### FILED June 0 4, 2 018 release d at

3:00 p. m. EDYTHE NA SH GAISER, CLERK SUPR EM E COURT OF APPEALS OF W EST VI RGI NI A IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA January 2018 Term

No. 17-0989

IN RE I.M.K.

Certified Questions from the Circuit Court of Lew is County

Honorable Kurt Hall, Judge Juvenile Abuse Neglect No. 17-JA-17 CERTIFIED QUESTIONS ANSWERED

Subm itted: April 24, 2018 Filed: June 4, 2018 Jam es C. Clevenger Thom as J. Prall Assistant Prosecuting Attorney Buckhannon, West Virginia for Lew is County , West Virginia Attorney for the Respondent Mother, Weston, West Virginia K.A.L. Attorney for the Petitioner, West Virginia Department of Health and Hum an Resources G. Phillip Davis Alex andria Solom on Arthurdale, West Virginia Davis, West Virginia Attorney for the Respondent Father, and M.F.K. Bry an S. Hinkle Buckhannon, West Virginia G u a r d i a n s a d L i t e m f

o r t h e M i n o r C h i l d , I.M.K.
JUSTICE DAVIS delivered the Opinion of the Court.SYLLABUS BY THE COURT

1. “W hen a child is born alive, the presence of illegal drugs in the child’s
sy stem at birth constitutes suf f icient e v idence that the child is an abused and/or neglected child, as those term s are def ine d b y W. Va. Code § 49-1-201 (2015) (Repl. Vol. 2015), to support the f

iling of an abuse and neglect petition pursuant to W

. Va. Code § 49-4

- 601 (2015) (Repl. Vol. 2015).” Sy llabus point 1, In Re: A.L.C.M. , 239 W

. Va. 382, 801 S.E.2d 260 (2017).

2. W hen an inf ant child is born alive and becom es the subject of an abuse and neglect petition, but the c h i l d d i e s during the pendency of the abuse and neglect proceedings, the ma t t e r may proceed to an adjudicatory hearing, and the presiding circuit
court m ay m ake f

indings of f

act and conclusions of law as to whether the subject child is an abused and/or neglected child and whether the respondents are abusing and/or neglectf ul as
contem plated by W . Va. Code § 49-4-601(i) (2015) (Repl. Vol. 2015). The circuit court’s f indings and conclusions regarding the existence of abuse and/or neglect m ust, however, be based upon the conditions alleged in the abuse and neglect p e tition and any am endm ents thereto.

i3. “Each child in an abuse and neglect case is entitled to ef f ecti v e representation of counsel. To f urther that goal, W

. Va. Code , 49-6-2(a) [ 1992] [ now W

. Va. Code § 49-4-601(f

)] m andates that a child has a right to be represented by counsel in every stage of abuse and neglect proceedings. Furtherm ore, Rule XIII of the W est Virginia Rules for Trial Courts of Record p r o v i d e s t hat a guardian ad litem shall m ake a f ull and independent investigation of the f acts involved in the proceeding, and shall m ake his or her

recomm endations known to the court. Rules 1.1 and 1.3 of the West Virginia Rules of Professional Conduct , respectively , require an attorney to provide com petent representation
to a client, and to act with reasonable diligence and prom ptness in re p r esenting a client.” Sy llabus point 5, in part, In re Jeffrey R.L. , 190 W . Va. 24, 435 S.E.2d 162 (1993).

4. If an inf

ant child is born alive, becom es t h e s u b j e c t of an abuse and neglect petition, and is appointed a guardian ad litem to represent him /her in such case, but the child dies during the pendency of the abuse an d n e g l ect proceedings, the guardian ad litem rem ains involved in the case to advocate f or the child until the concl u s ion of such proceedings.

iiDavis, Justice: The instant proceeding is bef ore this Court upon two questions certif ied by the Circuit Court of Lewis County

. By order entered Septem ber 26, 2017, the Circuit Court of Lewis County

certif ied the f ollowing questions f

or our consideration and decision: 1. W hen an inf

ant child is born alive, but dies during the pendency of an Abuse and Ne g l e c t proceeding, prior to adjudication, and said inf ant child is the only child in the hom e, m ay the m atter proceed to an adjudicatory hearing, and m ay the deceased c h i l d b e f

ound and adjudicated to be an abused or neglected child? 2. If an inf

ant child i s b o r n a l ive, but dies during the pendency of an Abuse and Neglect proceeding, and said inf ant c h i l d is the only child in the hom e, should the Guardian ad Litem rem ain a party to the proceeding to advocate f or the rights of the deceased child? Upon a review of

the parties’ brief

s, the record designated f

or appellate consideration, and the pertinent authorities, we answer both certif ied questions in the af

f irm ative.

I. FACTUAL AND PROCEDURAL HISTORY The f acts of the instant proceeding are straightf orward and not disputed by the parties. The inf

ant child herein, I.M.K., was born in July 2017 at St. Joseph’s Hospital in 1

In cases involving sensitive f acts, we f ollow our l o n g standing practice and 1 ref er to the child by his/her initials only

. See, e.g. , In re: S.H. , 237 W

. Va. 626, 628 n.1, 789 S.E.2d 163, 165 n.1 (201 6 )

. See also W

. Va. R. App. P. 40(e) (restricting use of personal identif iers in cases involving children). 1Buckhannon , We s t V i r ginia. At birth, the child had opiates in its sy stem as a result of the

m other’s adm itted prenatal drug use. Imm ediately f ollowing b i r t h , I .M.K. had to be resuscitated due to respiratory distress and was transf erred to the Neonatal Inte n sive Care Unit (“NICU”) at Ruby Mem orial Hospital in Morgantown, W est Virginia. Whi l e in the N I C U , I .M.K. was treated f or severe neurological and respiratory conditions based on a diagnosis of

drug-af f ected birth.

