Supreme Court says DHHR has qualified immunity in child custody case

By Kyla Asbury | Mar 27, 2019

CHARLESTON – The West Virginia Supreme Court of Appeals recently ruled the state's Department of Health and Human Resources is entitled to qualified immunity in a case involving the guardianship of a minor.

The petitioners, DHHR, Vickie Bell and Lisa Vinson, argued they were immune to the claims of V.P. and R.P. involving the guardianship of L.T., a minor, the March 21 majority opinion of the high court said .

"The DHHR petitioners raise a single issue on appeal: whether Mingo Circuit Court failed to recognize and enforce the immunities that protect the DHHR and its individual employees from simple negligence claims with respect to the discretionary judgments, decisions and actions in the absence of waiver," the opinion said. "Upon careful review of the briefs, the appendix record, the arguments of the parties and the applicable legal authority, we find that the DHHR petitioners are entitled to qualified immunity."

The Supreme Court reversed the order of the lower court and remanded the case for entry of an order granting summary judgment to the DHHR petitioners based on qualified immunity.

Justice Evan Jenkins wrote the majority opinion. Justice John Hutchison concurred and authored a separate opinion.

In April 2003, L.T. was voluntarily surrendered by her biological mother, A.T., to V.P. and R.P. and shortly thereafter, L.T. and her siblings were involved in an abuse and neglect case with A.T.

In 2006, A.T. voluntarily consented to the permanent transfer of physical custody of L.T. to V.P. and a final order was entered that ordered the DHHR to take "whatever steps appropriate to pursue subsidized guardianship" for L.T., according to the opinion.

It wasn't until November 2015 that the DHHR took any action to transfer legal custody of L.T. to establish permanency when V.P., by counsel, filed a petition requesting subsidized guardianship in Mingo County Circuit Court.

The DHHR then finalized an agreement and the guardians began receiving $600 per month for L.T. In December 2016, the guardians filed a complaint against DHHR alleging it failed and refused to perform the orders given by the court in 2006. They also claimed they were unjustly denied the monthly subsidy from October 2006 until June 2016.

The DHHR argued it had sovereign immunity and qualified immunity, among other things, and sought to dismiss the complaint.

The circuit court found that qualified immunity is not a "one size fits all" proposition and that a governmental agency and/or officer can be held liable for acts of negligence if their conduct violated a clearly established law of which a reasonable official would have known. The DHHR then appealed the court's order.

The Supreme Court found that the granting of final custody to the guardians was a permanent placement with a fit and willing relative.

"Such action comports with both the 2006 and current statutory frameworks," the opinion states. "Moreover, the DHHR petitioners complied with the final order when they placed L.T. in the permanent custody of the guardians in 2006 and when they took the appropriate steps to pursue subsidized legal guardianship for the guardians once it was requested in 2015."

The Supreme Court found there was no violation of a clearly established constitutional or statutory right.

In his concurring opinion, Hutchison wrote that he agreed with the majority opinion on the basis of qualified immunity.

"I write separately to remind the DHHR and guardians ad litem of the importance of following through on all issues pertaining to children in abuse and neglect cases," Hutchison wrote. "If there is any question about a court’s directions, the DHHR and guardians ad litem must always err on the side of the children. 'It ain’t over ‘til it’s over,' should be the mantra for all parties in these ultra-sensitive cases."

West Virginia Supreme Court of Appeals Case No.: 17-1088

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West Virginia Department of Health and Human Resources West Virginia Supreme Court of Appeals

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