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In re S.R.

Supreme Court of West Virginia

June 19, 2017

In re: S.R.

         (Wood County 15-JA-196)

          MEMORANDUM DECISION

         Petitioner Father C.R., by counsel Andrew Shumate, appeals the Circuit Court of Wood County's October 17, 2016, order terminating his parental rights to S.R.[1] The West Virginia Department of Health and Human Resources ("DHHR"), by counsel Lee Niezgoda, filed a response in support of the circuit court's order. The guardian ad litem ("guardian"), Jessica E. Myers, filed a response on behalf of the child in support of the circuit court's order. On appeal, petitioner argues that the circuit court erred in finding that it had jurisdiction to hear this abuse and neglect matter.

         This Court has considered the parties' briefs and the record on appeal. The facts and legal arguments are adequately presented, and the decisional process would not be significantly aided by oral argument. Upon consideration of the standard of review, the briefs, and the record presented, the Court finds no substantial question of law and no prejudicial error. For these reasons, a memorandum decision affirming the circuit court's order is appropriate under Rule 21 of the Rules of Appellate Procedure.

         In March of 2015, petitioner and C.R.'s mother were divorced by the Common Pleas Court of Licking County, Ohio. Pursuant to their divorce decree, the mother was S.R.'s primary residential parent and petitioner was awarded visitation. In June of 2015, the mother filed a notice with the court of common pleas of her intent to relocate from her residence in Ohio to Parkersburg, West Virginia. Subsequently, the mother and S.R. relocated to Parkersburg, West Virginia, on or around June 14, 2015.

         In December of 2015, the DHHR filed an abuse and neglect petition alleging that petitioner sexually abused his child, S.R., then four years old. According to S.R.'s disclosures, petitioner took a "magic stick, " put it in her "tummy" and her "bum bum." S.R. stated that petitioner "stuck [the magic stick] in all the way, " and that the "magic stick" was painful and made her cry when he pulled it out. She also disclosed that petitioner hit her in the chest, and touched her in the shower and under her underwear. S.R. further disclosed that she was afraid of petitioner and did not want to go back to his home. Subsequently, the matter was scheduled for an adjudicatory hearing.

         Also in December of 2015, petitioner filed a motion to continue the adjudicatory hearing. The circuit court granted petitioner's motion and rescheduled the hearing. In February of 2016, petitioner filed a second motion to continue the adjudicatory hearing and that motion was also granted. In April of 2016, petitioner filed a third motion to continue the adjudicatory hearing and a motion to dismiss the abuse and neglect petition, alleging that the Circuit Court of Wood County lacked jurisdiction over the matter because S.R. had not been a resident of West Virginia for at least six months prior to the petition's filing on December 18, 2015.

         In May of 2016, the circuit court held a hearing addressing petitioner's motion to dismiss. The mother testified that she moved to West Virginia on approximately June 14, 2015 and that she and S.R. had resided in Wood County, West Virginia, continuously since that time. At the conclusion of the hearing, the circuit court declined to rule on petitioner's motion and indicated that it would contact the Common Pleas Court of Licking County, Ohio, to discuss the jurisdictional issue. In July of 2016, the circuit court issued a ruling on petitioner's motion to dismiss for lack of jurisdiction and found that it was "statutorily and ethically bound to continue to exercise jurisdiction over this case." The circuit court also noted that the Common Pleas Court of Licking County, Ohio, refused to accept jurisdiction over the proceeding and responded to the circuit court's inquiry regarding jurisdiction as follows: "under no circumstances could [it] accept the case [the circuit court is] now hearing."

         In August of 2016, the circuit court held an adjudicatory hearing wherein it adjudicated petitioner and found that he sexually abused S.R. The circuit court also found that S.R. was a credible witness and testified that petitioner sexually abused her. In October of 2016, the circuit court held a dispositional hearing. At the conclusion of the hearing, the circuit court found that petitioner's sexual abuse of S.R. constituted aggravated circumstances and the potential for further abuse or neglect was so great that the "use of resources to mitigate or resolve family problems or assist [p]etitioner in fulfilling his responsibilities to the child" was precluded. The circuit court also found that there was no reasonable likelihood petitioner could substantially correct the conditions of abuse and neglect and terminated his parental rights to the child by order dated October 17, 2016.[2] It is from that order that petitioner appeals.

         The Court has previously established the following standard of review:

"Although conclusions of law reached by a circuit court are subject to de novo review, when an action, such as an abuse and neglect case, is tried upon the facts without a jury, the circuit court shall make a determination based upon the evidence and shall make findings of fact and conclusions of law as to whether such child is abused or neglected. These findings shall not be set aside by a reviewing court unless clearly erroneous. A finding is clearly erroneous when, although there is evidence to support the finding, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed. However, a reviewing court may not overturn a finding simply because it would have decided the case differently, and it must affirm a finding if the circuit court's account of the evidence is plausible in light of the record viewed in its entirety." Syl. Pt. 1, In Interest of Tiffany Marie S., 196 W.Va. 223, 470 S.E.2d 177 (1996).

Syl. Pt. 1, In re Cecil T., 228 W.Va. 89, 717 S.E.2d 873 (2011).

         Petitioner's sole argument on appeal is that the circuit court erred in terminating his parental rights by finding that it had jurisdiction to hear the instant abuse and neglect matter.[3] In support of his argument, petitioner asserts that the child did not reside in the State of West Virginia for the six months preceding the filing of the abuse and neglect petition. We disagree. We have explained that "[w]hen more than one state becomes involved in determining the custody of a child, the Uniform Child Custody Jurisdiction and Enforcement Act, codified at W.Va.Code §§ 48-20-101 to -404 (2001) (hereinafter "UCCJA"), applies along with the Parental Kidnapping Prevention Act, 28 U.S.C. § 1738A (1994) (hereinafter "PKPA")." In West Virginia Department of Health and Human Resources ex rel. Hisman v. Angela D., 203 W.Va. 335, 342, 507 S.E.2d 698, 705 (1998), this Court recognized that the definition of "custody proceeding" within the UCCJA expressly includes abuse and neglect proceedings and further determined that "the PKPA is applicable to all interstate custody proceedings affecting a prior custody award by a different State, including [abuse, ] neglect and dependency proceedings." Id., (quoting In re Van Kooten, 126 N.C.App. 764, 769, 487 S.E.2d 160, 163 (1997)). We have further held that "[a] circuit court has jurisdiction to entertain an abuse and neglect petition and to conduct proceedings in accordance therewith as provided by [West Virginia Code § 49-4-601] et seq." Syl. Pt. 2, In re J.L., 234 W.Va. 116763 S.E.2d 654 (2014).

         For the purposes of determining whether a court in West Virginia has jurisdiction to make an initial custody determination, West Virginia Code § 48-20-201(a)(1) and (2) provide as follows:

(1) This state is the home state of the child on the date of the commencement of the proceeding, or was the home state of the child within six months before the commencement of the proceeding, and the child is absent from this state but a parent or person acting as a parent continues to live in this state; (2) A court of another state does not have jurisdiction under subdivision (1) of this subsection, or a court of the home state of the child has declined to exercise jurisdiction on the ground that this state is the more appropriate forum under section 20-207 or 20-208, and: (A) The child and the child's parents, or the child and at least one parent or a person acting as a parent, have a significant connection with ...

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