Z.W. et al v. The Salvation Army et al
Filing
64
MEMORANDUM OPINION AND ORDER granting the 54 Motion to Dismiss, as set forth herein. Signed by Judge Joseph R. Goodwin on 7/30/2020. (cc: counsel of record; any unrepresented party) (kew)
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IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
CHARLESTON DIVISION
Z.W., an infant, by her
next friend and legal guardians,
DONALD and TAMMY CHANDLER,
Plaintiffs,
v.
CIVIL ACTION NO. 2:19-cv-00699
THE SALVATION ARMY; THE SALVATION
ARMY d/b/a SAINT ALBANS BOYS AND
GIRLS CLUB; AND BOYS AND GIRLS
CLUBS OF AMERICA, INC.,
Defendants.
MEMORANDUM OPINION AND ORDER
Pending before the court is a Motion to Dismiss the Amended Complaint, [ECF
No. 54], filed by Defendants the Boys & Girls Club of America, Inc. and The Salvation
Army (collectively “the Defendants”). Plaintiffs Z.W., an infant, by her next friend
and legal guardians, Donald Chandler and Tammy Chandler, have responded, [ECF
No. 57]. Defendants have replied, [ECF No. 58], and the Motion is ripe for
adjudication. For the reasons that follow, the Motion is GRANTED.
I.
Background
This civil action is brought by Donald and Tammy Chandler, as the next
friends and legal guardians of minor, Z.W. See Pls.’ Amend. Compl. [ECF No 17]. The
basis of the Amended Complaint is the alleged minor on minor sexual assault of Z.W.
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while she was a member of The Salvation Army’s St. Albans Boys & Girls Club
location. Id. Plaintiffs allege that Defendants acted negligently and recklessness,
breaching their duty to provide adequate supervision to the minors it supervised. Id.
at ¶¶ 11–21. Plaintiffs bring their claims against Defendant The Salvation Army
under a theory of joint venture/ enterprise and actual and/or apparent agency. See
Id. at ¶¶ 22–34.
Plaintiffs filed the original Complaint in the Circuit Court of Kanawha County,
West Virginia on August 23, 2019. See [ECF No. 1]. Defendant the Salvation Army
removed the case to this court on September 26, 2019, based on diversity of
citizenship. See id. Plaintiffs amended their Complaint on January 23, 2020. [ECF
No. 17]. Defendants now move to dismiss this action, claiming Donald Chandler and
Tammy Chandler (“the Chandlers”) did not have standing to file the lawsuit on behalf
of Z.W. because they were not her legal guardians at the time the suit was initiated.
See Defs.’ Mot. to Dismiss [ECF No. 54].
The facts surrounding guardianship of Z.W. are largely agreed upon by the
parties. The biological parents of Z.W. are S.W. and M.W. 1 Plaintiffs state that the
Chandlers were granted custody of Z.W. in the matter of M.W. v. S.W., Civil Action
No. **-*-**, which was before the Family Court of Kanawha County, West Virginia.
Due to the sensitive facts of this case, I protect the identities of the biological parents
and the minor Plaintiff involved by using their initials rather than full names. See In
re Guardianship of K.W., 813 S.E.2d 154, 156, n.1 (W. Va. 2018). The identity of the
biological parents of Z.W. is known by all parties. The names of the biological parents
are abbreviated in the pleadings and are redacted in the supporting documents to
assist in protecting the identity of Z.W. The case number of the relevant Family Court
proceeding has also been redacted to assist in protecting the identity of Z.W.
1
2
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Before living with the Chandlers, Z.W. was raised by her paternal greatgrandparents. In 2011, the grandparents petitioned the Kanawha County Family
Court for guardianship of Z.W. The Family Court Judge appointed a Guardian Ad
Litem to represent the best interest of Z.W. and, based on an extensive investigation,
the Guardian Ad Litem recommended that the Court grant permanent custody to the
grandparents. See Report of Guardian Ad Litem, Ex. 1 [ECF No. 56–2] (sealed). When
the grandparents developed health issues and were no longer able to care for Z.W.,
they filed a Petition for Modification of the guardianship so that the Chandlers could
replace them as guardians. The Chandlers became interveners in the guardianship
proceeding and were granted guardianship through a Temporary Order on July 16,
2015. See Temporary Order for Immediate Entry (July 16, 2015), Ex. 2 [ECF No. 56–
3] (sealed). On March 10, 2016, Z.W.’s biological mother sought to have the
guardianship set aside. See Amend. Temporary Order for Immediate Entry (March
10, 2016), Ex. 3 [ECF No. 56–4] (sealed). The family court maintained guardianship
with the Chandlers and amended its July 2015 Order. See id. The parties again came
before the family court on March 6, 2017. On that date, the family court entered
another Temporary Order, maintaining the guardianship of Z.W. with the Chandlers.
