian ad litem for appellant nor does it address the
service of process on appellant.
The order reflecting the action of the court May 6, 1994, shows that the court
took no action regarding service of notice on appellant or appointment of counsel or a
guardian ad litem for appellant.
On May 9, 1994, an attested copy of the emergency order and the abuse and
neglect petition was sent by certified mail to appellant. The address used for that mailing
was that of M.B., the maternal grandmother of Lindsey C., who had earlier been identified for the court below as the "closest known relative" able to take custody of Lindsey C. The
petition and order were not successfully delivered as addressed; they were forwarded to a
Wheeling address, apparently the address from which the child had been taken by the State,
and was returned by the postal service to the circuit clerk May _?_, 1994,See footnote 2 marked "moved,
left no address, return to sender".
On May 23, 1994, the court ordered a home study to evaluate the suitability
of the home of M.B.,the maternal grandmother, who had expressed interest in receiving
temporary custody of Lindsey C. The address for this home study was the same as that to
which the copy of the petition and emergency order, addressed to appellant, had been
previously, unsuccessfully mailed.
The home study for M.B. and her husband was completed about June 10, 1994,
and the court below held another hearing on June 28, 1994. An order for that day recites that
the court received information concerning the whereabouts of appellant, but no further action
was taken to appoint a guardian ad litem or counsel for her or to serve process on her by any
means. Further proceedings on July 11 and August 4, 1994, did not deal with appellant other
than to note her absence. On August 4, 1994, the court was advised that the sister and
brother-in-law of the father, Zachary C., were interested in obtaining custody of Lindsey C. The court ordered a child protective service worker to undertake a thorough investigation of
their suitability to receive custody of Lindsey C.
Meanwhile, in Minnesota, a petition was filed against appellant on June 6,
1994, seeking her commitment by judicial order to a mental institution. A hearing on the
petition was held on June 23, 1994, at which time appellant was represented by Minnesota
counsel. An order entered on that date by the District Court, Seventh Judicial District, in
Clay County, Minnesota, stated that there was clear and convincing evidence appellant was
mentally ill and, although she did not represent a danger to others, she did represent a danger
to herself. Appellant was involuntarily committed at a Fergus Fall, Minnesota, mental
institution for an initial period of up to six months.
In West Virginia, the court and the DHHR were aware of appellant's
hospitalization by August 19, 1994. A paper filed that day, but dated August 16, 1994,
contains the following notations regarding appellant: "mother . . . need attorney appointed
for her . . . mental institution -- Minn. . . . per [name of child protective service worker] . .
. need to notice . . . ." This paper includes the address of the mental institution and the name
and phone number of a social worker there as well as an emergency phone number.
Another hearing in the abuse and neglect case was held in Ohio County on
August 22, 1994, and the order for that day recites that the child protective service worker had located appellant in Minnesota and given information regarding her whereabouts to the
"prosecutor's office". The order also recited that the court received a report of a home study
for the sister and brother-in-law of Zachary C., as a potential home for Lindsey C., and
required that the comments of the child's guardian ad litem be provided the court "at the next
Abuse and Neglect Docket Day".
On August 25, 1994, a postal return receipt for certified mail was included in
the court file. This receipt showed that a mailing addressed to appellant at the mental
institution previously noted in the file was accepted on August 22, 1994, by a person whose
signature is not legible. Appellant claims that no such mailing was ever delivered to her.
This mailing is presumably evidence of the State's second attempt to serve appellant by mail
with a copy of the petition and other process essential to the commencement of an action
charging her with abuse and neglect of Lindsey C. It is noted that the court below also
received at that time the copy of the discharge summary describing appellant's Pennsylvania
hospitalization in 1992 and had before it the diagnosis of serious mental disorder contained
in that summary.
It appears that no further proceedings were had until October, 1994. Two
orders reflecting a hearing held on October 11, 1994, noted again that appellant did not
appear "in person or by counsel". At that time, the Court ordered certain actions preparatory
to awarding custody of Lindsey C. to the sister and brother-in-law of Zachary C., formally appointed them "guardians" of Lindsey C. and ordered that efforts be made to effect delivery
of the child to them at their home in a distant state. One of the orders for that day reflects
that the court made the following findings with respect to appellant:
5. [Appellant] has abandoned and continues to abandon Lindsey [C.].
6. [Appellant] has neglected Lindsey [C.].
8. [Appellant] is presently unwilling or unable to provide adequately for the needs of Lindsey [C.].
9. [Appellant] has received actual notice of these
10. That continuation in the home is contrary to the best
interests and welfare of the infant based upon the neglect
by [Zachary C.] and the neglect and abandonment by
11. That the West Virginia Department of Health and Human
Resources made a reasonable effort to prevent placement
of Lindsey outside her home given the neglect and
abandonment by [appellant] and [Zachary C.'s]
unwillingness or inability to provide supervision and care
12. That the neglect and abandonment by [appellant] and
[Zachary C.'s] unwillingness or inability to provide
supervision and care of Lindsey make such efforts
It does not appear from the orders that any sworn testimony was heard that day,
October 11, 1994. In any event, we cannot discern from the record before us what reliable
evidence was adduced to support these findings.
At an October 30, 1994 hearing, after again noting the absence of appellant,
the lower court ordered Lindsey C. delivered to her new guardians. The court also formally
received the home study report on the new guardians at a hearing on December 12, 1994, at
which time the court again noted appellant did not appear in person or by counsel.
