         IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA 


                               January 2018 Term                         FILED
                               _______________                         May 10, 2018
                                                                         released at 3:00 p.m.
                                  No. 17-0692                        EDYTHE NASH GAISER, CLERK
                                                                     SUPREME COURT OF APPEALS
                                _______________                           OF WEST VIRGINIA



                IN RE GUARDIANSHIP OF K.W., M.W., and A.W.

      ____________________________________________________________

                  Appeal from the Circuit Court of Cabell County 

                       Honorable Alfred Ferguson, Judge 

                           Civil Action No. 16-FIG-16 


                        REVERSED AND REMANDED 


      ____________________________________________________________

                            Submitted: April 10, 2018 

                              Filed: May 10, 2018 


Michael S. Bailey, Esq.                   Arik C. Paraschos, Esq.
BAILEY LEGAL SERVICES, PLLC               SAMMONS, OLIVERO & PARASCHOS
Barboursville, West Virginia              Huntington, West Virginia
Counsel for Petitioners                   Guardian ad Litem for K.W., M.W., and
                                          A.W.

                                          G.T. and D.T., pro se
                                          Respondents


JUSTICE WALKER delivered the Opinion of the Court.
                              SYLLABUS BY THE COURT 



              1.     “Where the issue on an appeal from the circuit court is clearly a

question of law or involving an interpretation of a statute, we apply a de novo standard of

review.” Syllabus Point 1, Chrystal R.M. v. Charlie A.L., 194 W. Va. 138, 459 S.E.2d 415

(1995).



              2.     Consistent with the plain language of Rule 13 of the Rules of Practice

and Procedure for Minor Guardianship Proceedings and Rule 48a of the Rules of Practice

and Procedure for Family Court, once a family court removes an infant guardianship case

to circuit court because the basis for the guardianship is, in part, abuse and neglect, the

case, in its entirety, remains in circuit court and may not be remanded.



              3.     “Rule 48a(a) of the West Virginia Rules of Practice and Procedure for

Family Court requires that if a family court presiding over a petition for infant guardianship

brought pursuant to W. Va. Code § 44-10-3 learns that the basis for the petition, in whole

or in part, is an allegation of child abuse and neglect as defined by W. Va. Code [§ 49-1-

201], then the family court is required to remove the petition to circuit court for a hearing

thereon. Furthermore, ‘[a]t the circuit court hearing, allegations of child abuse and neglect

must be proven by clear and convincing evidence.’ West Virginia Rules of Practice and

Procedure for Family Court 48a(a).” Syllabus Point 7, In re Abbigail Faye B., 222 W. Va.

466, 665 S.E.2d 300 (2008).


                                              i
              4.     A temporary guardianship granted over the natural parents’ objection

based on substantiated allegations of abuse and neglect does not provide a permanent

solution for child custody such that it obviates the need for an abuse and neglect petition.




                                             ii
WALKER, Justice:

                             In this appeal we consider the validity of a family court order granting

permanent guardianship of K.W., M.W., and A.W.1 to their maternal grandparents, D.T.

and G.T. The case was originally removed from family court to circuit court because the

preceding petition for temporary guardianship was based on allegations of abuse and

neglect. However, contrary to Rule 13 of the Rules of Practice and Procedure for Minor

Guardianship Proceedings (Rule 13) as well as Rule 48a of the Rules of Practice and

Procedure for Family Court (Rule 48a), which provide that once removed to circuit court,

neither the matter, nor any portion of it, may be remanded back to 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 circuit court reasoned that the case was unnecessarily

removed to circuit court because the children were under the protection of a then-temporary

guardianship order. L.W. and S.W., the biological parents, argue that the family court

lacked subject-matter jurisdiction to grant the permanent guardianship because the matter

was improperly remanded from the circuit court to family court. We conclude that because

the allegations of abuse and neglect were substantiated, the circuit court erred in concluding

that the temporary guardianship order negated the need for the abuse and neglect petition

and therefore erred in remanding the matter to family court. Accordingly, the permanent

                                                            
              1
        Due to the sensitive facts of this case, we protect the identities of the parties
involved by using their initials rather than full names. See W. Va. R. App. P. 40. See e.g.,
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).

