813 S.E.2d 154
W. Va.2018Background
- Mother obtained a domestic violence protective order (DVPO) against father after extensive alleged physical and emotional abuse; Guardian ad Litem (GAL) was appointed and interviewed parents and children, who corroborated abuse claims.
- Maternal grandparents filed for emergency temporary guardianship; family court granted temporary guardianship and no-contact orders and, because the guardianship alleged abuse/neglect, removed the matter to circuit court under Rules 48a/13 and referred it to DHHR.
- DHHR substantiated maltreatment, opened a CPS case, and prepared an abuse-and-neglect petition for the prosecutor; at a hearing DHHR expressed serious concerns but noted that if children remained with grandparents the immediate danger might be addressed.
- The circuit court nevertheless remanded the case to family court (concluding a petition was unnecessary because of the temporary guardianship), and DHHR ceased involvement; family court thereafter held a permanent guardianship hearing and awarded permanent guardianship to the grandparents over parental objections.
- Parents appealed, arguing the remand violated Rules 48a/13 (which bar remand of crossover cases) and thus the family court lacked subject-matter jurisdiction to enter a permanent guardianship; the Supreme Court of Appeals reviewed de novo.
Issues
| Issue | Plaintiff's Argument (Parents) | Defendant's Argument (GAL/Grandparents) | Held |
|---|---|---|---|
| Whether circuit court properly remanded a guardianship case removed for abuse/neglect back to family court | Remand violated Rules 48a/13 which require that once a family court removes a guardianship case involving abuse/neglect the case remain in circuit court | Circuit court had discretion; temporary guardianship made a petition unnecessary so remand was appropriate | Remand was error; Rules 48a/13 mandate the case remain in circuit court when removal occurs for abuse/neglect |
| Whether family court had subject-matter jurisdiction to enter permanent guardianship after remand | Family court lacked jurisdiction because the matter had been properly removed and should have remained in circuit court for abuse/neglect proceedings | Family court can exercise concurrent guardianship jurisdiction and circuit court discretion justified remand | Family court lacked subject-matter jurisdiction; permanent guardianship order is void and vacated |
| Whether temporary guardianship precludes filing an abuse-and-neglect petition or termination proceedings | Temporary placement with relatives does not negate DHHR’s duty to file when allegations are substantiated | Temporary custody addresses immediate safety so petition may be unnecessary | Temporary guardianship does not obviate need for abuse/neglect petition when DHHR has substantiated abuse; DHHR may still be required to file |
| Remedy and interim custody pending further proceedings | Parents requested reversal and potential return of custody | GAL/Grandparents emphasized children’s safety with grandparents | Reversed and remanded to circuit court; permanent guardianship vacated; children to remain temporarily with grandparents pending a fitness hearing within 10 days and DHHR may file abuse/neglect petition |
Key Cases Cited
- Chrystal R.M. v. Charlie A.L., 194 W. Va. 138, 459 S.E.2d 415 (1995) (standard of review/de novo for legal questions)
- In re Abbigail Faye B., 222 W. Va. 466, 665 S.E.2d 300 (2008) (Rule 48a requires removal to circuit court and proof of abuse/neglect by clear and convincing evidence)
- Snider v. Snider, 209 W. Va. 771, 551 S.E.2d 693 (2001) (subject-matter jurisdiction is a question of law)
- In the Interest of J.L., Jr., 234 W. Va. 116, 763 S.E.2d 654 (2014) (family court lacks authority over matters of child abuse/neglect reserved to circuit court)
- In re Timber M., 231 W. Va. 44, 743 S.E.2d 352 (2013) (court may take protective action on appeal when child welfare appears at risk)
- State ex rel. Smith v. Thornsbury, 214 W. Va. 228, 588 S.E.2d 217 (2003) (subject-matter jurisdiction requirement)
- State ex rel. TermNet Merchant Servs., Inc. v. Jordan, 217 W. Va. 696, 619 S.E.2d 209 (2005) (decrees rendered without subject-matter jurisdiction are void)