Parents sue DHHR over custody dispute

By John O'Brien | Nov 3, 2006

CHARLESTON - Two Charleston parents are suing the state's Department of Health and Human Resources, claiming it wrongly took custody of their child from them last Halloween.

Identified only as C.G. and B.G., they blame the DHHR and employee Michael Smith for basing their opinions on an unrelated case that was dismissed and filed their lawsuit Oct. 23 in Kanawha Circuit Court.

They say Smith filed a petition in circuit court alleging neglect and abuse of their son, C.G. III, and Judge Charles King granted the petition Oct. 31.

C.G. III stayed in the DHHR's custody for 10 days until he was given back to the parents.

"Because the defendants knew that another child, R.G. III, who is the son of B.G., was the subject of prior litigation in the Circuit Court of Kanawha County... which was later dismissed, the DHHR and its workers assumed no factual support that the plaintiffs were unfit to care for the infant child C.G. III," the complaint says. "As a result, the infant child was negligently and carelessly removed from his parent's home and was out of the home from Oct. 31, 2005 through Nov. 10, 2005."

Attorney Troy Giatras, who is representing the plaintiffs, says it is hard to put a dollar amount on the types of damages he seeks. Those are psychological and emotional trauma due to the loss of parental and child consortium, post-traumatic stress disorder and other psychological disorders, future risks to mental health and future diminution of the ability to enjoy life.

"It's difficult for everybody. That's why I didn't ask for a specific dollar amount," said Giatras, of the Giatras Law Firm Charleston. "What is the value of the period of time they went through? It's an extremely difficult way to try to evaluate. You can't say there's a broken fender or something snapped in half, and what's the cost of replacing it?"

Giatras said he doesn't anticipate Attorney General Darrell McGraw's office representing the DHHR, though it has in past cases. He said he has already talked to an insurance adjuster, which leads him to believe the state's insurance company has hired its own counsel.

Giatras contributed $1,000 to McGraw's campaign in 2004 and has been appointed a special assistant attorney general three times in the last two years. That gives private attorneys the power of the state in investigating lawsuits.

Giatras has been appointed by McGraw's office to work on cases against Capitol One and other credit card companies, against Eli Lilly & Company regarding Zyprexa and against Marsh and McLennan and AIG. He also has said that he worked very closely with McGraw's office, but Wednesday said he won't have to go up against McGraw's attorneys on this one.

"I don't anticipate the Attorney General's office will be involved with it," he said.

Judge Jennifer Bailey Walker has been assigned the case.

Kanawha Circuit Court case number 06-C-2236

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