                                                               1


 
guardianship order is vacated for want of subject-matter jurisdiction. We remand this

matter to the circuit court for further proceedings under Chapter 49 of the West Virginia

Code, with instructions that during the pendency of those proceedings, the children will

remain in the temporary guardianship of their maternal grandparents unless the circuit court

deems them unfit for that task.



              I.     FACTUAL AND PROCEDURAL BACKGROUND

              K.W., M.W., and A.W. are the biological children of Petitioners L.W. and

S.W. In late April of 2015, L.W., the mother, filed a domestic violence petition against

S.W., the father, and sought a protective order for herself and her three children. The

mother’s petition alleged that the father “shoved [her] forcefully into a wall in [their]

home,” “grabbed the back of [her] neck and pushed [her] head to [her] chest,” and further

stated that this incident was the latest of many episodes of physical violence throughout

the history of their marriage. The Family Court of Cabell County granted the domestic

violence protective order (DVPO) for a period of 180 days to expire November 2, 2015,

and allowed the father to have supervised visitation with the three children. Shortly

thereafter on May 18, 2015, a criminal complaint was issued against the father for violation

of the DVPO because he went to the residence, pounded on the door, and repeatedly texted

and called L.W. The following day, the mother filed a motion to modify the DVPO to

suspend all visitation and to extend the terms until November 30, 2015. The family court




                                             2


 
granted that motion and appointed Arik Paraschos as Guardian ad Litem for the three

children.



                             Upon appointment, the Guardian ad Litem met and interviewed the mother.

She provided a lengthy account, in writing, of the extensive and ongoing physical and

emotional abuse in their home.2 She recounted episodes when the father shoved her up

against the wall while she was pregnant, and frequently pushed her, slapped her, and kicked

her. She reported an incident when the father told her he was going to kill her and began

choking her, but stopped when K.W. entered the room. The father was arrested for that

incident, but his charges were reduced to disorderly conduct and he was sentenced to six

months of probation and anger management classes. She also reported that even after

undergoing anger-management classes, the father head-butted her in the face—breaking

her nose—in front of their children, and choked her in front of them earlier that year.

Despite multiple attempts at marriage counseling, the mother reported that the physical and

emotional abuse was extensive and ongoing.




                                                            
              2
         The mother stipulated to the authenticity and truth of the matters asserted in this
document and does not dispute that there has been a history of abuse in their home. The
father likewise stipulated to the truth of the matters asserted in this document, but
acknowledged that because it was told through the mother’s perspective, he would have
some “fill-in-the-gaps” type of evidence to offer as a supplement. The parents’ position is
that they are rehabilitated as a result of counseling.

                                                               3


 
                As to her children, the mother indicated that the father previously slapped

K.W. leaving a red handprint on her face and also slapped A.W. She also recounted that

she saw the father cover K.W. and A.W.’s mouths and noses with his hand so as to smother

them. She alleged that the father was verbally abusive to all three children, and was

controlling and aggressive. Any time the mother attempted to step in to protect the children

from his abuse, she reported that he would physically abuse her as well. The mother

expressed considerable concern that the father had been very harsh, emotionally, to K.W.

and caused many of the anxiety issues she suffered, and also detailed that her other children

suffered from anxiety disorders, as well. She reported that K.W. and A.W. have suffered

from mouth ulcers as a physical manifestation of their anxiety and stress, and that K.W.

also suffers from insomnia. As a result of their anxiety issues, the mother reported that the

children had been in and out of public school and homeschooled. All three children

participate in counseling in an attempt to remedy the issues. These issues were exacerbated

when visiting with their father in the duration of the DVPO, to the point that K.W. told her

mother that she would “kill [herself] before [she would] visit with him again.” The mother

also stated to the Guardian ad Litem that she observed an obvious improvement in the

physical, mental, and emotional health of all three children since they ceased contact with

their father.



