West Virginia Department of Health & Human Resources Ex Rel. Wright v. David L.

MILLER, (Ret.), receiving sitting temporary vented from the child children J. appropriate assignment. parents. care their The improvement period

formulation of J., WORKMAN, concurs and reserves the family plans ease should therefore be a right concurring opinion. to file a consolidated, multidisciplinary effort among system, parents, the court at- J., CLECKLEY, dissents and reserves the torneys, agencies, service social dissenting opinion. to file a personnel helping involved assist- ing family. goal The be should

development designed a program as- parent(s) any prob-

sist the in dealing with ability

lems which interfere with his to be parent

an effective an im- and to foster

proved relationship parent between

child with an eventual restoration of full parental hoped-for rights result. The improvement period family plans WEST VIRGINIA DEPARTMENT OF specific must establish measures for the HEALTH AND HUMAN RESOURCES goals, improve- achievement these WRIGHT, ex rel. Brenda Social Service period ment must be more than mere Worker, Petitioner, passage period of time. It is a in which attempt the court D.H.S. and should success, parent’s facilitate the but wherein L., L., L., Ashley DAVID Chelsea must understand that he bears L., L., Respondents. and Joshua responsibility to demonstrate sufficient

progress improvement justify No. 22311. re- turn him the child. Supreme Appeals Court of Id. 408 S.E.2d at 377. Virginia. West Following any improve- the formulation of Sept. Submitted plan, imperative progress ment “it Dec. Decided parent(s) toward the achievement of closely.” goals be Id. enumerated monitored B., emphasized in

As we Carlita import clear of the statute is that involving neglect

matters abuse precedence

children shall take almost

every other matter with a court basis, daily clearly

deals on a and it re- goal proceedings

flects the must expeditiously possible. resolved as

Id. improvement period should be careful- closely on at

ly crafted and monitored least a

monthly judge This circuit must rec- basis.

ognize throwaway that these children are not further, way beings;

human may be best

case is handled the last chance lives.

for effective intervention

BROTHERTON, C.J., participate. did not Brown, Atty.

Margaret Phipps Asst. Pros. County, Huntington, petitioner. for for .Cabell Jr., Hunt, Lees, Lees, & B. Farrell James Kessler, Charleston, respondent David L. for Clair, Levine, D. J. William St St William Levine, Huntington, respondent for Clair & Jill L.

CLECKLEY, approached Justice: County Prosecuting the Cabell Attorney’s therapist Family Office. A This case involves two certified Services, Inc., protective and a child service relating Wiretapping and Electronic Department worker for the of Health and Act, W.Va.Code, 62-1D-1, Surveillance (DHHR) Human Resources listened to at counterpart and its federal in Title III Thereafter, tapes. April least some of the on of the Omnibus Crime Control and Safe petition the DHHR filed the Streets Act and, County, by Circuit Court of Cabell questions The certified involve whether a DHHR, day, order dated the same the inter husband, longer wife, who no lives with his alia, granted temporary legal physi- suspects abusing but who his wife of cal of the children. The order also children, may use a third with access place physical authorized the DHHR to cus- to the place wife’s house to a voice-activated tody of the children with David L. tape recorder the wife’s house to record conversations between his wife and their chil- A hearing petition on May was held on dren. We hold such conduct violates W.Va. hearing, 1994. At protective the child Code, 62-lD-3(a)(l) (1987), and 18 U.S.C. service spoke worker testified she with the 2511(l)(a) (1988). Therefore, the audio- twenty children for about minutes. She said tapes are inadmissible under 62- the children indicated to her Jill L. (1987), (1968). 1D-6 excessively screams at them and made a comment to the effect “she would kill them.”

