Harold B. Wolfe, III
Akers & Wolfe
Princeton, West Virginia
Attorney for the Appellants,
Paul and Virginia Williams
Darrell V. McGraw, Jr.
Katherine M. Mason
Assistant Attorney General
Beckley, West Virginia
Attorneys for the Appellee,
West Virginia Department of
Health and Human Resources
Mary Ellen Griffith
Bell & Griffith, L.C.
Princeton, West Virginia
Guardian ad Litem for the Appellees,
Michael Ray T., Scottie Lee T., and
Tonya Lynn T.
JUSTICE DAVIS delivered the Opinion of the Court.
JUDGE GARY L. JOHNSON, sitting by temporary assignment.
JUSTICE SCOTT did not participate.
1. The foster parents' involvement in abuse and neglect proceedings
should be separate and distinct from the fact-finding portion of the termination proceeding
and should be structured for the purpose of providing the circuit court with all pertinent
information regarding the child. The level and type of participation in such cases is left
to the sound discretion of the circuit court with due consideration of the length of time the
child has been cared for by the foster parents and the relationship that has developed. To
the extent that this holding is inconsistent with Bowens v. Maynard, 174 W. Va. 184, 324
S.E.2d 145 (1984), that decision is hereby modified. Syllabus point 1, In re Jonathan
G., 198 W. Va. 716, 482 S.E.2d 893 (1996).
2. 'Child abuse and neglect cases must be recognized as being among
the highest priority for the courts' attention. Unjustified procedural delays wreak havoc
on a child's development, stability and security.' Syl. Pt. 1, in part, In re Carlita B., 185
W. Va. 613, 408 S.E.2d 365 (1991). Syllabus point 3, In re Jonathan G., 198 W. Va.
716, 482 S.E.2d 893 (1996).
3. Cases involving children must be decided not just in the context of competing sets of adults' rights, but also with a regard for the rights of the child(ren).
Syllabus point 7, In re Brian D., 194 W. Va. 623, 461 S.E.2d 129 (1995).
4. Former foster parents do not have standing to intervene in abuse and
neglect proceedings involving their former foster child(ren).
5. A circuit court may, in its sound discretion, permit former foster
parents to present evidence regarding their former foster child(ren) to assist the court in
assessing the best interests of such child(ren) subject to an abuse and neglect proceeding.
6. The responsibility and burden of designating the record is on the
parties, and appellate review must be limited to those issues which appear in the record
presented to this Court.
7. 'In the exercise of its appellate jurisdiction, this Court will not decide nonjurisdictional questions which were not considered and decided by the court from which the appeal has been taken. Syllabus Point 1, Mowery v. Hitt, 155 W. Va. 103[, 181 S.E.2d 334] (1971).' Syl. pt. 1, Shackleford v. Catlett, 161 W. Va. 568, 244 S.E.2d 327 (1978). Syllabus point 3, Voelker v. Frederick Business Properties Co., 195 W. Va. 246, 465 S.E.2d 246 (1995).
The appellants herein, and plaintiffs below, Paul and Virginia Williams [hereinafter collectively referred to as the Williamses], appeal from an order entered May 11, 1999, by the Circuit Court of Mercer County. By that order, the court denied the Williamses' motion to intervene in the abuse and neglect proceedings concerning their former foster children, Michael Ray T.See footnote 1 1 [hereinafter referred to as Michael], Scottie Lee T. [hereinafter referred to as Scottie], and Tonya Lynn T. [hereinafter referred to as Tonya]. The court further refused to consider the Williamses' motion for custody, wherein they sought the return of these children to their care following the youngsters' removal from their foster care by the West Virginia Department of Health and Human Resources [hereinafter referred to as DHHR]. Upon a review of the parties' arguments, the appellate record, and the pertinent authorities, we conclude that the circuit court did not abuse its discretion by refusing the requested intervention. Therefore, we affirm the decision of the Circuit Court of Mercer County.