On July 28, 2017, while I.M.K. was still in the NICU, the petitioner herein and petitioner below, the W est Virginia Departm ent of Health and Hum an Resources (“DHHR”) f iled the underly ing petition against the child’s m other, the respondent herein and respondent below, K.A.L. (“Mother”), and the child’s f ather, an additional respondent herein and respondent below, M.F.K. (“Father”). In its petition, the DHHR alleged that I.M.K. was a “neglected and abused child” as a result of the parents’ illegal drug use, averring as f ollows: Based upon inf

orm ati o n and belief

, the Respondent Mother, [ K.A.L.] m ade adm issions to opiate use throughout her pregnancy , as well as testing positive f or controlled substances during prenatal care. [ K.A.L.], f urther adm itted that her m ost recen t drug use took place three day s prior to the birth of the Inf ant Respondent [ I.M.K.], when she “snif f ed a Percocet”. Based upon inf

orm ation and belie f

, the Inf

ant Respondent’s urine tested positive f or opiates f

ollowing birth. Based upon inf

orm ation, and belief

, Respondent Father, [ M.F.K.] has a history of opioid abuse, as well as abuse of other controlled substances.

2Based upon inf orm ation, Respondent [ M.F.K.], f ather of inf ant respon d e n t [ I.M.K.], has f ailed to protect said inf

ant respondent by f

ailing to take action upon reasonable suspicion of drug use of the Respondent Mother, [ K.A.L.], knowing her history of drug use. By order entered July 28, 2017, the Circuit Court of Lewis County transf erred “[ t]em

porary legal and phy sical care, custody , and control” of I.M.K. to the DHHR. The circuit court also appointed counsel f

or each of the parents and appointed a guardian ad litem (“Guardian”) 2 3 f or the m inor child.

Th e reaf ter, the circuit court held a hearing during which the parents waived their right to have a prelim inary hearing within ten day s so that the hearin g c ould be concluded quickly to perm it th e m to attend a m edical appointm ent f or I.M.K., who was in
grave condition. The circuit court then f ound, by order entered A u g u s t 15, 2017, that the child “should rem ain in the tem porary legal and phy sical custody ” of the DHHR and ruled that, “[ i]n light of the grave condition of inf ant respondent [ I.M.K.], this m atter is continued generally , pending the outcom e of [ the child’s] m edical treatm ent.”

Current counsel f

or the Mother did not appear in the proceedings below but 2 was appointed af

ter her initial counse l h a d to withdraw f rom the case due to a change in em ploy m ent. B y order entered April 4, 2018, the circuit court allowed the child’s f orme r 3 Guardian ad Litem , Bry an S. Hinkle, who authored the brief in this case, to withdraw due to “an actual conf

lict of interest” resulting f

rom his change of em

ploy m ent and appointed the child’s current Guardian ad Litem , Alexandria Solom on, who appeared bef ore the Court f

or oral argum ent. 3Following this hearing, I.M.K. died as a result of the af orem entioned m edical issues; the child was approxim ately seventeen day s old. The court then held a prelim inary hearing at which tim e the child’s parents m oved to dism iss the subject abuse and neglect case based upon the child’s death, which motion t he DHHR and Guardian opposed. The Court ref used to dism iss the case, ruling in its Septem ber 6, 2017, order as f

ollows: Signif icant questions of law and f act rem ain, and dism is sal is not appropriate at this tim e. The purpose of a prelim inary hearing being to m ake determ inations as to imm inent danger, and/or to order rem oval of the child f rom the hom e if conditions warrant such rem oval, the Court f inds that a prelim inary hearing in this m atter wou l d b e mo ot, due to the death of the Inf ant Respondent. The Court f

urther f inds that should th e p a r ties hereto wish to prepare a certif

ied question f

or subm ission and review by the W est Virginia Suprem e Court of Appeals, the y s hould conf er and subm it that certif ied question t o t his Court f or review. The court then set the m atter f or an adjudicatory

hearing.

Bef ore the scheduled adjudicatory hearing, the court d e c i ded to certif y questions f

or this Court’s resolution. By certif ication order entered Septem ber 26, 2017, the court ruled as f

ollows: The allegations in the petition of this m atter are related to prenatal use of opiates. No abuse is alleged to have o c c urred subsequent to the birth of the child. In light of the ruling by the Suprem e Court of Appeals of W est Virginia in the case of : In

4Re: A.L.C.M. No. 16-0786 (2017), f urther guidance f

rom the [4] Suprem e Court of Appeals of W est Virginia would be relevant in the m atter at hand. This Court subm its the f

ollowing certif

ied questions f

or review to the hono r a ble Suprem e Court of Appeals of W est Virginia: When an infant c h i l d is born alive, but dies during the pendency of an Abuse and Negle c t proceeding, prior to adjudication, and said infant child is the only child in the hom e, m ay the m atter proceed to an adjudicatory hearing, and m ay the deceased child be found and adjudicated to be an abused or neglected child? If an infant child is born alive, but dies during the pendency of an Abuse and Neglect proceeding, and said infant child is the only child in the hom e, should t h e G u ardian ad Litem rem ain a party to the proceeding to advocate for the rights of the deceased child? (Em phasis in original; f

ootnote added). The circuit court did not provide an answer f or either

o f these questions. Additionally , the court determ ined that the child’s Guardian ad Lite m should rem ain in the case despite the child’s death and stay ed adju d i c at ion pending resolution of the que s t i o ns certif

ied. This Court then accepted these certif ied questions f

or consideration.

See Section III.A., infra , f or f urther treatm ent of In Re: A.L.C.M. , 239 W

. Va. 4 382, 801 S.E.2d 260 (2017). 5II. STANDARD OF REVIEW The instant proceeding is bef ore this Court on questions certif ied by the Circuit C o u r t o f L e w is County

. W e previously have held that we accord a plenary review to t h e circuit court’s rulings in this regard. “The appellate standard of review of questions of law answered and certif

ied b y a circuit court is de novo .” Sy l. pt. 1, Gallapoo v. W al-Mart Stores, Inc. , 197 W

. Va. 172, 475 S.E.2d 172 (1996). Mindf ul of this standard, we proceed to consider the parties’ arguments.

III. DISCUSSION The instant proceeding com es to this Court upon two questions certif ied by the Circuit Court of

Lewis County . W e will address each certif ied question in turn.