I. girls One of the said she hides in the base- ment or behind a chair and covers her ears FACTS addition, when her mother screams. In L.1 Jill filed for a divorce from David L. the children indicated Jill L. sometimes uses October, 1998, given temporary and she was belt, and Joshua L. indicated he suffered a custody of daughters, Ashley their twin L. bruise on his from a buttocks belt least L., son, ages and Chelsea and their Joshua protective once. The child service worker L., age 5. Jill L. continued to reside signs physical stated she saw no abuse on home, marital and David L. moved. After them, the children at the time she met with couple separated, prior but to their di- appear and she said did not to be mal- vorce, David L. asserts he became concerned nourished. being that the children were abused Jill L., mother, so he asked his the children’s protective The child service worker also paternal grandmother, place a voice-acti- spoke pater- with David L. and the children’s vated recorder in the children’s bed- grandmother.3 reported nal It was her room to record conversations between Jill L. that Jill L.’s screams could be overheard paternal grandmother and the children. The neighbors keep adequate and Jill L. did not babysat had access to the home because she attempted food the house. She unsuccess- mother, Through the children. David L. fully pro- to contact Jill L. After the child tape-recorded retrieved a series of conversa- testified, tective service worker the circuit L. recordings tions. Jill was unaware the hearing judge court stated the could contin- being made. ue, speak personally but he wanted conversations, listening day. hearing the next The After to these children then concluded, gave tapes lawyer2 David L. to his who and no one else testified. addition, practice involving spoke therapist our she with the As is in cases sensitive facts, Services, Inc., we do not use the last names to avoid Family apparently who talked to See, Derr, stigmatizing parties. e.g., v. State children, appear but did not herself court (1994); 192 W.Va. 451 S.E.2d 731 State ex testify. girls' kindergar- She also talked by Mary Benja- rel. Div. Human Serv. C.M. any specific who her ten teacher could P.B., (1990). min 395 S.E.2d 220 information. represented by lawyer 2. David L. different on appeal. tape recordings which are the “2. Are

