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OFFICE oF TH~•p~QhSE"c~~NG ATTORNEY

301 Virginia Street East ·,
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Charleston, WV 25301 iv::V.41~~i£(f&,tgJCt}t(J..[o;, vb
(304) 357.:0300 . · .,,.,-;t,-~11,1
· FAX (304) 357-0342 cou11,
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. CHARLES T. MILLER
Prosecuting Attorney
October 16, 2023

Kanawha County Circuit Clerk

111 Court Street
Charleston, WV 25301

Re: The Kanawha County Prosecuting Attorney's Office Response to

Administrative Order Entered by Kanawha County Circuit Court, Judge Maryclaire
Akers Re: Addressing the Failure of the Kanawha County Prosecuting.Attorney's Office
to Timely Draft, Prepare, and Submit Juvenile Abuse and Neglect Orders. ·

Dear Ms. Gatson:

Find enclosed, the Kanawha County Prosecuting Attorney's Office Response to

Administrative Order Entered by Kanawha County Circuit Court, Judge Maryclaire Akers .
Re: Addressing the Failure of the Kanawha County Prosecuting Attorney's Office to
Timely Draft, Prepare, and Submit Juvenile Abuse and Neglect Orders. Please file this
Response in each of the cases cited in the Administrati_ve Order filed by Judge Akers on
October 12, 2023.

Respectfully submitted,

c,µ_~}fljl_,__
CHARLEST.MILLER
Prosecuting Attorney
 f ~ ~,.. r::
The Kanawha County Prosecuting Attornev's Office Response fo_Admi~isA~tiv~: D
Order Entered by Kanawha County Circuit Court, Judge Maryclaire,Akers Re: ~
Addressing the Failure of the Kanawha County Prosecuting Attorney's O't':ficett-olTime~¾\1 t!: '{ .7
Draft, Prepare, and Submit Juvenile Abuse and Neglect Orders,,,.,... , · ·-·; ,
Kll~ti?X~!1,~·u' S. Gi:.;s.r~:~! ~-,r r-~~ •
.. "., ~,rn1•i COf !JV11/;.:/1~J,.Vtt.JG{
As a matter of law, the alleged dereliction of duty is not that of the Kanawha '.~c;>1th?;Jo/ COURT

Prosecuting Attorney, but rather, the duty of the Court.

We caution circuit courts, however, that the burden of issuing an order which
meets this Court's requirements, which requirements. are design-ed to _permit
meaningful appellate review, ultimately remains on the circuit court. It is
incumbent on the trial court to determine if the submitted order accurately
reflects the court ruling given that it is well-established that "[a] court of
record speaks only through its orders[.]"

Taylor v. W. Va. Dep't ofHealth & Human Res., 237 W. Va. 549, 552, 788 S.E.2d 295, 298

(2016).
On the 12th day of October, 2023, Judge MaryclaireAkers of the Kanawha County Circuit

Court, 13th Judicial Circuit, entered an administrative order "Add~essing the Failure of the

Kanawha. County Prosecuting Attorney's Office to Timely Draft, Pre~are, and Submit Juvenile

Abuse and Neglect Orders." Said Order accuses the Kanawha Couity Prosecuting Attorney's

Office of .dereliction of duiy by failing to ~ly prepare· and sufmit orders from bearings

conducteclin Judge Akers' courtroom. In support of this assertion, tje Court cites State ex rel.

Kaufman v. Zakaib, 535 S.E.2d 727, 736, which states, in-part, that "[all Court speaks only through

its order." The Kanawha Coun1y Prosecuting Attorney's office contrs that this is an accurate

representation of the law and notes that all orders entered by the court must first be endorsed by

the presiding judge. The Administrative Order goes on to assert that it "has been the long-standing

practice of this Court for over 25 years, through at least two circuit judges and six elected

prosecutors, to require the Kanawha County Prosecutor's Office to prepare orders in these cases."

However, there is no statute, rule, case, administrative order, or court order that imposes any duty

upon the office of the prosecuting attorney to prepare orders on behalf of the court. Indeed, many
courts in West Virginia prepare their- own orders using the law clerk provided to them ·by the West

Virgina Supreme Court of Appeals, while others, including some courts in this Circuit, assign the

preparation of such orders to the Guardians ad !item.

