STATE of West Virginia, Petitioner Below, Appellant, v. JULIE G., Natural Mother of Emily G., an Infant; and John F., Natural Father of Emily G., an Infant, Respondents Below, Appellees, Emily G., an Infant, Appellant.
No. 24580.
Supreme Court of Appeals of West Virginia.
Decided Dec. 17, 1997.
Submitted Dec. 2, 1997. Dissenting Opinion of Chief Justice Workman Dec. 18, 1997.
500 S.E.2d 877
Cathryn A. Nogay, Weirton, Guardian ad Litem, for Appellant.
Thomas D. Hagg, Assistant Prosecuting Attorney for Hancock County, Weirton, for Appellant State of West Virginia.
F. William Brogan, Jr., Public Defender Corp., First Circuit, Weirton, for Appellee Julie G.
In this child abuse and neglect action, Emily G.,1 an infant, through her Guardian ad Litem, appeals an order of the Circuit Court of Hancock County finding that she was not a neglected child as defined in
I.
FACTUAL AND PROCEDURAL HISTORY
In March of 1995, the West Virginia Department of Health and Human Resources [hereinafter “DHHR“] received a call from an individual expressing concern that Julie G. was neglecting her then fourteen-month-old daughter Emily G. The caller informed DHHR that Julie‘s parental rights to her two other children had been terminated by the State of Ohio, and that John F., Emily‘s father, had a serious criminal record and presented a potential risk of harm to the child.
Subsequent to this call, two DHHR protective service workers visited Julie at her mobile home on the afternoon of March 22, 1995. They found the home to be in a deplorable condition. It was dirty, had a foul odor and was cluttered. The only source of heat was a kerosene heater that was sitting precariously on top of a dresser in the bedroom. The kerosene heater was surrounded by papers, clothing and other flammable materials. The home had no running water, and the cooking stove did not work. The protective service workers expressed to Julie their concerns about the condition of the
The workers discussed Julie‘s financial resources with her, and Julie explained that she received Supplemental Security Income [hereinafter “SSI“], food stamps, a medical card, and a welfare check from the State of Ohio, where she had lived prior to moving to West Virginia earlier that month. Julie explained that she was also anticipating aid from a community utility resource agency. In addition, Julie stated that she had applied for West Virginia welfare benefits, but her application had been denied because she was still receiving benefits from Ohio. The workers instructed Julie on how to terminate her Ohio benefits so that she could receive West Virginia benefits.
Also during their visit, the protective service workers observed Julie‘s interactions with Emily. They perceived that Julie roughly handled Emily and seldom spoke to her. The workers further observed that Emily was drinking from a bottle, but appeared hungry. Julie was feeding Emily bites of scrambled eggs and toast from a plate she had prepared for herself. The workers asked Julie if Emily had eaten anything else that day to which Julie responded that she could not remember. Upon inspection, the workers noticed that there was little food in the home. Julie explained that her food supply had not yet been moved from her former home. The workers also found that
Finally, the workers questioned Julie about John F., who was not present during the visit. They expressed their concern regarding his criminal history. Julie stated that she knew that John F. had gone to prison for killing his wife, and that he had killed his prison cell-mate. She also stated that she had heard rumors that John had a history of child molesting, but she did not know if the rumors were true.2 Julie explained that John rarely visited her and that he was never left alone with Emily. At the conclusion of their visit, the workers provided Julie with their phone number, offered their assistance and departed.
The following day, March 23, 1995, the workers received a call from Julie informing them that water service had been turned on at her new residence; however, she still did not have running water due to a plumbing problem. The workers encouraged Julie to notify her landlord. In addition, they once again urged her to return to her former home pending resolution of the problems in her new home. Julie again declined.
On March 24, 1995, the protective service workers visited Julie a second time. They found that there had been no improvement in the conditions of the mobile home. During this visit, they asked Julie how she was able to bathe Emily without running water. Julie responded that she left Emily unattended while she went to her former home to retrieve water. The workers also observed Julie changing Emily‘s diaper. Upon noting redness and apparent tenderness, they explained the proper method of changing a diaper and again stressed the importance of keeping Emily clean.
