Articles Posted in Family Law

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The Supreme Court granted the writ of prohibition sought by Foster Parents and remanded this case with directions to the circuit court to vacate its order granting Biological Parents post-dispositional improvement periods in excess of statutory time limitations, to grant Foster Parents’ motion to intervene, and to schedule this matter for disposition. After eight weeks in the Neonatal Intensive Care Unit, J.L. was placed into foster care with Foster Parents. Biological Parents admitted to abuse and neglect, and a post-adjudicatory improvement period was ordered for each. Foster Parents moved to intervene, but the circuit court denied the motion. Upon the request of the guardian ad litem to revoke Biological Parents’ improvement periods, the circuit court awarded a six-month post-dispositional improvement period to Biological Parents. The Supreme Court granted Foster Parents’ requested writ of prohibition, holding (1) Foster Parents were absolutely entitled to participate in all court proceedings by virtue of W. Va. 49-4-601(h); (2) foster parents are entitled to intervention as a matter of right when the time limitations contained in W. Va. Code 49-4-605(b) and/or 49-4-610(b) are implicated; and (3) upon issuance of the writ, the circuit court is directed to schedule this matter for disposition at its earliest opportunity. View "State ex rel. C.H. v. Honorable Laura V. Faircloth" on Justia Law

Posted in: Family Law

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At issue in this proceeding was whether, when an infant who is born alive but dies during the pendency of an abuse and neglect proceeding and the infant is the only child in the home, the matter may proceed to an adjudicatory hearing and the deceased child be found and adjudicated to be an abused or neglected child. Here an infant child was born with opiates in its system as a result of Mother’s prenatal drug use. The infant was treated for severe neurological and respiratory conditions based on a diagnosis of drug-affected birth. The West Virginia Department of Health and Human Resources (DHHR) filed a petition against Mother and Father, alleging that the infant was a neglected and abused child. After the circuit court transferred temporary custody of the infant to the DHHR, the infant died. The parents moved to dismiss the abuse and neglect case based on the infant’s death. The court refused to dismiss the case but certified questions for the Supreme Court’s resolution. The Court answered the first question as set forth above. The Court further answered that, under the circumstances of this case, the guardian ad litem should remain a party to the proceeding to advocate for the rights of the deceased child. View "In re I.M.K." on Justia Law

Posted in: Family Law

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The Supreme Court granted the writ of prohibition sought by Petitioners, the foster and designated preadoptive parents of the minor child T.C., to prevent the enforcement of an order of the circuit court granting visitation with T.C. to Respondents, who were the child’s paternal grandmother and paternal aunt. In this ongoing abuse and neglect proceeding, the circuit court ordered that Respondents would receive supervised visitation with T.C. The court recognized Petitioners as persons entitled to notice but refused to stop Respondents’ visitation. Petitioners then filed the instant petition for a writ of prohibition. The Supreme Court granted the writ, holding that because Petitioners were not afforded the requisite notice and meaningful opportunity to be heard prior to the circuit court granting visitation to Respondents, the circuit court exceeded its legitimate powers and committed clear error as a matter of law. View "State ex rel. H.S. v. Honorable J.D. Beane" on Justia Law

Posted in: Family Law

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The Supreme Court vacated for want of subject-matter jurisdiction a family court order granting permanent guardianship of three children to their maternal grandparents. This case was originally removed to family court to circuit court because the preceding petition for temporary guardianship was based on allegations of abuse and neglect. However, contrary to the Rules of Practice and Procedure of Minor Guardianship Proceedings and the Rules of Practice and Procedure for Family Court, the circuit court remanded this case back to family court to proceed as a guardianship case rather than an abuse and neglect case. The Supreme Court held that because the allegations of abuse and neglect were substantiated, the circuit court erred in concluding that a then-temporary guardianship order negated the need for the abuse and neglect petition and therefore erred in remanding the matter to family court. View "In re Guardianship of K.W." on Justia Law

Posted in: Family Law

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In this appeal from the circuit court’s reversal of a permanent alimony award, the Supreme Court reversed the decision of the circuit court and remanded the case for reinstatement of the family court’s order awarding Wife permanent alimony in the amount of $1,500 per month, holding that the circuit court’s overturning of the family court’s findings was in error. The family court ordered Husband to pay permanent alimony to Wife in the amount of $1,500 per month. The circuit court reversed the award and remanded to the family court for calculation of spousal support “in accordance” with its order. On remand, the family court ordered Husband to pay Wife $439.02 per month. The circuit court refused Wife’s appeal. The Supreme Court reversed, holding that the circuit court erred in overturning the family court’s findings and inexplicably replaced the family court’s credibility determinations with determinations of its own. View "Cowger v. Cowger" on Justia Law