According to on behalf of the brief product interceptions admissible of such DHHR, judge inter- after the circuit court hearing in a to determine both evidence children, hearing but before the viewed physical le- permanent temporary resumed, L., lawyer judge, her gal custody?” audiotapes. Jill L. and learned lawyer, L. lawyer, tape recordings and his court circuit ruled W.Va.Code, 62-lD-3(a)(l), guardian ad litem for the children listened violated Afterwards, agreed 62-1D-6.4 tapes. inadmissible arrangement per This reviews Court maintain interpretation de novo. Mildred L.M. April See temporary order dated O.F., John judge did apparently court not listen tapes and them sealed. to the ordered II. 16, 1994, May L. filed motion to On 29, 1994, April the order and vacate dated DISCUSSION sup- the children. award her of circuit indicates in its As the court motion, her L. asserted the port of question, specifically first this case certified by failed to admissible evidence DHHR show ID—3(a)(1), by is controlled 62— abused children. The circuit that she (1988). W.Va.Code, § 2511 admissibility arguments on the court heard “(a) 62-1D-3(a)(1), provides: Except oth as and, audiotapes, by May order dated of the article, provided in this it specifically erwise 26,1994, the certified follow- circuit court (1) any person to: Intentional is unlawful for ing two to this Court: ly attempt intercept procure or intercept, 62-lD-3(a)(l) any person intercept attempt and other “1. Does W.Va.Code wire, any commu equivalent, ap- intercept, oral or electronic its federal 18 U.S.C. father, of the dispute where The federal version stat ply nication[.]” to a 2511(1)(a) ute in 18 upon suspicion behavior toward set forth U.S.C. of abusive children, substantially If are procures party a third similar.5 communications his provisions place intercepted in violation of the of access to the marital home a self- 62-1D-3(a)(1), in the or 18 activating tape children’s U.S.C. recorder 2511(1)(a), recording such communications are inadmis purpose for the con- bedroom W.Va.Code, 62-1D-6, sible as evidence versations interactions between 2515.6 18 U.S.C. and children? wife/mother 4. reviewed stay by the children. all By order proceedings order permit dated to meet the best interests and needs dated certified the DHHR to June in the circuit June questions. Subsequently, proceed this we court clarified Court with actions while stayed we section shall be or shall be oral, ^[*] or electronic (5).” punished or endeavor to subject ^{[*] [*]} to suit provided communication; ^[*] intercept, any provided in subsection ^{[*] [*]} wire, sub- (4) 6.W.Va.Code, 62-1D-6, brief, states: reports the DHHR the children In its during problems with Jill continue to have obtained, directly indirectly, by "Evidence "spankings problems include visitations. These wire, interception any oral or electronic bruises, hittings, resulting in sometimes shall be received in evidence communication only toward emotional tirades directed them." jury grand proceedings and criminal court now "entered DHHR states circuit has magistrate proceedings court circuit specifically setting an order more out the terms Provided, That evidence obtained in vio- court: abating supervision during visitation and provisions article of this shall not lation discipline by physical either of the children any proceeding.” be admissible of the Court.” until further order Likewise, provides: 18 U.S.C. 2515 any "Whenever wire or oral communication l(l)(a) § 251 states: intercepted, part no of the contents of has been "(1) Except specifically provid- and no evidence derived such communication as otherwise any chapter any in evidence person be received ed in this who— therefrom trial, "(a) hearing, proceeding in or intentionally intercepts, or other before endeavors to officer, court, grand jury, department, intercept, procures Upon lationships. listening to some Virginia’s Wiretapping and West adopted in audiotapes, Electronic Act was learned his wife Surveillance defendant adoption, we not ad Since sexually close friend involved with a prohib Act dressed the issue of whether the partner. defendant then killed business audiotaping type issue its the man. however, did, parallel case. address the We corpus relief Upon review the habeas Act v. Hol federal version of the in Marano granted the Circuit defendant land, (1988), County, disagreed with the Court of Ohio we Syllabus 15: where we stated Point finding court’s “that the failure to interception spouse’s telephone “One tapes ‘seriously jeopardized’ introduce by the a violation communications other is in that would have the defendant’s and Safe the Omnibus Crime Control insanity provided buttressed defense Streets Act of backup for a defense of diminished a basis by its terms renders them inad- capacity.” 179 W.Va. at 366 S.E.2d at missible.” (Footnote omitted). major We found argues present David L. the facts of the jurisdictions audiotapes ity of held such vio significantly different from the facts lated 18 U.S.C. the facts of cited Maraño and the cases audiotapes were under 18 inadmissible Therefore, L. asserts that Maraño. 172, § 2515. 179 at 366 S.E.2d U.S.C. Syllabus ap- 15 of not Point Maraño should support, As cited States v. at 133. we United ply generally Although to this case. we (6th Cir.1976); Jones, 661 542 F.2d United agree David L. that the facts of the with (7th Rizzo, Cir.1978), 583 States v. F.2d 907 others, present are different from the ease 1216, 908, 440 U.S. 99 59 cert. S.Ct. denied holding in we find the Maraño and the hold- (1979); Heyman, Heyman 456 v. L.Ed.2d ings federal are suffi- of several other courts (N.D.Ill.1982); F.Supp. and Gill 548 1041 ciently analogous L.’s con- to conclude David (W.D.N.Y.1980). Wilier, F.Supp. 482 776 duct, mother, prohibited is via his 62-lD-3(a)(l), factually recognize that these cases are We 2511(l)(a). § The courts in from the case at bar. different Jones, 667, Heyman, F.Supp. 542 F.2d at 548 Maraño, argued In a criminal defendant Gill, 778, 1045, F.Supp. 482 at howev at counsel, he was denied effective assistance of er, language of 18 U.S.C. all found part, lawyer’s by in his failure to seek 2511(1)(a) unambiguous § is clear and audiotapes. The defen- admission of certain interceptions prohibits all of wire communi surreptitiously audiotaped dant his wife’s permitt explicitly cations unless otherwise telephone conversations which revealed cases Consequently, these three de- engaged in re- ed.7 wife was several extramarital committee, applicable an order regulatory body, legislative with the State statute agency, States, State, authorizing, approving interception of or of the a or other United oral, wire, by or communications electronic political subdivision if the disclo- or a thereof investigative officers hav- or enforcement information be in violation sure of that would investigation ing responsibility of made, for the chapter.” of this application to which is offense as 2510, § exceptions under 18 U.S.C. 7. One of the interception may provide or has when such provided (1988), seq., in 18 U.S.C. 2516 is set forth evidence of the commission wire, oral, interception which authorizes murder, gambling, kidnapping, rob- offense in certain situa- or electronic communications extortion, dealing bery, bribery, in narcotic or 2516(2) provides: tions. 18 U.S.C. drugs, dangerous drugs, or or marihuana other attorney any principal prosecuting limb, "The dangerous life, property, crime State, attorney prosecuting principal or the punishable imprisonment more than thereof, attor- any political subdivision if such designated any applicable year, State one State to ney authorizing interception, a statute of that is authorized statute such judge foregoing application a conspiracy State court make commit added). (Emphasis jurisdiction for order authoriz- competent offenses.” wire, oral, 2516(2), prose- a approving interception of under 18 ing communications, may apply cuting attorney request court to a circuit or electronic for, interception grant permitting judge may order judge and such enter an chapter in certain situations. conformity communications with section 2518 of 668 Simpson Boatright,