A. Adjudication The f irst question the circuit court certif ied to this Court is as f

ollows: W hen an inf

ant child is born alive, but dies d u r i n g t he pendency of a n A b u s e and Neglect proceeding, prior to adjudication, and said inf

ant child is the only child in the hom e, m ay the m atter proceed to an adjudicatory hearing, and m ay the d e c eased child be f

ound and adjudicated to be an abuse d o r neglected child?

6Although the circuit court did not provide an answer to this question, it presum ably answered

it in the af f irm ative insof

ar as the court earlier had denied the parents’ m otion to dism iss the pending abuse and neglect case f ollowing the child’s death and has stay ed their adjudicatory hearing pending this Court’s resolution of the case sub judice

.

Bef ore this Court, the DHHR argues that the abuse and negl e c t proceeding should continue in spite of the child’s death because, otherwise, the goal of abuse and neglect proceedings, i.e. , to protect children f rom abuse and neglect and early identif ication thereof

, would be f

rustrated. In this regard, the DHHR f ocuses upon the f

act that the allegations of abuse and/or neglect are required, by statute, to be p r o v e n as they existed at the tim e the petition was f

iled. Here, the DHHR asserts that, at the tim e the petition was f iled, I.M.K. was still alive; thus, the DHHR argues, whether the parents abused and/or neglected the child is
not based upon the f

acts that exist at the tim e of their adjudication. Finally , the DHHR say s
t hat the f act that the case m ay now be m oot due to the child’s death does no t p r o h i b i t t h i s Court f rom considering it as this f act pattern is capable of repetition and m ay evade review.

The Guardian agrees with the position advanced by the DHHR and argues that the case should proceed to adjudication f ollowing the death of the subject child. Because the circuit court m

ust consider whether the child is abused and/or neglected base d u p o n the circum stances existing at the tim e the pet i t i o n was f iled at the adjudicatory stage of the

7proceeding s, the child’s death af ter the petition has been f iled does not af

f ect the circuit court’s adjudication. In this case, the Guardian contends that the petitio n a d e q u a tely describes conditions indicative of abuse and/or neglect of I.M.K. suf f icient to adjudicate the parents as abusive and/or neglectf ul. Citing In Re: A.L.C.M. , 239 W

. Va. 382, 801 S.E.2d 260 (2017).

By contrast, Mother argues that the case should be dism issed because whether I

. M

. K

. was an abused and/or neglected child is now m oot due to the child’s unf or t u n a t e death. Because the purpose of an adjudication is to protect the subject child, and any other children in the hom e, and because the subject child i n t h i s case has died, and there are no other children in the household, Mother states there is no reason to proceed with adjudication in this case. More o v e r , M other contends that, because the child has died, there is no need
to develop a case plan f

or the child. Finally , Mother urges that given that the purpose of an adjudication is to reach disposition, and the purpose of a disposition is the developm ent of

a case plan and the attainm ent of perm anency f or the child, none of these pu rp o s e s c a n b e satisf ied where, as here, the subject child has died prior to adjudication.

Father also asserts that the subject petition should be dism issed when the child dies prior to adjudication. Given that the purpose of an abuse and neglect proceeding is to

ensure the welf

are of the subject child, such purpose cannot be achieved when the child has

8died prior to adjudication. Moreover, Father suggests that the best interests of the child can

no long er be determ ined due to the child’s death; thus, there is no polar star to guide the court’s resolution of

the abuse and neglect proceedings. As such, Father contends that the
purpose of the subject abuse and neglect p r o c e eding has been rendered m oot. Father also rejects the DHHR’s argum ent that the issue is not m oot because it is cap a b l e o f r epetition because each child is a unique individual and, thus, there can never be another I .M.K.

To answer this query , we necessarily m ust look to the law governing abuse and neglect proceedings. W

. Va. Code § 49-4-601(i) (2015) (Repl. Vol. 2015) addre s s e s t he procedure to be f

ollowed in an adjudicatory hearing and provides as f ollows: W here relevant, the court shall consider the ef f orts of the departm ent to rem edy the alleged circum stances. At the co n c lusion of the adjudicatory hearing, the court shall m ake a determ ination based upon the evidence and shall m ake f indings of f act and conclusions of law as to whether the child is abused or neglected and whether the respondent is abusing, neglecting, or, if applicable, a battered pare n t , all of which shall be incorporated into the order of the court. The f indings m ust b e b ased upon conditions existing at the tim e of the f iling of the petition and proven by

clear and convincing evidence. This process of a d

j u d ication enables the presiding tribunal to identif y what abuse and/or neglect the subject children have sustained and to im plem ent procedures to help the parents

rem edy these conditions to prevent f uture incidences thereof in the f uture. See id. (requiring reviewing court t o “m ake f indings of f

act and conclusions of law as to whether the child is abused or neglected and whether the respondent is abusing [ and/or] neglecting”). See also
9W

. Va. Code § 49-4-604(a) (2016) (Supp. 2017) (requiring developm ent of child and f am ily

case plans f

ollowing adjudication); W

. Va. Code § 49-4-610(2) (2015) (Repl. Vol. 2015) (perm itting granting of post-adjudicatory im provem ent period). But see W

. Va. Code § 49-4- 602(d) (2015) (Repl. Vol. 2015) (delineating circum stances in which f am ilial reunif

ication ef f orts are not required). W hether an adjudicatory hearing will accom plish these goals under the f acts of the case sub judice , however, requires us to consider not only the governing law but also the legislative intent underly ing these statutory enactm ents.