                The Guardian ad Litem also interviewed the children, all of whom indicated

that they had no desire to have contact with their father. K.W. confirmed L.W.’s accounts

                                              4


 
of instances when she witnessed her father physically abusing her mother. She reported

witnessing her father head-butt her mother, breaking her nose, recalled that her mother was

often covered in bruises on her body, and stated that her father choked her mother until she

was unconscious on more than one occasion. K.W. confirmed the abuse she suffered as

well, including, specifically, that her father slapped her on multiple occasions, that he

pinned her on a bed suffocating her with his chest and stomach, and that he held her down

and covered her nose and mouth with his hand. K.W. also reportedly told the Guardian ad

Litem that “she was sure her father would kill one of them eventually.”



              The Guardian ad Litem reported that K.W. was reluctant to have contact with

her mother because her mother had been physically abusive to her as well, and had been

present for much of the abuse yet did nothing to stop it. K.W. reported that her mother hit

her with a dowel rod and that she slammed her head on the table, which A.W. confirmed

she witnessed. After a stint when the parents were separated, K.W. reported that she

objected to them getting back together and her mother tackled her and struck her.



              A.W. reported that in the past, her father struck her with a dowel rod, struck

her in the face, busted her lip, and hit her in the back of the head on several occasions.

A.W. reported that often her mother was present for the abuse, but sometimes was not, and

that she did not feel safe with her parents. M.W., the youngest child, reported that she saw

her father push her mother against the wall and saw him choke her. M.W. expressed a


                                             5


 
desire to live with her mother, but also stated that she wanted to live with A.W., and A.W.

would not live with their mother.



              In early August 2015, the father petitioned the family court to modify the

protective order to grant him unsupervised visitation, which was denied. In late August,

the mother filed a petition to terminate the DVPO because separate residences had been

established and she no longer felt that there was a risk of violence. In response, the

Guardian ad Litem presented his report attesting to the purported abuse that had been

reported to him, and recommending that the children continue to have no contact with their

father. The family court denied the petition to terminate the DVPO, but permitted the

children to have visitation with their father if their therapist and the family court approved

it. The family court did not refer the case to Child Protective Services (CPS) nor did it

remove the case to circuit court as a cross-over case because the mother did not intend to

expose the children to the father at that time.



               The mother filed for divorce on October 20, 2015, and Mr. Paraschos was

appointed as Guardian ad Litem for those proceedings as well. Shortly thereafter, the

parents reconciled and the divorce petition was voluntarily dismissed on March 9, 2016.

Presumably aware that the parties were reconciling, D.T. and G.T., the children’s maternal

grandparents, filed a petition for guardianship just days before the divorce petition was

dismissed, alleging that the children were in danger. The family court held an emergency


                                              6


 
hearing and granted the maternal grandparents temporary guardianship of the three

children, finding that the father was a threat to his children and that the mother failed to

protect them. Accordingly, it also imposed a no-contact order between the children and

their parents. The family court, acknowledging that allegations of abuse and neglect

formed the basis of the guardianship petition, removed the case to circuit court in

accordance with Rule 48a and Rule 13, and made a referral to the Department of Health

and Human Resources (DHHR).



              The circuit court directed DHHR to conduct an investigation and report its

findings to the circuit court. DHHR substantiated that there had been maltreatment and

impending danger and opened the case for ongoing CPS intervention. At a hearing on May

4, 2016, DHHR provided the circuit court with a summary of its findings and indicated that

its petition for abuse and neglect had been previously submitted to the Cabell County

Prosecuting Attorney’s Office to be filed. During the hearing, the Guardian ad Litem

recommended to the court that the matter be remanded to family court because the children

were no longer in danger of abuse at the hands of their parents by virtue of the fact that

they were presently in the custody of their grandparents. Counsel for DHHR indicated that

she had serious concerns due to the extensive history of abuse, but conceded that “if the

children are going to remain with the grandparents, then from the Department’s

perspective, I guess the abuse has been addressed. I just don’t want a situation where they




                                             7


 
will be petition [sic] in the next year or two trying to move the children back with them

saying things have changed.”



