In Re: M., Mark, III
Annotate this Case IN THE SUPREME COURT OF APPEALS OF
WEST VIRGINIA
September 1997 Term
_____________
No. 24154
_____________
IN RE: MARK M., III
____________________________________________________________________
Appeal from the Circuit Court of Berkeley
County
Honorable Thomas Steptoe, Jr., Judge
Civil Action No. 96-JA-3
REVERSED AND REMANDED
____________________________________________________________________
Submitted: September 10, 1997
Filed: October 28, 1997
Robert E.
Barrat Paul
E. Lane
Charles Town, West
Virginia Martinsburg,
West Virginia
Guardian ad Litem for the infant,
Attorney
for Mark M., II
Mark M.,
III
Pamela
Games-Neely Amanda
Lewis
Prosecuting
Attorney Martinsburg,
West Virginia
Martinsburg, West
Virginia Attorney
for Elizabeth M.
Attorney for the State of West Virginia
The opinion of the Court was delivered PER CURIAM.
SYLLABUS BY THE COURT
1. "
' "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." Syl. Pt. 1, In the Interest of
Tiffany Marie S., 196 W.Va. 223, 470 S.E.2d 177 (1996).' State
ex rel. Virginia M. v. Virgil Eugene S. II, 197 W.Va. 456,
475 S.E.2d 548 (1996)." Syl. Pt. 1, In the Interest of
Diva P., ___ W.Va. ___, ___ S.E.2d ___ (No. 23928, July 11,
1997).
2. "The purpose of the child's case plan is the same as the family case plan, except that the focus of the child's case plan is on the child rather than the family unit. The child's case plan is to include, where applicable, the requirements of a family case plan, as set forth in W.Va.Code, 49-6-5(a) [1992] and 49-6D-3(a) [1984], as well
as the additional requirements articulated in W.Va.Code,
49-6-5(a)." Syl. Pt. 4, In the Interest of S.C., 191
W.Va. 184, 444 S.E.2d 62 (1994).
3. "A
motion for continuance is addressed to the sound discretion of
the trial court, and its ruling will not be disturbed on appeal
unless there is a showing that there has been an abuse of
discretion." Syl. Pt. 2, State v. Bush, 163 W.Va.
168, 255 S.E.2d 539 (1979).
4. "Whether
there has been an abuse of discretion in denying a continuance
must be decided on a case-by-case basis in light of the factual
circumstances presented, particularly the reasons for the
continuance that were presented to the trial court at the time
the request was denied." Syl. Pt. 4, State v. Bush,
163 W.Va. 168, 255 S.E.2d 539 (1979).
5. "There is a clear legislative directive that guardians ad litem and counsel for both sides be given an opportunity to advocate for their clients in child abuse or neglect proceedings. West Virginia Code § 49-6-5(a) (1995) states that the circuit court shall give both the petitioner and respondents an opportunity to be heard when proceeding to the disposition of the case. This right must be understood to mean that the circuit court may not impose unreasonable limitations upon the function of guardians ad litem in
representing their clients in accord with the traditions of
the adversarial fact-finding process." Syl. Pt. 3, State
ex rel. Amy M. v. Kaufman,196 W.Va. 251, 470 S.E.2d 205
(1996).
Per Curiam:See
footnote 1 1
This appeal
arises from a final order issued under the civil abuse and
neglect statutes by the Circuit Court of Berkeley County, which
order gave custody of the appellant, Mark M., III, (hereinafter
Mark M.) to his father the appellee, Mark M., II (hereinafter
Mark Sr.). The guardian ad litem for Mark M. argues on appeal
that it was error for the circuit court to grant custody of the
child to Mark Sr., without a permanency plan being submitted to
and approved by the court. Additionally, the guardian ad litem
asserts error due to the circuit court's failure to grant the
guardian ad litem's motion for a continuance based upon
information obtained only a few days before the scheduled
dispositional hearing. We agree.
I.
This case was
initiated by a civil neglect and abuse petition filed on January
30, 1996, against the child's mother, appellee Elizabeth M.See footnote 2 2 The
petition alleged that the
child was abused, as a result of being born with traces of
cocaine in his blood. At an adjudication hearing held on August
14, 1996, it was determined that the child had been abused due to
his mother's use of cocaine while she was pregnant. A
dispositional hearing was held on September 20, 1996. At the
dispositional hearing the circuit court terminated the parental
rights of the mother to the child. Additionally, the circuit
court ordered the child be returned to his father, Mark Sr. The
guardian ad litem objected to the child being released without a
permanency plan being formulated and approved by the court. The
circuit court ruled that there was no need for a permanency plan.