W hen construing a statute, we f irst look to the statute’s language to determ ine whether the Legislature’s intention is plain. In this regard, we have held that “[ t]he prim ary object in construing a statute is to ascertain and give ef f ect to the intent of the Legislature.” Sy l. pt. 1, Smith v. State W orkmen’s Comp. Comm’r , 159 W

. Va. 108, 219 S.E.2d 361 (1975). Accord In re Clifford K. , 217 W . Va. 625, 633, 619 S.E.2d 138, 146 (2005) (“The cardinal rule of statutory interpretation is to f irst identif

y the legislative i n t e n t expressed in the
prom ulgation at issue.”); Ewing v. Board of Educ. of Cty. of Summers , 202 W

. Va. 228, 241, 503 S.E.2d 541, 554 (1998) (“To interpret a statutory provision, w e m ust determ ine the legislative intent underly ing the statute at issue.” (citation om itted)). I f t h e Legislature’s intention is clear, we need not f urther construe the statute. Thus, “if the legislative intent is clearly ex p r e ssed in the statute, this Court is not at liberty to construe the statutory provision[ .].” Dan’s Carworld, LLC v. Serian , 223 W . Va. 478, 484, 677 S.E.2d 914, 920

10(2009). Accord Henry v. Benyo , 203 W

. Va. 172, 177, 506 S.E.2d 615, 620 (1998) (“W hen

the legislative in t e n t o f a s t atute’s term s is clear, we will

. . . not construe

. . . its plain language.”); Sy l. pt. 2, Crockett v. Andrews , 153 W

. Va. 714, 172 S.E.2d 384 (1970) (“W here the language of a s t a t ute is f ree f rom am biguity , its plain m eaning is to be accepted and applied without resort to interpretation.”). Rather, we apply a statute whose language is plain
to the f acts bef ore us consistently with the expressed legislative intent. “W here the language of a statute is plain and unam biguous, there is no basis f or application of

rules of statutory construction; but courts m ust apply the statute according to the legislative intent pla inly expressed therein.” Sy l. pt. 1, Dunlap v. State Comp. Dir. , 149 W

. Va. 266, 140 S.E.2d 448 (1965). Accord Sy l. pt. 5, State v. General Daniel Morgan Post No. 548, V e t e r a n s of Foreign W

ars , 144 W

. Va. 137, 107 S.E.2d 353 (1959) ( “ Wh e n a s tatute is clear and

unam biguous and the legislative intent is plain, the statute should not be interpreted by the courts, and in such case it is the duty of the courts not to construe but to apply the statute.”); Sy l. pt. 2, State v. Epperly , 135 W

. V a . 8 7 7 , 65 S.E.2d 488 (1951) (“A statutory provision which is clear and unam biguous and plainly expresses the legislative intent will not be interpreted by the courts but will be given f ull f orce and ef

f ect.”). Upon reviewing W

. Va. Code § 49-4-601(i), we f in d t h e s t a t utory language to be plain and in need of no f urther interpretation. Instead, we will apply these tenets to the f

acts presently

bef ore us.

11In enacting the W est Virginia Child W elf are Act, W

. Va. Code § 49-1-101 et
seq. , of which W

. Va. Co d e § 49-4-601(i) is a part, the Legislature has set f orth num erous purposes f

or this body of legislation. See generally W

. Va. Code § 49-1-105 (2015) (Repl. Vol. 2015); W

. Va. Code § 4 9

- 2-801 (2015) (Repl. Vol. 2015). Relevant to the instant proceeding are the goals of identif y ing child abuse and neglect; protecting the children who 5 have been subjected to abuse and neglect; and rem edy ing the conditions that led to the abuse 6 and neglect in the f

irst instance. 7

He r e , i t is apparent that holding an adjudicatory hearing upon the abuse and neglect petition that the DHHR f iled regarding I.M.K. is consistent with the statute def ining

W

. Va. Code § 49-1-105(b)(8) (2015) (Repl. Vol. 2015) (stating “[ t]he child 5 welf are . . . sy stem shall: [ p]rovide f or early identif

ication of the problem s of children and their f am ilies, and respond appropriately to prevent abuse and neglect”). W

. Va. Code §§ 49-1-105(b)(1, 2) (recognizing that Child W elf are Act serves 6 to (1) “[ a]ssure each child care, saf ety and guidance” and (2) “[ s]erve the m ental and phy sical welf are of the child”); W

. Va. Code § 49-2-801(1) ( 2 0 1 5 ) ( R e p l. Vol. 2015) (observing purpose “[ t]o protect the best interests of the child”). W

. Va. Code §§ 49-1-105(b)(3, 5, 6, 7) (pledging to (3) “[ p]reserve and 7 strengthen the child f

am ily ties”; (5) “[ d]evelop and establish procedures an d p r o gram s which are f

am ily -f ocused rather than f

ocused on specif

ic f am ily m em

bers, except where the best interests of the child or the saf ety of the com

m unity are at risk”; (6) “[ i]nvolve the child, the child’s f

am ily or the child’s caregiver in the p l anning and delivery of program s and services”; and (7) “[ p]rovide comm unity -based services in the least restrictive settings that are consistent with the needs and potentials of the child and his or her f am ily ”); W

. Va. Code §§ 49-2-801(2, 3, 4) (identif y ing purposes as including (2) “[ t]o of f er protective services in order to prevent any f

urther harm to the child or any other children living in the hom e”; (3) “[ t]o stabilize the hom e environm ent, to preserve f am ily lif e whenever possible”; and (4) “[ t]o prom ote adult responsibility f or protecting children”). 12adjudicatory hearing procedures, this Court’s prior p r ecedent, and the legislative intent

underly ing abuse and neglect proceedings generally

. First, all of the objectives contem plated by W . Va. Code § 49-4-601(i) m ay be accompl ished by

holding an adjudicatory

hearing in this case. As noted above, at the conclusion of the adjudicatory hearing, the court is directed
to “m ake a determ ination based upon the evidence and s h a l l m ake f indings of f

act and conclusions of law as to whether the child is abused or neglected and whether the respondent is abusing [ or] neglecting.” Id. Moreover, such “f indings m ust be based u p o n conditions existing at the tim e of the f iling of the petition.” W

. Va. Code § 49-4-601(i). Accord Sy l. pt. 1, in part, In Interest of S.C. , 168 W

. Va. 366, 284 S.E.2d 867 (1981) (“ W

. Va. Code , 49- 6-2(c) [ 1980] [ now W

. Va. Code § 49-4-601(i)], requires the State Department of Welfare [ now the Departm ent of Health and Hum an Resources], in a child abuse or neglect case, to
prove ‘conditions existing at the tim e of the f iling of the petition

. . . by clear and convincing proof .’”)

