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In re L.H.

Supreme Court of West Virginia

November 7, 2017

In Re: L.H. AND In Re: L.H. and I.H.

         (Raleigh County No. 14-JA-275K, 14-JA-276K)


         This case arises out of child abuse and neglect proceedings. The Mother of two infant children, M.H.[1] ("Mother"), [2] appeals from an order entered on December 29, 2016, wherein the Circuit Court of Raleigh County awarded permanent subsidized guardianship of the children to others with reasonable visitation for Mother. Infant I.H. was placed in the custody of her paternal grandmother, P.H. ("Grandmother").[3] E.H., the Father of I.H. ("Father 2"), did not appeal the award of permanent guardianship with visitation. Infant L.H. was placed in the custody of non-related intervenors, C.F. and H.F. ("Standing Grandparents"), [4] who had cared for the child rather than in the custody of his biological father, R.E. ("Father 1"), [5] against whom no allegations of abuse and neglect were made. Father 1 appeals the order insofar as it divested him of custody of L.H. and granted him only undefined reasonable and seasonable visitation rights. The Guardian ad litem ("Guardian")[6]and the Department of Health and Human Resources ("DHHR")[7] submit that the order of subsidized guardianship as to both children was in error and further support placement of L.H. with his fit biological father, Father 1. Standing Grandparents, joined by Grandmother, argue that the findings and conclusions of the circuit court should be affirmed.

         Upon our review of the parties' arguments, the appendix record, and the pertinent authorities, we find that the circuit court erred by ordering that infant L.H. be placed in the home of a non-relative third party rather than in the custody of his non-offending biological father, Father 1, against whom no allegations of abuse and neglect were made. We also find that it is in the best interest of L.H. to have a change of placement managed in accordance with a properly developed transitional plan, and, once transition is accomplished, to continue to maintain his relationship with Standing Grandmother such that reasonable visitation must be afforded. Accordingly, we reverse and remand this case for further hearings consistent with the findings and directions announced herein. Furthermore, in consideration of the Rule 11(j) update material submitted to this Court, we find that the parental rights of Mother to L.H. and I.H. must be, and they hereby are, terminated inasmuch as there is no reasonable likelihood that the conditions of abuse and neglect can be substantially corrected in the near future. Additionally, in consideration of the Rule 11(j) update material, this Court directs the circuit court to immediately convene a hearing to determine whether the parental rights of the biological father of I.H., Father 2, should be terminated. Because this case does not present a new or significant issue of law, and for the reasons set forth herein, we find this case satisfies the "limited circumstances" requirements of Rule 21(d) of the West Virginia Rules of Appellate Procedure and is proper for disposition as a memorandum decision.

         On December 8, 2014, a Petition to Institute Child Abuse and Neglect Proceedings was filed by DHHR seeking, among other things, custody of two infant children: L.H., born in 2010, and I.H., born in 2014. According to the Petition, DHHR received a referral on December 1, 2014, that the Mother of both children was a hospital patient who had given birth to baby girl I.H. while testing positive for THC, cocaine, and opiates. It also was reported that Mother may be homeless and that her other child, L.H., was "bounced" from family member to family member. It further was asserted that Mother admitted to drug addiction, using illegal drugs during the course of her pregnancy with I.H., and taking the narcotic "roxy 30" the day she went into labor. Subsequently, it was learned that baby I.H. was suffering from withdrawal. The DHHR worker also interviewed Father 2, who admitted knowing that Mother abused drugs during the pregnancy and that she had made an unsuccessful attempt at detox. DHHR further asserted that Standing Grandmother reported that she had provided care for L.H. since birth, less approximately an eight-month period when Mother cared for L.H. Standing Grandmother indicated that Mother provided no financial support for L.H. and went long periods of time without contact. No allegations were made against L.H.'s father, Father 1, who lived in Arizona.

         Thereafter, the circuit court entered an order finding the children to be in imminent danger and transferring their custody to DHHR. The Court further directed that a multidisciplinary team meeting ("MDT") be convened. Finally, a Guardian ad litem was appointed for the children, and counsel was appointed for Mother, Father 2, and Father 1.

