814 S.E.2d 660
W. Va.2018Background
- T.C., born 2013, was removed after abuse/neglect petition; placed with paternal grandmother, then with petitioners (maternal aunt and uncle) in April 2015 as long-term foster/preadoptive parents who seek to adopt.
- Both parents adjudicated; mother's rights terminated in 2016 (no appeal); father's rights terminated in 2017 and appealed (later affirmed by this Court).
- On October 27, 2017, respondents (paternal grandmother T.B. and paternal aunt A.C.) filed a motion to intervene and for custody/visitation; petitioners were not served or notified of the January 2, 2018 evidentiary hearing.
- At the January 2 hearing (without petitioners present or informed), court admitted evidence and ordered supervised biweekly visitation for respondents; custody/intervention requests were taken under advisement; order entered January 9, 2018.
- Petitioners later were allowed to intervene (Feb. 26 hearing; March 6 order) but the court refused to stop visitation; petitioners then sought a writ of prohibition; this Court granted the writ and stayed enforcement of the visitation order.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether foster/preadoptive parents must receive notice and a meaningful opportunity to be heard before court grants visitation or custody motions in abuse & neglect proceedings | Petitioners: statute and rules mandate that foster/preadoptive parents are “persons entitled to notice and a meaningful opportunity to be heard,” so they must get notice and chance to address motion before court rules | Respondents: petitioners were not pre-petition custodians; level of foster participation is discretionary under Jonathan G.; petitioners had remedy by appeal; respondents could not serve because they lacked access to confidential files | Court: Petitioners had a statutory right to notice and a meaningful opportunity to be heard; ruling granting visitation without such notice exceeded court’s powers and was clear legal error; writ granted |
| Whether the two-tiered §49-4-601(h) framework allows foster/preadoptive parents to cross-examine witnesses at pre-petition dispositional hearings | Petitioners: sought meaningful hearing on visitation; did not necessarily demand cross-examination at dispositional hearings | Respondents: foster parents who obtain custody after petition do not have rights to present/cross-examine witnesses like pre-petition custodians | Held: Two-tiered framework stands — only pre-petition custodians get full rights to testify and cross-examine; but foster/preadoptive parents still must be afforded a meaningful opportunity to be heard on matters (like visitation) affecting the child |
| Whether Jonathan G. vitiates statutory/Rule-based notice requirements by deferring participation scope to trial court discretion | Petitioners: Jonathan G. supports hearing foster parents about child-specific matters; does not excuse lack of statutorily required notice | Respondents: Jonathan G. gives circuit court broad discretion over foster participation | Held: Jonathan G. remains good law but does not permit ignoring mandatory notice/meaningful-hearing rights for foster/preadoptive parents; discretion has limits under statute and rules |
| Whether prohibition is appropriate remedy rather than appeal | Petitioners: lack of notice caused irreparable, uncorrectable prejudice requiring prohibition | Respondents: petitioners had alternate remedy via direct appeal | Held: Writ of prohibition granted because court exceeded legitimate powers and committed clear legal error by ruling without statutorily required notice/opportunity to be heard |
Key Cases Cited
- State ex rel. Hoover v. Berger, 199 W.Va. 12 (Court set five-factor framework for discretionary writs of prohibition)
- Terry v. Sencindiver, 153 W.Va. 651 (statutory use of “shall” is mandatory absent contrary intent)
- State ex rel. Peacher v. Sencindiver, 160 W.Va. 314 (writ of prohibition as remedy when court lacks jurisdiction or exceeds powers)
- In re Jonathan G., 198 W.Va. 716 (foster parent participation level is for circuit court’s discretion; distinguishes pre-petition custodians)
- Kristopher O. v. Mazzone, 227 W.Va. 184 (circuit court exceeded powers by denying foster parents opportunity to be heard at permanency hearing)