. I n s o f

a r as the DHHR f

iled its petition alleging I.M.K. to be an abused and/or neglected child shortly af

ter the child’s birth and while the child was still alive, the court has
at its disposal allega tions upon which it m ay m ake the requisite f indings and conclusions. The f act that the subje ct child has since died, presum ably as a result of the severity of the i n juries inf licted by the alleged abuse and/or neglect, though tragic, does not f oreclose the circuit court’s inquiry because the conditions alleged to exist at the t i me o f t he petition’s f iling are the determi native f actors–not those that m ay later arise. 8
Such later occurring circum stances m ay , however, be considered by the court 8 (continued...) 13M o r e o v e r , our prior precedent also n e c e s s i t a t e s h o l d i n g a

n a d j u d i c at o r y h e a r i n g in this case. In the case of In Re: A.L. C

. M

. , 239 W

. Va. 382, 801 S.E.2d 260 (2017), the Court was f

aced with a nearly identical f actual scenario: an inf

ant born with the presence of drugs in its sy stem and attendant, extrem ely severe injuries as a result thereof

. Upon those 9 f acts, we considered whether the presence of dr u g s i n a c h i ld’s sy stem at birth constitutes abuse and/or neglect. Given the devastating ef f ects such illicit substances have on a f ragile

(...continued) 8 if the DHHR f

iles an am ended petition setting f orth such new a l l e g a t i o ns of abuse and/or neglect. See W

. Va. R. Proc. f or Child Abu s e & Neglect Proceeds. 19 (providing f or am endm ents to petition alleging child has been abused and/or neglected); Sy l. pt. 2, in part, State v. Julie G. , 201 W

. Va. 764, 500 S.E.2d 877 (1997) (“The proper m ethod of presenting new allegations to the circuit court is by requesting perm ission to f ile an am ended petition pursuant to Rule 19 of the W est Virginia Rules of Procedure f or Child Abuse and Neglect Proceedings.”); Sy l. pt. 4, Julie G. , 201 W

. Va. 764, 500 S.E.2d 877 (“Under Rule 19 of the W est Virginia Rules of Procedure f or Child Abuse and Neglect Proceedings, am endm ents to an abuse/neglect petition m ay be allowed at any tim e bef ore the f inal adjudicatory hearing begins. W h e n m odif

ication of an abuse/neglect petition is sought, the circuit court should grant such petition absent a showing that the adverse party will not be perm itted suf f icient tim e to r e spond to the am endm ent, consistent with the intent underly ing Rule 19 to perm it l i b e r a l am endm ent of abuse/neglect petitions.”). See also Sy l. pt. 5, In re Randy H

. , 2 2 0 W

. Va. 122, 640 S.E.2d 185 (2006) (“To f acilitate the prom

pt, f air and thorough resolution of abuse and neglect actions, if , in the course of a child abuse and/or neglect proceeding, a circuit court discerns f

rom the evidence or allegations presented that reasonable cause exists to believe that additional abuse or neglect has occurred or is imm inent wh i c h i s not encom passed by the allegations con t a i n e d in the Departm ent of Health and Hum an Resource’s petition, then pursuant to Rule 19 of the Rules of Procedure for Child Abuse and Neglect Proceedings [ 1997] the circuit court has the in h e r e n t a uthority to com pel the Departm ent to am end its petition to encom pass the evidence or allegations.”). The inf ant’s critical condition in the case of In Re: A.L.C.M. , 239 W

. Va. 382, 9 801 S.E.2d 260, was also due, in part, to the child’s af f liction with twin-to-twin transf usion sy ndrom e. See id. , 239 W . Va. at 385 n.2, 801 S.E.2d 263 n.2. 14inf

ant, we exam ined the governing statutes def ining a b u s e and neglect, as well as our

10 11

The def inition of an “abused child” is set f orth in W

. V a . Code § 49-1-201 10 (2015) (Repl. Vol. 2015):

“Abused child” m eans a child whose health or welf are is being harm ed or threatened by : (A) A parent, guardian or cust o dian who knowingly or i n tentionally inf

licts, attem

pts to inf lict or knowingly allows another person to inf

lict, phy sical injury or m ental or em otional i njury , upon the child or another child in the hom e. Phy s i c a l injury m ay include an injury to the child as a result of excessive corporal punishm ent; (B) Sexual abuse or sexual exploitation; (C) The sa l e or attem

pted sale of a child by a parent, guardian or custodian in violation of section f ourteen-h, article two, chapter sixty -one of

this code; or (D) Dom estic violence as def ined in section two hundred two, article twenty -seven, chapter f orty -eight of

this code. W . Va. Code § 49-1-201 def ines a “neglected child” as f ollows: 11 “Neglected child” means a child: (A) Whose p h y s i cal or m ental health is harm ed or threatened by a present ref usal, f ailure or inability of the child’s parent, guardian or custodian to supply the child with necessary f ood, clothing, shelter, supervision, m edical care or education, when that ref

usal, f a i l u re or inability is not due prim arily to a lack of f inancial m eans on the part of the parent, guard i a n or custodian; (B) W ho is presently without necessary f o od, clothing, shelter, m edical care, education or supervision because of the disappearance or absence of the child’s parent or custodian; (continued...) 15cases construing the same. Inf orm ed by this analy sis, we ultim ately held that 12 [ w]hen a child is born alive, the presence of illegal drugs in the child’s sy stem at birth constitutes suf f icient evidence that the child is an abused and/or neglected child, as those term s are d e f i n e d by W

. Va. Code § 49-1-201 (2015) (Repl. Vol. 2015), to support the f

iling of an abuse and neglect petition pursuant to W . Va. Code § 49-4-601 (2015) (Repl. Vol. 2015). Sy l. pt. 1, In Re: A.L.C.M. , 239 W . Va. 382, 801 S.E.2d 260.