         On December 22, 2014, at the preliminary hearing, Standing Grandparents filed a Petition to Intervene as to L.H. together with a Motion to Dismiss the Abuse and Neglect Petition as to L.H. Standing Grandparents also filed a motion seeking custody of L.H., which included a draft petition for adoption and name change with exhibits consisting of a prepared typed and notarized document styled "Unconditional Relinquishment and Consent for Adoption" supporting their adoption of L.H., which had been executed by Mother on December 5, 2014. An additional exhibit consisted of a copy of a handwritten, notarized document regarding L.H. dated February 11, 2013, signed by Father 1 and representing that Father 1 "grant[s] guardianship to [Standing Grandparents] [unreadable] them to undertake full financial and medical responsibilities in the absence of my presence." The note further stated that Standing Grandparents "have been [L.H.'s] standing grandparents since his birth. Again, I grant [them] guardianship in the absence of my presence." Counsel for Standing Grandparents was permitted to appear at the preliminary hearing.[8]

         Among other things, at the preliminary hearing, the circuit court was informed that DHHR had placed I.H. with Grandmother and had placed L.H. with Standing Grandparents because "the child was there, " and no allegations had been made against them. In regard to Standing Grandparents, the court remarked that it "sensed" that "perhaps" they were psychological grandparents to L.H. As to Father 1, the circuit court commented: "I know this is somewhat unusual. . . . I would like to have a home study done . . . the unusual aspect is, he is the biological father, but he lives in Arizona. And the Court doesn't feel entirely comfortable . . . making any kind of transition unless I have a home study done." The order reflecting the preliminary hearing concluded there was probable cause to proceed against Mother and Father 2, and that custody of both children with DHHR was proper. Further, an Interstate Compact Placement Agreement ("ICPC") home study of Father 1 in Arizona was ordered. The motion of Standing Grandparents to intervene was denied as premature.

         An adjudicatory hearing was held on February 11, 2015. Mother and Father 2 filed voluntarywritten stipulations admitting abuse and neglect of the respective children and both requested six-month post-adjudicatory improvement periods. By order entered on March 24, 2015, the circuit court found that Mother had abused and neglected I.H. and L.H. and that Father 2 had abused and neglected I.H. A six-month improvement period, including rehabilitation treatment and drug testing, was ordered for both parents.

         On April 22, 2015, Standing Grandparents filed a Renewed Petition to Intervene as of Right regarding L.H. contending that they had been the primary custodians of L.H. since he was about two months old. They further argued that Father 1 had relinquished his rights to the child by granting them guardianship of L.H. in February 2013, and by abandoning L.H. due to failing to maintain contact or provide financial support. Father 1 responded in opposition to the motion to intervene arguing that he was a non-offending father and had undergone a positive home study. He further denied relinquishing his rights to L.H. or that he had abandoned his son. Father 1 additionally claimed that the February 2013 document was written and signed in response to being told that Standing Grandparents were babysitting L.H. frequently. He claimed that he wanted to ensure his son's health and safety in the "absence of his presence." Father 1 also stated that he had paid child support to Mother; had had multiple visits with his son from four hours to two weeks in duration; had spoken on the telephone with his son hundreds of times; had sent gifts; and asserted that as a fit, non-offending, biological father, he should have custody.

         An improvement period review hearing was held on May 1, 2015. The circuit court directed that the status quo continue. Following an improvement period hearing on July 22, 2015, the circuit court ordered DHHR to transport L.H. to Arizona for two weeks and to travel to Arizona for his return to West Virginia.