dined to follow the 1 dedsion v. Point of State v. (1990): (5th Cir.), Simpson, 399 57 490 F.2d 803 cert. de S.E.2d “ nied, 419 U.S. S.Ct. L.Ed.2d always ‘Courts endeavor to effect (1974).8 intent, legislative a but statute unambiguous applied is clear and will be Simpson, reviewing finding after Syllabus and not construed.’ Point incondusive, legislative history the Fifth Elder, State v. 165 S.E.2d Circuit ruled that 18 U.S.C. (1968).” apply wiretapping did not a marital home’s Boatright, further “[o]ne We said canon telephone recording spouse’s conversa- construction to follow the stat- 2511(l)(a) Finding tions. plain, unambiguous language. ute’s ‘When Jones, unambiguous, clear and the courts in face, unambiguous the statute is on its there Heyman, and Gill stated the Fifth Circuit legislative is no real need to consider resorting legisla- violated the canon of not ” history.’ 184 W.Va. at 399 S.E.2d at 59. history tive unless a statute is unclear or (Citations omitted). 667; ambiguous. F.Supp. 542 F.2d at at Nevertheless, response to the examina- 1045; F.Supp. Citing at 778. United legislative history tion of the the Fifth Cir- 643, 648, Oregon, States 366 U.S. 81 S.Ct. Simpson, cuit supra, did Sixth Circuit 6 L.Ed.2d Jones, supra, analysis. conducted its own Jones, agree Heyman, explained We and The upon Sixth Circuit that even analysis legislative history ..., that an legislative history Gill “review of the testi- mony congressional hearings, where statute is clear and and debates unambiguous. Syllabus As we Congress,” stated on the floor of it was led to the Virginia, certainly In West child abuse and to demonstrate the likelihood that child abuse is neglect "danger- occurring, recordings considered crimes that are to consent to such on be- See, W.Va.Code, punishable by e.g., [and] ous to life limb ... and half [are] of the minor. 16-2F-4 (1984) imprisonment year.” (setting petition for more than one forth of minor to W.Va.Code, 2516(2). 61-8D-1, § parental U.S.C. See circuit court for waiver of notification However, seq. abortion); legislature our did not include see also (circuit neglect authorizing child abuse and in the statute appointment, 44A-1-1 to -7 modification, courts have interceptions powers of communications. and termination to (1987), permits authorizing guardians protected per- 62-1D-8 an order and conservators for sons); W.Va.Code, (1923) interceptions (noting 56-4-10 communications where there is the duty interception of the circuit court to see "reasonable cause to believe the that estate of represented provide protect- infant or ed); would evidence of the insane is both and commission of” 17(c) (guardian may Among certain W.Va.R.Civ.P. enumerated crimes. the crimes sue on incompetent). generally involving kidnapping behalf of infant listed are those or abduction; Certainly, open escape aiding escape by and it would a or an Pandora's Box of inmate; "dealing, transferring possible permit parent trafficking open abuse to one have or to substances"; any interception controlled substance season on the of conversations or aid- of his ing abetting spouse protec- conspiring or her former in the to commit name of child safeguard place tion without real these offenses. We leave it to the sound discre- for de- termining legislature legitimate tion of the if whether there was a and it chooses to amend W.Va.Code, 62-1D-8, interception. to include reasonable basis for such er, Howev- such serious truly neglect. legitimate judicial crimes child in a a abuse and neutral issue, Upon legisla- authority officer its should have the to hear evi- consideration of this the similarly contemplate establishing interception dence determine ture should whether such a could, procedure whereby parameters warranted and to limit the a under the of such W.Va.Code, 62-lD-3(c)(2), interception per- possi- in the least obtrusive manner ble, request accomplishing legitimate parte hearing pur- mitted while still an ex before a pose. purposes obtaining court for permission circuit court’s on behalf child Marano, record supra, conversations when there is a 8. In the other cited Unit Rizzo, believing supra, reasonable basis for that child abuse is ed States v. the Seventh Circuit occurring factually distinguished or is about to occur. Just as a circuit the case before it from approve Simpson, supra, court often is authorized to make or and said it "need not choose interpretations other decisions given on behalf minors and others between the the statute in so, too, [, disability, Simpson supra]." should the circuit court and in Jones 583 F.2d at authority, upon findings tending