              The circuit court concluded that the children were adequately protected by

the family court’s temporary order granting guardianship to the maternal grandparents and

prohibiting contact with the parents. Therefore, finding that a petition for abuse and neglect

was unnecessary, the circuit court concluded that the matter could be remanded back to

family court for guardianship proceedings. The parents filed a motion for reconsideration

arguing that remand to family court was inappropriate in light of the plain language of Rule

48a and Rule 13 prohibiting remand of any portion of a case when it had been removed to

circuit court under those rules. The circuit court denied the motion. Accordingly, the CPS

case worker informed the father that because the circuit court did not accept the case and

it was being referred back to family court that CPS would no longer be involved with his

family. She advised him that he would have to abide by all rulings and orders made by the

family court and that his daughters remained in the temporary legal and physical custody

of their maternal grandparents.



              On October 5, 2016, the maternal grandparents filed a petition for permanent

guardianship of the children. Two weeks later, the family court held an evidentiary hearing

on the permanent guardianship, during which the parents again objected to the family

court’s jurisdiction. The family court noted their objection but proceeded with the hearing,


                                              8


 
acknowledging that the circuit court had already twice determined that remand was

appropriate. The family court held a lengthy hearing and heard testimony from the

Guardian ad Litem, the father’s Batterer Intervention Program therapist, the children’s

psychologist, the parents’ psychologist, the maternal grandmother, and the mother.

Ultimately, the family court found that all three children had witnessed extreme domestic

violence; all three children suffered psychological abuse at the hands of their parents; the

two older children suffered physical abuse at the hands of their father; K.W., the eldest,

had suffered physical abuse at the hands of her mother; and that K.W., being over the age

of 14, had expressed a preference to live with her grandparents. Based on these findings,

the family court concluded that the maternal grandparents should be the permanent

guardians of the three children. The family court put in place a no-contact order as to the

father and a limited electronic contact order as to the mother, with the possibility for

increasing contact if the children’s psychologist and the Guardian ad Litem agreed it was

appropriate.



               The parents filed objections to the order as prepared by the Guardian ad

Litem, arguing that the findings and conclusions were factually inaccurate and did not

reflect the court’s findings at the hearing. The family court overruled that objection and

entered the order. The parents filed a motion for reconsideration with the family court,

which was denied. The parents then filed an appeal to the circuit court and raised the

impropriety of the remand from circuit court to family court. The circuit court denied the

                                             9


 
appeal, finding that “it does not make logical sense to interpret Rule 13 of the Rules for

Minor Guardianship Proceedings and Rule 48a of the Rules [of] Practice and Procedure of

Family Court to give the Circuit Court absolutely no discretion on whether or not to accept

a crossover case when they find a case should not have been referred to the Circuit Court.”

It is from that order that the parents appeal to this Court.



                                                         II.   STANDARD OF REVIEW

                             We are asked to determine whether the circuit court properly disregarded

Rule 13 and Rule 48a when it remanded this case to the family court with instructions to

proceed as an infant guardianship case as opposed to an abuse and neglect matter. More

pointedly, we must determine whether the family court had subject-matter jurisdiction to

grant permanent guardianship in this case. “Whether a court has subject matter jurisdiction

over an issue is a question of law[.]”3 Similarly, inquiry into the issue of subject-matter

jurisdiction necessarily implicates a review of the court rules relevant to the circuit court’s

remand. Accordingly, our review is plenary: “Where the issue on an appeal from the circuit

court is clearly a question of law or involving an interpretation of a statute, we apply a de

novo standard of review.”4




                                                            
              3
                  Snider v. Snider, 209 W. Va. 771, 777, 551 S.E.2d 693, 699 (2001). 

              4
                  Syl. Pt. 1, Chrystal R.M. v. Charlie A.L., 194 W. Va. 138, 459 S.E.2d 415 (1995).

 
                                                                     10 


 
                                                               III.   ANALYSIS 


                             On appeal, the parents reiterate the jurisdictional argument made below,

namely, that the circuit court erred in remanding the matter to family court. As a

consequence of the improper remand, the parents argue that the family court’s grant of

permanent custody was made without subject-matter jurisdiction and should be nullified.