The protective service workers then asked to examine the mobile home from which Julie was moving so they could determine its suitability as a home. The workers found that the former home had heat, running water and a working cook stove, and appeared to be in better condition than her present home. They again encouraged Julie to return to her former home until the problems with her new residence were resolved. Julie once again declined. Also during this visit, Julie admitted that she was living with John F., and that she had moved to her current residence because it was larger. After returning to Julie‘s present home, the workers asked her to remain there until she heard from them.
The protective service workers then initiated the filing of an abuse and neglect petition through the Office of the Prosecuting Attorney for Hancock County. The petition was filed that day, March 24, 1995. The petition alleged that Julie‘s parental rights to her two other children had been terminated for neglect and abuse; that Emily was residing with Julie G. and John F. in a trailer without water, heat or a working cook stove; that Julie G. left Emily unattended in a mobile home containing a running kerosene heater; that Julie G. had demonstrated a lack of parenting skills; and that Julie G. and John F. had a history of lacking parenting skills.3 That same day, the Honorable Judge Fred Riscovich issued an order authorizing DHHR to take emergency custody of Emily G. The workers returned to Julie‘s residence, also on March 24, and found that Emily had been taken to the home of her paternal grandmother in Ohio. The workers explained to Julie that criminal action could be taken if Emily was not immediately returned to West Virginia. Emily was returned, and DHHR took custody of her. Jul-ie
Subsequent proceedings in this case were presided over by the Honorable Judge Ronald E. Wilson. At a hearing on May 8, 1995, Julie requested a pre-adjudication improvement period. During the same hearing, a case plan was tendered to the court by the DHHR protective service workers. The court then granted Julie a 60-day pre-adjudication improvement period. Thereafter, the court periodically extended Julie‘s improvement period and, on one occasion, modified her case plan. During this time, the court frequently held hearings to review Julie‘s progress. Each hearing was followed by an order. In these orders, the court occasionally noted that Julie was making progress with respect to her improvement period. Many of the orders addressed Julie‘s problems. The court noted on one occasion that Julie had missed two appointments for nutrition counseling by WIC,4 and a later order noted that the counseling had been terminated.5 Another court order required Julie to refrain from having animals in her home, and to keep a gate closed to prevent Emily from having access to a stairway. Several orders addressed Julie‘s continued contact with John F. The record reveals that Julie continued to receive visits from John even after the court entered orders prohibiting such visits. Julie‘s conduct was also contrary to an amended case plan6 that had been approved by the circuit court on August 17, 1995, and which remained in effect until Jul-ie‘s pre-adjudication improvement period was finally terminated.7
During Julie‘s improvement period, she was given a psychological evaluation by Dr. William Hewitt, a clinical and forensic psychologist. Dr. Hewitt determined that Julie functioned at the bottom of the low-average range of intelligence. He diagnosed Julie as suffering from Mild Depression, Mild Anxiety, Severe Personality Disorder with Avoidant, Dependent, Narcissistic, Negativistic, and Paranoid Features. Dr. Hewitt opined that Julie
may be able to manage an infant and a child or children if she is in the company of a reasonably responsible companion, male or female, or with live-in supervision and help. But otherwise she probably won‘t be able to safely care for, manage, nurture, or adequately parent an infant or child. And as long as Mr. [F.] is in the picture she is unlikely to link up with either a responsible male or female companion.
Dr. Hewitt noted that Julie expressed a desire to live with John F. and have additional children with him. Dr. Hewitt‘s report concluded “[i]f [Julie G.] does not respond adequately to the requirements of her improvement period then consider termination of parental rights and adoption of her daughter.”
A report filed on September 16, 1996, by the West Virginia Youth Advocate Program related that “[Julie G.] failed the Parent/Child Relationship Inventory, scored in the severe range of Depression, is inconsis-tent
Several court summaries filed by DHHR protective service workers also reported Julie‘s lack of progress during her pre-adjudication improvement period. There were multiple reports of contact between Julie and John F. In addition, Julie repeatedly expressed a desire to continue a relationship with John F. and to have additional children with him. There were also reports of Julie‘s irresponsible spending, failure to take medicine prescribed to treat her depression, inability to maintain a neat and clean home, inability to maintain personal hygiene and failure to keep Emily on a regular eating and sleeping schedule.
