                                                      STATE OF WEST VIRGINIA
                                                    SUPREME COURT OF APPEALS

R.L.D. and K.D., individually,
and as next of friends of M.I.D.,                                                    FILED
an infant under the age of                                                      November 19, 2018
eighteen years,                                                                  EDYTHE NASH GAISER, CLERK
Plaintiffs Below, Petitioners                                                    SUPREME COURT OF APPEALS
                                                                                     OF WEST VIRGINIA 

vs.) No. 17-1087 (Kanawha County 14-C-1348)

West Virginia Department of
Health and Human Resources, a
political subdivision of the
State of West Virginia, Erica Garcia,
individually and in her official capacity
as an employee of the West Virginia
Department of Health and Human Resources,
and LaDella Blair, individually and in her
official capacity as an employee of the
West Virginia Department of Health and
Human Resources,
Defendants Below, Respondents


                                                          MEMORANDUM DECISION
        Petitioners R.L.D. and K.D., the paternal grandparents of M.I.D., by counsel Michael T.
Clifford, appeal the Circuit Court of Kanawha County’s November 14, 2017, order granting
respondents’ motion for summary judgment.1 Respondents West Virginia Department of Health
and Human Resources (“DHHR”), Erica Garcia, and LaDella Blair, by counsel Jace H. Goins,
filed a response in support of the circuit court’s order. On appeal, petitioners argue that the
circuit court erred in granting respondents’ motion for summary judgment because genuine
issues of material fact existed that should have been resolved by a jury.

       This Court has considered the parties’ briefs and the record on appeal. The facts and legal
arguments are adequately presented, and the decisional process would not be significantly aided
by oral argument. Upon consideration of the standard of review, the briefs, and the record
                                                            
              1
         Consistent with our long-standing practice in cases with sensitive facts, we use initials
where necessary to protect the identities of those involved in this case. See In re K.H., 235 W.Va.
254, 773 S.E.2d 20 (2015); Melinda H. v. William R. II, 230 W.Va. 731, 742 S.E.2d 419 (2013);
State v. Brandon B., 218 W.Va. 324, 624 S.E.2d 761 (2005); State v. Edward Charles L., 183
W.Va. 641, 398 S.E.2d 123 (1990).


                                                                   1
 
presented, the Court finds no substantial question of law and no prejudicial error. For these
reasons, a memorandum decision affirming the circuit court’s order is appropriate under Rule 21
of the Rules of Appellate Procedure.

       In December of 2010, petitioners, the paternal grandparents of the child at issue, were
granted legal guardianship of M.I.D. pursuant to an unrelated proceeding in the Circuit Court of
Wetzel County. Subsequent to the granting of legal guardianship, M.I.D. resided with petitioners
in Wetzel County at all times relevant to this appeal.

         On July 19, 2012, the DHHR filed an abuse and neglect petition in the Circuit Court of
Kanawha County concerning M.I.D. and his sister.2 The initial petition contained several
allegations of abuse and neglect against the children’s parents, including domestic violence in the
presence of M.I.D.’s sister, a lack of proper hygiene for the sister, and a failure to provide the
children with necessary food, clothing, supervision, and housing.3 Accordingly, the petition
alleged that the children’s best interests required temporary placement with the DHHR. The
petition further indicated that, at the time of the petition’s filing, the sister resided in foster care
with the DHHR and M.I.D.’s address was located in Wetzel County, West Virginia. It is
undisputed that the address listed for M.I.D. was petitioners’ address in Wetzel County. The
initial petition did not, however, include petitioners as named respondents. That same day, the
circuit court entered an order finding that imminent danger to the physical well-being of the
children existed and temporarily committing them to the custody of the DHHR. At that time,
however, M.I.D. remained in petitioners’ custody.