As a result of the critical injuries he sustained, Michael was hospitalized for
an extended period of time at Women and Children's Hospital, in Charleston, West
Virginia. His siblings, Tonya and Scottie, were placed with a foster familySee footnote 5
their removal from their parents' home. After Michael's partial recovery and release
from the hospital, he was placed into foster care with the WilliamsesSee footnote 6
on April 16, 1998.
Due to the severity of Michael's injuries, Tonya and Scottie were not placed with the
Williamses until July, 1998, when their younger brother had recovered further.See footnote 7
entered August 14, 1998, the circuit court adjudicated the children to have been neglected
by their biological parents.See footnote 8
On September 11, 1998, the circuit court, during a
dispositional hearing, granted Frank and Lizzie a six-month post-adjudicatory improvement
period, and continued legal and physical custody of the children with the DHHR.
From the time of her placement into the Williamses' home, Tonya exhibited
various behavioral and disciplinary problems, believed to be the result of parentification.See footnote 9
Although Tonya and Scottie had been having regular supervised visitation with their
biological parents since their removal in April, 1998,See footnote 10
following one such supervised visit
on October 14, 1998, Tonya's conduct worsened dramatically.See footnote 11
In an attempt to protect
Scottie and Michael from their sister, Mrs. Williams requested respite care for Tonya.See footnote 12
Around the same time, Tonya confided in her foster parents that, during the recent
supervised visit, she had been sexually abused by her biological mother. The Williamses
reported this incident to the Child Protective Services [hereinafter referred to as CPS]
caseworker who formerly had handled the children's case.See footnote 13
Nevertheless, Mr. and Mrs.
Williams received the impression that the allegation would not be investigated and that no
further action would be taken with regard thereto, due in large part to Tonya's failure to
cooperate with DHHR officials by telling them her story.
Following this incident, Tonya's weekly counseling sessions increased in
number, and the guardian ad litem and the State jointly moved to temporarily suspend
Tonya's visits with Frank and Lizzie. By order entered December 15, 1998, the circuit
court suspended, for sixty days, supervised visitation between Tonya and her biological
parents.See footnote 14
In late December, 1998, the Williamses again requested respite care for Tonya
because of her continued defiance of family rules. Upon Tonya's return to the Williamses'
home, her demeanor improved.
Thereafter, the DHHR alleges that, as a result of their continuing difficulties
with Tonya, the Williamses were admonished and instructed as to acceptable forms of
discipline during a multidisciplinary treatment team [hereinafter referred to as MDT]
meeting on January 12, 1999. Because of the persistent power struggle between Tonya
and Mrs. Williams, arising from Tonya's defiance and attempt to obtain and retain control,
and concerns that the Williamses had inappropriately and negatively discussed Frank and
Lizzie in the child's presence, the team also discussed the possibility of removing the
children from the Williamses' care.See footnote 15
By letter to Mr. and Mrs. Williams dated January
21, 1999, the CPS worker assigned to the children's case reiterated the tenor of the MDT
The team members agreed that corrections needed to be made in your approach to dealing with Tonya and that if these corrections can not be made a team meeting will be held to discuss the removal of the T[.] children. . . .
The Department [DHHR] looks forward to maintaining these children in your home as long as it is in the best interest of the children.
In February, 1999, the circuit court ordered the gradual resumption of visits
between Tonya and her biological parents. On March 26, 1999, the circuit court ordered
the extension of the biological parents' improvement period to coincide with the expiration
of their period of probationSee footnote 16
in October, 2002. The circuit court also allegedly ordered
the commencement of in-home visitation, whereby the children would visit Frank and
Lizzie in their home. The Williamses submit that, upon explaining these visits to Tonya,
she revealed that she had sustained numerous additional instances of sexual abuse,
involving both of her biological parents and other relatives, before she had been removed
from her parents' home.See footnote 17
Apparently out of concern for Tonya's safety and as a result
of the perceived inaction by the DHHR in response to the October report of sexual abuse,
the Williamses penned a nine-page letter, disclosing the children's full names, revealing
certain confidences about them, and detailing Tonya's allegations, and sent it to various
government officials and agencies on March 30, 1999.See footnote 18
Neither the DHHR nor the
children's guardian ad litem had prior knowledge of this correspondence.