In April, 1996, Emily‘s guardian ad litem moved for termination of the pre-adjudication improvement period. The circuit court, by order entered on May 21, 1996, and without explanation, denied the motion and continued Julie‘s improvement period. In September, 1996, Emily‘s guardian ad litem filed a second motion to terminate Julie‘s improvement period. This motion was granted at a hearing held on October 17, 1996. A corresponding order was entered on November 7, 1996, wherein the circuit court announced its finding that “no substantial improvement in [Julie‘s] circumstances has occurred under the pre-adjudicatory improvement period [sic] and the Court was of the opinion that she will not substantially improve within a short period of time.”
Following its termination of Julie‘s pre-adjudication improvement period, the court held an adjudicatory hearing on January 17, 1997. After hearing testimony presented by the two protective service workers who initially visited Julie G., and Julie‘s own testimony, the circuit court determined that Emily was not a neglected child as defined by
II.
DISCUSSION
A.
Standard of Review
In this appeal, we are asked to reverse an order of the circuit court finding that Emily G. was not a neglected child. Generally, we give plenary review to a circuit court‘s resolution of questions of law, while factual determinations made by the circuit court are reversible only when they are clearly erroneous. Justice Cleckley recently explained the appropriate standards in Syllabus point 1 of In the Interest of Tiffany Marie S., wherein this court held:
Although conclusions of law reached by a circuit court are subject to de novo review, when an action, such as an abuse and neglect case, is tried upon the facts without a jury, the circuit court shall make a determination based upon the evidence and shall make findings of fact and conclusions of law as to whether such child is abused or neglected. These findings shall not be set aside by a reviewing court unless clearly erroneous. A finding is clearly erroneous when, although there is evidence to support the finding, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed. However, a reviewing court may not overturn a finding simply because it would have decided the case differently, and it must affirm a finding if the circuit court‘s account of the evidence is plausible in light of the record viewed in its entirety.
196 W.Va. 223, 470 S.E.2d 177 (1996). Justice Cleckley further explained that:
[w]hen findings are based on determinations regarding the credibility of witnesses, Rule 52(a) [of the
West Virginia Rules of Civil Procedure ] demands even greater deference to the trial court‘s findings[.] . . . Deference is appropriate because the trial judge was on the spot and is better able than an appellate court to decide whether the error affected substantial rights of the parties.
Tiffany Marie S., 196 W.Va. at 231, 470 S.E.2d at 185 (internal quotations and citations omitted). We have thoroughly reviewed the record submitted in this case with due consideration for the standards set forth above and, as hereinafter explained, we are left with the definite and firm conviction that a mistake has been committed.
B.
Adjudication of Neglect
Emily G., through her Guardian ad Litem, argues that the circuit court erred in concluding that she was not a neglected child as defined by
On January 17, 1997, the circuit court conducted a hearing to determine whether Emily G. was an abused or neglected child. Testimony was received from the two DHHR protective service workers who visited the mobile home where Julie and Emily were residing at the time the abuse and neglect petition [hereinafter sometimes referred to as “petition“] was filed. Testimony was also received from Julie G. Following the hearing, the court entered an order, dated May 13, 1997, concluding that Emily G. was not an abused or neglected child.
Comments included in the May 13, 1997, order indicate that the circuit court accepted Julie G.‘s testimony explaining the conditions that existed at her home at the time the petition was filed, as well as her assertions that such conditions were quickly corrected. The court relied upon Julie‘s testimony in spite of the fact that evidence which came to light during her lengthy improvement period indicated otherwise. For example, Julie testified that she had corrected the heat, water and stove problems by Sunday, March 26, 1995, which date was two days following Emily‘s removal from her home. In addition, Julie asserted that her mobile home was dirty and disorderly due only to her recent move.
Conversely, a case plan dated May 5, 1995, more than one month after Emily‘s removal, included, as one of the goals to be met, “[i]mprove living conditions, i.e., sufficient heat and water service. Also, maintain a clean and safe living environment.” The inclusion of this goal indicates that the heat and water problems had not yet been resolved. Furthermore, it appears that once the problems were resolved, Julie continued to have trouble maintaining an appropriate home environment. A status review report dated June 16, 1995, related that “[a]t this time, Julie has no heating or cooking fuel in her trailer. This prohibits her from preparing meals and bathing. She has stated that she cannot remedy this before she receives her SSI check on 7-1-95. She has exhausted community resources for assistance.” At the conclusion of this evidence, the circuit court found that Julie‘s living conditions were “in a significant way caused by a lack of financial resources.” The court opined that “SSI, food stamps, a medical card and the possibility of welfare benefits may have seemed adequate to [Julie], but those resources would provide a budget balancing challenge to the best financial planner.” Notwithstanding the fact that Julie may not have had an excess of funds, the record evidence demonstrates that during her improvement period she failed to utilize the limited funds available to her to provide necessities for herself and Emily (who was present only during scheduled visits) and, instead, spent her money on expensive luxuries.9 Moreover, the record reveals that Julie was unable to consistently main-tain
The court further recognized, in its order of May 15, that Julie‘s parenting skills proved to be inadequate during the improvement period:
as we all learned from the prolonged (but justified) pre-adjudicatory improvement period granted in this case, the [DHHR Protective Service] Workers were correct in their initial questioning of [Julie G.‘s] ability to make rational choices. But this Court‘s findings must be based upon conditions existing at the time of the filing of the Petition.