        Four days later, the circuit court held a preliminary hearing on the petition, during which
the DHHR indicated that it intended to file an amended petition to include M.I.D.’s legal
guardians – petitioners herein – as adult respondents. The circuit court further ordered that the
children remain in the temporary custody of the DHHR. According to petitioners, they were
instructed by DHHR personnel to appear for this hearing with the child. Upon arriving for the
hearing, the DHHR then took M.I.D. into its physical custody, pursuant to the circuit court’s
orders transferring temporary custody to the DHHR. On August 3, 2012, the DHHR filed an
amended petition that recognized petitioners as M.I.D.’s legal guardians and residents of Wetzel
County. The petition further alleged that petitioners “have a substantiated [Child Protective
Services (“CPS”)] history of abusing children” and “a substantiated claim based upon the
negligent supervision” of another child who was no longer in the home. Accordingly, the circuit
court ordered that the children continue in their placement with the DHHR. Petitioners were
thereafter appointed legal counsel.

              Later in August of 2012, the circuit court held a preliminary hearing on the amended

                                                            
              2
         At the time of the petition’s filing, the sister resided with her parents. Given that
petitioners did not have custody of the child at the time of removal, that child is unrelated to
petitioners’ appeal.
              3
         As it specifically related to M.I.D., the original petition alleged that the parents “placed
the child[] in risk of harm” by their failure to provide “any financial support, whether in kind or
in specific monetary amounts during at least some periods” of his life.
                                                               2
 
petition and found probable cause to believe that M.I.D. was abused and/or neglected. Because
the circuit court found that placement of the child in petitioners’ home was contrary to his best
interests, it ordered continued custody with the DHHR. The circuit court did, however, order that
petitioners have supervised visitation with the child.

        In September of 2012, the DHHR filed its second amended petition wherein it alleged, in
relevant part, that petitioners neglected M.I.D. and also previously engaged in emotional abuse
of a child who used to be in the home. The petition further alleged that, upon removal, M.I.D.
had “a strong, sour and foul odor.” In November of 2012, the circuit court held a preliminary
hearing on the second amended petition and an adjudicatory hearing in regard to petitioners.
Ultimately, the circuit court found that it did not have jurisdiction over M.I.D. because
petitioners and the child resided in Wetzel County. As such, the circuit court dismissed the abuse
and neglect petition against petitioners, but ordered that petitioners and the child remain parties
to the matter. The circuit court additionally ordered that petitioners be granted physical custody
of M.I.D. That same day, the DHHR returned the child to petitioners’ custody.

        In February of 2013, the circuit court held a hearing during which it terminated the
parental rights of the M.I.D.’s parents. At that time, the circuit court ordered that the child be
placed in petitioners’ permanent legal and physical custody, finding that such placement was in
the child’s best interests.

        Following dismissal of the abuse and neglect petition against them, petitioners filed a
civil action against the DHHR and two of its employees. The complaint alleged the following
causes of action: (1) fraud; (2) “constitutional tort and statutory violations”; (3) child
concealment; and (4) outrage/intentional infliction of emotional distress. After the civil action
was initiated, respondents filed a motion for summary judgment, which the circuit court granted
by order entered on November 14, 2017. According to the circuit court, petitioners’ causes of
action were “wholly unfounded due to the fact that every action [respondents] took in the subject
abuse/neglect proceeding was in accordance with [c]ourt orders.” The circuit court further found
that “the abuse/neglect proceedings were conducted properly and in accordance with the law.”
Finally, the circuit court found that “[a]dditional defenses exist[ed] by virtue of privilege and
immunity, and due to the fact that two (2) of [petitioners’] claims are predicated upon statutes
that do not create implied, private causes of action.” Because there were no genuine issues of
material fact, the circuit court found that respondents were entitled to summary judgment. It is
from this order that petitioners appeal.

        We review petitioners’ appeal of the circuit court’s summary judgment order de novo.
See Syl. Pt. 1, Painter v. Peavy, 192 W.Va. 189, 451 S.E.2d 755 (1994) (“[a] circuit court’s entry
of summary judgment is reviewed de novo.”). Under Rule 56(c) of the West Virginia Rules of
Civil Procedure, summary judgment should be granted “where the moving party shows by ‘the
pleadings, depositions, answers to interrogatories, and admissions on file, together with the
affidavits, if any, . . . that there is no genuine issue as to any material fact and that the moving
party is entitled to a judgment as a matter of law.’” Williams v. Precision Coil, Inc., 194 W.Va.
52, 59, 459 S.E.2d 329, 336 (1995) (footnote omitted).