have the of fact his wife and their children inescapable “conclusion that 18 U.S.C. between 2511(l)(a) insignificant it is that prohibition § a wife’s house. We find establishes broad interception private all electronic surveillance and that this case does involve on communications, i.e., lines, telephone principal congressional area of concern was wire 2511(1)(a) § specifically ap purposes surveillance for 18 U.S.C. electronic (Foot- wire, oral, plies “any F.2d or electronic commu litigation.” marital at 669. nication!;.]” added). omitted). Similarly, (Emphasis note See also United States v. W.Va.Code, 62-1D-3(a)(1), Giordano, is clear 416 U.S. 94 S.Ct. we find (1974) (where it, too, unambiguous prohibits and L.Ed.2d type any recordings Supreme purpose of the of conduct. “[t]he Court said legislation, passed was of conversations made violation W.Va. Code, 62-1D-3(a)(1), pain effectively prohibit, of criminal 18 U.S.C. on 2511(1)(a) interceptions penalties, and civil of oral are inadmissible under W.Va. Code, 62-1D-6, communications, spe- except and wire those (Foot- cifically provided for in the Act[.]” DHHR contends Jill conver omitted)). note sations with her children do not fall within distinguished also 2511(1)(a), Sixth Circuit parameters of 18 Simpson facts of its case from the case. In W.Va.Code, 62-1D-3(a)(1), because she had Simpson, wiretapping occurred while the expectation no her conversations reasonable living in couple was still married and private. support, As DHHR states Jones, However, in same house. the wire hearing “neighbors reported [Jill have tapping occurred while the husband wife her chil L.’s] emotional outbursts toward apart separated living each dren, [Jill when children are L.] even Thus, concluded, other. Circuit fact, Sixth occasion, inside their home. on one circumstances, these we do not find “[u]nder power neighbor yard using outside implied interspousal exception applicable the reported [Jill heard screams L.’s] tool he wiretap recognized statute Thus, noise of the tool.” the DHHR Similarly, Simpson.” F.2d argues are not “oral Jill L.’s conversations courts, Circuit, including general our Fourth defined communications” as ly interspousal excep 62-1D-2(h) there no 2510(2) held (1986), W.Va.Code, Pritch tion to 18 U.S.C. See Pritchard, (4th Cir.1984); 732 F.2d 372 ard statutes, 2510(2), Both (8th Platt, Cir.1989); v. 951 F.2d 159 Platt W.Va.Code, 62-1D-2(h), commu define oral (8th Cir.1989); Kempf v. Kempf, 868 F.2d 970 “any uttered nication as oral communication (10th Thompson Dulaney, 970 F.2d 744 v. exhibiting expectation an that person a Cir.1992); Heggy Heggy, 944 F.2d 1537 v. subject to inter is not such communication denied, (10th Cir.1991), cert. 503 U.S. justifying ception under circumstances (1992); 1514, 117 112 L.Ed.2d 651 Ex S.Ct. not expectation, but such term does include O’Daniel, (Ala.1987); 1250 parte 515 So.2d communication.” We find the electronic Rickenbaker, N.C. Riekenbaker v. 290 argument merit. DHHR’s to without Blais, (1976); Pulawski v. First, neighbors testified at none the. (R.I.1986). Anonymous But A.2d 76 see 506 fact, May In that hearing on (2nd Cir.1977); 558 677 Anonymous, v. F.2d to only reported been point, it had Franklin, F.Supp. 24 684 Janecka neighbors Jill L.’s overheard DHHR that (2nd (S.D.N.Y.1987), aff'd, F.2d 110 Cir. screams, protective service child 1988). actually spoken testified she had worker result, even if we them. As a language to Applying the of U.S.C. L.’s bar, neighbors did overhear Jill assume the the ease at we find to the facts of neigh screaming, we do not know what Congress intended there no indication husband, they overheard it. or when exception living a bors overheard to create Moreover, impossible wife, virtually to person it would be third apart procure to a episodes neighbors if over- determine record conversations surreptitiously tape to he, episodes exact argues heard same recorded fied time. David L. as the audiotapes. father, on the authority give children’s had to their W.Va.Code, 62-1D-3(c)(2), consent under Second, neighbor’s even if the overheard provides, part: in relevant “It is lawful various L. conversations Jill had with her wire, person ... for a to oral or children while Jill L. children were person electronic communication where the house, give within their it did not L. David party to the communication or where one of procure carte blanche a third parties given to the communication has hide voice-activated record- prior intereeption[.]” consent to the Sub er in the children’s bedroom to record all stantially language similar also is contained conversations between L. and the chil- 2511(2)(d).9 in 18 U.S.C. David L. cites no Certainly, expecta- dren. Jill L.’s reasonable support privacy position. of his preclude tion of would such a serious intrusion. support closest case we can find to argues regard The DHHR next Thompson David L.’s contention is v. Dula policy protect less of the reasons to Jill L.’s (D.Utah 1993). ney, F.Supp. In right privacy, right must be deter Thompson, Dulaney Denise and James and, thus, mined to be subordinate succumb Thompson living apart from one anoth to the best interests of the children. We process getting er and in the a divorce agree with the DHHR that the best interests Dulaney tape when Ms. recorded certain preeminent of the children are of concern in telephone Thomp conversations between Mr. custody child cases and to this Court. See children, ages son three and five. Hey, R. Judith 405 During custody hearings, Dulaney Ms. (1990); S.E.2d Honaker v. Burn transcripts introduced of several conversa side, 448, 450-51, 388 S.E.2d tions. The parents state court found both (1989). However, under the facts of this fit, but awarded to Ms. Dula- it is not for this Court to ney. Subsequently, Thompson Mr. filed suit privacy choose between alleging, in part, Dulaney’s Ms. actions vio the best interests of the children. If the lated 18 U.S.C. DHHR stating neighbors is correct in have overheard Jill L.’s “emotional out Dulaney Ms. said she recorded the conver- bursts,” audiotapes then the are not neces Thompson sations because Mr. was interfer- sary wish, to establish this claim. If ing with her relationship. and the children’s neighbors DHHR or can call the Dulaney One of the defenses Ms. raised to testify addition, hearing. at the Thompson’s Mr. suit was that under 18 given by direct information the children or 2511(2)(d), parental she had “the types evidence, i.e., of admissible re right to consent on behalf of minor children ports regard psychological examina legal capacity who lack to consent and who tions, may all be considered the circuit cannot F.Supp. actual consent[.]”10 838 court to determine the best interests of the Dulaney at 1544. Ms. litany cited a of Utah children. grants law which to her the to make argument,