Here, as in A.L.C.M. , the subject child was born with drugs in its sy stem and sustained injuries theref

rom suf f icient to f orm the basis of the DHHR’s petition alleging that the child had been abused and/ o r n e g lected by the parents’ drug abuse. Insof ar as substantially the sam e f

act pattern exists in this case, there is suf f icient authority upon which the circuit court could base f indings of f

act and conclusions of law that I.M.K. is an abused and/or ne g l ected child f ollowing an adjudicatory hearing. Furtherm ore, because the

(...continued) 11 (C) “ N e glected child” does not m ean a child whose education is conducted within the pr ovisions of section one [ § 18-8-1], article eight, chapter eighteen of this code. See Sy l. pt

. 3 , in part, In re Betty J.W

. , 179 W

. Va. 605, 371 S.E.2d 326 12 (1988) (“W

. Va. Code, 49-1-3(a) (1984) [ now W

. Va. Code § 49-1-201], in part, def ines an abus e d c h ild to include one whose parent knowingly allows another person to comm it the abuse.”). See also Sy l. pt. 7, W est Virginia Dep’t of

Health & Human Res. ex rel. W right v. Doris S. , 197 W . Va. 489, 475 S.E.2d 865 (1996) (“The term ‘knowingly ’ as used in W est Virginia Code § 49-1-3(a)(1) (1995) [ now W

. Va. Code § 49-1-201] does not require that a parent actually b e p r e sent at the tim e the abuse occurs, but rather that the parent was presented with suf

f icient f acts f rom which he/she could have and shoul d h av e r ecognized that abuse has occurred.”). 16allegations of abuse and/or neglect to be considered during adjudication are those that existed

at the tim e the petition was f iled, I.M.K.’s tragic passing does not preclude the circuit court f rom considering such f

acts during an adjudicatory hearing. Finally , the f actual distinction regarding the death of the child af ter the abuse and neglect petition was f iled in the case sub judice does not lessen or am eliorate the conditions alleged in the petition to have constituted abuse and/or neglect at the ti me t he petition was f iled; rather, if the subject petition is

am ended to ref

erence the f

act of and circum s t a n c e s l eading to the child’s death, the f atal
consequenc e s o f the child’s injuries m ay serve as f urther proof that the conduct alleged therein was abusive and/or neglectf ul.

W hile an adjudicatory

hearing has been described as a prerequisite to a f inal disposition of the abuse a nd neglect proceeding and establishm ent of perm anency f or the subject child –sadly both of which goals have been ham pered by the tragic circumst ances 13

o f the instant case–this procedural stepping stone is not the only reason an adjudicato r y

See Sy l. pt. 1 , S t a te v. T.C. , 172 W

. Va. 47, 303 S.E.2d 685 (1983) (“In a 13 child abuse and neglect hearing, bef ore a c ourt can begin to m ake any of the dispositional alternatives under W

. Va. Code, 49-6-5 [ now W

. Va. Code § 49-4-6 0 4 ] , i t m ust hold a hearing under W

. Va. Code, 49-6-2 [ now W

. Va. Code § 49-4-601], and determ ine ‘whether such child is abused or neglected.’ Such a f inding is a prerequisite to f urther continuation of the case.”). See also In re Beth Ann B. , 204 W

. Va. 424, 427, 513 S.E.2d 472, 475 (1998) (“ T h e s t a t utory schem e applicable in child abuse and neglect proceedings provides f or an essentially two phase process. The f irst phase culm inates in an adjudication of abuse and/or neglect. See W

. Va. Code § 49-6-2(c) (1996) [ now W

. Va. Code § 49-4-601(i)]. The second phase is a dispositional one, undertaken to achieve the appropriate perm anent placem ent of a child adjudged to be abused a n d / o r n e g l e c ted. See W

. Va. Code § 49-6-5 (1996) [ now W . Va. Code § 49-4-604].” (f ootnote om itted)).

17hearing is held. Rather, an adjudication also enables a court to i d e n t i f y those who are responsible f

or the subject abuse and/or neglect and allows the parties and t h e D H H R to work towards am eliorating these conditions to prevent such abuse or neglect f rom occurring in the f uture. In this regard, we have recognized that “[ t]he prim ary purpose of

m aking an initial f inding of a b u s e o r n e glect is to protect the interest of all parties and to justif y the continued jurisdiction under W

. Va. Code, 49-6-1 [ now W

. Va. Code § 49-4-601], et seq. ” State v. T.C

. , 1 7 2 W. Va. 47, 50, 303 S.E.2d 685, 689 (1983). Such an adjudication f acilitates the State’s intervention in the case to pr otect the subject children and to work towards curing the conditions that gave rise to the proceeding in the f irst instance: It is apparent that the state’s right to intervene is predicated upon its initial showing that there has been child a b use or neglect, which consti t u t e s unf

itness on the part of the parents to continue, either tem

porarily or perm anently , in th e i r c ustodial role.

. . . [ Thus] the parties cannot circumvent th e threshold question, which is the issue of abuse or neglect. State v. T.C. , 172 W . Va. at 51-52, 303 S.E.2d at 690 (f ootnote om itted).

A f urther f unction of the adjudicatory hearing is to i d entif y and docum ent instances of abuse and neglect to ensure the saf ety of additional children in the household. See, e.g., Sy l. pt. 2, In re Christina L. , 194 W

. Va. 446, 460 S.E.2d 692 (1995) (“W here there is clear and convincing evidence that a child has suf f ered phy sical and/or sexual abuse while in the custody of his or her parent(s), guardian, or custodian, another child resi d i n g in the hom e when the abuse took p l a c e who is not a direct victim of the phy sical and/or sexual
18abuse but is at risk of being abused is an abused child under W

. Va. Code, 49-1-3(a) (1994)

[ now W . Va. Code § 49-1-201].”); Sy l. pt. 8, In re Carlita B. , 185 W . Va. 613, 408 S.E.2d 365 (1991) (“Prior acts of violence, phy sical abuse, or em otional abuse toward other children

are relevant in a term ination of parental rights proceeding, are not violative of W