                                                 3
 
        On appeal, petitioners’ arguments are based almost entirely on the fact that the DHHR
failed to include them as named respondents in the original petition. According to petitioners, the
DHHR was fully aware of the fact that they had previously been granted legal guardianship of
M.I.D. and, therefore, perpetrated a fraud on the circuit court by excluding them from the
original petition or presenting the allegations in a way that implied that the child lived in the
parents’ home in Kanawha County. Petitioners moreover allege that instead of providing them
notice of the abuse and neglect proceedings as required, the DHHR fraudulently induced them to
bring the child to the preliminary hearing so that the DHHR could assume custody of him.
According to petitioners, the DHHR was aware of the fact that M.I.D. was being properly cared
for in their home, as evidenced by reports from DHHR employees from 2010 that attested to
their care. We find, however, that petitioners are not entitled to any relief, as the circuit court
correctly ruled that respondents in this matter are immune from liability.

       “Qualified immunity is broad and protects ‘all but the plainly incompetent or those who
knowingly violate the law.’” W.Va. State Police v. Hughes, 238 W.Va. 406, 411, 796 S.E.2d 193,
198 (2017) (quoting Hutchison v. City of Huntington, 198 W.Va. 139, 148, 479 S.E.2d 649, 658
(1996)). “Further, ‘[a] public officer is entitled to qualified immunity for discretionary acts, even
if committed negligently.’” Crouch v. Gillispie, 240 W.Va. 229, __, 809 S.E.2d 699, 704 (2018)
(quoting Maston v. Wagner, 236 W.Va. 488, 500, 781 S.E.2d 936, 948 (2015)). Moreover, this
Court has held that

               “[t]o the extent that governmental acts or omissions which give rise to a
       cause of action fall within the category of discretionary functions, a reviewing
       court must determine whether the plaintiff has demonstrated that such acts or
       omissions are in violation of clearly established statutory or constitutional rights
       or laws of which a reasonable person would have known or are otherwise
       fraudulent, malicious, or oppressive in accordance with State v. Chase Securities,
       Inc., 188 W.Va. 356, 424 S.E.2d 591 (1992). In absence of such a showing, both
       the State and its officials or employees charged with such acts or omissions are
       immune from liability.” Syllabus Point 11, W. Va. Reg’l Jail & Corr. Facility
       Auth. v. A.B., 234 W. Va. 492, 766 S.E.2d 751 (2014).

Crouch, 240 W.Va. at __, 809 S.E.2d at 701, Syl. Pt. 3.

        This Court has previously addressed the discretionary nature of DHHR investigations
into child abuse and neglect and the resulting decision to file, or decline to file, a petition upon
such investigation. In Crouch, we noted that “[t]he challenges facing a CPS worker in making
the determination of whether or not a situation of present danger exists and, so, whether to
remove a child from a home, strikes at the heart of qualified immunity[.]” 240 W.Va. at __, 809
S.E.2d at 706. Indeed,

       [i]f a public officer is either authorized or required, in the exercise of his
       judgment and discretion, to make a decision and to perform acts in the making of
       that decision, and the decision and acts are within the scope of his duty, authority,
       and jurisdiction, he is not liable for negligence or other error in the making of that



                                                 4
 
              decision, at the suit of a private individual claiming to have been damaged
              thereby.

Id. (quoting Syl. Pt. 4, Clark v. Dunn, 195 W.Va. 272, 465 S.E.2d 374 (1995)). “Qualified
immunity is ‘justified and defined by the functions it protects and serves, not by the person to
whom it attaches.’” Id. (quoting A.B., 234 W.Va. at 507-08, 766 S.E.2d at 766-67)).

              We have further explained that “[t]he purpose of such official immunity is not to
              protect an erring official, but to insulate the decision making process from the
              harassment of prospective litigation. The provision of immunity rests on the view
              that the threat of liability will make officials unduly timid in carrying out their
              official duties.”

Id. (quoting W.Va. Dep’t of Health & Human Res. v. Payne, 231 W.Va. 563, 577, 746 S.E.2d
554, 568 (2013)).