A hearing was held on December 21, 1994, in Minnesota. The court there
received a written report from the treatment facility where appellant was incident to the
possible termination of her initial commitment there. Appellant was recommitted until
March 21, 1995, and transferred to a group home in Little Falls, Minnesota. It appears that
appellant remained there in state custody until her release on April 24, 1995.
At a January 13, 1995 hearing in the Circuit Court of Ohio County, a protective
service case worker told the court for what appears to be the first time "that [appellant] had
made inquiries about Lindsey". On that day, the guardian ad litem for Lindsey C. served a
motion, noticed for hearing February 1, 1995, requesting that the court appoint a guardian
ad litem for appellant "whose whereabouts are now known and thereafter to address the issue
of disposition as to the parental rights of [appellant] in consideration of the court's findings at the October 11, 1995 [sic]" hearing that "appellant had abandoned, neglected and was then
unwilling or unable to care for" Lindsey C. and for other relief. A copy of the motion and
notice of a February 1, 1995, hearing were apparently sent to appellant by certified mail,
addressed to the group home in Minnesota.
A West Virginia protective service worker telephoned the Minnesota group
home on January 18, 1995, and left a message with a staff member that if appellant wanted
to appear in court, she must come to West Virginia. The West Virginia child protective
service worker also spoke by telephone to appellant's caseworker in Minnesota on January
31, 1995. The protective service worker was told that appellant was court-ordered to remain
at the group home for at least two more months and that appellant was required to make
another court appearance in Minnesota before she could be released.
The order for the proceedings of February 1, 1995, is dated March 1, 1995, and
is the order from which this appeal is taken. The order notes again that appellant did not
appear in person or by counsel. It recites that the court considered the motion of the child's
guardian ad litem that a guardian ad litem be appointed for appellant but reflects no action
on that motion. The order further states that the court was "advised" by the assistant
prosecuting attorney present that the State mailed a copy of the abuse and neglect petition
to appellant. The order fails to state whether the court took any sworn testimony. It does
recite that the court heard "representations" by, and received a report from, a child protective service worker and did find that appellant "received NOTICE of these proceedings and her
right to be represented by counsel in these proceedings". The court then made findings
necessary to termination of appellant's parental rights and ordered the DHHR to file a
On February 21, 1995, at the direction of the circuit court judge, a letter
addressed to the judge, dated February 17, 1995, was filed. It was signed by a new child
protective service worker in the case, and related that on February 14, 1995, the assistant
director of the group home to which appellant had been committed in Minnesota had spoken
to the worker, questioning the termination of appellant's parental rights and reporting that
appellant had "received no notification to seek legal representation". The group home
director further advised that he intended to advocate strongly in favor of appellant, "in terms
At a March 1, 1995 hearing, which again does not note the taking of any sworn
testimony, appellant was "enjoined from contacting, harassing or interfering, either directly
or indirectly, with Lindsey" or the new guardians. The order further noted that appellant's
appeal time would expire four months after the March 1, 1995 date of the order terminating
the parental rights of appellant and directs that a copy of the order be sent to appellant at the
group home. The court file contains a postal return receipt, signed by "Rita Werner" on
March 13, 1995, for mail addressed to appellant at the group home.
By letter dated March 14, 1995, ordered filed by the circuit judge and actually
filed in Ohio County on March 20, 1995, appellant's counsel in her Minnesota commitment
proceedings advised that appellant had been further committed to involuntary hospitalization
for a period of up to twelve months from December 21, 1994. In the same letter appellant's
Minnesota counsel stated that neither he nor appellant had been aware of the West Virginia
proceedings. He stated that appellant had anticipated reunification with her daughter "in
some fashion" and had been "unable to effectively assert her wishes" until shortly before his
letter. The letter was concluded with a request that counsel be appointed in West Virginia
to "raise the appropriate issues".
Meanwhile, in Minnesota appellant was again alleged to be mentally ill in a
petition for judicial commitment filed on March 15, 1995. A hearing was held on March 23,
1995, to determine whether it was necessary to have appellant involuntarily hospitalized until
the judicial commitment hearing, and it was determined that she would be hospitalized at the
White Shell Facility, Little Falls, Minnesota. A final hearing was held on April 13, 1995,
and in an order entered April 25, 1995, the District Court in Minnesota found the state failed
to meet its burden and prove by clear and convincing evidence that appellant was mentally
ill. Thus, she was released from state custody.
As noted, by letter dated April 17, 1995, and filed with the Circuit Court of
Ohio County May 26, 1995, appellant authorized her present counsel to investigate her case,
and the present appeal was filed with the circuit clerk of Ohio County, June 30, 1995.
Appellant now argues that the circuit court erred as a matter of law in failing
to appoint counsel in this abuse and neglect proceeding and erred in proceeding against her
when she had not been served properly with the abuse and neglect petition and notices of
hearings. More specifically, appellant argues that an indigent parent must be appointed
counsel in a parental rights termination action and that a parent cannot be divested of
parental rights if that parent has not been afforded proper notice. The appellees, Zachary C.
and the Department of Health and Human Resources, have filed briefs in opposition, as has
the guardian ad litem for the child, Lindsey C. In addition, by a cross assignment of error,
the Department of Health and Human Resources contends that appellant violated Rule 60(b),
Rules of Civil Procedure, by failing to move the trial court for relief prior to filing the appeal
and violated the Rules of Appellate Procedure by failing to order transcripts of the hearings
below and by failing to serve opposing counsel with a copy of the petition of appeal.
