CHARLESTON – The West Virginia Supreme Court says it agrees with a Cabell circuit judge's frustration with the state Department of Health and Human Resources in an abuse and neglect proceeding, but notes the judge was wrong to dismiss the proceeding as a sanction to the agency and potentially endanger a child.

Justices, in a per curiam opinion, granted the DHHR's petition for a writ of prohibition to prevent enforcement of Cabell Circuit Judge David Pancake's Dec. 12, 2008 dismissal of the state's case against Angela H.

"The circuit court's oral and written orders dismissing the abuse and neglect petition –- while understandable -– were in error, and failed to take into account the health and welfare of the child and failed to accord the DHHR with the ability to present its evidence and testimony," the May 4 opinion said.

According to court records, the DHHR filed an abuse and neglect petition against Angela H. in Cabell Circuit Court after the woman tested positive for amphetamines, methamphetamines, cannabinoids and cocaine during the birth of her son, K.M., on July 11, 2007. The agency also noted that Angela H.'s parental rights had been terminated for other children.

The circuit court found the mother to be neglectful, after she admitted to the same. The court also granted her motion for a post-adjudicatory improvement period, the opinion says.

The DHHR moved to terminate the improvement period because the mother wasn't complying with drug treatment programs, court records say. And the agency had concerns about her parenting skills.

The circuit court ordered the DHHR to have a psychological evaluation performed on the mother and set a final disposition hearing for Oct. 1, 2008.

At that hearing, the lawyer for the DHHR told the court that the evaluation had not been performed. The court continued the matter until Nov. 19 and ordered the agency to have the evaluation report to the court by Nov. 7.

Pancake told the agency that if the report was not filed by that date, the abuse and neglect petition against Angela H. would be dismissed.

The DHHR did not file the report until Nov. 14.

At the Nov. 19 hearing, Pancake orally dismissed the petition and expressed his frustration with the agency for not meeting the court-ordered deadline.

"This is one I want to go up (to the Supreme Court), because I want the court to know when we order things, we don't get them done," Pancake said in a transcript of the hearing. "And it's been an ongoing problem … I'd actually like someone to take my deposition sometime so I can give them the cases and the deadlines and the time frames that we get."

The DHHR immediately petitioned the Supreme Court for the writ of prohibition.

In the opinion, the justices note that state law requires the court to conduct hearings in abuse and neglect cases and that Pancake was wrong to have not allowed the DHHR to present its evidence and testimony.

"This is not to say, however, that the circuit court erred in attempting to assess sanctions," the opinion says. "The transcript of the (Nov. 19) hearing plainly reflects the circuit court's frustration with the DHHR and its counsel arising from their repeated failures to comply with the circuit court's orders.

"Our concern is that the remedy for dismissing the petition, without first considering other sanctions, fails to take into consideration the best interests of the child who is the subject of the abuse and neglect petition."

The court noted that the sanctions should have been directed to either the DHHR or the lawyer.

Chief Justice Brent Benjamin and Justice Margaret Workman reserved the right to file separate concurring opinions in the matter.

West Virginia Supreme Court case number: 34602

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