Chapter 49, article 4, section 5 of the West Virginia Code defines the duties of the

prosecuting attorney in child abuse and neglect proceedings. West Virginia Code §49-4-501 states

as follows:

(a) The prosecuting attorney shall render to the Department of Health and Human
Resources, without additional compensation, the legal services -as the department
may require. This section shall not be construed to prohibit the department from
developing plans for cooperation with courts, prosecuting attorneys, and other law-
enforcement officials in a manner as to permit the state and its citizens to obtain
maximum fiscal benefits under federal laws, rules and regulations.

(b) Nothing in this code may be construed to limit the authority of a prosecuting
attorney to file an abuse or neglect petition, including the duties and responsibilities
owed to its cl_ient the Department of Health and Human Resources, in his or her
fulfillment of the provisions of this article.

(c) Whenever, pursuant to this chapter, a prosecuting attorney acts as counsel for
the Department of Health and Human Resources, and a dispute arises between the
prosecuting attorney and the department's representative because an action
proposed by the other is believed to place the child at imminent risk of abuse or
serious neglect,. either the prosecuting attorney or the department's representative
may contact the secretary of the department and the executive director of the West
Virginia Prosecuting Attorneys Institute for prompt mediation and resolution. The
secretary may designate either his or her general counsel or the director of social
services -to act as his or her designee and the executive director may designate an
objective prosecuting attorney as his or her designee. ·

West Virginia Code §49-4-502 states as follows:

Prosecuting attorney to cooperate with persons other than the department in

child abuse and neglect matters; duties.
It is the duty of every prosecuting attorney to cooperate fully and promptly with
persons seeking to apply for relief, including copetitioners with the department,
under this article in all cases of suspected child abuse and neglect; to promptly
prepare applications and petitions for relief requested by those persons, to
investigate reported cases of suspected child abuse and neglect for possible criminal
activity; and to report at least annually to the grand jury regarding the discharge of
his or her duties with respect thereto.

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West Virginia-Code §49-4-503 states as follows:

Prosecuting attorney to represent petitioner in juvenile cas-es.

The prosecuting attorney shall represent the petitioner in all proceedings under this
article before the court judge or magistrate having juvenile jurisdiction.

West Virginia Code §49-4-504 states as follows:

Prosecuting attorney duty to establish multidisciplinary investigative teams.

The prosecuting attorney of each county sha1T establish -a multidisciplinary
investigative team in that county, pursuant to section four hundred two of this
article, and section five, article four of chapter seven.

Nowhere in the text of West Virginia Code §49-4-501 et. seq. is the prosecuting attorney

required to prepare orders on behalf of the court in child abuse and neglect proceedings.

The West Virginia Rules of Procedure for Child Abuse and Neglect Proceedings, on

numerous occasions, addresses the required orders in juvenile abuse and neglect proceedings. Rule

27 of the West Virginia Rules of Procedure for Child Abuse and Neglect Proceedings states as

follows:

At the conclusion of the adjudicatory hearing-, the court shall make findings of fact
and conclusions oflaw, in writing or-on the record, as to whether the child is abused
and/or neglected in accordance with W. Va. Code § 49-4-601(i). The court shall
enter an order of adjudication, including findings of fact and conclusions of law,
within ten (10) days of the conclusion of the hearing, and the parties and all other
persons entitled to notice and-the right to be heard shall be given notice of the entry
of this order (emphasis added).

Rule 36 of the West Virginia Rules of Procedure for Child Abuse and Neglect Proceedings

states as follows:

At the conclusion of the disposition hearing, the court shall make findings of fact
and conclusions oflaw, in writing or on the record, as to the appropriate disposition
in accordance with the provisions of W. Va. Code § 49-4-604. The court shall enter
a disposition order, including findings of fact and conclusions of law, within ten
(10) days of the conclusion of the hearing ... (emphasis added).

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 Rule 42 of the West Virginia Rules -0f Procedure for Child Abuse and Neglect Proceedings.

states as follows:

Within ten (10) days of the conclusion of the .permanent placement review
conference,.the.court shall.enter an order determining whether the Departme.nthl:!..s __ _
made reasonable efforts to finalize the permanency-plan for the child. The court-
shall also find whether permanent placement has been.fully achieved within the
meaning of Rule 6 and stating findings of fact and conclusions of law to support its
determination (emphasis added).