See Temporary Order for Immediate Entry (March 6, 2017), Ex. 5 [ECF No. 56–6]
(sealed).
II.
Legal Standard
Dismissal for lack of standing may be properly raised as a motion to dismiss
for lack of subject matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1).
3
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See White Tail Park, Inc. v. Stroube, 413 F.3d 451, 459 (4th Cir. 2005). “Subject
matter jurisdiction defines a court’s power to adjudicate cases or controversies—its
adjudicatory authority—and without it, a court can only decide that it does not have
jurisdiction.” United States v. Wilson, 699 F.3d 789, 793 (4th Cir. 2012). A motion to
dismiss under Rule 12(b)(1) tests the court’s subject-matter jurisdiction over a
plaintiff’s claim. The plaintiff bears the burden of establishing that subject-matter
jurisdiction exists. Evans v. B.F. Perkins Co., 166 F.3d 642, 647 (4th Cir. 1999). In
deciding a Rule 12(b)(1) motion, “the district court is to regard the pleadings as mere
evidence on the issue, and may consider evidence outside the pleadings without
converting the proceeding to one for summary judgment.” Id. (quoting Richmond,
Fredericksburg & Potomac R.R. Co. v. United States, 945 F.2d 765, 768 (4th Cir.
1991)). It must, however, “view[ ] the alleged facts in the light most favorable to the
plaintiff, similar to an evaluation pursuant to Rule 12(b)(6).” Lovern v. Edwards, 190
F.3d 648, 654 (4th Cir. 1999). Dismissal under Rule 12(b)(1) is proper “only if the
material jurisdictional facts are not in dispute and the moving party is entitled to
prevail as a matter of law.” Evans, 166 F.3d at 647 (quoting Richmond,
Fredericksburg & Potomac R.R., 945 F.2d at 768).
III.
Discussion
“The jurisdiction of the court depends upon the state of things at the time of
the action brought.” Grupo Dataflux v. Atlas Glob. Grp., L.P., 541 U.S. 567, 570
(2004). I must therefore evaluate whether Plaintiffs had standing to bring this case
at the time of filing. See id. In order to bring any action in federal court, a plaintiff
must have standing. That is, a plaintiff must have a sufficient personal stake in the
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outcome of the matter being litigated to make it justiciable under U.S. Const. Art. III.
See Lujan v. Defs. of Wildlife, 504 U.S. 555, 559 (1992). To have standing, a plaintiff
must meet the following requirements: (1) the plaintiff must have suffered an “injury
in fact,” (2) the injury must be “traceable to the challenged action of the defendant,”
and (3) it must be “likely ... that the injury will be redressed by a favorable decision”
from the court. Id. Federal Rule of Civil Procedure 17(c) allows the following
representative to sue on behalf of a minor: “(A) a general guardian; (B) a committee;
(C) a conservator; or (D) a like fiduciary.” Fed. R. Civ. P. 17(c)(1). Only when a minor
child “does not have a duly appointed representative” may the minor sue by a next
friend or by a guardian ad litem. Fed. R. Civ. P. 17(c)(2). Here, Defendants do not
contest Z.W.’s standing to sue. Defendants contest only the standing of the Chandlers
to sue on Z.W.’s behalf pursuant to Rule (17)(c).
The dispute in this case turns on whether the Chandlers were the legal
guardians of Z.W. at the time that they filed this lawsuit on her behalf. The parties
generally agree—at least for the purposes of this Motion—as to the facts surrounding
guardianship. The parties agree that on March 6, 2017 the family court entered a
Temporary Order for Immediate Entry that granted guardianship of Z.W. to the
Chandlers. See Defs.’ Mem. of Law in Supp. of Mot. to Dismiss [ECF No. 55] 2–3; see
Temporary Order for Immediate Entry (March 6, 2017), Ex. 5 [ECF No. 56–6]
(sealed). The parties also agree that no other subsequent orders regarding the
Chandlers guardianship of Z.W. have been entered. The parties, however, disagree
on the meaning and effect of that Temporary Order. Defendants argue that the
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Temporary Order entered March 6, 2017 granted temporary guardianship, which in
West Virginia remains in place only for a period of six months—meaning that the
Chandlers guardianship expired on September 6, 2017. See Defs.’ Mem. of Law in
Supp. of Mot. to Dismiss [ECF No. 55] 5. Plaintiffs maintain that the March 2017
Order granted permanent guardianship. Pls.’ Resp. [ECF No. 57] 6. I agree with
Defendants’ interpretation.