. Va. R. Evid. 404(b), and a decision regarding the adm issibility thereof shall b e w i t h i n the sound discretion of the trial court.”). W here, as here, there is only one child who is the subject of the abuse and negl e c t p r o c eedings and where, as here, there are no other children in the hom e, an adjudication still is vital because it serves the recognized purposes of identif y ing, docum enting, and “rem edying conditions” that could, if lef t unchecked, potentially

harm 14 f uture children in the household. See, e.g., Sy l. pt. 2, in part, W est Virginia Dep’t of Health & Human Res. ex rel. W

right v. Doris S. , 197 W . Va. 489, 475 S.E.2d 865 (1996) (holding

It goes without say ing that services aim ed at rem edy ing the conditions giving 14 rise to a child welf

are proceeding cannot be provided to f ractured f am ilies if there is not f

irst an adjudicatory determ ination t h a t a b u s e and/or neglect has occurred so as to warrant the provis i o n o f such assistance. See Sy l. pt. 5, State ex rel. W

. Va. Dep’t of Human Servs. v. Cheryl M. , 177 W

. Va. 688, 356 S.E.2d 181 (1987) (“The purpose of the f am ily case plan as set out in W . Va. Code, 49-6D-3(a) (1984) [ now W

. Va. Code § 49-4-604(a)], is to clearly set f orth an organized, realistic m ethod of identif y ing f am ily problem s and the logical steps to be used in resolving or lessening these problems

. ” ) , superseded by statute on other grounds as stated in State ex rel. Virginia M. v. Virgil Eug e n e S

. , I I , 1 9 7 W

. Va. 456, 461 n.9, 475 S.E.2d 548, 553 n.9 (1996) (per curiam). See also Sy l. pt. 4, In re Carlita B. , 185 W

. Va. 613, 408 S.E.2d 365 (1991) (“In f orm ulating the im

provem ent period and f

am ily case plans, courts and social service workers should cooperate to provide a workable approach f or the resolution of f

am ily problem s which have prevented the child or children f rom receiving appropriate care f

rom their parents. The f

orm ulation of the im

provem ent period and f

am ily case plans should theref

ore be a c o n s o l i dated, m ulti-disciplinary ef

f ort am ong the court sy stem , the parents, attorney s, social service agencies, and any other hel p i ng personnel involved in assisting the f am ily .”). 19that “the purpose of an abuse and neglect proceeding is rem edial”). If such abusive and/or

neglectf ul conditions are not f

irst identif

ied, they cannot be recorded and rem edied to ensure the saf ety and well-being of both current and f uture children of the respondent parties. See generally Sy l. pt. 3, In re Katie S. , 198 W

. Va. 79, 479 S.E.2d 589 (1996) (“Although parents have substantial rights that m ust be protected, the prim ary goal in cases involving abuse and neglect, as in all f

am ily law m atters, m

ust be the health and welf

are of the children.”). Thus, it is apparent tha t a n adjudicatory hearing is an essential part of an abuse and neglect proceeding because bef

ore the conditions of abuse and/or neglect can be corrected, they f irst

m ust be identif

ied and docum ented–which is precisely the role play ed by

an adjudication.

In light of the f

oregoing analy sis, we theref ore hold that when an inf

ant child is born alive and becom es the subject of an abuse and neglect pe t i t i o n , b u t the child dies during the pendency of the abuse and neglect proceedings, the m atter ma y p r o c e e d to an adjudicatory hearing, and the presiding circuit court m ay m ak e f i n d i ngs of f

act and conclusions of law as t o w h e t h e r the subject child is an abused and/or neglected child and whether the respondents are abusing and/or neglectf ul as contem

plated by W

. Va. Code § 49- 4

- 601(i) (2015) (Repl. Vol. 2015). The circuit court’s f indings and conclusions reg a r d i n g the existence of

abuse and/or neglect must, however, be based upon the conditions alleged in the abuse and neglect petition and any am endm ents thereto. Accordingly , we answer the f i r s t c ertif ied question in the af

f irm ative and rem and this m atter to the circuit court wi t h

20instructions that it conduct an adjudicatory hearing in the underl y i n g abuse and neglect

proceeding.

B. Guardian ad Litem

The second question the circuit court certif ied to this Court is as f

ollows: If an inf ant child is born a l i ve, but dies during the pendency of

an Abuse and Neglect proceeding, and said inf ant child i s t he only child in the hom e, should the Guardian ad Litem rem ain a party to the proceeding to advocate f or the rights of the deceased child? Although the circuit court did not provide an answer to this question, it presum ably answered it in the af

f irm ative insof

ar as it required the Guardian to remain a party to the case.

As to this issue, the DHHR argues that the Guardian ad Litem should rem ain in the case through adjudication of the parents as a b u s i v e a nd/or neglectf ul because the Guardian’s independent inves t i gation of the child’s condition and circum stances is instructive to the court. Af ter adjudication, however, the DHHR suggests that the Guardian is no longer needed because the child would not be im pacted by any of the dispositional alternatives f

or the parents and permanency f or the child is no longer at issue.

21For her part, the Guardian requests that whether she should rem ain in an abuse

and neglect case f

ollowing the death of

the child she represents should be lef t to the sound discretion of

the circuit court to be determined on a case-by -case basis.

By contrast, Mother asserts t hat the Guardian ad Litem should be dism issed f rom the case f

ollowing th e c h i l d ’ s death because the case, itself , should be dism issed. Moreover, Mother contends that, in light of the child’s death, the Guardian no longer has a client to represent in these proceedings.

Father echoes Mother’s argum ent and states that the G u a r d i a n should not

rem ain a party to abuse and neglect proceedings f ollowing the death of the s u b j ect child because there is no live client to represent, and there no longer is a polar star of the child’s best interests to guide the court’s decision of the case.

