In Re: L.H. AND In Re: L.H. and I.H.
County No. 14-JA-275K, 14-JA-276K)
case arises out of child abuse and neglect proceedings. The
Mother of two infant children, M.H. ("Mother"),
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"). 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"),  who had cared for the child rather than in
the custody of his biological father, R.E. ("Father
1"),  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")and the Department of Health and Human
Resources ("DHHR") 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.
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.
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.
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.
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
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.
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.
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.
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
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.
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
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.
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
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.
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.
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.
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.
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.
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.
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
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 ...