Appellee DHHR asks therefore that the appeal be dismissed as improvidently granted.
Any failure by litigants to observe carefully the requirements of our appellate
rules is expressly disapproved; in appropriate circumstances an appeal may be dismissed by
reason of a disregard of those rules. In this case we note that appellees have appeared and vigorously defended this appeal, notwithstanding the failure of appellant's counsel to timely
serve and certify service of the petition of appeal. We have before us a certified record
sufficient to decide the crucial issues in the case.
We turn next to the contention of appellee DHHR that Rule 60(b), R.C.P. was
violated because that contention focuses the case on the procedural requirements of the case
below upon which it turns. This is a juvenile abuse and neglect proceeding, brought under
the provisions of W.Va. Code § 49-1-1, et seq. Rule 81(a), R.C.P., in pertinent part,
Rule 81. Applicability in General. (a) To what proceedings applicable. -- . . .
(7) Juvenile proceedings. -- Rules 5(b), 5(e) and 80
apply, but the other rules do not apply, to juvenile proceedings
brought under the provisions of Chapter 49 [§ 49-1-1 et seq.] of
the West Virginia Code.
Accordingly, the procedure in abuse and neglect cases is governed by
provisions internal to W.Va. Code § 49-1-1, et seq., and such other procedural requirements
of the Code or general law as obtain. Except for Rules 5(b), 5(e) and 80, the West Virginia
Rules of Civil Procedure for Trial Courts of Record are not applicable to such cases.See footnote 3
As noted, appellant assigns as error that she was not properly served with a
copy of the petition and notice of hearing prepared at the commencement of this proceeding.
West Virginia Code § 49-6-1(b) mandates the service on a parent or custodian of a copy of
any petition charging abuse and neglect of a child, together with a notice of hearing, and
provides for service by mail or publication when personal service is not accomplished.See footnote 4
Appellant complains specifically that when service of the petition and notice
by mail was attempted in this case in lieu of personal service, she did not sign the postal
return receipt upon which the court below apparently based its first finding that the notice
and petition had been duly served. Appellant asserts that, in fact, she never received or saw
the petition during the pendency of the action below. Clearly, if appellant did not sign the
postal receipt, the requirements of W.Va. Code § 49-6-1(b) for service of the notice and
petition by mail have not been met.See footnote 5 The record before us is totally devoid of any inquiry
by the court below to determine whose signature appears on the postal receipt which might
contradict appellant's assertion in this appeal.
Appellees suggest to this Court that if the service of process by mail is
defective, such defect is cured by the fact that appellant was found by the court below to
have had actual notice of the proceedings. We do not reach the question of whether such a
defect would be cured if appellant had actual notice. Anterior to that question is the question
of whether the court below was required to appoint a guardian ad litem for appellant and the
question of what impact the failure to do so has on the validity of the order below
terminating the parental rights of appellant. We conclude that the court was required to appoint a guardian ad litem and that the order terminating the parental rights of appellant
must be set aside because of the failure of the court below to do so.
West Virginia Code § 56-4-10 is applicable to juvenile proceedings. It
provides, in pertinent part:
The proceedings in a suit wherein an infant or insane person is a party shall not be stayed because of such infancy or insanity, but the court in which the suit is pending, or the judge thereof in vacation, or the clerk thereof at rules, shall appoint some discreet and competent attorney at law as guardian ad litem to such infant or insane defendant, whether such defendant shall have been served with process or not, and after such appointment no process need be served on such infant or insane person . . . Every guardian ad litem shall faithfully represent the interest or estate of the infant or insane person for whom he is appointed, and it shall be the duty of the court to see that the estate of such defendant is so represented and protected . . . . See footnote 6
As early as April 29, 1994, the court below was advised by the fourth allegation in the abuse and neglect petition filed in this case that appellant had a history of mental illness. The DHHR Court Summary received by the court on May 6, 1994, gave some detail concerning that history, including at least approximate dates for prior hospitalizations. Then in August, 1994, the court received and noted information that appellant was in a mental institution in Minnesota. This was followed by the attempted, but apparently ineffective, service of process on appellant by certified mail at that mental institution after the court was advised that appellant had been located there and information regarding appellant's whereabouts had been given to the prosecuting attorney serving as counsel for the DHHR in this proceeding. At various stages throughout the proceedings, opportunities arose by which the court below was repeatedly made aware that appellant was hospitalized and restrained from appearing in court, or claimed not to have been served in a manner consistent with the plain directions of the statute, or was not represented by counsel in Ohio County, or desired to appear and defend and could not. Moreover, in 1995, before the court below made its order terminating the parental rights of appellant, the guardian ad litem appointed for the child, Lindsey C., served notice of a hearing for her motion requesting the appointment of a guardian ad litem for appellant. The order of the court below for that hearing dated February 1, 1995, reflects that the motion "as it relates to representation of" appellant was considered but reflects no action by the court granting or denying the motion. (That order, as previously noted, gives rise to this appeal.)
This Court held long ago that the suggestion of the lack of legal capacity
imposes on the court the duty to appoint a guardian ad litem. Hays v. Camden's Heirs, 38
W.Va. 109, 18 S.E. 461 (1893), was an action in equity to sell lands allegedly forfeited to
the State for non-entry on the land books. The trial court was advised that one of the owners
was an infant by an exception taken to the report of a commissioner in chancery. Discussing
that circumstance, this Court, citing the predecessor section to the current W.Va. Code § 49-
Under section 13, c. 125, Code 1887, it was the duty of the court to have appointed a guardian ad litem to the infant defendant, not because the court was selling the land of the infant, or of any strict construction in this case, but because the law requires it; . . . especially as the guardian, as next friend, appeared and suggested such infancy, and virtually asked such appointment. Under such circumstances it would have been done, and would be error not to do, in any court, as far as I know.
