Minor Guardianship in West Virginia

Matthew DeVore | December 5, 2018

INTRO

Every child has the right to be loved and cared for. Sometimes, though, parents are unable or unwilling to care for their children. What can a person do if they want to help a child in this situation? One option is filing a petition for minor guardianship.

A guardian is a person who is appointed by the court to take custody of a child and be responsible for the child's wellbeing. Guardians agree to raise and make decisions for the child.

Any responsible person who has knowledge of the facts regarding the welfare and best interests of a child is eligible to become the child's guardian, subject to the court's discretion (see below).

In my experience, a guardian is usually a family member - aunts, uncles, and grandparents seem to be the most common.

JURISDICTION AND VENUE

A petition for guardianship can be filed in either circuit court or family court. The petition needs to be filed in the county where the child has resided for the past six months, unless there are extraordinary circumstances.

WHEN MAY THE COURT APPOINT A GUARDIAN?

Per W.Va. Code ยง44-10-3, a judge may appoint a guardian for a minor if it is in the child's best interest to do so, and at least one of the following applies:

(1) The parents consent;

(2) The parents' rights have been previously terminated;

(3) The parents are unwilling or unable to exercise their parental rights;

(4) The parents have abandoned their rights by a material failure to exercise them for a period of more than six months; or

(5) There are extraordinary circumstances that would, in all reasonable likelihood, result in serious detriment to the child if the petition is denied.

The most common scenarios I see involve parents who are incarcerated or addicted to drugs.

HOW DOES THE COURT DECIDE IF A PERSON IS QUALIFIED TO BE A GUARDIAN?

Per Rule 10 of the West Virginia Rules for Minor Guardianship Proceedings, the court, when determining an appropriate guardianship appointment over the person of a minor, shall ascertain and consider, among other pertinent matters, whether any proposed guardian:

(1) Is required to register as a sex offender;

(2) Has a record of any misdemeanor or felony convictions;

(3) Has ever been subject to a restraining order or final protective order;

(4) Has ever been the subject of any substantiated report alleging child abuse, neglect, or molestation made to any child protection agency, other law enforcement agency, or court in any jurisdiction;

(5) Habitually uses any illegal substances or abuses alcohol; or

(6) Has another person living in the home that involves any of the matters stated above.

WHAT MUST THE PETITION CONTAIN?

A petition for guardianship must include the following:

(1) Full name, date of birth, and residence address;

(2) A statement supporting venue in the county of filing;

(3) A statement indicating whether guardianship over the person or estate (that is, the minor's property and finances), or both, is sought;

(4) The name and last known address of the minor's father and mother, further stating whether each parent is living, deceased, or his or her parental rights have been terminated;

(5) If the minor does not reside with a parent, the name and address of the current custodian or custodians;

(6) A statement describing the reason or reasons why the guardianship appointment is sought;

(7) The places where the minor has lived during the last five years, or since birth if the minor is less than five years of age, and the names and present addresses of the persons with whom the minor lived during that period;

(8) A description of any past or current proceeding involving the minor's custody, identified by court, location, case number, and type of proceeding;

(9) The name and address, and relationship if any, of the proposed guardian or guardians;

(10) A statement affirming the competency and fitness of each proposed guardian, further attesting that the welfare and best interest of the minor will be properly protected by the appointment;

(11) If appointment over the minor's estate is sought, a description and estimated value of all real property and other assets in the minor's estate;

(12) A description of any anticipated periodic payments due to or on behalf of the minor, including but not limited to child support and government benefits; and

(13) A statement as to whether appointment of a curator or temporary guardian is needed to protect the welfare and best interests of the minor until a guardian is appointed and qualified to act.

HOW LONG DOES GUARDIANSHIP LAST?

Guardianship can last anywhere from six months to the child's 18th birthday. Unlike an adoption, a guardianship is not necessarily permanent, and a parent who gets their act together as time goes by can petition the court to terminate the guardianship. The guardian can also ask the court to terminate the guardianship in rare circumstances.

WHAT IF THE GUARDIANSHIP IS NEEDED ON AN EMERGENCY BASIS?

If a scenario arises in which the child needs to be removed from the parents' home as quickly as possible, a potential guardian can file a petition for an ex-parte order granting temporary guardianship. This means the judge can appoint the guardian on a temporary basis, even if the parents have not had a chance to respond to the petition or appear in court. If a temporary guardianship is granted this way, the parents will have an opportunity to appear in court and plead their case at a future date.

If the situation giving rise to the petition is serious enough, the judge has the option of referring the case to the DHHR to see if Abuse and Neglect proceedings are appropriate. Abuse and Neglect cases can result in parental rights being permanently terminated.

HOW CAN I GET HELP FILING A PETITION?