(Emphasis added). Having made this observation, the court nevertheless concluded that Emily was not a neglected child at the time the abuse and neglect petition was filed. We find the court‘s conclusion in this respect to be inconsistent with its observations.10 Apparently, as indicated by the above quote, the court believed that information discovered during a pre-adjudication improvement period may not properly be considered in assessing the conditions that existed at the time of the filing of an abuse and neglect petition. We find that the circuit court misinterpreted the relevant statute.
(c) In any proceeding under this article, the party or parties having custodial or other parental rights or responsibilities to the child shall be afforded a meaningful opportunity to be heard, including the opportunity to testify and to present and cross-examine witnesses. The petition shall not be taken as confessed. A transcript or recording shall be made of all proceedings unless waived by all parties to the proceeding. The rules of evidence shall apply. Where relevant, the court shall consider the efforts of the state department to remedy the alleged circumstances. At the conclusion of the hearing the court shall make a determination based upon the evidence and shall make findings of fact and conclusions of law as to whether such child is abused or neglected, which shall be incorporated into the order of the court. The findings must be based upon conditions existing at the time of the filing of the petition and proven by clear and convincing proof.
(Emphasis added). While
Where relevant, the court shall consider the efforts of the state department to remedy the alleged circumstances. At the conclusion of the hearing the court shall make a determination based upon the evidence and shall make findings of fact and conclusions of law as to whether such child is abused or neglected. . . .
(Emphasis added). This language is mandatory. See Syllabus point 3, Ruble v. Office of Secretary of State, 192 W.Va. 134, 451 S.E.2d 435 (1994) (per curiam) (“‘The word “shall” in the absence of language in the statute showing a contrary intent on the part of the legislature, should be afforded a mandatory connotation.’ Syl. pt. 2, Terry v. Sencindiver, 153 W.Va. 651, 171 S.E.2d 480 (1969).“).
Syl. pt. 5, Rogers v. Hechler, 176 W.Va. 713, 348 S.E.2d 299 (1986).“). Thus, the legislature has clearly provided that a circuit court must consider facts developed during the improvement period where relevant.12
The case sub judice is a striking example of the inconsistent results which can be reached when relevant evidence has not been included in the circuit court‘s determination of neglect. At the time the DHHR protective service workers first visited Julie G.‘s residence, they found that necessities such as heat, food and water were not present. The home was observed to be unclean and in disarray during both of the visits that preceded the abuse and neglect petition. Julie appeared to be inattentive to Emily and demonstrated an inability to properly clean and feed her. In addition, Julie admitted to having left Emily unattended on one occasion when she went to her former mobile home to retrieve water. The workers were also concerned that the kerosene heater was a fire hazard due to the clutter in the home, and that it also presented a danger to Emily. Although Julie was encouraged by the workers to return to her former home, which had heat, running water and a working cook stove, she consistently refused. Finally, the workers expressed concern regarding contact between Emily and John F. Julie first asserted that John had very little contact with Emily and was never left alone with her, but later admitted that she and John F. resided together.13
Responding to these allegations, during her testimony at the January 17, 1997, hearing, Julie G. represented that her mobile home was equipped with heat, water and a working cooking stove within two days of Emily‘s removal. She also explained that her home was cluttered because she was in the process of moving into the home. Julie further stated that Emily was well fed and that she took appropriate measures to see that Emily was prevented from coming into contact with the kerosene heater. In addition, she testified that she did not want to return to the first trailer because the pipes under the kitchen sink leaked and, contrary to what she had previously told the DHHR protective service workers,14 because there was no heat in one room and the roof also leaked.15
Julie‘s testimony was greatly contradicted by her performance during the pre-adjudication improvement period. During the improvement period she was unable to maintain her home as a clean and safe environment for a young child. She refused to cooperate with a nutrition program provided by WIC, to such a degree that the program was canceled. Also during part of her improvement period, Julie lived in an apartment with stairs. Although she had a gate to prevent Emily from falling down the stairs, she failed to keep it closed.16 While Julie insisted that she had appropriate funds and assistance to provide for herself and Emily, she was unable to