The parents also argue that the family and circuit courts erred by granting and upholding

permanent guardianship to the maternal grandparents and divesting them of their

constitutional rights to the custody of their children without a specific finding of unfitness,

and that the permanent guardianship order effectually terminated their parental rights

without offering them the procedural safeguards of child abuse and neglect proceedings

under Chapter 49 of the West Virginia Code.



                             The parents argue that Rule 48a of the Rules of Practice and Procedure for

Family Court and Rule 13 of the Rules of Practice and Procedure for Minor Guardianship

Proceedings5 are undeniably clear—those rules provide, in relevant part, the following:

                                     Removal by a family court to circuit court of infant
                             guardianship cases involving child abuse and neglect. — If a
                             family court learns that the basis, in whole or part, of a petition
                             for infant guardianship brought pursuant to W. Va. Code § 44-
                             10-3, is an allegation of child abuse and neglect as defined in


                                                            
              5
         Rule 48a of the Rules of Practice and Procedure for Family Court and Rule 13 of
the Rules of Practice and Procedure for Minor Guardianship are duplicative rules that
contain the same language. We include references to both only to ensure that this Opinion
is understood as applicable to both.

                                                                       11 


 
                             W. Va. Code § [49-1-201],[6] then the family court before
                             whom the guardianship proceeding is pending shall remove the
                             case to the circuit court for hearing. . . . Once removed, the case
                             (or any portion) shall not be remanded to family court. . . .



The Guardian ad Litem does not dispute that the remand was technically error based on a

plain reading of this rule. Rather, he supports the circuit court’s remand by relying on the

fact that the family court and circuit court have concurrent jurisdiction in guardianship

matters as well as arguing that Rules 13 and 48a impose an arbitrary requirement to

remand.7



                                                            
              6
        The text of Rule 48a retains the reference to precodification section (W. Va. Code
§ 49-1-3). As reflected in Rule 13, that section was recodified as West Virginia Code §
49-1-201.
              7
          Because the arguments advanced by the grandparents in both their brief and
subsequent correspondence to this Court vacillate dramatically, we reference the arguments
of the Guardian ad Litem for purposes of deciding the legal issue before us. For example,
the grandparents recanted their prior sworn statements that the parents were unfit and went
so far as to allege that it was abuse to keep the children away from their parents. In their
summary response, the grandparents indicated that they had been pressured by Mr.
Paraschos to file for guardianship and never believed that the children were in danger,
despite the fact that they had made sworn statements to the contrary and were represented
by their own counsel at that time. Shortly before oral argument, this Court was provided
with a letter and attachments from the maternal grandmother alleging that they were
pressured by the parents to file the response brief to this Court in which they recanted their
prior statements, and now deeply regretted doing so. As a result, this Court accords scant
merit to the arguments and representations made by the grandparents in this appeal.

       While the opposition to the parent’s legal arguments is sufficiently briefed by the
Guardian ad Litem, due to the ambivalence and recklessness with which the grandparents
have approached the allegations and retractions they have made under oath and to this
Court, we are left with weighty factual questions such that the ultimate disposition of these
children may be affected. The gravity of these already-troubling circumstances is
                                            12 


 
                             Indeed, the family court and circuit court have concurrent jurisdiction in

guardianship matters pursuant to Rule 2 of the Minor Guardianship Rules, but, as explained

in that rule, the family court’s jurisdiction is subject to the removal provisions in Rule 13.

The removal provisions of Rule 13 and Rule 48 are abundantly clear that “[o]nce removed,

the case (or any portion) shall not be remanded to family court.” Consistent with the plain

language of Rule 13 of the Rules of Practice and Procedure for Minor Guardianship

Proceedings and Rule 48a of the Rules of Practice and Procedure for Family Court, once a

family court removes an infant guardianship case to circuit court because the basis for the

guardianship is, in part, abuse and neglect, the case, in its entirety, remains in circuit court

and may not be remanded. As we held in In re Abbigail Faye B.,

                                    Rule 48a(a) of the West Virginia Rules of Practice and
                             Procedure for Family Court requires that if a family court
                             presiding over a petition for infant guardianship brought
                             pursuant to W. Va. Code § 44-10-3 learns that the basis for the
                             petition, in whole or in part, is an allegation of child abuse and
                             neglect as defined by W. Va. Code [§ 49-1-201], then the
                             family court is required to remove the petition to circuit court
                             for a hearing thereon. Furthermore, “[a]t the circuit court
                             hearing, allegations of child abuse and neglect must be proven
                             by clear and convincing evidence.” West Virginia Rules of
                             Practice and Procedure for Family Court 48a(a).[8]