         According to petitioners, the DHHR’s actions in concealing information from the circuit
court constituted fraud such that qualified immunity does not apply. Specifically, petitioners
argue that at the time of the petition’s filing and M.I.D.’s subsequent removal from their home,
the DHHR “knew . . . the true state of affairs but chose not to share that information with the
court” and instead presented “a series of lies and misrepresentations” to the circuit court in the
various petitions. We note, however, that the record does not support these assertions. Petitioners
make much of the fact that the DHHR supposedly failed to alert the circuit court to the fact that
M.I.D. was in petitioners’ legal guardianship and did not reside in the parents’ home. However,
the initial petition clearly lists M.I.D.’s address as petitioners’ address in Wetzel County.
Moreover, the record shows that as early as the preliminary hearing held approximately four
days after the first petition was filed, the DHHR informed the circuit court that “it intended to
amend its petition to add [M.I.D.]’s legal guardians as adult respondents.” Thereafter, the DHHR
did, in fact, amend its petition to include petitioners as adult respondents. Contrary to petitioners’
arguments on appeal about willful concealment of facts from the circuit court during the
associated abuse and neglect proceedings, the record indicates that the DHHR presented accurate
information to the circuit court throughout the proceedings.4 Accordingly, petitioners have failed


                                                            
              4
        Petitioners additionally assert that respondents made “affirmative misrepresentations
concerning jurisdictional issues” in their filings with the circuit court. As noted above, the abuse
and neglect petitions against petitioners in the Circuit Court of Kanawha County were eventually
dismissed for lack of jurisdiction, given that petitioners and M.I.D. resided in Wetzel County.
While that order is not on appeal, it is important to note that the DHHR had at least a reasonable
basis to assume that jurisdiction in Kanawha County was proper, given the uncontroverted
evidence that M.I.D.’s parents, two of the named party abusers, lived in Kanawha County at the
time the initial petition was filed. Pursuant to West Virginia Code § 49-6-1 (2012), “the
department . . . may present a petition setting forth the facts to the circuit court in the county in
which the . . . named party abuser resides. . . .” Accordingly, while petitioners were able to
obtain dismissal of the petition for lack of jurisdiction, it does not appear that the DHHR
misrepresented any jurisdictional issues before the circuit court in its pleadings.
                                                               5
 
to show that qualified immunity should not apply due to acts or omissions that were fraudulent,
malicious, or otherwise oppressive.

        Petitioners also argue on appeal that qualified immunity is inapplicable because the
DHHR violated West Virginia Code §§ 49-6-1 and 49-6-9 (2012), which require, among other
things, that they be served with the petition and notice of hearing and be “immediately notif[ied]
. . . of the taking of [emergency custody] and the reasons therefore. . . .”5 According to
petitioners, the DHHR fraudulently induced them into bringing the child to the initial preliminary
hearing so that he could be taken into the DHHR’s custody without any warning or explanation
and in violation of the statutes quoted above.6 Again, we find that the record does not support
petitioners’ position. While it is true that the DHHR failed to include petitioners as named
respondents in the initial petition, petitioners admit that prior to taking physical custody of
M.I.D., the DHHR informed them of the issues arising from the substantiated claims of abuse
and neglect in petitioners’ home and that they were taking M.I.D. into their custody pursuant to
the circuit court’s order.

        While petitioners argue that the DHHR failed to consider documentation of their legal
guardianship over M.I.D. before taking custody of the child, we find that their status in relation
to M.I.D. was irrelevant to the fact that the DHHR believed that there was imminent danger to
the child’s well-being if left in petitioners’ care. In short, consideration of petitioners’ status as
legal guardians did not preclude the filing of a petition for emergency custody in this matter. In
regard to the substantiated abuse and neglect in their home, petitioners attack the veracity of
those substantiations and argue that they were later overturned. Regardless of the eventual

                                                            
              5
         Petitioners also argue, without explanation, that the DHHR’s “actions clearly violated
the Wetzel County court order appointing [them] as M.I.D.’s guardians.” It is unclear how
petitioners believe the DHHR’s actions violated the order in question, beyond the fact that the
DHHR obtained emergency custody of the child upon allegations of abuse and neglect. We note,
however, that a court order granting an individual legal guardianship over a child does not
insulate that individual from emergency removal of the child upon evidence of imminent danger
to the child’s physical well-being.