The circuit court obviously believed that it must disregard facts that supported the initial concerns of the protective service workers, because such facts were not discovered until after the filing of the petition. In this regard, the court stated:
In March 1995, had the Workers visited Julie [G.‘s] home without the information about John [F.‘s] criminal history and without the information that Julie [G.] had been a neglectful mother, they would have found a mother and a child in a mobile home where the living conditions, while uncomfortable, were not life threatening and were being addressed by the mother. In deciding whether an emergency Order removing the child was necessary, they would or should have considered that the mother moved to a new trailer primarily for safety reasons and that this was evidence of her concern for Emily. The Workers would have or should have tempered their concern that Emily was hungry, with the observation that she was well-nourished and appeared to be in good health. As experienced child protection Workers, they would have acknowledged that the newly occupied mobile home, while messy and not as clean as they liked, did not constitute child neglect. That Emily could have been cleaner, while desirable, would not justify a finding of child neglect or a finding that there existed imminent danger to the physical well-being of the child.
(Third emphasis added).18
Had the circuit court properly evaluated the conditions that existed at the time of the filing of the petition in light of Julie‘s performance during the pre-adjudication improvement period, as required by
We note, however, that
The burden of proving that a child is abused or neglected is placed upon the DHHR. In this regard, we have held:
““”
W.Va.Code, 49-6-2(c) [1980], requires the State Department of Welfare [now the Department of Health and Human Resources], in a child abuse or neglect case, to prove ‘conditions existing at the time of the filing of the petition . . . by clear and convincing proof.’ The statute, however, does not specify any particular manner or mode of testimony or evidence by which the State Department of Welfare is obligated to meet this burden.” Syllabus Point 1, In Interest of S.C., 168 W.Va. 366, 284 S.E.2d 867 (1981).’ Syllabus Point 1, West Virginia Department of Human Services v. Peggy F., 184 W.Va. 60, 399 S.E.2d 460 (1990).” Syllabus Point 1, In re Beth, 192 W.Va. 656, 453 S.E.2d 639 (1994). Syllabus Point 3, In re Christina L., 194 W.Va. 446, 460 S.E.2d 692 (1995).
We believe DHHR met its burden in this case. The court below misinterpreted the law with regard to the proper evidence to be considered in determining whether a child is abused or neglected. Therefore, the court‘s findings of fact in this case were improperly limited to a specific point in time at which the facts had not been adequately developed. We have thoroughly reviewed the record presented on appeal and have considered all of the relevant facts, and we are left with the definite and firm conviction that a mistake has been committed. Consequently, we find that the circuit court‘s conclusion that Emily G. is not a neglected child is clearly erroneous. We reverse the May 13, 1997, order of the Circuit Court of Hancock County.21 We
III.
CONCLUSION
For the foregoing reasons, we reverse the May 13, 1997, order of the Circuit Court of Hancock County, and remand this case for further proceedings.
Reversed and Remanded.
STARCHER, Justice, dissenting:
When circuit judges determine that a child is neglected, or that parental rights be terminated, the decisions of this court often (and in my view quite properly) state that in these difficult cases we must give deference to the circuit court‘s perception and weighing of the evidence. Why? Because the judges see the people involved. The judges get a sense and feel of the situation and can size it up. Is this parent well-meaning and trying? Could the parent, with enough support, do a decent job? Look at the child—is it really fair to say that the child is neglected? Is it really fair to say that the parent is an abuser? Is it fair to separate a child from a parent, even when limited parenting skills are obvious? It‘s a tough call to make such determinations, and I think that it‘s a call that requires a face-to-face look at the people involved, to be done well.
But when circuit judges say—based on the same sorts of assessments—that a child should not be found to be neglected, or that parental rights should not be terminated, that the court should give the parent-child relationship another chance—then I sense that our decisions too often tend to find reasons why we shouldn‘t defer to or trust the circuit judge‘s judgment.