Id. at 465.
In the case before us, the mental condition of appellant was clearly and
strongly suggested to the trial court by the initial petition and by subsequent events. The
court also had before it a written motion, duly set for hearing, asking for the appointment of
a guardian ad litem for appellant. The motion was filed and brought on for hearing by the
guardian ad litem for the child, Lindsey C., whose interests in a prompt conclusion of the proceeding would have been both protected and advanced by the appointment of a guardian
ad litem for appellant.See footnote 7
We are mindful that the court below did not have clear and direct proof before
it that appellant was "insane" within the meaning of W.Va. Code § 56-4-10. We have also
noted that, although Minnesota had on June 23, 1994, adjudicated appellant to be mentally
ill and likely to be a danger to herself, and had required her confinement to continue until
April, 1995, the statutory law of Minnesota preserved to appellant her capacity to sue and
be sued, notwithstanding her adjudication and involuntary confinement.See footnote 8 Indeed, with
respect to persons involuntarily hospitalized in West Virginia, W.Va. Code § 27-5-9(a), enacted in 1974, expressly preserves the legal capacity of persons involuntarily committed
to a mental health facility, absent a separate and distinct proceeding to declare the patient
"incompetent".See footnote 9 That section was part of a comprehensive updating of mental health law in
this State, which now recognizes modern, more enlightened realities about mental illness and
mental retardation. West Virginia law now provides persons suspected of suffering from
mental illness or mental retardation, as well as patients involuntarily hospitalized, with an
array of substantive and procedural protections not fully recognized or not fully articulated
in earlier statutory enactments.See footnote 10 Finally, we note that prior to 1974, involuntary
hospitalization for an indeterminate period deprived the patient of legal capacity.See footnote 11
Accordingly, we are squarely confronted with the question of whether W.Va.
Code § 56-4-10, relating to "insane" persons and last re-enacted by our Legislature in 1931,
applies today in abuse and neglect proceedings only to adult persons who have been
adjudicated incompetent, or applies with equal force to adult persons who have been
involuntarily hospitalized by reason of mental illness but are not deprived of their civil rights
in the absence of a separate and distinct declaration of incompetency. We conclude that in
abuse and neglect proceedings the appointment of a guardian ad litem is required for adult
respondents who are involuntarily hospitalized for mental illness, whether or not such adult
respondents have also been adjudicated incompetent.
As noted, before 1974, the involuntary hospitalization of an adult for an
indeterminate time by reason of mental illness would have required the appointment of a
guardian ad litem under the provisions of W.Va. Code § 56-4-10. Put another way, the
Legislature, in enacting W.Va. Code § 56-4-10, clearly contemplated that the section would
be relied upon to require the appointment of a guardian ad litem for a mentally ill adult
person involuntarily committed to a mental institution for an indeterminate period. The
action of the Legislature in 1974, preserving capacity to such persons to sue or be sued in the
absence of a separate incompetency finding, does not in our view mandate that the courts
may not or should not appoint a guardian ad litem to protect the interests of such persons
when they sue or are sued. We rely in part on a well recognized rule of statutory
Legislation is often written in terms which are broad enough to cover many situations which could not be anticipated at the time of enactment . . . . So a statute, expressed in general terms and written in the present or future tense, will be applied, not only to existing but also prospectively to future things and conditions.
As declared by the Tenth Circuit Court of Appeals: '. .
. It is a general rule in the construction of statutes that legislative
enactments in general and comprehensive terms, and prospective
in operation, apply to persons, subjects and businesses within
their general purview and scope, though coming into existence
after their passage, where the language fairly includes them.'
Norman J. Singer, 2B Sutherland Statutory Construction § 49.02, at 2 (5th ed. 1992), citing
Cain v. Bowlby, 114 F.2d 519 (10th Cir. 1940).
Courts in other jurisdictions which have considered whether a guardian ad
litem should be appointed for a person with mental illness who has not been adjudged
incompetent appear to have uniformly favored appointment. See In re the Matter of R.A.D.
and J.D., 231 Mont. 143, 753 P.2d 862, 870 (1988) (requiring consideration of the
appointment of a guardian ad litem even where the adult mentally ill person was represented
by counsel); Williams v. Pyles, 363 S.W.2d 675, 678 (Mo. 1963) (holding judgment voidable
if rendered without appointment of guardian ad litem); McKenna v. Garvey, 191 Mass. 96,
77 N.E. 782, 784 (1906) (allowing a mentally ill person not adjudged incompetent to sue and
be sued but noting that the appointment of guardians ad litem for such litigants is the general
and equitable practice); Hawley v. New York, 28 Misc.2d 150, 217 N.Y.S.2d 107 (N.Y. Ct.
Cl. 1961); Sengstack v. Sengstack, 4 N.Y.2d 502, 151 N.E.2d 887, 891, 176 N.Y.S.2d 337 (1958) (construing statutes authorizing appointment of a guardian ad litem to include
unadjudicated incompetents); Graham v. Graham, 40 Wash.2d 64, 240 P.2d 564, 566
(1952) (recognizing the duty of the court, after full hearing, to withhold or cancel
appointment if a mentally ill but unadjudicated person timely objects and shows cause); and
Annotation, Capacity of one who is mentally incompetent but not so adjudicated to sue in
his own name, 71 A.L.R.2d 1247 (1960).