The guardian ad litem contends the latter ruling was error.
Additionally, the guardian ad litem argues that three days before the dispositional hearing, the Department of Health and Human Resources (DHHR) abruptly changed its position regarding placement of Mark M. without consultation with or notice to the guardian ad litem. Given the seriousness of the newly-acquired information regarding the father, the father's unwillingness to cooperate and the lack of communication between the DHHR and the guardian ad litem, the guardian ad litem filed motions: (a) requesting the court continue the dispositional phase until an investigation was made; (b) requesting the court's assistance in obtaining information from the father; and (c) requesting the court to order the DHHR to conduct an investigation into the newly acquired information. The circuit court denied the guardian ad litem's motions. The guardian ad
litem asserts error. We agree.
II.
The standard of
review appropriate here is the clearly erroneous standard. Syl.
Pt. 1, In the Interest of Diva P., ___ W.Va. ___, ___
S.E.2d ___ (No. 23928, July 11, 1997). It is mandatory under
W.Va. Code § 49-6-5(a) (1996) that a child's case plan, which
must include a permanency plan, be submitted to and approved by a
circuit court whenever a child is adjudged abused or neglected. See
Syl. Pt. 4, In the Interest of S.C., 191 W.Va. 184, 444 S.E.2d 62 (1994). Therefore, in the instant proceeding it was
reversible error for the circuit court to release the child
without a child's case plan being submitted to and approved by
the court. On remand the circuit court shall obtain a child's
case plan in accordance with W.Va. Code § 49-6-5(a) and In
the Interest of S.C.
As to the denial of the motion to continue, this Court has long held that "[a] motion for continuance is addressed to the sound discretion of the trial court, and its ruling will not be disturbed on appeal unless there is a showing that there has been an abuse of discretion." Syl. Pt. 2, State v. Bush, 163 W.Va. 168, 255 S.E.2d 539 (1979). In syllabus point 4 of Bush we held that "[w]hether there has been an abuse of discretion in denying a continuance must be decided on a case-by-case basis in light of the factual circumstances presented, particularly the reasons for the continuance that were presented to the trial court at the time the request was denied. Our holdings in Bush must be reconciled with our
decision in syllabus point 3 of State ex rel. Amy M. v.
Kaufman,196 W.Va. 251, 470 S.E.2d 205 (1996) wherein we held:
There is a clear
legislative directive that guardians ad litem and counsel for
both sides be given an opportunity to advocate for their clients
in child abuse or neglect proceedings. West Virginia Code §
49-6-5(a) (1995) states that the circuit court shall give both
the petitioner and respondents an opportunity to be heard when
proceeding to the disposition of the case. This right must be
understood to mean that the circuit court may not impose
unreasonable limitations upon the function of guardians ad litem in
representing their clients in accord with the traditions of the
adversarial fact-finding process. (Emphasis added.)
The circuit court's refusal to continue the matter precluded
the guardian ad litem from fulfilling his obligations to properly
represent the best interests of his client, Mark M. Allowing the
motions would have had no impact on the rights of the father.
Moreover, granting the motions would have insured that, in fact,
the guardian ad litem's report and recommendation on disposition
contained all pertinent information. We find that the circuit
court abused its discretion in denying the guardian ad litem's
motion for continuance.
We therefore
reverse and remand this case with directions that the circuit
court obtain a child's case plan in accordance with W.Va. Code §
49-6-5(a) and In the Interest of S.C. and schedule a
hearing during which the guardian ad litem can present his
position regarding disposition of the case.
Reversed
and Remanded.
Footnote: 1 1 We point out that a per curiam opinion is not legal precedent. See Lieving v. Hadley, 188 W.Va. 197, 201 n.4, 423 S.E.2d 600, 604 n 4. (1992) ("Per curiam opinions ... are used to decide only the specific case before the Court; everything in a per curiam opinion beyond the syllabus point is merely obiter dicta.... Other courts, such as many of the United States Circuit Courts of Appeals, have gone to non-published (not-to-be-cited) opinions to deal with similar cases. We do not have such a specific practice, but instead use published per curiam opinions. However, if rules of law or accepted ways of doing things are to be changed, then this Court will do so in a signed opinion, not a per curiam opinion.").
Footnote: 2 2 The child's father, Mark Sr., was named in the petition. No allegations of abuse or neglect were made against him.
Converted by Andrew Scriven
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