         On August 28, 2015, an improvement hearing was held during which the circuit court received information regarding Mother and Father 2's participation in rehabilitation programs. DHHR updated the circuit court as to L.H.'s visit with Father 1 in Arizona reporting that the child seemed happy, there were no incidents, and the child was able to do a lot of activities unavailable locally. DHHR, Mother, and the Guardian agreed that L.H. should be placed with his fit and non-offending father, Father 1, who sought to return to Arizona with his son. Over objection, the circuit court concluded that Standing Grandparents should be made intervenors subject to the control of the court. Additionally, the circuit court denied the request that Father 1 be permitted to return to Arizona with his son choosing, instead, to maintain the status quo and have a full hearing at a subsequent time.

         At a hearing on October 19, 2015, the circuit court was updated regarding participation by Mother and Father 2 in rehabilitation programs and granted their requests for three-month extensions to their improvement periods. The circuit court held an evidentiary hearing regarding L.H. and relied upon the evidence elicited at disposition. A licensed social worker with DHHR continued to recommend placement of L.H. with Father 1 based upon her visit to the Arizona home, meetings with Father 1's extended family, and because he is a fit, non-offending parent with his parental rights intact.

         The Guardian stated that "[m]yinvestigation of this case bytalking to this man [Father 1] convinces me beyond a shadow of a doubt that not only is he competent to take care of his own child, but he is a decent father, a military man, a person who can perfectly well take care of this child. There's absolutely nothing wrong with him." He indicated that he believed that Standing Grandparents were determined to prevent Father 1 from having his child and that they were sabotaging Father 1's efforts to obtain his child. Nevertheless, the Guardian recognized that L.H. had had an ongoing relationship with Standing Grandparents, and, therefore, there should be contact between them.

         Father 1 testified that he met Mother in late 2008 while he was in the military. They married in March 2009 and learned that Mother was pregnant in May 2009. In July 2009, he was deployed to Afghanistan. While deployed, Mother began a relationship with the son of Standing Grandparents. Father 1 was present for the birth of his son, L.H. The divorce of Father 1 and Mother was finalized in March 2010. Father 1 was stationed in Fort Bragg, North Carolina, where he remained until his honorable discharge in February 2011. He then moved to Arizona where his father, stepmother, and two younger sisters live. He is employed and has an associate of arts degree.

         While stationed at Fort Bragg, Father 1 obtained leave to visit baby L.H. on weekends pursuant to a court order which is not of record here. Upon moving to Arizona, and before the institution of the abuse and neglect proceedings, Father 1 made approximately six trips to visit L.H.; some of these trips were for periods of up to two weeks. Father 1 also stated that he maintained regular contact with Mother and paid child support, which was deducted from his check while he was in the military and thereafter deducted by his employers. Additionally, he noted that he paid money directly to Mother when she requested additional money, purchased gifts for L.H., and contributed money for a share of larger gifts. He also testified to making regular phone calls numbering in the hundreds to L.H.

         Father 1 stated that he believed that Standing Grandparents were regular and frequent babysitters who helped with childcare, but that L.H. lived with Mother. In August 2014, Father 1 first learned there might be problems when Standing Grandmother called to inform him that Mother was leaving L.H. with her for long periods of time without seeing the child. In December 2014, Standing Grandmother called and informed Father 1 that DHHR was involved. Father 1 immediately purchased a plane ticket and was in West Virginia the next day intending to return to Arizona with L.H. Father 1 met with the DHHR worker who filed the Abuse and Neglect Petition and learned that he had been described by Standing Grandmother as an absentee father who wanted nothing to do with his son; he disavowed the worker of that notion. The DHHR worker told him he could not take L.H. and would have to go through the court system. Since the start of the instant abuse and neglect proceedings, Father 1 testified that Standing Grandparents do not take all his calls to L.H. and make excuses as to why L.H. cannot talk to him.

         As to the document of February 11, 2013, Father 1 stated that Standing Grandparents contacted him stating that since they were babysitting L.H. often, they would like to have something that allowed them to make decisions for L.H. while he was in their care in case of an accident or a need for emergency treatment. Father 1 agreed and wrote the document on notebook paper without consulting an attorney. He stated that he did not intend for it to be either a relinquishment of his parental rights or a permanent or temporary transfer of physical or legal custody of L.H. Rather, he said that he believed that he was writing something sufficient for Standing Grandparents to make medical decisions regarding L.H. in the event of some emergency or accident.

