Opinion, Case No.24438 State of West Virginia ex rel. Paul & Chris B. v. Hon. George W. Hill, Jr., et al.


IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA

September 1997 Term



No. 24438



STATE OF WEST VIRGINIA EX REL.
PAUL AND CHRIS B.,
Petitioners,

V.

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.,
Respondents.



PETITION FOR WRIT OF PROHIBITION

WRIT GRANTED AS MOULDED.



Submitted: October 15, 1997
                Filed: October 24, 1997

David Allen Barnette                Darrell 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
                        Human Resources

Michele Rusen                    Susan D. Simmons
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
Tom Price
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

    1.    "Although 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 531 (1967).

    2.    The 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).

    3.    A 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.

    4.    A 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.


Davis, Justice:

    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.

I.
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 siblings.

    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,