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In re K.R.

Supreme Court of West Virginia

April 9, 2018

In re K.R. and J.R.

          Wood County 15-JA-54 and 55

          MEMORANDUM DECISION

         Petitioners R.J.-1 and R.J.-2, the children's maternal grandparents, by counsel Judith A. McCullough, appeal the Circuit Court of Wood County's October 20, 2017, order denying them placement of K.R. and J.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"), Katrina M. Christ, filed a response on behalf of the children in support of the circuit court's order. Father S.R., by counsel Wells H. Dillon, filed a response in support of the circuit court's order. On appeal, petitioners argue that the circuit court erred in denying them an evidentiary hearing on their motion concerning their alleged status as psychological parents and in denying them the opportunity to participate in the children's in camera interviews.[2]

         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 April of 2015, the DHHR filed an abuse and neglect petition against the mother and her husband that alleged they subjected the children to domestic violence. These allegations stemmed, in part, from an incident in which the husband physically attacked the mother and brandished a knife while he threatened to kill her, all in the children's presence. As the petition related to the father, it indicated that, due to his incarceration, he received no parenting time with the children following the parents' divorce in 2012. However, the family court that entered the final divorce decree indicated that the father could petition to amend the parenting plan upon his release and completion of certain services. During the abuse and neglect proceedings, the DHHR did not make allegations against the father, although he was not considered for placement upon the children's initial removal from the mother. At that time, the children were placed with the maternal grandparents, petitioners herein.

         During an adjudicatory hearing in July of 2015, the circuit court ordered that the father have additional visitation with the children, including overnight visits, in order to facilitate the children's gradual transition from petitioners' home to that of the father. In August of 2015, petitioners filed a motion to intervene and for custody. In support, petitioners alleged that they were the children's psychological parents and requested that the circuit court reconsider its prior order transitioning custody to the father.

         In September of 2015, the circuit court held a hearing on petitioners' motion and ultimately found that they did not qualify as the children's psychological parents. The circuit court further ordered that petitioners be provided notice of all future multidisciplinary team meetings and the opportunity to attend the same, but did not permit them to remain present when issues specific to the parents were addressed. The circuit court also declined to transfer full custody of the children to the father at this time because of concerns over requiring the children to change schools while the mother was participating in an improvement period. It did, however, award the father overnight visits every weekend. Following this order, the DHHR and the guardian both reported that petitioners did not wish to facilitate a relationship between the father and the children and created issues with allowing visits as ordered.

         In June of 2016, the circuit court awarded custody of the children to the mother, following her successful completion of her improvement period. Thereafter, the father filed a motion for contempt that alleged the mother refused him visits with the children as ordered. However, prior to a hearing on the motion, the mother died.[3] Subsequent to the mother's death, petitioners refused the father visitation. They further obtained a temporary protective order in the Magistrate Court of Ritchie County to prohibit the father from having contact with the children. In support of their petition for a protective order, petitioners alleged that the father murdered the mother and that K.R. was afraid of him.[4] The Family Court of Ritchie County eventually denied the protective order after the court became aware of the pending abuse and neglect proceedings in the Circuit Court of Wood County.

         In May of 2017, petitioners renewed their motion for intervention and custody of the children and alleged the children did not wish to live with the father. Petitioners again asserted their status as psychological parents in support of these motions. Petitioners also filed a motion to modify the circuit court's prior dispositional order. That same month, the circuit court held a hearing on the motions, at which time petitioners also moved to remove the guardian on the grounds that he previously represented the father in an unrelated matter. The circuit court granted petitioners' motion to intervene and to replace the guardian, although it did not rule on petitioners' remaining motions.

         In July of 2017, the circuit court held a hearing during which it encouraged the parties to come to a resolution on custody through mediation. After these efforts failed, the circuit court issued a temporary order directing that the children receive counseling, the father receive increased visitation, and the parties report on the status of a final parenting plan in September of 2017. Thereafter, the guardian filed a motion that alleged the current parenting plan was no longer in the children's best interest and asked that the children be permitted to speak with the circuit court concerning the plan. The following month, the guardian filed a report that recommended the children be placed with the father, with petitioners receiving visitation as long as they cooperated.

         In October of 2017, the circuit court held a hearing on the guardian's motion and conducted in camera interviews with both children. The circuit court then issued an order addressing the children's placement and reiterating that the father was never found to be an abusing parent. The circuit court also reiterated that petitioners did not qualify as the children's psychological parents. The circuit court further noted that it had been two years since it ordered that the children be transitioned into the father's home and that a "principal factor" in the failure to achieve such transfer was "[petitioners] and their lack of co-operation in effecting such gradual transition." Ultimately, the circuit court awarded the father full custody and required petitioners to file a motion for visitation if they sought the same so that visitation did not "substantially interfere with the parent-child relationship." It is from the resulting order that petitioners appeal.

         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). Upon our review, the Court finds no error in the proceedings below.

         First petitioners argue that the circuit court erred in denying them an evidentiary hearing on their May of 2017 motion to be named the children's psychological parents.[5] The Court, however, finds that petitioners are entitled to no relief in this regard because (1) the record shows that the circuit court granted them an evidentiary hearing on their status as psychological parents pursuant to their August of 2015 motion and (2) petitioners failed to preserve the issue for appeal. As noted above, petitioners filed two separate motions asserting their status as psychological parents. Following the first motion, the circuit court held an evidentiary hearing in September of 2015.[6] According to the record, the circuit court ruled that "the evidence did not establish [petitioners] are psychological parents of ...


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