DAVIS, Chief Justice:
The petitioner herein, the West Virginia Department of Health and Human Resources, Bureau for Child Support Enforcement [hereinafter "BCSE"], appeals from an order entered July 16, 2013, by the Circuit Court of Wood County.
The facts of this case are straightforward and not disputed by the parties. The respondent parents herein, Mary P. [hereinafter "Mary"] and Jason L. [hereinafter "Jason"], previously were married and had one child. During their 2005 divorce proceedings, Mary was awarded custody of the parties' child, and Jason was ordered to pay child support in the amount of $165.66 per month.
In 2011, the BCSE initiated enforcement proceedings against Jason in the divorce case in the Family Court of Wood County for nonpayment of child support. On April 11, 2011, the family court entered an order declaring Jason to be in arrears and granting judgment against him in the amount of $13,130.53. When Jason still failed to fulfill his child support obligation or pay his arrearage, the BCSE initiated contempt proceedings against Jason seeking to enforce its judgment against him. During the pendency of the contempt proceedings, the instant abuse and neglect case was filed in the Circuit Court of Wood County alleging that the parties' child was an abused or neglected child because Jason had committed various acts of domestic violence in the child's presence and Mary had failed to shield the child from such incidents.
Thereafter, in the abuse and neglect case, the circuit court, by "Order of Modified Support" entered November 21, 2012, terminated Jason's parental rights to the parties' child and modified his child support obligation by reducing it by one-half to $82.83 per month and setting his arrearage amount at $50.00 per month until it has been satisfied. When Jason failed to pay this amount, or any portion of the arrearages he owes, Mary filed a pro se petition for contempt. The circuit court held a hearing on Mary's petition for contempt, and, on July 16, 2013, entered the order at issue in the case sub judice. In its July 16, 2013, order, the circuit court held Jason to be in contempt for nonpayment of child support as ordered by the circuit court's November 21, 2012, order modifying his child support obligation, issued a capias warrant to secure his arrest, directed he be returned to the family court, and remanded
From this order, the BCSE appeals to this Court.
In the case sub judice, the BCSE challenges the correctness of the circuit court's order. We previously have held that
Syl. pt. 2, Walker v. West Virginia Ethics Comm'n, 201 W.Va. 108, 492 S.E.2d 167 (1997). Mindful of this standard, we proceed to consider the parties' arguments.
Before this Court, the BCSE assigns error to the circuit court's order remanding the case to the family court for enforcement of the circuit court's order modifying child support and for all further modifications of child support. In its July 16, 2013, order, the circuit court ruled:
[I]t is hereby
(Emphasis in original). In so ruling, the circuit court explained its reasoning as follows:
We begin our analysis by reviewing the jurisdiction with which family courts are vested. Pursuant to article VIII, § 16 of the West Virginia Constitution, "[f]amily courts shall have original jurisdiction in the areas of family law and related matters as may hereafter be established by law. Family courts may also have such further jurisdiction as established by law." In recognition of these jurisdictional limits, we have expressly held that "[t]he jurisdiction of family courts is limited to only those matters specifically authorized by the Legislature, while circuit courts have original and general jurisdiction and other powers as set forth in Article VIII, § 6 of the Constitution of West Virginia." Syl. pt. 5, in part, Lindsie D.L. v. Richard W.S., 214 W.Va. 750, 591 S.E.2d 308 (2003).
W.Va.Code § 51-2A-2 (2012) (Supp.2014) defines the precise parameters of the family court's jurisdiction. Of particular relevance to our resolution of the case sub judice is the express recognition that the ambit of authority granted to family courts is limited and particularly defined:
W. Va.Code § 51-2A-2(e). Among such limits imposed upon a family court's jurisdiction are the inability of a family court to hear a matter involving child abuse or neglect insofar as such cases are within the exclusive authority of the circuit court and the corresponding directive to the family courts to stay proceedings pending therein when a related abuse and neglect case is simultaneously pending before the circuit court:
W. Va.Code § 51-2A-2(c).
By contrast, circuit courts, being courts of general jurisdiction, have more expansive authority. See Syl. pt. 5, in part,
W. Va. R.P. Child Abuse & Neglect Proceed. 6a(b). See also W. Va. R.P. Child Abuse & Neglect Proceed. 3a(d) (similarly restricting access to pre-petition investigation in abuse and neglect cases). Therefore, it is clear that exclusive jurisdiction over abuse and neglect cases is reposed in the circuit courts of this State, and that the family courts are required to defer to the circuit courts' rulings in such matters.