Presumably perceiving the letter to be a breach of the Williamses' duty of
confidentiality and apparently due to growing concern about their care of the children, the
DHHR removed the sibship from the Williamses' home on April 5, 1999, believing such
removal to be in the children's best interests. The children subsequently were placed with
another foster family. Following the children's removal from the Williamses' home, Try-
Again Homes, Inc., terminated its sponsorship of the Williamses as foster care providers,
effective April 5, 1999, citing the major breach of confidentiality demonstrated by the
letter [the Williamses] disseminated to people who are not covered by Try-Again Homes
and/or Department of Health and Human Resources release of information.
As a result of the children's removal from their home, the Williamses filed
a Motion to Intervene in the children's abuse and neglect proceedings and a motion
requesting the circuit court to return the children to their foster care. By order entered
May 11, 1999, the circuit court denied intervention and declined to consider whether the
children should be returned to the Williamses' care. In so ruling, the circuit court noted
a court has the discretion to allow foster parents who have physical custody of a child to intervene in abuse and neglect proceedings. See In re Jonathan G., 198 W. Va. 716, 482 S.E.2d 893 (1996). However, in the present case, the Williams [sic] no longer have physical custody of the children.
In their Motion, the Williams [sic] allege that the DHHR improperly and unlawfully removed the children from their home. This alleged improper removal, and the request to file a motion to have the three children returned to their foster care would be more appropriately addressed through an extraordinary remedy such as a writ of mandamus.[See footnote 19 19 ] Therefore, this Court will not address whether the DHHR should return the children to the foster care of the Williams [sic] at this time.
[T]his Court does not find that the Williams [sic] have a right to intervene . . . .
(Footnote added).See footnote 20 20 From this circuit court decision, the Williamses appeal to this Court.See footnote 21 21
Reviewing the circuit court's decision, we note, at the outset, that the
Williamses were not actually the foster parents of Michael, Scottie, and Tonya at the time
they sought intervention. Rather, they stood in the position of the children's former foster
parents. Under a strict application of our holding in Jonathan G., which dealt exclusively
with the child's then current foster parents, the Williamses are not entitled to intervene in
the children's abuse and neglect proceedings. See Syl. pt. 1, 198 W. Va. 716, 482 S.E.2d
893. Nevertheless, we must consider the matter further. As this emerging new body of
law has dealt previously only with the intervention rights of current foster parents, the
question of whether a former foster parent has standing to intervene in the abuse and
neglect proceeding concerning their former foster child(ren) is a matter of first impression
in this Court. See Syl. pt. 1, In re Harley C., 203 W. Va. 594, 509 S.E.2d 875 (1998)
(Foster parents who are granted standing to intervene in abuse and neglect proceedings
by the circuit court are parties to the action who have the right to appeal adverse circuit
court decisions.); Syl. pt. 1, Jonathan G., 198 W. Va. 716, 482 S.E.2d 893.
The intervention rights we previously have afforded to current foster parents
are limited, both by the circuit court's discretion to grant or deny such intervention and by
the primary purpose for such intervention, that is to provid[e] the circuit court with all
pertinent information regarding the child. Syl. pt. 1, in part, Jonathan G., 198 W. Va.
