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In re Guardianship of A.C.

Supreme Court of West Virginia

November 8, 2017


          Submitted: October 11, 2017

         Appeal from the Circuit Court of Berkeley County The Honorable Michael D. Lorenson, Judge Civil Action No. 16-CIG-19

          Kimberley D. Crockett, Esq. Crockett Law Guardian ad Litem for A.C. Falling Waters, West Virginia Counsel for the Petitioner

          Patrick Morrisey, Esq. Attorney General Lee Niezgoda, Esq. West Virginia Department of Health Human Resources Fairmont, West Virginia Counsel for the Respondents

          Ashton Bias, Esq. Lynn Ranson Law Offices Charleston, West Virginia Guardian ad litem for Father, K.W.

          E.B., pro se Respondent


         1. "When this Court reviews challenges to the findings and conclusions of the circuit court, a two-prong deferential standard of review is applied. We review the final order and the ultimate disposition under an abuse of discretion standard, and we review the circuit court's underlying factual findings under a clearly erroneous standard." Syl. Pt. 1, McCormick v. Allstate Ins. Co., 197 W.Va. 415, 475 S.E.2d 507 (1996).

         2. "'"The exercise of discretion by a trial court in awarding custody of a minor child will not be disturbed on appeal unless that discretion has been abused; however, where the trial court's ruling does not reflect a discretionary decision but is based upon an erroneous application of the law and is clearly wrong, the ruling will be reversed on appeal." Syllabus point 2, Funkhouser v. Funkhouser, 158 W.Va. 964, 216 S.E.2d 570 (1975), superseded by statute on other grounds as stated in David M. v. Margaret M., 182 W.Va. 57, 385 S.E.2d 912 (1989).' Syl. Pt. 1, In re Abbigail Faye B., 222 W.Va. 466, 665 S.E.2d 300 (2008)." Syl. Pt. 2, In re Antonio R.A., 228 W.Va. 380, 719 S.E.2d 850 (2011).

         3. "Pursuant to the plain language of W.Va. Code § 44-10-3(a) (2006) (Supp. 2007), the circuit court or family court of the county in which a minor resides may appoint a suitable person to serve as the minor's guardian. In appointing a guardian, the court shall give priority to the minor's mother or father. 'However, in every case, the competency and fitness of the proposed guardian and the welfare and best interests of the minor shall be given precedence by the court when appointing the guardian.' W.Va. Code § 44-10-3(a)." Syl. Pt. 6, In re Abbigail Faye B., 222 W.Va. 466, 665 S.E.2d 300 (2008).



         This is an appeal by a twelve-year-old girl, A.C., [1] through her guardian ad litem, Kimberley D. Crockett (hereinafter "the Petitioner"). The Petitioner contends the Circuit Court of Berkeley County erred in awarding guardianship of A.C. to her grandmother, A.H. The Petitioner argues the circuit court's placement of A.C. is not in her best interests and fails to include an appropriate evaluation of the Guardianship Screening Factors enumerated in Rule 10 of the West Virginia Rules of Practice and Procedure for Minor Guardianship Proceedings. Upon this Court's review of the parties' arguments, the record presented for appellate consideration, and pertinent authorities, we reverse the decision of the circuit court and remand this case for further proceedings consistent with this opinion.

         I. Factual and Procedural History

         The child's mother, T.C., died of a heroin overdose in the presence of the child on February 24, 2016. In March 2016, E.B., the godmother of A.C. and a resident of Florida, filed a petition for guardianship of A.C. The mother and E.B. had been friends since childhood, and the mother and child had lived with E.B. in 2005-06 and again in 2015. E.B.'s request for guardianship included a "Temporary Guardianship Agreement" executed by A.C.'s mother in August 2012, naming E.B. as A.C.'s custodian "[f]or as long as necessary." E.B. testified that the mother had executed the agreement to provide for A.C.'s care and that "[i]f anything ever happened to her, she wanted me to take care of [A.C.]." According to the "Report and Recommendation of Guardian ad Litem, " the child's father also contacted E.B. immediately after the death of the child's mother requesting that she seek custody of the child. E.B. left Florida to come to West Virginia within hours of the mother's death.

         A.C.'s father, K.W., did not know of her existence until she was five years old and was incarcerated for most of her life. He was released from prison in 2016 after serving a sentence of eight and one-half years for conspiracy to deliver a controlled substance. After her mother's death in 2016, A.C. lived in a home with her grandmother A.H., great-grandparents, and another man who was a boyfriend of A.C.'s aunt and a registered sex offender.

         On March 8, 2016, the Petitioner was appointed as guardian ad litem for the child, and the Department of Health and Human Resources (hereinafter "the DHHR") received a referral from the circuit court, providing as follows: "Court ordered assessment, 16-JAA-18, Mother notarized temporary guardianship in 2012. Mother is deceased and child's father is incarcerated." According to the DHHR, it completed a family functioning assessment focusing on the biological father and the petitioning godmother, E.B. It found no maltreatment by the father and found that appropriate provisions had been made for the care of the child in the father's absence. The DHHR had no further involvement in the case until it received a referral from the Petitioner in October 2016 regarding possible drug abuse in the home, and it did not ultimately find any maltreatment of the child.

         The child's grandmother, A.H., also filed a petition seeking guardianship of the child on March 14, 2016. In her petition, she included a "Temporary/Permanent Guardianship Agreement" in which A.C.'s father, while still in prison, had granted guardianship rights of A.C. to her grandmother, A.H., with specified dates of March 20, 2016, to December 12, 2016.

         Subsequent to extensive investigation in her role as guardian ad litem, the Petitioner recommended that the child be placed with E.B., the godmother, with whom the child had previously lived for substantial periods of time. The Petitioner based her recommendation, in part, upon the Guardianship Screening Factors enumerated in Rule 10 of the Rules of Practice and Procedure for Minor Guardianship Proceedings.[2] The Petitioner found that A.H. would not be a fit guardian for the child based upon various concerning factors such as A.H. permitting a sex offender to reside in the home with her and the child; abusing alcohol, driving on a revoked license subsequent to two DUI convictions; driving while intoxicated; and permitting other family members who abused illegal substances to live in the home.

         On April 27, 2016, the circuit court held an evidentiary hearing and conducted an in-camera interview with A.C. and the Petitioner. A.C., age eleven at that time, [3] informed the circuit court that she had been repeatedly and frequently exposed to alcohol and drug abuse in A.H.'s home and that A.H. was "drunk all the time, " allowed drug use in the home, and had not attempted to prevent A.C.'s mother from abusing drugs. A.C. specifically stated that she did not want to live in the home with A.H. because her mother had died in the home and the family abused drugs there. She further explained she would prefer to live with E.B., felt safe in E.B.'s home, had previously attended school there, and had personal possessions in E.B.'s home. A.C. informed the circuit court that A.H. had pressured her to testify that she wanted to remain with A.H. in West Virginia. A.C. also testified that her grandmother drove a vehicle while intoxicated.

         A.C.'s cousin, J.S., age nineteen, testified that A.H. was not a fit parent and had physically attacked J.S. after she read a report by the Petitioner regarding A.H.'s alleged unfitness for guardianship. J.S. also testified that she had witnessed A.H. driving her vehicle with the child in the car on ...

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