As final David L. asserts the various decisions for her children. In this tape recordings unlawfully respect, were not obtained clearly the court stated “Utah law W.Va.Code, 62-1D-3(c)(2) (1987), under legal be vests the custodian of a minor child cause he informed the rights children he would be with certain to act on behalf that recording in unspeci- their bedroom at some F.Supp. minor child.” 838 at 1544. In addi- 2511(2)(d) provides, part: 9. 18 U.S.C. in 10. The court found because of the children’s five, ages, "clearly three and the children lacked chapter "It shall not be unlawful under this consent, not, legal capacity they and could person acting for a not under color of law to sense, consent, wire, oral, any meaningful given have actual or electronic communi- express implied, party incap- either cation where such is a since understanding parties communication or able of the where one of the nature of consent and given prior making truly voluntary the communication has consent to decision to consent.” interception[.]” F.Supp. at 1543. very tion, Finally, we and diffi- we mention are the it was “a close court said carefully much the best interests question,” limited hold- concerned cult and protected custody in the particular the it. these are ing to facts before children concern, F.Supp. hearings. regard at went on to to this we court then With order the DHHR hold direct the circuit court to parents12 both if to conduct home studies of long good guardian has a faith “as the already complete are not such studies objectively be- basis reasonable Syllabus satisfactory. As we Point 5 state lieving it is to consent on A.S., Polly of John D.K W.Va. taping behalf of minor children to the (1993): 438 S.E.2d 46 conversations, phone vicarious con- permissible sent will in order for the involving be allegations “In domestic eases guardian to fulfill her mandate to neglect, a circuit of abuse and court act in the interests the family best children.” may master order that a home F.Supp. at 1544. investigate study performed the alle- be 34(b) gations under Rule of the Rules of disagree reasoning not with We do the Family and Procedure for Law.” Practice however, Thompson; we determine facts closely the present are from court examine different circuit must parents to Thompson significant on the of both facts two re- evidence fitness First, spects. physically children Jill L. or David L. should determine whether Dulaney custody of residing permanent the time their chil with Ms. awarded Second, further both circuit recorded. dren. We order conversations were expedite from a court the DHHR to this matter conversations were recorded tele- Dulaney custody phone in the where so the issue is resolved. See John house Ms. B., D.K., supra; In the Carlita children Interest resided. hand, present in the On the other first, L., L., Jill not David was awarded III. during