716, 482 S.E.2d 893. When assessing the right of individuals to participate in abuse and
neglect proceedings, we necessarily must be guided by our oft-repeated mantra that child
abuse and neglect proceedings are, without fail, to be resolved as expeditiously as possible
in order to safeguard the welfare and best interests of the fragile infant parties to such
proceedings. 'Child abuse and neglect cases must be recognized as being among the
highest priority for the courts' attention. Unjustified procedural delays wreak havoc on
a child's development, stability and security.' Syl. Pt. 1, in part, In re Carlita B., 185
W. Va. 613, 408 S.E.2d 365 (1991). Syl. pt. 3, Jonathan G., 198 W. Va. 716, 482
Although we have repeatedly admonished lawyers and the circuit courts
regarding the critical need for prompt resolution of child abuse and neglect proceedings,
Jonathan G., 198 W. Va. at 733, 482 S.E.2d at 910, this cautionary is not solely a rule
adopted by this Court. Rather, this directive is also a mandate imposed by the Legislature:
Any petition filed and any proceeding held under the provisions of this article shall, to the extent practicable, be given priority over any other civil action before the court, except proceedings under article two-a [§ 48-2A-1 et seq.], chapter forty-eight of this code and actions in which trial is in progress.
W. Va. Code § 49-6-2(d) (1996) (Repl. Vol. 1999).
The clear import of the statute [West Virginia Code § 49-6-2(d)] is that matters involving the abuse and neglect of children shall take precedence over almost every other matter with which a court deals on a daily basis, and it clearly reflects the goal that such proceedings must be resolved as expeditiously as possible. Syl. Pt. 5, In re Carlita B., 185 W. Va. 613, 408 S.E.2d 365 (1991).
Syl. pt. 6, In re Jonathan G., 198 W. Va. 716, 482 S.E.2d 893.
This need for rapid finality in abuse and neglect proceedings is attributable
to the overriding concern for the subject child's welfare. '[A] child deserves resolution
and permanency in his or her life . . . .' Jonathan G., 198 W. Va. at 726, 482 S.E.2d
at 903 (quoting State ex rel. Amy M. v. Kaufman, 196 W. Va. 251, 260, 470 S.E.2d 205,
214 (1996)). Moreover, the best interests of the child is the polar star by which decisions
must be made which affect children. Michael K.T. v. Tina L.T., 182 W. Va. 399, 405,
387 S.E.2d 866, 872 (1989) (citation omitted). Accordingly, in the interest of expediting
the resolution and conclusion of abuse and neglect proceedings, we are hesitant to expand
the realm of intervenors to individuals who are no longer guardians or custodians of the
children at issue for fear that '[u]njustified procedural delays' undoubtedly would attend
the ever-increasing roster of interested participants. See Syl. pt. 3, in part, Jonathan G.,
198 W. Va. 716, 482 S.E.2d 893; Syl. pt. 1, in part, Carlita B., 185 W. Va. 613, 408
Furthermore, while it is true that former foster parents may have an interest
in participating in cases involving children who once were entrusted to their care, we must
not forget that, in the present context, the rights of adults are subordinate to those of the
involved children. 'Although parents have substantial rights that must be protected, the
primary goal in cases involving abuse and neglect, as in all family law matters, must be
the health and welfare of the children. Syl. pt. 3, In re Katie S., 198 W. Va. 79, 479
S.E.2d 589 (1996).' Syllabus Point 3, Matter of Taylor B., 201 W. Va. 60, 491 S.E.2d
607 (1997). Syl. pt. 3, In re Harley C., 203 W. Va. 594, 509 S.E.2d 875. In other
words, [c]ases involving children must be decided not just in the context of competing
sets of adults' rights, but also with a regard for the rights of the child(ren). Syl. pt. 7,
In re Brian D., 194 W. Va. 623, 461 S.E.2d 129 (1995). It is for these reasons, then, that
we hold that former foster parents do not have standing to intervene in abuse and neglect
proceedings involving their former foster child(ren). Based upon our decision, we further
conclude that the circuit court did not abuse its discretion by refusing the Williamses'
In addition to our recognition of the preeminent rights of the infant child(ren)
subject to abuse and neglect proceedings and our acknowledgment of the detrimental delays
that would result from the extension of intervention to former foster parents, we wish to
identify the very limited role that former foster parents may have in assisting a circuit court
in determining the child(ren)'s best interests. As we noted in Jonathan G., the purpose
behind allowing foster parents to intervene is to provide the court with information
concerning the child(ren) with whose care they have been charged. Syl. pt. 1, in part, 198
W. Va. 716, 482 S.E.2d 893. Former foster parents, as the former guardians, custodians,
and/or caretakers of the subject child(ren), similarly have knowledge of the child(ren) that
could be beneficial to a court considering the child(ren)'s best interests and ultimate fate.
