KRISTOPHER O. v. Mazzone
227 W. Va. 184
| W. Va. | 2011Background
- D.D. was born April 21, 2008, to a mother who admitted crack-cocaine use; DHHR filed relief from parental abuse/neglect and placed D.D. with petitioners on May 6, 2008.
- Parental rights of the biological mother (J.D.) were involuntarily terminated November 24, 2008; father L.W.’s rights were terminated March 24, 2010.
- DHHR planned D.D.’s permanency with K.M., a paternal aunt, and arranged weekly supervised visits beginning April 2009; J.M. and later L.W. rights termination influenced placement decisions.
- Petitioners expressed a desire to adopt D.D., requested a bonding assessment, and claimed they were not informed of a required written adoption application; they sought to intervene when they learned of a March 29, 2010 permanency hearing.
- On March 29, 2010, a permanency hearing resulted in D.D.’s custody transfer to K.M.; petitioners were not allowed to participate in that hearing; May 18, 2010 order denied their intervention; petitioners filed a writ of prohibition on September 20, 2010.
- This Court grants the writ of prohibition and remands for a new permanency hearing with petitioners’ participation, while leaving D.D. with K.M during a gradual transition pending further order.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether petitioners were entitled to participate in the March 29, 2010 permanency hearing. | O. contends notice and opportunity to be heard were required by statute. | DHHR contends the hearing proceeded appropriately; petitioners lacked standing to intervene. | Yes; statutory notice/participation required; writ granted. |
| Whether the DHHR’s placement preference for relatives was misapplied. | O. argues the relative preference should be considered but not automatically override best interests. | DHHR relies on federal policy and internal policy mandating relative consideration. | Relative preference is not absolute; best interests must govern, with reasonable consideration of relatives. |
| Whether DHHR failed to conduct concurrent planning for permanency. | O. asserts lack of early concurrent planning harmed permanency prospects. | DHHR followed perceived policy to pursue relative placement. | DHHR failed to engage in appropriate concurrent planning. |
| Whether the removal and transition to K.M. was properly gradual. | O. claims abrupt removal disrupted stability; transition should be gradual. | DHHR contends placement with relative complies with policy. | Abrupt removal without gradual transition violated best interests; remand for gradual plan. |
Key Cases Cited
- In re Jonathan G., 198 W.Va. 716, 482 S.E.2d 893 (1996) (1996) (child has right to continued association with those bonded, if in best interests)
- Napoleon S. v. Walker, 217 W.Va. 254, 617 S.E.2d 801 (2005) (2005) (grandparent preference must be weighed against child’s best interests)
- In re Elizabeth F., 225 W.Va. 780, 696 S.E.2d 296 (2010) (2010) (grandparent preference is not absolute; best interests govern)
- James M. v. Maynard, 185 W.Va. 648, 408 S.E.2d 400 (1991) (1991) (gradual transition principle in custody matters)
- State ex rel. Treadway v. McCoy, 189 W.Va. 210, 429 S.E.2d 492 (1993) (1993) (best interests as polar star guiding custody decisions)
- In re Katie S., 198 W.Va. 79, 479 S.E.2d 589 (1996) (1996) (health and welfare of the child as central)