                                                            
underscored by our inability to discern whether or not the grandparents, the guardians of
these children for the past two years, believe the children to be in danger from their parents,
whether they might expose the children to their parents, and whether they wish for the
guardianship to remain in place.
              8
        Syl. Pt. 7, In re Abbigail Faye B., 222 W. Va. 466, 665 S.E.2d 300 (2008)
(emphasis added).

                                                               13 


 
                             This is consistent with our holdings relating to the scope of family court

jurisdiction: “Among such limits imposed upon a family court’s jurisdiction are the

inability of a family court to hear a matter involving child abuse or neglect insofar as such

cases are within the exclusive authority of the circuit court . . . .”9 Accordingly, the family

court appropriately entered an order for temporary guardianship as contemplated in Rule

13 and 48a as well as West Virginia Code § 44-10-3,10 and relinquished jurisdiction to the

circuit court for investigation and filing of a child abuse and neglect petition, if so

warranted. The circuit court, though aware that the allegations of abuse and neglect were

substantiated and that a petition was forthcoming, nonetheless remanded the case to family

court. The circuit court justified the remand based on the Guardian ad Litem’s assertions

that the children were no longer in danger because they were, at the time of the hearing, in

the custody of their grandparents and adequately protected by the family court’s order,

which also prevented contact between the children and their parents.




                                                            
              9
                  In the Interest of J.L., Jr., 234 W. Va. 116, 120, 763 S.E.2d 654, 658 (2014).
              10
         Rules 13 and 48a provide, in relevant part, that “[s]hould the family court learn
of such allegations of child abuse and neglect during the hearing, then the family court
shall continue the hearing, subject to an appropriate temporary guardianship order, and
remove the case to the circuit court . . . .” West Virginia Code § 44-10-3, which sets forth
the requirements for appointment and termination of minor guardianships, provides that
“the court may appoint a temporary guardian for a minor upon a showing that an immediate
need exists[.]” W. Va. Code § 44-10-3(g) (2016 Repl. Vol.).

                                                               14 


 
             While the Guardian ad Litem acknowledges that the remand was technically

in error, he nonetheless argues that Rule 13 and Rule 48a arbitrarily deprive the circuit

court of any discretion to remand the case to family court when DHHR or the court

concludes it is unnecessary to file a petition, while Rule 3a of the Rules of Procedure for

Child Abuse and Neglect Proceedings (Rule 3a) permits a circuit court to decline

jurisdiction under those same conditions. Rule 3a dictates procedure for pre-petition

investigations. Rule 3a(b), to which the Guardian ad Litem refers, provides in relevant

part:

                     Mandamus Relief. — Following review of an
             investigation report in which the Department concludes that a
             civil petition is unnecessary, if the circuit court believes that
             the information in the family court’s written referral and the
             Department’s investigation report, considered together,
             suggest circumstances upon which the Department would have
             a duty to file a civil petition, the court shall treat the written
             referral as a petition for writ of mandamus in the name of and
             regarding the affected child or children. A show-cause order
             shall issue by the court setting a prompt hearing to determine
             whether the respondent Department has a duty to file a civil
             petition under the particular circumstances set forth in the
             written referral and investigation report. If it is determined by
             the court that the Department has a nondiscretionary duty
             pursuant to W. Va. Code § 49-4-605 to file a petition seeking
             to terminate parental rights, the Department shall be directed
             by writ to file such petition within a time period set by the
             court. . . .