The practical reasons for requiring appointment of a guardian ad litem in
cases of involuntary commitment are readily apparent. First, despite the patient's continuing
legal capacity, involuntary hospitalization imposes substantially all of the adverse effects of
incarceration. These include the likely inability to freely move about, to prepare one's case,
to consult with counsel conveniently, and to travel to and from court and other places that
might be necessary or helpful in preparing and assisting in one's case. Second, until the
guardian ad litem conducts at least an initial investigation and reports to the court, it can not
be known whether the mentally ill person actually received notice of the pending case or, if
service of process is on its face good and sufficient, whether the mentally ill person
understood the notice and fully appreciated the right to be heard and the right to be
represented by counsel. In the case of indigent persons, the right to have counsel appointed
to represent the litigant might or might not be fully appreciated. Until and unless an
appreciation of such matters is established on the record, the ultimate finality of the court's
dispositional orders may be subject to attack, either on direct appeal or by petition for an extraordinary writ. Last, the public interest in the finality of dispositional orders in these
cases is a very persuasive, practical reason for the timely appointment of a guardian ad litem
in these circumstances. For all these reasons, we hold, as in Hays, that it is error to enter a
decree terminating parental rights after a suggestion of involuntary hospitalization for mental
illness of the affected parent or custodian without first having appointed a guardian ad litem
for such parent or custodian. See Hays v. Camden's Heirs, 38 W.Va. 109, 18 S.E. 461
Having found that the appointment of a guardian ad litem is required in accord
with W.Va. Code § 56-4-10 for an adult person involuntarily hospitalized, we caution against
complete reliance on the provisions of that Code section with respect to the service of
process and notice upon the guardian ad litem in lieu of service on an involuntarily
hospitalized person for whom the court does not have before it clear evidence of an
adjudication of incompetency. In pertinent part W.Va. Code § 56-4-10 provides, ". . . and
after such appointment no process need be served on such infant or insane person". In light
of the statute [W.Va. Code § 27-5-9(a)] preserving the civil rights of persons involuntarily
hospitalized unless that person has been adjudicated an incompetent in a separate proceeding,
service of process and notices on the guardian ad litem alone could result in a failure to
provide that level of notice and opportunity for meaningful hearing that is constitutionally
required in any effort by the State to terminate parental rights. See State ex rel. McCartney
v. Nuzum, 161 W.Va. 740, 248 S.E.2d 318 (1978) (requirements for the content of a petition charging abuse and neglect); In re Sutton, 132 W.Va. 875, 53 S.E.2d 839 (1949) (right of
parents to notice of hearing); State ex rel. LeMaster v. Oakley, 157 W.Va. 590, 203 S.E.2d
140 (1974) (right to counsel in parental rights termination cases).See footnote 12 Those constitutionally
required rights have been included in the requirements for the initiation of an abuse and
neglect proceeding. West Virginia Code § 49-6-1(b) states:
(b) The petition and notice of the hearing shall be served upon both parents and any other custodian, giving to such parents or custodian at least ten days' notice . . . A notice of hearing shall specify the time and place of the hearing, the right to counsel of the child and parents or other custodians at every stage of the proceedings and the fact that such proceedings can result in the permanent termination of the parental rights. Failure to object to defects in the petition and notice shall not be construed as a waiver.
In addition, W.Va. Code § 49-6-2(a) provides:
(a) In any proceeding under the provisions of this article,
the child, his parents, his custodian or other persons standing in
loco parentis to him . . . shall have 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. If . . . [such persons] cannot pay for the services of
counsel, the court shall, by order entered of record, at least ten
days prior to the date set for hearing, appoint an attorney or
attorneys to represent [such parties] and so inform the parties .
. . The court may allow to each attorney so appointed a fee in the same amount which appointed counsel can receive in felony
cases . . . .
A parent or custodian named in an abuse and neglect petition who is
involuntarily hospitalized for mental illness but who retains all of his or her civil rights, must
be effectively served with process, including, if service is personal or by mail, service of a
copy of any petition or other pleading upon which an order terminating parental rights may
be based. In the consideration of any waiver of rights by reason of the failure to respond to
process or by reason of other inaction, an affirmative record of service of process consistent
with due process requirements of notice and meaningful opportunity to be heard may be
pivotal to establishing that such waiver is effective, knowing and intelligent. Accordingly,
in abuse and neglect cases, service of original process on a guardian ad litem appointed for
a parent or custodian involuntarily hospitalized for mental illness whose legal capacity has
not been terminated by law cannot be substituted in lieu of service on the hospitalized parent
or custodian where the parental rights of such person may be terminated under the process
to be served.
We turn now to the issue of the appointment of counsel. As set out in W.Va.
Code § 49-6-2(a), appointment of counsel for parents and other custodians in abuse and
neglect cases is contemplated in cases where the parent "cannot pay for the services of counsel . . . ."See footnote 13 "In child neglect proceedings which may result in the termination of parental
rights to the custody of natural children, indigent parents are entitled to the assistance of
counsel because of the requirements of the Due Process clauses of the West Virginia and
United States Constitutions." Syl. pt. 1, State ex rel. LeMaster v. Oakley, 157 W.Va. 590,
203 S.E.2d 140 (1974). Appellant here argues that the court below erred in not appointing
counsel for her, at least as soon as it appeared that appellant was confined in a mental
institution. It is reasonable to assert on the record before us that the trial court below never
had before it any clear, direct evidence from which it might conclude that appellant was
unable to "pay for the services of counsel" and therefore never reached the issue of
appointing counsel. On the other hand, it is equally reasonable to assert that at least when
the court below learned of the hospitalization of appellant, in addition to her history as
reflected by the Court Summary filed May 6, 1994, the court below had before it a strong
suggestion of indigency.