W ith respect to the second certif ied question, we are aske d t o determ ine whether a guardian ad litem should rem ain a party to an abuse and neglect proceeding when the child subject thereto dies during the pendency of the case. Pursuant to W

. Va. Code § 49- 4-601(f )(1), child r e n w h o a r e parties to an abuse and neglect proceeding are entitled to counsel: In any proceeding under this article, the child

. . . has the

ri g h t t o be represented by counsel at every stage of the
22proceedings and shall be inf orm ed by the court of their right to be so represented and that if they cannot pay f or the services of counsel, that counsel will be appointed. W e previously have f

ound this statutory language to be plain insof ar as it guarantees a child’s statutory right to legal representation during abuse and neglect proceedings:

E ach child in an abuse and neglect case is entitled to ef f ective representation of counsel. To f urther that goal, W

. Va. Code , 49-6-2(a) [ 1992] [ now W

. Va. Code § 49-4

- 6 0 1 (f )] m andates that a child has a right to be represented by counsel in every stage of abuse and neglect proceedings. Furtherm ore, Rule XIII of the W

est Virginia Rules for Trial Courts of Record provi d e s that a guardian ad litem shall m ake a f ull and independent investigation of the f acts i n volved in the proceeding, and shall m ake his or her recomm endations known to the court. Rules 1.1 and 1.3 of the W est V i r ginia Rules of Professional Conduct , respectively , require an attorney to provide com

petent representation to a client, and to act wit h reasonable diligence and promptness in representing a client. Sy l. pt. 5, in part, In re Jeffrey R.L. , 190 W

. Va. 24, 435 S.E.2d 162 (1993). Moreover, we have recognized that, “in neglect a n d a b u se proceedings the child has the right to be

r e p r e s e n t e d by an attorney at all stages of the proceedings[ .]” James M. v. Maynard , 1 8 5 W

. Va. 648, 659, 408 S.E.2d 400, 411 (1991) (em phasis added; citations om itted). Accord S t a te v. Michael M. , 202 W

. Va. 350, 356 n.11, 504 S.E.2d 177, 183 n . 1 1 ( 1 9 9 8 ) (“[ G]uardians ad litem have a duty to f ully represent the interests of their child wards at all stages of the abuse and/or neglect proceedings.” (em phasis added)); Syl. pt. 3, In re Scottie D. , 185 W

. V a . 1 9 1 , 4 0 6 S.E.2d 214 (1991) (“In a proceeding to term inate parental rights pursuant to W

. Va. Code , 49-6-1 to 49-6-10 [ now W

. Va. Code § 49-4-601 to 49-4-610], as

23am ended, a guardian ad litem , appointed pursuant to W

. Va. Code , 49-6-2(a) [ now W

. Va. Code § 49-4-601(f

)], as am ended, m

ust exercise reasonable diligence in carr y i n g out the responsibility of protecting the rights of the children. This duty includes exer c i s i n g the appellate rights of t h e c h ildren, if , in the reasonable judgm ent of the guardian ad litem , an appeal is necessary .”).

Integral to the child’s right to counsel is that such representation be ef f ective and perm it the guardian ad litem to serve as an advocate f or the child he/she represents. “During the proceedings, in an abuse and neglect case, a guardian ad litem is charged with the duty to f

aithf ully represent the interests of the c h i l d and ef f ectively advocate on the child’s behalf

.” In re Elizabeth A. , 217 W . Va. 197, 204, 617 S.E.2d 547, 554 (2005) (per curiam ). Thus, it is essential that a guardian ad litem participate in all the various stages of the abuse and neglect proceedings to accom plish this goal of advocacy and protection of the child’s best interests. Indeed, we previously have held that [ t]here is a clear legislative directive that guardians ad litem a n d c o u nsel f

or both sides be given an opportunity to advocate f

or their clients in child abuse or neglect proceedings. W est Virginia Code § 49-6-5(a) (1995) [ now W

. Va. Code § 49- 4-601(h)] states that the circuit court shall give both the petitioner and respondents an op p o r t u n ity to be heard when proceeding to the disposition of the case. This r i ght m ust be understood to m ean that the circuit court m ay not i mpose unreasonable lim itations upon the f unction o f guardians ad litem in representing their clients in accord with the traditions of the adversarial f

act-f inding process.

24Sy l. pt. 3, State ex rel. Amy M. v. Kaufman , 196 W

. Va. 251, 470 S.E.2d 205 (1996). Accord

In re Christina L. , 194 W

. Va. at 453, 460 S.E.2d at 699 (sam e). The guardian ad litem ’s role in this regard is critical to ensure that vital inf orm ation regarding the child is provided to the
court charged with determ ining the child’s best interests. See generally Sy l. pt. 3, In re Katie S. , 198 W . Va. 79, 479 S.E.2d 589.

As f or the duration of the guardian ad litem ’s representation of an allegedly abused and/or neglected child, we have held that “[ t]he guardian ad litem ’s role in abuse and neglect proceedings does not actually ce ase until such tim e as the child is placed in a p erm anent hom e.” Syl. pt. 5, James M. v. Maynard , 185 W

. Va. 648, 408 S.E.2 d 4 0 0

. Where, as in the case sub judice , the subject child has died, allegedly as a result of a b u s e and/or neglect, bef

ore perm anency has been attained, the guardian a d l i t e m’ s role as the child’s advocate becom es even m ore essential f or it is the child’s representative who m ust speak f or the child whose voice has been f orever silenced. In this regard, the guardian can, and m ust, provide crucial inf

orm ation to the circuit court regarding the child’s condition to inf orm the court’s adjudication of the child’s parents as abusing and/or negle c t f u l. As the child’s advocate and lega l r e p resentative, the guardian ad litem is in the best position to speak to the circum stances leading to the child’s death and to ensure that justice is achieved f or the child. Accordingly , based upon these authorities and the crucial role of guardians ad litem as the legal representatives of children subject to abuse a n d n e g l e c t proceedings, we

25hold that if an inf ant child is born alive, becom es the subject of an abuse and neglect petition, and is appointed a guard i a n a d l i t e m t o represent him /her in such case, but the child dies during the pendency of the abuse and neglect proceedings, the guardian a d l i t e m r em ains i n v o l v e d in the case to advocate f or the child until the conclusion of such proceeding s . 15 Theref ore, we also answer the second certif ied question in the af

f irm ative.

IV. CONCLUSION In response to the two questions certif ied by the Circuit Court of Lewis County by order entered Septem ber 26, 2017, we answer both questions in the a f f i r m ative and

rem and this case f

or f urther proceedings consistent with this opinion.

Certif ied Questions Answered.

Guardians ad litem continuing their representation of children in abuse and 15 neglect proceedings are directed t o c o mp l y with the requirem ents of Rule 18a of the W est Virginia Rules of Procedure f or Child Abuse and Neglect Proceedings as well as Appendix A thereto. 26