             Unlike Rules 13 and 48a, Rule 3a, the Guardian ad Litem argues, allows the

circuit court to look at factual circumstances in a family court referral and to determine

whether to require DHHR to file a petition of abuse and neglect if DHHR finds it is
                                            15 


 
unnecessary. Ergo, if the circuit court, in the exercise of its discretion, does not require

DHHR to file the petition, it effectively declines jurisdiction over the proceeding and the

family court maintains jurisdiction. The Guardian ad Litem argues that the outcome should

be no different in the context of guardianship proceedings because the circuit court

exercised sound discretion in remanding the matter to family court once it perceived that a

petition for abuse and neglect was unnecessary.



                             Based on the facts before us, we find that argument unpersuasive because it

grossly oversimplifies DHHR’s position regarding the need for a petition for abuse and

neglect against the parents. In this case, DHHR substantiated the allegations of abuse and

had already sent the petition to the Cabell County Prosecuting Attorney’s Office to be filed.

To say that DHHR believed that a petition for abuse and neglect was unnecessary

fundamentally misstates the representations made to the circuit court below and

misappropriates the intent and principle of Rule 3a. Rule 3a permits a circuit court to

“decline jurisdiction” by accepting DHHR’s conclusions in the investigative report that a

petition is unnecessary due to unsubstantiated allegations of abuse or neglect.11 No such

                                                            
              11
          West Virginia Code § 49-4-605(b) does, however, outline particular
circumstances in which DHHR may elect not to file a petition when ordinarily it would
have a duty to do so:

                     (b) The department may determine not to file a petition to terminate
              parental rights when:

                    (1)   At the option of the department, the child has been placed
              permanently with a relative by court order;

                                                               16 


 
representation was made to the circuit court in DHHR’s investigative report. In fact, in

addition to its report substantiating the allegations and finding impending danger, DHHR

expressed significant concerns regarding the physical and emotional abuse that these

children witnessed and endured and, ironically, foreshadowed apprehension that the

parents would attempt to regain custody.                          Thus, the circuit court did not “decline

jurisdiction” as contemplated in Rule 3a due to unsubstantiated allegations of abuse. While

counsel for DHHR did assent that if the children were going to remain in the custody of

their grandparents, from its perspective the abuse was addressed, the fact of the matter is

that the children were in the custody of their grandparents by temporary order of the family

court.



                             The temporary guardianship put in place by the family court was an attempt

to protect these children from their parents in the face of imminent need, not unlike removal

by DHHR prior to filing a petition under West Virginia Code § 49-4-303 and temporary

custodial placement during the pendency of that proceeding under West Virginia Code §


                                                            
                      (2)    The department has documented in the case plan made
              available for court review a compelling reason, including, but not limited to,
              the child’s age and preference regarding termination or the child’s placement
              in custody of the department based on any proceedings initiated under part
              seven [§§ 49-4-701 et seq.] of this article, that filing the petition would not
              be in the best interests of the child; or

                     (3)     The department has not provided, when reasonable efforts to
              return a child to the family are required, the services to the child’s family as
              the department deems necessary for the safe return of the child to the home.

                                                               17 


 
49-4-602. In fact, had the grandparents not preemptively sought guardianship before the

Guardian ad Litem made DHHR aware that the mother had reconciled with the father,

based on DHHR’s report, the children would likely have been removed from the parents’

home and placed with the maternal grandparents in any case. The form of the transfer of

custody does not subvert the substance of it—the children were temporarily removed from

their parents’ custody due to allegations of abuse and neglect, DHHR substantiated those

allegations and provided the prosecutor with a petition for abuse and neglect to proceed

against the parents. The circuit court’s conclusion that a petition was unnecessary because

the children were in the temporary custody of their grandparents is no more sound than

concluding that a child’s temporary placement with foster parents prior to institution of an

abuse and neglect proceeding negates the need for a petition against the parents in and of

itself.

              This reasoning is consistent with West Virginia Code § 49-4-605, which

outlines when DHHR efforts to terminate parental rights are required, and when they are

discretionary. In relevant part, that section provides:

              (a)    Except as provided in subsection (b) of this section, the
              department shall file or join in a petition or otherwise seek a
              ruling in any pending proceeding to terminate parental rights:
              ...

                     (2) 	 If a court has determined that the child is
                           abandoned, tortured, sexually abused, or
                           chronically abused[.]