In considering the contention that the court below erred in not appointing
counsel for appellant, we take notice of the exceedingly high percentage of abuse and neglect
cases coming before this Court in which appointed counsel appear on behalf of parents or
custodians. It is reasonable to conclude that the experience of the trial courts of this State
in that regard mirrors the experience here. We believe that that experience justifies the trial courts in indulging a presumption that the parent or parents and custodians entitled by law
to be named in abuse and neglect petitions "cannot pay for the services of counsel". This
presumption is also justified by the high importance which our State and its citizens attach
to prompt and effective protection for abused and neglected children and to full, fair and
meaningful opportunity for parents and custodians to be heard when allegations of abuse and
neglect are made.
Therefore, circuit courts should appoint counsel for parents and custodians
required to be named as respondents in abuse and neglect proceedings as an incident of the
making of the order filing each abuse and neglect petition. Upon the appearance of such
persons before the court, evidence should be promptly taken, by affidavit and otherwise, to
ascertain whether the parties for whom counsel has been appointed are or are not able to pay
for counsel. In those cases in which the evidence rebuts the presumption of inability to pay
as to one or more of the parents or custodians, the appointment of counsel for any such party
should be promptly terminated upon the substitution of other counsel or the knowing,
intelligent waiver of the right to counsel. Counsel appointed in these circumstances are
entitled to compensation as permitted by law.See footnote 14
We endorse the appointment of counsel for parents or custodians incident to
the filing of an abuse and neglect petition as both judicially and financially economical.
Judicial economy is achieved by the early appointment of counsel in that the case can then
be promptly heard at its various stages with the expectation that all of the parties will be fully
advised of the applicable procedures and possible results. It may be expected that all parties
will then have a better understanding of the rights to which each party is entitled and the
duties and obligations of parents and custodians and that there will be an increased likelihood
that any permissible waiver of rights by litigants will be both knowing and intelligent. The
ultimate benefit should be earlier finality of whatever dispositional order is justified by the
law and the evidence. Financial economy follows from the true achievement of judicial
economy. Avoiding delays like those which the facts of this case demonstrate have already
occurred and avoiding the type of further delays which will flow from the additional
proceedings which must now be had in this case will reduce the attendant costs of public
services that have been rendered and will or may be provided to or on account of the
litigants. Real savings are likely to be realized because of the timely prosecution, defense
and disposition of these cases, that is to say, lower public expense overall, more than enough
to compensate for the relatively few cases in which counsel may be appointed for a short
time for parents or custodians who may be found able to pay for counsel's services.
If the appointment of a guardian ad litem is required for a parent or custodian,
the trial court may also provide in its order appointing counsel or in a later order, a direction that the appointment imposes on that counsel the additional status of guardian ad litem, with
the attendant duties of protecting the interests of the persons for whom such counsel is
appointed guardian ad litem and the attendant duty on the court to see to the protection of
such person's interests until and unless it later appears that such person's circumstances do
not require the continued protection of a guardian ad litem or that the two functions cannot
be performed by the same attorney. Recently, in the case In re Jeffrey R.L., 190 W.Va. 24,
435 S.E.2d 162 (1993), this Court treated counsel appointed for a child who was the subject
of an abuse and neglect case as the child's guardian ad litem and promulgated guidelines for
the duties to be performed by a child's guardian ad litem. It is entirely appropriate in the case
of a child to treat the two functions of counsel and guardian ad litem as being completely
identical. The central purpose of an abuse and neglect proceeding is to ascertain and serve
the best interests of the child. As we indicated in Jeffrey R.L., counsel for the child is
expected to pursue that central purpose even when his or her client, the child, may have a
different view of what is in the child's best interests. We said: "The GAL [guardian ad
litem] does not necessarily represent a child's desires but should formulate an independent
position regarding relevant issues." Id. at 175. We also noted there and restate here that:
"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." Id. at 177.
Obviously, those recommendations may or may not be identical to those the child would
make to the court, left entirely to his or her own choices. However, in the case of a child, justice is clearly best served by requiring that counsel and the court exercise their respective
best judgment in all aspects of the case, and that the court have the benefit of counsel's
candid and independent assistance in ascertaining the best interests of that child.