The West Virginia Rules of Procedure for Child Abuse and Neglect Proceedings impose-no

duty on the prosecuting attorney's office to prepare and submit orders.

Additionally, _the West Virginia Trial Court Rules also address the preparation of orders in

civil proceedings. Rule 24 states as follows:

(a) Unless otherwise directed by the presiding judicial officer, all orders shall be
. submitted to the judicial officer promptly, but no later than eleven (11) days
after having been directed to do so by the court. When counsel responsible for
the preparation and presentation of an order unreasonably delays or withholds
its presentation, the order may then be prepared and entered by the judicial
officer.
(b) Except for good cause or unless otherwise determined by the judicial officer,
no order may be presented for entry unless- it bears the signature of all counsel
and unrepresented parties.
(c) Although it is preferred that orders be entered in accordance with subsection
(b), unless the judicial officer otherwise directs, counsel responsible for the
preparation and presentation of an order may submit the original of the
proposed order-to the judicial officer within eleven (11) days, with a copy to
opposing counsel along with a notice to note obj_ections- and exceptions to the
order within five (5) days after receipt of the proposed ord·er or such lesseriime
as the judicial officer directs. Opposing counsel shall notify the presiding
judicial officer, in writing, of his or her approval of or objection to the order or
any portion thereof. In the event this subsection is utilized, the judicial officer
shall consider the order for entry upon approval by all counsel, o_r after five (5)
days from its receipt, if no objection is received by the judicial officer.
(d) In the event counsel has any objections regarding the wording or content of a
proposed order, counsel shall have the affirmative duty of contacting the
preparer thereof before contacting the judicial officer in an effort to seek a
resolution of the conflict. If the conflict cannot be resolved in this manner,
counsel having an objection shall promptly submit a proposed order to the
judicial officer and opposing counsel as set forth in subsection (c) along with a
letter to the judicial officer, indicating the reason for the change(s). Within five

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 (5) days following receipt of objections and the responsive prnposed-order, all
counsel shall file a response to the second proposed order. If the-judiciaf officer
determines that a-hearing is necessary to resolve the conflict, counsel objecting
to the order shall be r-esponsible for. promptly scheduling the same. Objecting,
proposing modifications, or agreeing to-the form of a proposed order shall not
affect a party's rights to appeal.the substanc_e.of the order. .

Again, nowhere within the Trial Court Rules is it made the duty of prosecuting attorney's

office to prepare and submit orders from proceedings before the court.

The Court fails to cite any of its own orders or any administrative orders within the Circuit

Court of Kanawha County that require the Kanawha County Prosecuting Attorney's Office to

prepare the Court's orders. The Prosecuting Attorney's Office has prepared these orders as a

courtesy to the court. However, it is ultimately the sole responsibility of the circuit court to comply

with the West Virginia Rules of Procedure for Child Abuse and Neglect Proceedings, the Trial

Court Rules, and the applicable caselaw to ensure its orders, through which the court speaks, are

timely prepared and entered.

Moreover, and importantly, the Supreme Court of Appeals of West Virginia reminds the

circuit courts of their obligations relative to entry of an order and. cautions the court that the burden

of issuing an order which meets this Court's requirements ultimately remains on the 7eircuit-court
0

in Taylor, supra. The Taylor court stated

[w]e pause before we begin our analysis- of the foregoing to address the circuit
court's June 13, 2014, omnibus order, which primarily forms the basis of this appeal
and the difficulties which the order presents. Recognizing of course that
this order was prepared by respondents' counsel and merely executed and entered
by the circuit court, we would be remiss. if we failed to caution the lower courts
regarding the risks attendant to adopting and entering-wholesale-
orders prepared by counsel. We recognize the common practice of requesting
attorneys to prepare proposed orders for consideration by the court while a matter
is under advisement and, in general, find nothing untoward about this process. We
caution circuit courts, however, that the burden of issuing an order which
meets this Court's requirements, which requirements are designed to permit
meaningful appellate review, ultimately remains on the circuit court. It is_
incumbent on the trial court to determine if the submitted order accurately

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 reflects the court ruling given that -it is well-estahlishec:f tha:t, "[-al court ·of
record speaks only througli its· orders[~!'' State ex-reLErle11,•ine v. Thompson, 156
W. Va. 714,718,207 S.E.2d 105. 1-0-'.7 (1973).
Taylor, supra (emphasis added).