                                           ****



                                             18

 
                             (b)   The department may determine not to file a petition to
                             terminate parental rights when:

                                            (1) 	 At the option of the department, the child has
                                                  been placed permanently with a relative by court
                                                  order.[12]

The circuit court was presented with ample evidence that the mother and these children

were chronically abused physically and emotionally sufficient to compel DHHR to file a

petition against the parents. Yet, it determined that a petition seeking to adjudicate their

parental or custodial rights was unnecessary based on the children’s temporary placement

with relatives.                      The remand was not only contrary to Rules 13 and 48a, but also

jurisdictionally precluded the filing of a petition against the parents, which we are of the

conviction was DHHR’s nondiscretionary duty to file. While we are cognizant that the

circuit court was, appropriately, most concerned with assuring the safety of the children in

the immediate context, its approach to these particular circumstances of abuse was

insufficient procedurally and substantively insofar as it did not contemplate the need for

permanency. We therefore hold that a temporary guardianship granted over the natural

parents’ objection based on substantiated allegations of abuse and neglect does not provide

a permanent solution for child custody such that it obviates the need for an abuse and

neglect petition.




                                                            
              12
                   Emphasis added.

                                                                  19 


 
                             Having determined that the need for an abuse and neglect petition existed at

the time of the circuit court’s remand, and that the circuit court maintains exclusive

jurisdiction over such proceedings, we conclude that the circuit court should have retained

jurisdiction and its remand to the family court was error. It follows then, that the family

court, in issuing its permanent guardianship order, was without subject-matter jurisdiction

to do so. Without question, subject-matter jurisdiction “must exist as a matter of law for

the court to act.”13 Consequently, “any decree made by a court lacking [subject-matter]

jurisdiction is void[,]”14 and the permanent guardianship must be set aside for want of

subject-matter jurisdiction, however situationally appropriate it may have been.15



                             However, because the record before us is replete with corroborated

allegations of physical and emotional abuse, which is apparently ongoing even in spite of

the no-contact order, we do not find it appropriate, given the already-extended duration of

these proceedings and plainly manifested danger to the children, to return custody of the




                                                            
              13
                    State ex rel. Smith v. Thornsbury, 214 W. Va. 228, 233, 588 S.E.2d 217, 222
(2003).
              14
         State ex rel. TermNet Merchant Servs., Inc. v. Jordan, 217 W. Va. 696, 700, 619
S.E.2d 209, 213 (2005) (citation omitted).
              15
         Because we have determined that the permanent guardianship order must be set
aside for lack of jurisdiction, it is unnecessary to address the parents’ constitutional
concerns that the permanent guardianship effectively terminated their parental rights
without the protections afforded them by Chapter 49 of the West Virginia Code.

                                                               20 


 
children to their parents.16 The children will remain in the temporary guardianship of their

maternal grandparents pending a hearing to be conducted within ten (10) days of the

issuance of this Opinion at which the circuit court will determine whether the maternal

grandparents are fit to continue as the temporary guardians of the children.17 Further, the

circuit court is instructed to provide DHHR leave to file an abuse and neglect petition

against the parents, if still judged appropriate, and to proceed according to Chapter 49 of

the West Virginia Code so as to allow for CPS involvement and development of a

permanency plan for these children.



                                                               IV. CONCLUSION

                              For the foregoing reasons, we reverse the July 10, 2017 order of the Circuit

Court of Cabell County and remand for further proceedings consistent with this opinion.

The Clerk is directed to issue the mandate concurrently with the opinion.



                                                                                 Reversed and remanded.

 


                                                            
              16
          See syl. pt. 6, In re Timber M., 231 W. Va. 44, 743 S.E.2d 352 (2013) (“In cases
involving the abuse and neglect of children, when it appears from this Court’s review of
the record on appeal that the health and welfare of a child may be at risk as a result of the
child’s custodial placement, regardless of whether that placement is an issue raised in the
appeal, this Court will take such action as it deems appropriate and necessary to protect
that child.”).
              17
                   See supra n.7.

                                                                     21 


 