Included within a circuit court's abuse and neglect jurisdiction is the authority to decide child support issues arising in an abuse and neglect case. Recognizing that circuit courts, and not family courts, are vested with jurisdiction over child abuse and neglect cases, we previously have held that "[w]hen a child is the subject of an abuse or neglect or other proceeding in a circuit court pursuant to Chapter 49 of the West Virginia Code, the circuit court, and not the family court, has jurisdiction to establish a child support obligation for that child." Syl. pt. 3, West Virginia Dep't of Health & Human Res., Bureau for Child Support Enforcement v. Smith, 218 W.Va. 480, 624 S.E.2d 917 (2005). This holding serves to clarify not only that the circuit court has exclusive jurisdiction over abuse and neglect matters but also that the establishment of an award of child support is a necessary and integral part of the resolution of an abuse and neglect proceeding: "A circuit court terminating a parent's parental rights pursuant to W. Va. Code, § 49-6-5(a)(6), must ordinarily require that the terminated parent continue paying child support for the child, pursuant to the Guidelines for Child Support Awards found in W. Va.Code, § 48-13-101 et seq. [2001]." Syl. pt. 2, in part, In re Ryan B., 224 W.Va. 461, 686 S.E.2d 601 (2009). See Syl. pt. 4, Smith, 218 W.Va. 480, 624 S.E.2d 917 ("When a circuit judge enters an order on an abuse or neglect petition filed pursuant to Chapter 49 of the West Virginia Code, and in so doing alters the custodial and decision-making responsibility for the child and/or commits the child to the custody of the Department of Health and Human Resources, W. Va.Code, 49-7-5 [1936] requires the circuit judge to impose a support obligation upon one or both parents for the support, maintenance and education of the child. The entry of an order establishing a support obligation is mandatory; it is not optional." (emphasis added)). See also Syl. pt. 1, In re Ryan B., 224 W.Va. 461, 686 S.E.2d 601 ("The Legislature's 2006 amendment of W. Va.Code, § 49-6-5(a)(6), changing the statute's "guardianship rights and/or responsibilities" language to "guardianship rights and responsibilities" was not intended to relieve parents who have their parental rights terminated in an abuse and neglect proceeding from providing their child(ren) with child support."). The requisite imposition of a child support obligation in an abuse and neglect case also is detailed in Rule 16a of the
(Emphasis in original).
Insofar as the authority to determine matters involving the abuse and/or neglect of a child is reposed in the circuit court, not the family court, continuing jurisdiction over such cases likewise is vested in the circuit court:
W. Va. R.P. Child Abuse & Neglect Proceed. 6. Moreover, the exclusivity of such jurisdiction in the circuit court precludes the transfer of any portion of an abuse and neglect case to the family court, even if the issue involved concerns a matter usually within the purview of the family court's jurisdiction. Rule 16a(d) of the West Virginia Rules of Procedure for Child Abuse and Neglect Proceedings makes it patently clear that circuit courts, and not family courts, possess and retain abuse and neglect jurisdiction and specifically prohibits circuit courts from transferring abuse and neglect matters to family court: "No portion of a child abuse and neglect proceeding may be transferred or remanded to a family court for assessment of a child support obligation."
Based upon the foregoing authorities, we therefore hold that, pursuant to Rule 6 of the West Virginia Rules of Procedure for Child Abuse and Neglect Proceedings, when a circuit court enters an order awarding or modifying child support in an abuse and neglect case, the circuit court retains jurisdiction over such child support order. We further hold that, pursuant to Rule 16a(d) of the West Virginia Rules of Procedure for Child Abuse and Neglect Proceedings, a circuit court cannot transfer or remand a child support order that it has entered in an abuse and neglect case to the family court for enforcement or modification.
Applying these holdings and the foregoing authorities to the facts of the case sub judice, it is clear that the circuit court did not have the authority to remand this case to the family court for enforcement of its modified order of support through contempt proceedings or for the family court's determination of future child support matters herein insofar as the circuit court entered its modified order in the instant abuse
Finally, we would be remiss if we did not address the many procedural issues that have come to our attention during our review of the underlying abuse and neglect proceedings. First, and foremost, the order from whence the contempt petition in this case originates, the circuit court's November 21, 2012, "Order of Modified Support" very tersely describes the respondent father's modified support obligation as follows: "Jason L[.]'s current child support obligation shall be reduced in that his current child support obligation shall be Eighty-Two and 83/100 dollars ($82.83) per month effective on the first day of August 1st [sic], 2012[,] and arrearages in the amount of $50.00 (Fifty) dollars per month until paid."