“Statutory law, specifically West Virginia Code section 44-10-3, governs the
appointment of guardians” in West Virginia. Terrence E. v. Christopher R., 842
S.E.2d 755, 761 (W. Va. 2020). Specifically, West Virginia Code section 44-10-3(f)
provides that:
[t]he court may appoint a guardian for a minor if the court
finds by clear and convincing evidence that the
appointment is in the minor’s best interest and: (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.
W.Va. Code § 44-10-3(f); see also id. If the factors enumerated in subsection (f) are
not present, or have not been considered, the resulting guardianship is temporary in
nature:
Whether or not one or more of the conditions of subsection
(f) have been established, the court may appoint a
temporary guardian for a minor upon a showing that an
immediate need exists or that a period of transition into
the custody of a parent is needed so long as the
appointment is in the best interest of the minor. The
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temporary guardian has the authority of a guardian
appointed pursuant to subsection (f) but the duration of the
temporary guardianship may not exceed six months. A
temporary guardianship may be extended beyond six
months upon further order of the court finding continued
need in the best interest of the minor. W. Va. Code § 44-103(g).
W. Va. Code § 44-10-3(g); see also Terrence E., 842 S.E.2d at 761. In Terrence E., the
Supreme Court of Appeals of West Virginia held that because an order did “not
reference any of the statutory factors for the appointment of a guardian enumerated
by subsection (f)” the court “must presume that the appointment of the Guardians to
serve in that capacity was temporary, pursuant to subsection (g).” Id. The court then
emphasized that “pursuant to West Virginia Code section 44-10-3(g), ‘the duration of
the temporary guardianship may not exceed six months,’ although ‘[a] temporary
guardianship may be extended beyond six months upon further order of the court
finding continued need in the best interest of the minor.’” Id. (citing W Va. Code §4410-3(g)). The court therefore found in that case that the guardianship at issue was
limited to a six-month timeframe. See id.
In this case, I find that the Temporary Order entered on March 6, 2017 granted
a temporary guardianship to the Chandlers. Reconciliation of the status of
guardianship regarding Z.W. should be resolved by the state courts. Here on its face,
the Temporary Order presented to the court must be interpreted under West Virginia
law as creating a temporary guardianship. Like the guardianship order in Terrance
E, the Temporary Order in this case does not include any reference to the “statutory
factors for the appointment of a guardian enumerated by subsection (f).” See
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Temporary Order for Immediate Entry (March 6, 2017), Ex. 5 [ECF No. 56–6]
(sealed). Accordingly, like in Terrance E, I must presume that the appointment of the
Chandlers through the Temporary Order was temporary, pursuant to subsection (g).
See Terrence E., 842 S.E.2d at 761.
Plaintiffs argue that the transcript of the hearing provides context for
interpreting the family court’s Temporary Order entered March 6, 2017 and that the
transcript demonstrates the court’s intent to award permanent guardianship to the
Chandlers. The Supreme Court of Appeals of West Virginia, however, has repeatedly
recognized that “[i]t is a paramount principle of jurisprudence that a court speaks
only through its orders.” Terrence E., 842 S.E.2d at 762 (quoting Legg v. Felinton,
637 S.E.2d 576, 581 (W. Va. 2006)). In Terrence E., the Supreme Court of Appeals of
West Virginia explicitly declined to consider the circuit court’s oral statements
preceding its written ruling and instead relied “solely upon the circuit court’s written
order as that is the ruling that controls and definitively announces the court’s
decision to establish a guardianship” Id. So too here, I am limited to the actual order
entered by the court.
As
previously
stated,
§ 44-10-3(g)
explicitly
states
that
temporary
guardianships expire after six months, except when extended through an order by
the court. Plaintiffs in this case do not provide any evidence that the Temporary
Order entered March 6, 2017 was extended. Pursuant to decree by statute, the
Chandlers’ guardianship of Z.W. awarded in that Temporary Order expired on
September 6, 2017. The Chandlers filed this lawsuit on August 23, 2019, well after
8
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the termination of their guardianship under the Temporary Order. Plaintiffs do not
provide any other evidence to the court of additional orders that would confer
guardianship of Z.W. to the Chandlers. Nor do Plaintiffs indicate that the Chandlers
meet Rule17(c)’s requirements to sue on behalf of Z.W. in some other capacity, besides
guardianship. See Fed. R. Civ. P. 17(c)(2). Accordingly, I find that the Chandlers did
not have standing to sue on Z.W.’s behalf at the time this suit was initiated. This
court thus lacks subject matter jurisdiction. Defendants’ Motion to Dismiss pursuant
to Federal Rule of Civil Procedure 12(b)(1) is GRANTED.
IV.
Conclusion
Defendants’ Motion to Dismiss, [ECF No. 54], is GRANTED. The court
DIRECTS the Clerk to send a copy of this Order to counsel of record and any
unrepresented party.
ENTER:
9
July 30, 2020
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