While complete intervention is not the proper role for former foster parents to participate
in abuse and neglect proceedings, we do believe their input would, in many cases, be
instructive and facilitate the court's decision. Therefore, we hold that a circuit court may,
in its sound discretion, permit former foster parents to present evidence regarding their
former foster child(ren) to assist the court in assessing the best interests of such child(ren)
subject to an abuse and neglect proceeding. Based upon the record evidence in the instant
appeal, we note, with approval, the circuit court's decision to permit the Williamses to
testify and present evidence regarding Michael, Scottie, and Tonya, as they were in a
position, as the children's former foster parents, to provide pertinent first-hand information
for the court's consideration.
At this juncture, we wish also to applaud the Williamses' continued efforts
to vigilantly protect what they perceive to be the best interests of the children previously
entrusted to their care. Their dedication and devotion to their former young charges is
readily apparent from their appearance before this Court. As we will explain further in
Section III.B., infra, we are without sufficient information to determine whether the
DHHR's removal decision was in error or whether the best interests of the children dictate
their return to the Williamses' care. In any event, we do want to emphasize that, while
the Williamses do not have a right of intervention in the underlying abuse and neglect
proceedings, they may not be completely devoid of remedies should they desire to pursue
this matter further. Such alternative remedies at their disposal may include the
extraordinary remedies of mandamus, as alluded to in the circuit court's order, and habeas
corpus. See Syl. pt. 1, State ex rel. Allstate Ins. Co. v. Union Pub. Serv. Dist., 151
W. Va. 207, 151 S.E.2d 102 (1966) (Mandamus is a proper remedy to require the
performance of a nondiscretionary duty by various governmental agencies or bodies.);
Syl. pt. 2, West Virginia State Dep't of Pub. Assistance v. Miller, 142 W. Va. 855, 98
S.E.2d 783 (1957) (The writ of habeas corpus is a proper remedy to determine the
custody of a child, but it will not be issued in a pending suit, of which the court has
jurisdiction, involving the temporary custody of such child; nor will a writ of prohibition
lie against the judge of the court which has so taken jurisdiction.). As both of these
proceedings would be external to the underlying abuse and neglect proceedings, there
exists a lesser likelihood of unnecessary and disruptive procedural delay. See Syl. pt. 3,
Jonathan G., 198 W. Va. 716, 482 S.E.2d 893; Syl. pt. 1, Carlita B., 185 W. Va. 613,
408 S.E.2d 365.
We frequently have stated that parties are duty-bound to preserve evidence
in the record to ensure that this Court may conduct a complete review of the challenged
lower court proceedings. In a long line of unbroken precedent, this Court has held that
the responsibility and burden of designating the record is on the parties and that appellate
review must be limited to those issues which appear in the record presented to this Court.
State v. Honaker, 193 W. Va. 51, 56, 454 S.E.2d 96, 101 (1994) (footnotes omitted)
(citation omitted). Thus, where an appellant [has] spurn[ed] his or her duty and drape[d] an
inadequate or incomplete record around this Court's neck, this
Court, in its discretion, either has scrutinized the merits of the
case insofar as the record permits or has dismissed the appeal
if the absence of a complete record thwarts intelligent review.
State v. Miller, 194 W. Va. 3, 14, 459 S.E.2d 114, 125 (1995) (citations omitted).