If you think you might want to pursue a minor guardianship, you need the benefit of an attorney who has experience with guardianship cases and who isn't afraid to tell the court exactly why the parents are not up to the task of raising their child.

Give me a call at (304) 699-0107 or contact me online through Facebook, email, or our secure Online Consultation Form. You can also stop by the office at 601 Avery Street, Suite 100 in Parkersburg to schedule a free consultation.

Avoiding Criminal Charges When Calling 911 to Report an Overdose

Matthew DeVore | September 14, 2018

Drug abuse is at an all-time high in West Virginia. Unsurprisingly, so are fatal drug overdoses. In an effort to prevent deaths by overdose, the legislature passed the Alcohol and Drug Overdose Prevention and Clemency Act. This law is aimed at encouraging people to call for help if they see someone overdosing, even if the person calling is engaged in behavior that would usually be a crime.

What Must a Person Do to Benefit from the Act?

In order to avoid prosecution, a person seeking the protection of the Act must do all the following:

  • seek medical assistance for a person who appears to be overdosing;
  • stay with the overdosing person until help arrives;
  • cooperate with and provide relevant information to medical personnel and law enforcement; and
  • identify himself or herself to medical personnel or law enforcement upon request.

For Which Offenses Does the Act Bar Prosecution?

A person may not be charged with any of the following offenses if he or she completed all the above requirements of the Act. This is not an exhaustive list; however, it does contain the most common applications of the Act.

  • Underage consumption of alcohol
  • Using a fake ID or lying about your age to obtain alcohol
  • Possessing a controlled substance
  • Public intoxication

What About the Person Who Overdosed?

The person who overdosed receives the same protection from the Act as the person who called for help if he or she subsequently agrees to participate in a rehabilitation or treatment program approved by the Court. The Court may also consider other alternative sentencing or clemency options, such as diversion agreements or drug court.

To discuss whether the Alcohol and Drug Overdose Prevention and Clemency Act applies to your case, contact DeVore Law Office, PLLC at (304) 699-0107, or by email at info@devorelaw.net.

Drug Offenses and 407 Probation

Matthew DeVore | September 14, 2018

What is 407 Probation?

407 Probation is a type of probation named for W.Va. Code Section 60A-4-407. It allows people charged with certain drug offenses to have their charges dismissed if they complete a probationary period. Furthermore, the charges may be expunged as soon as six months after they are dismissed.

Who Qualifies for 407 Probation?

The Court may sentence a person to 407 Probation if and only if 1) the person has plead guilty to, or been found guilty of, certain drug offenses, and 2) the person has no previous drug-related convictions in any jurisdiction. The person must also agree to delay their court proceedings until the probation period is complete.

Which Charges are Subject to 407 Probation?

The Court may grant a qualifying person 407 Probation for simple possession of any drug. Additionally, the Court must grant 407 Probation to any qualifying person who has plead guilty to, or been found guilty of, any of the following:

  • possession of marijuana;
  • distribution of less than 15 grams of marijuana;
  • possession of synthetic cannabinoids; or
  • possession of 3,4-methylenedioxypyrovalerone (MPVD)and 3,4-methylenedioxypyrovalerone and/or mephedrone , all commonly known as "bath salts."

What Are the Terms and Conditions of 407 Probation?

This can vary. However, a person on 407 Probation is generally prohibited from possessing a firearm, drinking/possessing alcohol, picking up additional criminal charges, or leaving the state without prior permission of the court. Payment of court costs is also a term of 407 Probation.

What Happens When a Person Violates 407 Probation?

When a violation of 407 Probation occurs, the court can adjudicate the person guilty, in which case the charge will no longer be dismissed, and different rules for expungement will apply.

After 407 Probation Ends, When Can a Charge be Expunged?

After at least six months from the end of probation. If the magistrate finds that the person has not been guilty of any serious or repeated violations of the terms of probation, either during the probation period in the six months afterward, the court shall expunge the charge from the person's record.

If you've been charged with a drug offense and want to explore your options with regard to 407 Probation, contact DeVore Law Office, PLLC at (304) 699-0107.

What to Expect When You've Been Charged with a Felony in West Virginia

Matthew DeVore | September 12, 2018

West Virginia Code Section 61-11-1 defines a felony as a crime punishable by incarceration in the penitentiary. Felonies range from relatively minor crimes, such as Third Offense Shoplifting, to the most serious crimes, such as First Degree Murder. If you have been charged with a felony, it is critical that you hire an experienced and skilled criminal defense attorney to help guide you through the process. Your life and your freedom may well depend on it.

In West Virginia, felony cases usually begin with a law enforcement officer filing a criminal complaint in Magistrate Court. From there, the defendant is brought before a magistrate, where the charges are read to the defendant and a bond amount is set. If the person is found by the Court to be indigent, an attorney is appointed to represent the defendant. Otherwise, the defendant can either represent him/herself or hire an attorney. In my experience, a person should never, ever try to represent him/herself in a felony case.