        Additionally, petitioners assert that respondents “violated numerous regulations of their
own agency and spelled out in the Social Services Manual.” However, petitioners fail to cite to a
single regulation that they allege was violated. “[A] skeletal ‘argument,’ really nothing more
than an assertion, does not preserve a claim. . . . Judges are not like pigs, hunting for truffles
buried in briefs.” State ex rel. Hatcher v. McBride, 221 W.Va. 760, 766, 656 S.E.2d 789, 795
(2007) (quoting State Dep’t of Health v. Robert Morris N., 195 W.Va. 759, 765, 466 S.E.2d 827,
833 (1995)). Accordingly, this argument will not be addressed on appeal.
              6
         In support of their argument that they “knew nothing of the proceedings,” petitioners
assert on appeal that “to this day, [they] have never been personally served with any [p]etition.”
This assertion is unsupported by the record. While it is unclear whether personal service was
achieved upon petitioners, it is undisputed that they had actual notice of the proceedings, as they
filed a verified answer to one of the amended petitions and appeared for and participated in
hearings after being named as respondents in the abuse and neglect proceedings.
                                                               6
 
outcome of the investigations into the conditions of petitioners’ home, it is uncontroverted that,
as the circuit court found, at the time of the petitions’ filings “there existed at least three
‘substantiated’ findings of abuse/neglect against [petitioners].” Petitioners also argue that these
substantiated findings of abuse and neglect were known to the DHHR when they obtained legal
guardianship over M.I.D. in 2010 and that because the DHHR did not object to the child’s
placement at that time, it was somehow precluded from citing these substantiated findings as a
basis for M.I.D.’s removal. However, we do not find this argument compelling, as the DHHR
was permitted, in its discretion, to re-evaluate the appropriateness of petitioners’ home as a
placement for M.I.D. in light of its ongoing investigation into his best interests.

        Ultimately, in arguing that the circuit court erred in granting respondents’ motion for
summary judgment, petitioners assert that the question of whether respondents’ conduct was
such that qualified immunity would not be applicable is one “for the jury to decide.” We
disagree, as this Court has previously held that “‘the question of whether the constitutional or
statutory right was clearly established is one of law for the court.’” Crouch, 240 W.Va. at __,
809 S.E.2d at 705 (quoting Hutchison, 198 W.Va. at 149, 479 S.E.2d at 659). Further,

       [t]o prove that a clearly established right has been infringed upon, a plaintiff must
       do more than allege that an abstract right has been violated. Instead, the plaintiff
       must make a “particularized showing” that a “reasonable official would
       understand that what he is doing violated that right” or that “in the light of
       preexisting law the unlawfulness” of the action was “apparent.”

Id. (quoting Hutchison, 198 W.Va. at 149 n.11, 479 S.E.2d at 659 n.11). Here, the only statute
petitioners can establish that the DHHR did not strictly follow is West Virginia Code § 49-6-1(b)
(2012), requiring that the petition and notice of the preliminary hearing be served upon
petitioners, given that they had custody of M.I.D. However, it is also apparent that the DHHR
almost immediately recognized its mistake and informed the circuit court at the preliminary
hearing, held four days after the petition’s filing, that it intended to amend the petition to include
petitioners as named respondents. Indeed, the DHHR then filed an amended petition to resolve
its mistaken omission, and petitioners then participated in the proceedings as contemplated by
the statues and rules governing child abuse and neglect proceedings. Accordingly, we find that
petitioners cannot establish that the DHHR’s mistake was such that qualified immunity should
not apply.

       For the foregoing reasons, we affirm.
                                                                                           Affirmed.
ISSUED: November 19, 2018

CONCURRED IN BY:

Chief Justice Margaret L. Workman
Justice Elizabeth D. Walker
Justice Tim Armstead
Justice Evan H. Jenkins
Justice Paul T. Farrell sitting by temporary assignment

                                                  7
 