As we noted previously in this opinion, Rule 16a(b) of the West Virginia Rules of Procedure for Child Abuse and Neglect Proceedings requires the use of the child support Guidelines to calculate an award of child support:
W. Va. R.P. Child Abuse & Neglect Proceed. 16a(b) (emphasis added). Use of the Guidelines is mandatory. "Any order establishing a child support obligation in an abuse or neglect action filed pursuant to Chapter 49 of the West Virginia Code must use the Guidelines for Child Support Awards found in W. Va.Code, 48-13-101 et seq." Syl. pt. 5, Smith, 218 W.Va. 480, 624 S.E.2d 917 (emphasis added).
Although both Rule 16a(b) and our prior precedent recognize that use of the Guidelines may not be appropriate in a given case, a court still is required to explain why it has chosen not to follow them.
Syl. pt. 2, In re Ryan B., 224 W.Va. 461, 686 S.E.2d 601.
In the circuit court's modified support order, no explanation is given as to whether the Guidelines were used or were not used, and, if they were not used, why the court found them to be inapplicable to this case. Therefore, on remand, the circuit court should correct its November 21, 2012, order awarding modified child support to comply with this Court's directives for the calculation of child support in abuse and neglect cases in
Moreover, while it is apparent to this Court that the respondent father's parental rights have been terminated in the circuit court's order of modified support, we are unable to locate an order finally concluding the abuse and neglect proceedings. Rather, the circuit court's November 21, 2012, "Order of Modified Support" succinctly terminates the respondent father's parental rights with a passing reference to the fact that this disposition was achieved by the agreement of the parties. In so ruling, the circuit court states that
While we do not believe that the circuit court's failure to render more detailed findings of fact regarding the termination of Jason's parental rights warrants reversal on this point where none of the parties have raised the issue on appeal, we do instruct the circuit court, when composing its corrected order of child support, to thoroughly detail the factual findings giving rise to its termination of Jason's parental rights. See Syl. pt. 2, State v. T.C., 172 W.Va. 47, 303 S.E.2d 685 (1983) ("W. Va.Code, 49-6-1 et seq., does not foreclose the ability of the parties, properly counseled, in a child abuse or neglect proceeding, to make some voluntary dispositional plan. However, such arrangements are not without restrictions. First, the plan is subject to the approval of the court. Second, and of greater importance, the parties cannot circumvent the threshold question which is the issue of abuse or neglect."). See also Syl. pt. 5, In re Edward B., 210 W.Va. 621, 558 S.E.2d 620 (2001) ("Where it appears from the record that the process established by the Rules of Procedure for Child Abuse and Neglect Proceedings and related statutes for the disposition of cases involving children adjudicated to be abused or neglected has been substantially disregarded or frustrated, the resulting order of disposition will be vacated and the case remanded for compliance with that process and entry of an appropriate dispositional order.").
Lastly, we cannot discern from the record in this case whether a guardian ad litem has been appointed to represent the subject child. If no such guardian has been appointed, we remind the circuit court of the child's entitlement to such representation and direct that a guardian be so appointed for the minor child in this case. See Syl. pt. 5, in part, In re Jeffrey R.L., 190 W.Va. 24, 435 S.E.2d 162 (1993) ("Each child in an abuse and neglect case is entitled to effective representation of counsel. To further that goal, W. Va.Code, 49-6-2(a) [1992] mandates that a child has a right to be represented by counsel in every stage of abuse and neglect proceedings. Furthermore, Rule XIII of the West Virginia Rules for Trial Courts of Record provides that a guardian ad litem shall make a full and independent investigation of the facts involved in the proceeding, and shall make his or her recommendations known to the court. Rules 1.1 and 1.3 of the West Virginia Rules of Professional Conduct, respectively, require an attorney to provide competent representation to a client, and to act with reasonable diligence and promptness in representing a client.").
For the foregoing reasons, we reverse the July 16, 2013, order of the Circuit Court of Wood County and remand this case for further proceedings consistent with this opinion.
Reversed and Remanded.