If my perception is correct, it would mean that our decisions are applying a double standard to circuit judges’ decisions in this area, and I hope we will move toward a more even-handed approach. If my perception is wrong, then I hope I will come to see my error, which I admit I don‘t at this time.
I do not quarrel with the principles that command us to look to the best interests of children, but this should not occur without some concern for parental rights—and recognition that children often love very much imperfect parents. To separate children from their moms and dads in such instances might well violate the very principles on which we say we are standing—the best interests of children.
We must trust circuit judges quite a bit in these cases, whichever way they go—not just when they decide in favor of neglect, abuse, and parental rights termination.
Accordingly, I respectfully dissent. I would uphold the judge‘s decision.
WORKMAN, Chief Justice, dissenting:
(Filed Dec. 18, 1997)
I take issue with the majority‘s conclusion that evidence relating to a pre-adjudicatory improvement period is only “proper” (whatever that means)1 for a circuit court‘s consideration if it relates back to conditions that existed at the time of the filing of the petition and that were actually alleged in the petition. The majority takes a far too narrow and technocratical view of what evidence can properly be considered by the circuit court in an abuse and neglect proceeding. While the source of the majority‘s reasoning is clearly
While I am not suggesting that evidence concerning matters not alleged in the original petition could alone support an adjudication of abuse and neglect absent an amendment, such evidence is clearly relevant insofar as it would “tend[] to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” W.Va.R.Evid. 401. Moreover, as we recognized in Teter v. Old Colony Co., 190 W.Va. 711, 441 S.E.2d 728 (1994), “it is clear that a legislative enactment which is substantially contrary to provisions in our Rules of Evidence would be invalid.” Id. at 726, 441 S.E.2d at 743. Thus, if a conflict arises between a statute and a rule relating to evidence, then the rule of evidence prevails. See id. Furthermore, whenever a child appears in court, he is a ward of that court.
The majority opinion faults the circuit court for its failure to consider all the relevant evidence, while at the same time holding that such evidence is not “proper” unless it relates back to the allegations set forth in the petition. Further, the majority (which should be functioning as an appellate body, not a fact-finder) actually makes its own determination of abuse and neglect sufficient to terminate the parental rights of Julie G.4 essentially on the basis of a cold and dirty trailer and on the mother‘s inability to manage her money well. Despite the fact that I have historically been rather rabid about the protection of abused and neglected children, I hope we have not reached the Orwellian day where parental rights are terminated for dirty housekeeping and lack of judgment with money. These problems can be corrected with educational intervention and home-
maker
The primary purpose of the statutory requirement of
Lastly, this case points out that it is absolutely incumbent upon petitioners and guardian ad litems in abuse and neglect proceedings to formally amend the petition when additional facts evidencing abuse or neglect which are substantial in nature arise subsequent to the filing of the initial petition. The instant case should have been remanded to the circuit court with directions that it consider evidence relating to the mother‘s compliance (or lack thereof) with the improvement period, and that the court make competent findings of fact and conclusions of law with regard thereto.
For the foregoing reasons, I respectfully dissent.
Notes
[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[.](Emphasis added).
“‘Where the language of a statute is clear and without ambiguity the plain meaning is to be accepted without resorting to the rules of interpretation.’ Syl. pt. 2, State v. Elder, 152 W.Va. 571, 165 S.E.2d 108 (1968).” Syllabus point 1, Courtney v. State Dept. of Health of West Virginia, 182 W.Va. 465, 388 S.E.2d 491 (1989). Syllabus point 3, Francis O. Day Company, Inc. v. Director, Division of Environmental Protection, 191 W.Va. 134, 443 S.E.2d 602 (1994). Syl. pt. 5, Walker v. West Virginia Ethics Comm‘n, 201 W.Va. 108, 492 S.E.2d 167 (1997).
The court may allow the petition to be amended at any time until the final adjudicatory hearing begins, provided that an adverse party is granted sufficient time to respond to the amendment. After the final adjudicatory hearing begins, a petition may be amended if the amendment does not prejudice an adverse party. If the petition is amended after the conclusion of a preliminary hearing in which custody has been temporarily transferred to the Department or a responsible person, it shall be unnecessary to conduct another preliminary hearing.