Perhaps in most cases in which a guardian ad litem must be appointed for an
adult in an abuse and neglect case, the functions of guardian ad litem and of counsel for the
adult will likewise be identical in all respects. However, we recognize that in most such
cases, the adult parent or custodian is likely to have a strong and clearly adversarial interest
in resisting the relief sought for the child, especially the termination of that adult's parental
rights. The potential for real conflict between the duties of a guardian ad litem and counsel
for that adult is obviously greater.See footnote 15 One authority has identified three particular areas of
potential conflict in the roles of guardian ad litem and counsel, even in cases involving
counsel and guardians ad litem for children: (1) when the best interests of the ward and the
ward's wishes are not identical, (2) when a privileged communication is made, and the
attorney's duty to protect that communication conflicts with his or her duty as guardian, and
(3) when a court would require a guardian ad litem to actually testify in a case, a function that counsel ordinarily should not perform.See footnote 16 See Rebecca H. Heartz, Guardians Ad Litem
in Child Abuse and Neglect Proceedings: Clarifying the Roles to Improve Effectiveness, 27
Family Law Quarterly 327, 334-336 (1993). Accordingly, while we anticipate that such
conflicts will rarely actually arise, we acknowledge that where such a dual status
appointment of counsel and guardian ad litem for an adult has been made and actual conflict
is deemed likely, the trial court may at any time, sua sponte or on the application of an
interested party, terminate the dual status of counsel and guardian ad litem for such adult and
appoint another attorney guardian ad litem so that counsel originally appointed may
zealously represent the adult without concern for such conflict. Nonetheless, considering the
relatively few cases in which a guardian ad litem may be required, the very considerable cost
which the provision of publicly paid counsel for indigent parties imposes on this State, and
the reported difficulty in obtaining counsel willing to accept court appointments,See footnote 17 we recommend the practice of dual appointment in any case in which, and to the extent which,
the trial court finds that may be practical and fair.
In accord with the foregoing, we are compelled to reverse the judgment of the
Circuit Court of Ohio County terminating the parental rights of appellant, Terri C., and
remand this cause for further proceedings consistent with this opinion. Appellant is now
entitled to the appointment of counsel below if she cannot pay for the services of counsel.
She is entitled to traverse and otherwise defend against the allegations of the petition and to
have full, meaningful hearings of the issues, with the assistance of counsel. The State is
required to meet its burden of proof as required by law without regard to any prior
determination by the court below adverse to appellant's interests and the parties are entitled
to such other relief, including a proper dispositional order, as may be appropriate under the
law and the evidence adduced.
Reversed and remanded
Footnote: 1 The petition reflects that it was verified Tuesday, April 26, 1994 and "filed" Friday, April 29, 1994. The petition, inter alia, seeks court ratification of the non-judicial removal of the child from her parents' custody pursuant to W.Va. Code § 49-6-3(c), the Code
section cited in the emergency temporary order. The pertinent portion of that Code section provides:
If a child or children shall, in the presence of a child
protective service worker of the division of human services, be
in an emergency situation which constitutes an imminent danger
to the physical well-being of the child or children, as that phrase
is defined in section three [§ 49-1-3], article one of this chapter,
and if such worker has probable cause to believe that the child
or children will suffer additional child abuse or neglect or will
be removed from the county before a petition can be filed and
temporary custody can be ordered, the worker may, prior to the
filing of a petition, take the child or children into his or her
custody without a court order: Provided, That after taking
custody of such child or children prior to the filing of a petition,
the worker shall forthwith appear before a circuit judge or a
juvenile referee of the county wherein custody was taken, or if
no such judge or referee be available, before a circuit judge or
a juvenile referee of an adjoining county, and shall immediately
apply for an order ratifying the emergency custody of the child
pending the filing of a petition . . . . The parents, guardians or
custodians of the child or children may be present at the time
and place of application for an order ratifying custody, and if at
the time the child or children are taken into custody by the
worker, the worker knows which judge or referee is to receive
the application, the worker shall so inform the parents,
guardians or custodians . . . . Upon such sworn testimony or
other evidence as the judge or referee deems sufficient, the
judge or referee may order the emergency taking by the worker
to be ratified . . . . If the emergency taking is ratified by the
judge or referee, emergency custody of the child or children
shall be vested in the state department until the expiration of the
next two judicial days, at which time any such child taken into
emergency custody shall be returned to the custody of his or her
parent, guardian or custodian unless a petition has been filed
and custody of the child has been transferred under the
provisions of section three [§ 49-6-3] of this article.
Careful observance of the provisions of section 3(c) and, in other emergency situations, careful observance of the provisions of W. Va. Code § 49-6-9, authorizing emergency custody by law enforcement officers, is to be encouraged and expected. The apparent intent of these Code sections is to afford protection to the child, the parents, child protective service workers, law-enforcement officers and their respective employers from the potentially serious effects of restraining liberty without due process of law.
Footnote: 2 The date on the copy of the return included in the record is not legible.
Footnote: 3 We note also that the Rules of Practice and Procedure For Family Law, adopted by order of this Court July 21, 1993, and effective October 1, 1993, do not include within their scope actions brought under W.Va. Code § 49-1-1, et seq. The scope of those
rules includes only proceedings brought under the authority of W.Va. Code § 48-1-1, et seq., § 48A-1-1, et seq., and habeas corpus proceedings involving child custody. Rule 1, Rules of Practice and Procedure For Family Law.
Footnote: 4 West Virginia Code § 49-6-1(b) provides, in pertinent part:
(b) The petition and notice of the hearing shall be served upon both parents and any other custodian, giving to such parents or custodian at least ten days' notice . . . In cases wherein personal service within West Virginia cannot be obtained after due diligence upon any parent or other custodian, a copy of the petition and notice of the hearing shall be mailed to such person by certified mail, addressee only, return receipt requested, to the last known address of such person. If said person signs the certificate, service shall be complete and said certificate shall be filed as proof of said service with the clerk of the circuit court. If service cannot be obtained by personal service or by certified mail, notice shall be by publication as a Class II legal advertisement in compliance with the provisions of article three [W.Va. Code § 59-3-1 et seq.], chapter fifty-nine of this code. A notice of hearing shall specify the time and place of the hearing, the right to counsel of the child and parents or other custodians at every stage of the proceedings and the fact that such proceedings can result in the permanent termination of the parental rights. Failure to object to defects in the petition and notice shall not be construed as a waiver.