temporary children Second, proceedings. recordings divorce CONCLUSION house, L.’s occurred reasons, foregoing we hold the For the house, absolutely had no dominion or he recordings violated 62-1D- pro he L.’s house where control 2511(1)(a), 3(a)(1), 18 U.S.C. to hide cured mother’s assistance into not be admitted evidence Thus, specific under the facts of recorder. W.Va.Code, 62-1D-6, or proceedings under us, parent has we hold a no the case before therefore, We, agree with his or her right on behalf of children regard court’s conclusions W.Va.Code, 62-1D-3(c)(2), consent questions.13 the certified 2511(2)(d), children’s the other recorded conversations with having been an- The certified parent’s the other while children swered, case is dismissed the dock- protected David L. is not house. et.14 language in 62- the consent 2511(2)(d).11 3(c)(2), and dismissed. Answered or 18 U.S.C. 1D— during marriage present terrorized both [her] We draw a distinction between separation.” guardian, after their in which a and a situation situation duty who has a lives the children and who children, gives protect propriety con- specifically the welfare do of 13. We not address brought tele- on of the children to sent behalf civil or criminal action where phone recordings. within the house conversations as the of these result guardian the children reside. appro- question case was an 14. We whether this priate questions. Bass v. for certified alleges in her brief that David "has Jill L. Cf. 516, (1994). Coltelli, S.E.2d physically W.Va. 453 350 192 history [has] abuse and ... of alcohol 672