The case then proceeds to a preliminary hearing. This hearing must be held within twenty days if the defendant is able to make bond, and within ten days if the defendant is incarcerated. At the preliminary hearing, the State has the burden of proving there is probable cause to believe two things: 1) that a crime was committed and 2)that the defendant committed it. If the State fails to meet its burden, the case is dismissed (although, as we will see later, it can be refiled). Preliminary hearings are often waived in exchange for something from the State, such as a bond reduction.

If the magistrate finds probable cause at the preliminary hearing, the case is bound over to Circuit Court, where it will remain until it is resolved. While a case is bound over, the defendant remains free (but subject to bond conditions) if they were able to post bond, or remains incarcerated if they were not. During this time, bond reduction motions can be made for people who are not able to make bond.

A case remains in bound-over status until the case is dismissed (which is rare) or an indictment is returned by a grand jury. One grand jury is usually called every three to four months, although sometimes they are called more often. The meeting of the grand jury is where prosecutors present the bound-over case to a group of fifteen to sixteen residents of the county where the charges were brought. If at least twelve of them believe there is enough evidence for the case to proceed to trial, the grand jury issues an indictment against the defendant. The indictment is the formal document charging the defendant with a crime in Circuit Court. The indictment removes the case from bound-over status and places it on the Circuit Court's docket. A case cannot go past bound-over status unless an indictment is issued.

In some cases, charges are not filed in Magistrate Court prior to the meeting of the grand jury. This is known as a direct indictment, and it skips many of the steps mentioned above: the person is not charged in Magistrate Court, there is no preliminary hearing, and the case never enters bound-over status. The case is simply presented to the grand jury with no prior filings. Additionally, even if a person's case is dismissed at the preliminary hearing, it can still be presented to the grand jury, and the person can still be indicted.

Once a person is indicted, the court requires the defendant to report for an arraignment. At arraignment, the judge will ask the defendant if they understand the nature of the charges against them; if they understand the possible penalties for those charges; and whether they plead Guilty or Not Guilty. A trial date is then set. The issue of bond can also be addressed at arraignment.

Before the trial date, the State will provide the defendant with discovery - that is, copies of all the evidence the State intends to present at trial. The defendant and their lawyer will have an opportunity to review discovery, as well as conduct their own investigation into the allegations, prior to trial.

Also prior to trial, the defendant's attorney may present pre-trial motions. These are document's in which the defendant's lawyer can ask the Court to do a variety of things, such as prohibit certain witnesses from testifying at trial, exclude illegally obtained evidence, or allow the testimony of expert witnesses.

Often, the State will make the defendant a plea offer prior to trial. A plea offer is a proposed agreement in which the defendant agrees to plead guilty to one or more charges in exchange for something from the State, such as reducing a charge from a felony to a misdemeanor or guaranteeing an alternative sentence.

There are two kinds of plea agreements: binding and non-binding. In a non-binding plea agreement, the State agrees to make a recommendation to the judge as to how the case should be resolved, but the judge is free to use his/her own judgment in giving the sentence after the defendant's guilty plea is entered. In a binding plea agreement, the State guarantees that the defendant will get a certain sentence (e.g. probation, home confinement, or a minimum prison term), and the judge must let the defendant know if he will accept the agreement before the guilty plea is entered. If the judge does accept the guilty plea, then the judge must sentence the defendant as outlined in the binding plea agreement.

If discovery is complete, all pretrial motions have been decided, and the defendant rejects all plea offers, the case proceeds to a trial by jury. The trial will take place in front of a twelve-person jury. At trial, the defendant can only be found guilty if the State proves the defendant's guilt beyond a reasonable doubt - the highest standard in all of American law. If all twelve jurors find the defendant guilty, a guilty verdict will be returned; if all twelve jurors find the defendant not guilty, a verdict of not guilty will be returned. If the jurors cannot reach a decision, a mistrial will be declared, and the case may have to be tried a second time to a different jury.

If the defendant is found not guilty, the case is over, and the defendant is free.

If the defendant pleads guilty or is found guilty by a jury, the Court will proceed to sentencing approximately sixty days later. During this sixty-day period, the probation department will put together a document discussing the person's background and criminal history. This document is called the pre-sentence investigation, and it is used to aid the judge in deciding which sentence to give the defendant.

If you have been charged with a felony, don't take the risk of trying to represent yourself or hiring an inexperienced, timid attorney. You need an advocate who is well-versed in criminal law and who will give you an honest and accurate assessment of how to proceed with your case. You need an advocate who is not afraid to stand up to the State and who is willing take your case all the way to trial.

Contact DeVore Law Office, PLLC at (304) 699-0107 to speak to an attorney who will give you a dedicated, aggressive defense in your criminal case.