Footnote: 5 We note also that no effort was ever made to effect service of the notice and petition on appellant by publication. Assuming that appellant retained her legal capacity to sue and be sued throughout this proceeding, service by publication in accord with the provisions of W.Va. Code § 49-6-1(b) may well have cured the difficulty presented by an attempted, but ineffective, service by mail.
Footnote: 6 We have noted and considered the somewhat asymmetrical design of W. Va. Code § 56-4-10. It is noted that the section recites that it applies to "[t]he proceedings in a suit wherein an infant or insane person is a party. . .", thus indicating that the section applies to any such proceedings. The section further requires that a guardian ad litem appointed pursuant to the section "shall faithfully represent the interest or estate of the infant or insane person for whom he is appointed . . . ." (Emphasis added.) We have noted that the sentence continues: ". . . and it shall be the duty of the court to see that the estate of the defendant is so represented and protected." (Emphasis added.) The ambiguity thus created must be resolved in favor a construction which avoids an absurd result. As Justice Miller recently commented in another context, common sense dictates that if the section applies to "any" proceedings and the guardian ad litem is to represent the interest or estate of the persons, then the court is also to protect the interest or estate at issue. See State ex rel. Morgan v. Trent, ___ W.Va. ___, ___ S.E.2d ___, ___ (No. 22886, Nov. 17, 1995).
Footnote: 7 We commend the child's guardian ad litem for making and bringing her motion on for hearing, requesting the appointment of a guardian ad litem for appellant. Her attention to this issue was well directed at fully protecting the infant and insuring the finality of any order dealing with the child's future. That desirable finality is now postponed as a result of the failure of the trial court to rule on that motion.
Footnote: 8 Minnesota Statutes Annotated § 253B.23, Subd. 2(a) (West 1994), sets forth the legal results of commitment status as follows:
Subd. 2. Legal results of commitment status. (a) Except as otherwise provided in this chapter and in sections 246.15 and 246.16, no person by reason of commitment or treatment pursuant to this chapter shall be deprived of any legal right, including but not limited to the right to dispose of property, sue and be sued, execute instruments, make purchases, enter into contractual relationships, vote, and hold a driver's license. Commitment or treatment of any patient pursuant to this chapter is not a judicial determination of legal incompetency except to the extent provided in section 253B.03, subdivision 6.
Footnote: 9 West Virginia Code § 27-5-9(a) provides:
(a) No person shall be deprived of any civil right solely by reason of his receipt of services for mental illness, mental retardation or addiction, nor shall the receipt of such services modify or vary any civil right of such person, including, but not limited to, civil service status and appointment, the right to register for and to vote at elections, the right to acquire and to dispose of property, the right to execute instruments or rights relating to the granting, forfeiture or denial of a license, permit, privilege or benefit pursuant to any law, but a person who has been adjudged incompetent pursuant to article eleven [§ 27-11-1 et seq.] of this chapter and who has not been restored to legal competency may be deprived of such rights. Involuntary commitment pursuant to this article shall not of itself relieve the patient of legal capacity.
Footnote: 10 See W.Va. Code § 27-1-1, et seq.
Footnote: 11 See W.Va. Code § 27-5-4 (1965).
Footnote: 12 It has been suggested that Lassiter v. Department of Social Services of Durham County, North Carolina, 452 U.S. 18, 101 S.Ct. 2153, 68 L.Ed.2d 640 (1981), relieves this State of compliance with one or more of these protections which have been recognized in West Virginia as constitutionally mandated. We suggest that these protections are grounded in Art. III, § 10 of the Constitution of West Virginia in addition to whatever vitality they derive from the federal Constitution.
Footnote: 13 See W. Va. Code § 49-6-2.
Footnote: 14 "The court may allow to each attorney so appointed a fee in the same amount which appointed counsel can receive in felony cases." W. Va. Code § 49-6-2(a).
Footnote: 15 Some jurisdictions require a greater distinction between the offices of counsel and guardian ad litem. See In re the Matter of R.A.D. and J.D., supra, and People In the Interest of M.M., 726 P.2d 1108 (Colo. 1986), the latter case discussing a Colorado procedure by which either but not necessarily both officers are to be appointed. See also Stanton v. Sullivan, 62 R.I. 154, 4 A.2d 269, 270 (1939), and Dawson v. Garcia, 666 S.W.2d 254, 265 (Tex. App. 5 Dist. 1984).
Footnote: 16 Conflict can be anticipated from any matter which would actually inhibit the zealous representation of a client's interests or the actual ability of the guardian ad litem to employ his or her best independent judgment in pursuit of the best interests of the mentally ill person.
Footnote: 17 We are mindful of the plea, made on oral argument in this case by the counsel to the DHHR from the prosecutor's office in Ohio County, that difficulty had been and would be experienced in finding members of the bar who would take appointments in abuse and neglect cases. We assume that the difficulty will arise with respect to service as either counsel or guardian ad litem. We recognize the financial hardships that are sometimes created for members of the bar, particularly younger lawyers, when they are asked to accept appointments without the assurance of fair payment. We encourage members of the bar to accept these burdens willingly and commend those who accept such appointments. Pursuant to the provisions of W. Va. Code § 49-6-2(a), we suggest that circuit courts should allow fees as permitted by law whenever proper application is made by appointed counsel.