IN THE SUPREME COURT OF APPEALS OF
September 1997 Term
STATE OF WEST VIRGINIA EX REL.
PAUL AND CHRIS B.,
HONORABLE GEORGE W. HILL, JR.,
JUDGE OF THE CIRCUIT COURT
OF WOOD COUNTY;
PETE AND CYNTHIA L. S.; AND
NATASHA COLETTE B., ANATOLI JOSEF B.,
ALEVHNIA MARIE B., AND OLYA TESS B.,
PETITION FOR WRIT OF PROHIBITION
WRIT GRANTED AS MOULDED.
Submitted: October 15, 1997
Filed: October 24, 1997
V. McGraw, Jr.
Monika J. Hussell Attorney General
Jackson & Kelly Barbara L. Baxter
Charleston, West Virginia Assistant Attorney General
Attorneys for the Petitioners Charleston, West Virginia
Attorneys for the West Virginia
Department of Health and
Parkersburg, West Virginia Simmons & Simmons
Attorney for the Respondents, Elizabeth, West Virginia
Pete and Cynthia L. S. Guardian ad Litem for the Respondent Minor Children,
Natasha Colette B., Anatoli Josef B.,
Alevhnia Marie B., and Olya Tess B.
Brian D. Yost
Holroyd, Yost & Evans
Charleston, West Virginia
Attorneys for Amici Curiae,
Childplace, Inc., and
Burlington United Methodist
Family Services, Inc.
JUSTICE DAVIS delivered the Opinion of the Court.
SYLLABUS BY THE COURT
a court has jurisdiction of the subject matter in controversy and
of the parties, if it clearly appears that in the conduct of the
case it has exceeded its legitimate powers with respect to some
pertinent question a writ of prohibition will lie to prevent such
abuse of power." Syllabus point 2, State ex rel. State
Road Commission v. Taylor, 151 W. Va. 535, 153 S.E.2d
inadequacy of allegations contained in an abuse and neglect
petition does not, in and of itself, abrogate one's standing to
file such a petition pursuant to W. Va. Code § 49-6-1(a)
(1992) (Repl. Vol. 1996).
circuit court has jurisdiction to entertain an abuse and neglect
petition and to conduct proceedings in accordance therewith as
provided by W. Va. Code § 49-6-1, et seq.
parent's relinquishment of his/her parental rights either in
anticipation of future adoption proceedings or as a part of
previously initiated adoption proceedings does not constitute
abandonment for abuse and neglect purposes.
In this original
proceeding for a writ of prohibition, the petitioners, Paul and
Chris B.,See footnote 1 1
request this Court to prohibit the respondent judge, the
Honorable George W. Hill, Jr., Judge of the Circuit Court of Wood
County, from enforcing his August 20, 1997, order. In that order,
Judge Hill concluded that the respondents, Pete and Cynthia L.
S.,See footnote 2 2
should receive the legal and physical custody of the
respondent children, Natasha Colette B., Anatoli Josef B.,
Alevhnia Marie B., and Olya Tess B., pending further
investigation by the West Virginia Department of Health and Human
Resources. The circuit court deemed further inquiry appropriate
given the S family's prior allegations that the B
family had abandoned their four adoptive children by placing them
in respite care with the S family and by making
arrangements to re-place the children through the Texas adoption
agency through which they had adopted them. We issued a rule to
show cause. We now grant as moulded the writ of prohibition.
FACTUAL AND PROCEDURAL HISTORY
The facts underlying this proceeding began in approximately May, 1997. At that time, Paul and Chris B., having earlier decided to adopt four children from Russia, traveled to that country to meet their soon-to-be adoptive children and to finalize the adoption arrangements.See footnote 3 3 Throughout the adoption process, the B family had worked with the Gladney Center, an international adoption agency located in Fort Worth, Texas, and Gladney representatives had assured them that the Russian children would have no substantial emotional problems.See footnote 4 4 On May 15, 1997, the Bs' adoption of the four siblings, Natasha Colette, Anatoli Josef, Alevhnia Marie, and Olya Tess,See footnote 5 5 was finalized in Russia. After retrieving the children from the orphanage in which they had been residing, the Bs and their four Russian children resided temporarily in Russia, first with a Russian host family and, later, in a youth hostel, to permit the new family unit to become acquainted with one another before returning to the United States. The Bs claim that once the adoption had been finalized, the orphanage informed them that Natasha had exhibited some
anti-social behavior and had had occasional
outbursts. While residing in Russia, the Bs experienced
difficulty interacting with the children, and the children would
not obey them.
Upon their return to
Parkersburg, West Virginia, the Bs and their four Russian
children were reunited with the Bs' other children.See footnote 6 6 The
Bs claim that, from the beginning, the relationship
between the four Russian siblings and the Bs' other
children was strained, at best. In this regard, the Bs
indicate that the Russian children acted violently towards
themselves, each other, and the other B children, would
not obey, and could not be disciplined. After meeting with a
family counselor in early July, 1997, the B family learned
that the Russian siblings likely suffered from "attachment
displacement disorder," an emotional disturbance frequently
diagnosed in children who have been adopted from orphanages in
foreign countries. The counselor also opined that the Russian
children may or may not ever completely recover from this
disorder and that the B family had little hope of
establishing a cohesive family that would include these four
At this juncture, the Bs concluded that the Gladney Center had misrepresented the emotional and mental condition of the Russian children.See footnote 7 7 Determining
that they could not continue to jeopardize
their family stability and the safety of their other children,See footnote 8 8 the
Bs pursued the option of relinquishing their parental
rights to the Russian siblings and re-placing them with the
Gladney Center for a second adoption. The arrangements with the
Gladney Center apparently have contemplated that, unlike the B
family situated in Parkersburg, West Virginia, Gladney, in Texas,
can secure the appropriate treatment for children with such
severe attachment displacement disorder. These preparations also
contemplate the continuation of the sibship unit by placing all
four children in the same adoptive home.
Toward the end of July, 1997, Mr. B was scheduled to take an out-of-town weekend trip. Based in large part upon Mrs. B's inability to control their newly adopted children and fearing for her own safety and that of her remaining children, the Bs sought temporary respite careSee footnote 9 9 for their Russian children during Mr. B's absence. The B family,
having contacted Burlington United Methodist Family Services, Inc., was advised to contact the Ss to see if they could provide such care. Mr. and Mrs. S, who have provided respite care to numerous children,