Posted in: Family Law

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The circuit court erred in applying the grandparent preference contained in W. Va. Code 49-4-114(a)(3) when it permanently selected the grandparents of twins K.E. and K.E. for permanent placement. The twins were in foster care when the circuit court terminated the parental rights of their biological parents. Both the twins’ foster parents and their paternal grandparents sought to provide the twins with a permanent home. The circuit court ruled that the twins should be permanently placed with their grandparents. The Supreme Court reversed, holding that the best interest of the twins were best served by permanent placement with their foster parents, not their grandparents. View "In re K.E." on Justia Law

Posted in: Family Law

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The circuit court erred in applying the grandparent preference contained in W. Va. Code 49-4-114(a)(3) when it permanently selected the grandparents of twins K.E. and K.E. for permanent placement. The twins were in foster care when the circuit court terminated the parental rights of their biological parents. Both the twins’ foster parents and their paternal grandparents sought to provide the twins with a permanent home. The circuit court ruled that the twins should be permanently placed with their grandparents. The Supreme Court reversed, holding that the best interest of the twins were best served by permanent placement with their foster parents, not their grandparents. View "In re K.E." on Justia Law

Posted in: Family Law

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J.G. was born at 34 weeks’ gestation with drugs in his system. Noting mother’s prior involuntary termination of parental rights, the Department of Health and Human Resources (DHHR) filed an abuse and neglect petition. J.G. was placed in foster care with petitioners in February 2015 and remains there. J.G. requires medical monitoring and treatment. The birth parents canceled multiple visits, frequently fell asleep during visits, failed to return calls from DHHR, and had multiple positive drug screens. The circuit court granted a six-month improvement period. DHHR indicated that the improvement period was a failure. Subsequent psychological evaluations indicated little likelihood that the parents would improve. The court granted another six-month improvement period, during which the parents were evicted, had positive drug tests, and engaged in a physical altercation. The court granted two more six-month improvement periods. During an overnight visit, a CPS worker arrived at the parents’ home to pick up J.G and observed large amounts of blood. She found J.G., screaming and in a saturated diaper, on the bed beside his father, who was unresponsive. Mother “was high as a kite.” The guardian ad litem and DHHR requested termination. Despite observations that the infant was bonded with the foster family and that returning J.G., to the parents “could be traumatizing” and continuing positive drug screens, the court ordered transition of J.G., to the parents’ custody. The West Virginia Supreme Court of Appeals reversed. The circuit court failed to comply with the requirements of West Virginia Code 49-4-610 and the Rules of Procedure for Child Abuse and Neglect and abused its discretion in failing to terminate parental rights. View "In re: J.G., II" on Justia Law

Posted in: Family Law

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In this abuse and neglect proceeding, the Supreme Court affirmed the circuit court’s adjudicatory order finding Father to be an abusing and neglectful parent but set aside the court’s order that adopted the parenting plan recommended by the children’s guardian ad litem. This proceeding concerned three children and their biological parents. Father appealed from the adjudicatory order finding him to be an abusing and neglectful parent and also appealed from a later order adopting the parenting plan recommended by the guardian ad litem. The Supreme Court affirmed, holding (1) the adjudicatory order was supported by clear and convincing evidence that Father was an abusing and neglectful parent in relation to the children; but (2) in view of updates to Rule 11(j) of the West Virginia Rules of Appellate Procedure, the circumstances regarding the children changed to the extent that the parenting plan was no longer viable in the absence of additional findings by the circuit court. View "In re J.P." on Justia Law

Posted in: Family Law

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The Supreme Court reversed the decision of the circuit court awarding guardianship of A.C., a twelve-year-old girl, to A.C.’s grandmother, A.H. Petitioner, A.C., through her guardian ad litem, objected to the guardianship award and subsequently appealed, arguing that the circuit court’s award of guardianship to the grandmother was not in the child’s best interests and failed to include an appropriate evaluation of the Guardianship Screening Factors enumerated in Rule 10 of the West Virginia Rules of Practice and Procedure for Minor Guardianship Proceedings. The Supreme Court agreed and reversed, holding that the Guardianship Screening Factors, when applied to the facts of this case, indicated that the grandmother was not a viable candidate to serve as guardian to A.C. The court remanded the matter for entry of an order awarding guardianship to E.B., the godmother of A.C. View "In re Guardianship of A.C." on Justia Law

Posted in: Family Law