         Father 2 testified that he and Mother began their relationship in late 2012. L.H. lived with Mother in her apartment but spent time with Standing Grandparents. In 2014, both he and Mother had problems with drug addiction, and L.H. began staying longer and longer periods of time with Standing Grandparents. The testimony of Father 2 was largely corroborated by his mother, Grandmother, who indicated that, by mid-2014, Father 2 and Mother were largely homeless and that L.H. was with Mother and Father 2 on and off.

         Standing Grandmother testified that, since the time of his birth, and despite having no biological relationship, she had never wavered from being a grandmother to L.H. Standing Grandmother met Mother in 2009 when Mother moved in with her son. After the birth of L.H., Mother started to work, and Standing Grandmother began watching L.H. during the work week. Mother left Standing Grandparents' son in November 2011, and, from that point on, Standing Grandmother stated that Mother left L.H. primarily with her; Mother would call or visit sporadically. Standing Grandmother stated that she bought L.H.'s clothing, cared for him when he was sick, and fed him. Standing Grandmother represented that, in 2013, L.H. was staying in her home some eighty to eighty-five percent of the time. By 2014, Standing Grandmother stated that L.H. was in her home virtually one hundred percent of the time. Standing Grandmother vigorously disputed Father 1's testimony regarding the frequency of his visits with L.H. and said that no gifts and no money were ever sent to her for the care of L.H., although she had seen receipts showing that Father 1 sent money to Mother. Finally, Standing Grandmother testified that Father 1 wrote the February 11, 2013, "standing grandparent" document after she informed him that Mother was in jail.

         Mother testified that, in 2011, she and L.H. lived together in an apartment while she attended college and worked full-time. She stronglydisagreed with Standing Grandmother's characterization of how much time L.H. spent in Standing Grandmother's care, testifying that L.H. stayed with Standing Grandmother only when Mother worked and attended classes. Mother reported that the situation remained about the same during 2012 and 2013 and that her parents also assisted in caring for L.H. She admitted that, for a period of approximately six weeks in 2013, she went to Louisiana and left L.H. with Standing Grandparents. Mother also admitted that things began to change in 2014 when she started using drugs and that Standing Grandmother offered to keep L.H. more. Mother further admitted that a few days after giving birth to I.H., while also suffering from addiction, she signed consent to adoption papers regarding L.H. She testified that she later learned that she might be able to go into treatment and keep her parental rights; thus, she did not want to proceed with adoption of L.H. Instead, Mother testified she wanted to work on her addiction problem and regain custody of her son. In the meantime, she stated that she believed it would be in the best interest of L.H. to be with Father 1 in Arizona. Mother additionally testified that Father 1 maintained communication with L.H. and continued to visit with him after he moved to Arizona. She confirmed that Father 1 paid child support and participated in gift giving.

         At the conclusion of the hearing, DHHR, the Guardian, and Mother all agreed that placement of L.H. should be physically and legally with Father 1 who was non-offending and fit. Instead, the circuit court concluded that Standing Grandparents were psychological parents, observed that Mother was a homeless drug addict since 2014, and found that Standing Grandparents provided L.H. the only safe and stable home he had known. Thus, the circuit court indicated that it was loath to remove L.H. from their care. The circuit court also concluded that Father 1 should have visitation with L.H. in Arizona. Finally, I.H. was to continue in the custody of Grandmother. The improvement periods of Mother and Father 2 were again extended.

         A review hearing was held on December 30, 2015. The DHHR social worker testified that L.H. had been to Arizona to visit his Father for two weeks at Thanksgiving, and no problems were encountered. I.H. continued in her placement with Grandmother, where she was growing, developing, and thriving. Mother remained in treatment, and her drug screen results were negative. Father 2 was enrolled in a treatment program. The improvement periods of Mother and Father 2 were extended and extended ...

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