Furthermore, a constant refrain of this Court is that we will not consider, for
the first time on appeal, a matter that has not been determined by the lower court from
which the appeal has been taken. [T]he Supreme Court of Appeals is limited in its
authority to resolve assignments of nonjurisdictional errors to a consideration of those
matters passed upon by the court below and fairly arising upon the portions of the record
designated for appellate review. Syl. pt. 6, in part, Parker v. Knowlton Constr. Co.,
Inc., 158 W. Va. 314, 210 S.E.2d 918 (1975). Therefore, '[i]n the exercise of its
appellate jurisdiction, this Court will not decide nonjurisdictional questions which were not
considered and decided by the court from which the appeal has been taken. Syllabus
Point 1, Mowery v. Hitt, 155 W. Va. 103[, 181 S.E.2d 334] (1971).' Syl. pt. 1,
Shackleford v. Catlett, 161 W. Va. 568, 244 S.E.2d 327 (1978). Syl. pt. 3, Voelker v.
Frederick Bus. Properties Co., 195 W. Va. 246, 465 S.E.2d 246 (1995). See also
pt. 2, Sands v. Security Trust Co., 143 W. Va. 522, 102 S.E.2d 733 (1958) (same).
Absent an adequate record detailing the DHHR's specific reasons for
removing the children from the Williamses' home and the lack of a determination of this
issue by the circuit court, we are precluded from reviewing the precise merits of this
assignment of error.
Once again, however, we wish to commend the vigilance with which the
Williamses sought to protect the perceived best interests of their former foster children,
Michael, Scottie, and Tonya. We also appreciate the quintessential catch-22 in which Mr.
and Mrs. Williams found themselves when they believed that Tonya's allegations of sexual
abuse had not been adequately addressed by the appropriate governmental officials. It is
unfathomable that any parent, biological, foster, adoptive, or otherwise, would not be
terrified by the prospect that his or her child might be placed into a situation posing a risk
of imminent danger and that such parent would not do everything in his or her power to
protect his or her child. Nonetheless, we caution individuals entrusted with the care and/or
custody of children involved in abuse and neglect proceedings of the utmost confidentiality
attending these matters and the statutory prohibition of breaching such confidences. See
W. Va. Code § 49-7-1 (1997) (Supp. 1997).See footnote 22
Neglected child means a child . . .
[w]hose 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 such refusal, failure or inability is not due primarily to a lack of financial means on the part of the parent, guardian or custodian . . . .
The term parentified child or parentification is widely accepted in the field of psychology and counseling to refer to the process in which a child is routinely permitted to assume responsibilities which appropriately belong to parents. For a young child, this is a frightening experience, because, at some level, the child realizes that s/he is unable to adequately assume the responsibilities being given. On the other hand, the child adapts to the situation by enjoying the feeling of power that results from being in charge. Being in charge becomes a survival skill for a young child whose parents do not consistently take responsibility and make decisions. If the child does not take charge, it is possible that nobody else will and this could be potentially life threatening. Therefore, when an adult attempts to assume the responsibilities such a child has been inappropriately given, the child customarily reacts with resistance and resentment, and is likely to fight to retain control. The result is a power struggle between the child and whichever adult is attempting to parent that child.
The appellate record does not indicate whether a prior investigation of these charges had been initiated as a result of Tonya's October allegations, however an investigation was commenced on April 2, 1999, in response to communications by Tonya's counselor to the Princeton detachment of the West Virginia State Police. Failure to report suspected child abuse to the appropriate authorities is a misdemeanor offense. W. Va. Code § 49-6A-8 (1984) (Repl. Vol. 1999).
(a) Except as otherwise provided in this chapter, all
records and information concerning a child or juvenile which
are maintained by a state department, agency, court or law-
enforcement agency shall be kept confidential and shall not be
released or disclosed to anyone, including any federal or state
. . . .
(e) Any person who willfully violates the provisions of this section is guilty of a misdemeanor and, upon conviction thereof, shall be fined not more than one thousand dollars, or confined in the county or regional jail for not more than six months, or be both fined and confined. A person convicted of violating the provisions of this section shall also be liable for damages in the amount of three hundred dollars or actual damages, whichever is greater.
W. Va. Code § 49-7-1 (1997) (Supp. 1997). For the current version of this statute, see W. Va. Code § 49-7-1 (1999) (Repl. Vol. 1999).