---•-rl•• _, --- -- - In-its-Administrative Order, the Court sets out a list of cases that..it asserts....~110Lllave

corresponding orders. The Court goes on to-state that it "is not interested in hearing about why the

orders have not been prepared, nor is [the] Court interested in any excuses or blame shifting for

this dereliction of duty." After review of t~e aforementioned list, it appears that many of the orders

have previously been submitted to the Court by the Kanawha County Prosecuting Attorney's

Office. The Court has either refused or neglected to sign and enter the same. Additionally, a

number of the orders were prepared by the Court's Guardian ad litem and remain unsigned and

have not been entered by the Court. The Kanawha County Prosecuting Attorney's Office does not

assert that it is altogether without fault, as a number of the orders listed do not appear to have been

prepared. It is unclear as to whether the Court ordered the Kanawha County Prosecutor's Office

to prepare such orders or not. However, the Kanawha County Prosecuting Attorney's Office has

requested transcripts from the hearings listed. Should the transcripts reveal that-such was ordered,

the Kanawha County Prosecuting Attorney's Office will timely prepare ap.propriate orders.

As set forth above, the Kanawha County Prosecuting Attorney's Office submitted the

· majority of the aforementioned orders in the cases specified by the Court. Accordingly, th-e failure

to submit timely and accurate orders, and the "myriad of problems" resulting from the same, falls

squarely upon the Court in those instances. As the Court provided in its Administrative Oi:der,

"[c]hild abuse and neglect cases must be recognized as being among the highest priority for the

courts' attention. Unjustified and procedural delays wreak havoc on a child's development,

stability and security." Thus, the Kanawha County Prosecuting Attorney's Office requests this

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Court sign and enter the submitted order.s, either with or without modification, whichever is

preferred by the Court, so as to avoid any further delay.

Witlrregard to the twenty-five (25) orders that the Court returned-tfftb.e Kanawha County
_: .......... - -~- ·- -~ ::1· - .· ...• ---•··-. - ·-'-~----.

Prosecuting Attorney's Office, asserting that they are "replete with errors," the Kanawha County

Prosecuting Attorney's Office has continuously attempted to appease the Court by making the

Court's suggested changes, albeit largely consisting_of stylistic differences in writingpreference.

However, the Kanawha County Prosecuting Attorney's Office would redirect the Court to Taylor

supra,_ and would remind the Court of its burden as set forth by the West Virginia Supreme Court

ofAppeals. Additionally, with respect to the three (3) Petitions the Court returned, it is the position

of the Kanawha County Prosecutor's Office that if the petition is materially deficient on its face,

the Court has the authority to reject it.

Insofar as the Court directs the Kanawha County Prosecuting Attorney's Office to prepare

a written plan that addresses the Prosecuting Attorney's Office staffing issues, as well as a written

plan on how it will comply with the Court's directive that future orders be prepared timely and

correctly, the Prosecuting Attorney's office submits that it-will not address staff-related matters as

these matters are outside the purview of the Court. The Prosecuting Attorney's Office will prepare

the orders specified by the Court in the aforementioned Administrative Order in accordance with

Rule 24.01 of the West Virginia Trial Court Rules. However, the Prosecuting Attorney's office will

no longer be responsible for preparing the Court's orders as a matter of courtesy.

The Prosecuting Attorney's office understands the Court's frustration with the influx of

abuse and neglect proceedings and the burdens placed on the judicial system. However, the

Prosecuting Attorney's office shares the same goals as the Court: to make sure that the children of

Kanawha County are protected and that these matters are handled expediently. Nonetheless,

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casting aspersions on the public servants-who are working hard to protect these children seems

counterproductive to thatshared_goal. The.Kanawha County Prosecuting Attorney's Office intends

to continue its hard work in ensuring the best interests of minor cfu1dren are protected with all due
. ..,,._ ... . ,.__ .. ,., .

urgency.

Respectfully-submitted,

~,rt~
CHARLES T. MILLER
Prosecuting Attorney·