NEELY, Justice, concurring: reasoning requires and Teter of Gilman ignore legislature’s prohibi- Court to single log floating This case like up- against tion wiretapping mere section of —a stream that neither notes nor considers the this rule-making Code—to cite to Court’s logs rush of other in downriver traffic. Al- in Syllabus as set forth 1 Points though agree log I that this prop- —case—is Warner, 742, 2 of Bennett v. erly headed, pause I to consider the downri- (1988)2 and to admit the ver traffic. audiotapes. holds, majority agree, and I that au Today’s opinion ignores the conflict be- diotapes surreptitiously recorded one “procedural” tween and “substantive” mecha- spouse in of estranged the house the other nisms and circuit courts left without spouse are inadmissible W.Va.Code guidance concerning when to follow a restric- 62-1D-3(a)(1) [1987]; however, majority tive statute or more liberal W.Va. Rules fails to see or the conflict consider between my Evid. As stated in dissent in Gilman of W.Va.Rules Evid. 62-1D- W.Va.Code of 185 at 406 S.E.2d this Court 3(a) [1987].1 court-promulgated should not use rules “to First, under the Rules Evid. these au- foreclose the tools such use of as modifica- diotapes are Rule admissible. 402 states tions traditionally of the law of evidence that “[a]ll relevant evidence is admissible.” thought legislatures.” to be available See Relevant evidence defined Rule 401 to Reed Phillips, W.Va. 452 having any tendency mean “evidence to make (1994) (Neely, S.E.2d dissenting) J. existence of fact that is of conse- (judicial “precious branch should not use rea- quence to the determination of the action soning legitimate ... ... [to] [a] confound probable probable more than it less would political compromise”). be without the evidence.” this I log concur in the direction but audiotapes are of conversations with pause majority what wonder at does her children. These conversations show not see or discuss. consequence facts that are “of to the deter- question mination of’ the alleged Jill L.’s JUSTICE CLECKLEY delivered the abuse of her children. Thus under Opinion Rule 402 of the Court. audiotapes are admissible. CHIEF JUSTICE BROTHERTON did

Second, by using reasoning of Gilman participate. ny W.Va.Code W.Va.Code 55-7B-7 (W.Va. W.Va.Rules (refusing Choi, Co., Rules 37-14-3(a)’s W.Va. recognize Evid.) Evid., and Teter v. Old Colo- ^[1986] Rule 702 the conflict between license or certifica- S.E.2d 728 S.E.2d 200 and Rule prevails (1994) (1990) temporary assignment. JUSTICE NEELY concurs. RETIRED JUSTICE MILLER sitting by requirement tion appraisers), real estate

the Court could have used the Rules to inval- specific

idate the statute. Indeed in this case recognize 1. I practice, that this case can also procedure, be decided which shall have the exclusively under 18 U.S.C. 2511 and the U.S. force and effect of law. Supremacy Constitution majori- VIII, Clause. But the 2. "Under Article Section 8 Sec [and ty way, didn't allowing decide that thus me to Virginia 3] tion Constitution West my principle usual fun with result-oriented (commonly Reorganiza known as Judicial manipulation. Amendment), promul tion administrative rules gated by Supreme Appeals Court of of West Bennett, Syl. pts. supra provide: 1 and 2 of Virginia have the and effect force eight, operate supersede any 1. Under law and article section that is in three of our Constitution, Brothers, Supreme Syl.Pt. Appeals Court conflict with them.” Stern McClure, power shall promulgate have the Inc. v. rules for 236 S.E.2d process, of the courts of the State related to

Case Details

Case Name: West Virginia Department of Health & Human Resources Ex Rel. Wright v. David L.

Court Name: West Virginia Supreme Court

Date Published: Dec 15, 1994

Citation: 453 S.E.2d 646

Docket Number: 22311

Court Abbreviation: W. Va.