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In re Guardianship of K.W.

Supreme Court of West Virginia

May 10, 2018


          Submitted: April 10, 2018

          Appeal from the Circuit Court of Cabell County Honorable Alfred Ferguson, Judge Civil Action No. 16-FIG-16

          Michael S. Bailey, Esq. BAILEY LEGAL SERVICES, PLLC Barboursville, West Virginia Counsel for Petitioners

          Arik C. Paraschos, Esq. SAMMONS, OLIVERO & PARASCHOS Huntington, West Virginia Guardian ad Litem for K.W., M.W., and A.W.

          G.T. and D.T., pro se Respondents


         1. "Where the issue on an appeal from the circuit court is clearly a question of law or involving an interpretation of a statute, we apply a de novo standard of review." Syllabus Point 1, Chrystal RM. v. Charlie A.L, 194 W.Va. 138');">194 W.Va. 138, 459 S.E.2d 415 (1995).

         2. Consistent with the plain language of Rule 13 of the Rules of Practice and Procedure for Minor Guardianship Proceedings and Rule 48a of the Rules of Practice and Procedure for Family Court, once a family court removes an infant guardianship case to circuit court because the basis for the guardianship is, in part, abuse and neglect, the case, in its entirety, remains in circuit court and may not be remanded.

         3. "Rule 48a(a) of the West Virginia Rules of Practice and Procedure for Family Court requires that if a family court presiding over a petition for infant guardianship brought pursuant to W.Va. Code § 44-10-3 learns that the basis for the petition, in whole or in part, is an allegation of child abuse and neglect as defined by W.Va. Code [§ 49-1-201], then the family court is required to remove the petition to circuit court for a hearing thereon. Furthermore, '[a]t the circuit court hearing, allegations of child abuse and neglect must be proven by clear and convincing evidence.' West Virginia Rules of Practice and Procedure for Family Court 48a(a)." Syllabus Point 7, In re Abbigail Faye B., 222 W.Va. 466');">222 W.Va. 466, 665 S.E.2d 300 (2008).

         4. A temporary guardianship granted over the natural parents' objection based on substantiated allegations of abuse and neglect does not provide a permanent solution for child custody such that it obviates the need for an abuse and neglect petition.


          WALKER, JUSTICE.

         In this appeal we consider the validity of a family court order granting permanent guardianship of K.W., M.W., and A.W.[1] to their maternal grandparents, D.T. and G.T. The case was originally removed from family court to circuit court because the preceding petition for temporary guardianship was based on allegations of abuse and neglect. However, contrary to Rule 13 of the Rules of Practice and Procedure for Minor Guardianship Proceedings (Rule 13) as well as Rule 48a of the Rules of Practice and Procedure for Family Court (Rule 48a), which provide that once removed to circuit court, neither the matter, nor any portion of it, may be remanded back to family court, the circuit court remanded this case back to family court to proceed as a guardianship case rather than an abuse and neglect case. The circuit court reasoned that the case was unnecessarily removed to circuit court because the children were under the protection of a then-temporary guardianship order. L.W. and S.W., the biological parents, argue that the family court lacked subject-matter jurisdiction to grant the permanent guardianship because the matter was improperly remanded from the circuit court to family court. We conclude that because the allegations of abuse and neglect were substantiated, the circuit court erred in concluding that the temporary guardianship order negated the need for the abuse and neglect petition and therefore erred in remanding the matter to family court. Accordingly, the permanent guardianship order is vacated for want of subject-matter jurisdiction. We remand this matter to the circuit court for further proceedings under Chapter 49 of the West Virginia Code, with instructions that during the pendency of those proceedings, the children will remain in the temporary guardianship of their maternal grandparents unless the circuit court deems them unfit for that task.


         K.W., M.W., and A.W. are the biological children of Petitioners L.W. and S.W. In late April of 2015, L.W., the mother, filed a domestic violence petition against S.W., the father, and sought a protective order for herself and her three children. The mother's petition alleged that the father "shoved [her] forcefully into a wall in [their] home, " "grabbed the back of [her] neck and pushed [her] head to [her] chest, " and further stated that this incident was the latest of many episodes of physical violence throughout the history of their marriage. The Family Court of Cabell County granted the domestic violence protective order (DVPO) for a period of 180 days to expire November 2, 2015, and allowed the father to have supervised visitation with the three children. Shortly thereafter on May 18, 2015, a criminal complaint was issued against the father for violation of the DVPO because he went to the residence, pounded on the door, and repeatedly texted and called L.W. The following day, the mother filed a motion to modify the DVPO to suspend all visitation and to extend the terms until November 30, 2015. The family court granted that motion and appointed Arik Paraschos as Guardian ad Litem for the three children.

         Upon appointment, the Guardian ad Litem met and interviewed the mother. She provided a lengthy account, in writing, of the extensive and ongoing physical and emotional abuse in their home.[2] She recounted episodes when the father shoved her up against the wall while she was pregnant, and frequently pushed her, slapped her, and kicked her. She reported an incident when the father told her he was going to kill her and began choking her, but stopped when K.W. entered the room. The father was arrested for that incident, but his charges were reduced to disorderly conduct and he was sentenced to six months of probation and anger management classes. She also reported that even after undergoing anger-management classes, the father head-butted her in the face-breaking her nose-in front of their children, and choked her in front of them earlier that year. Despite multiple attempts at marriage counseling, the mother reported that the physical and emotional abuse was extensive and ongoing.

         As to her children, the mother indicated that the father previously slapped K.W. leaving a red handprint on her face and also slapped A.W. She also recounted that she saw the father cover K.W. and A.W.'s mouths and noses with his hand so as to smother them. She alleged that the father was verbally abusive to all three children, and was controlling and aggressive. Any time the mother attempted to step in to protect the children from his abuse, she reported that he would physically abuse her as well. The mother expressed considerable concern that the father had been very harsh, emotionally, to K.W. and caused many of the anxiety issues she suffered, and also detailed that her other children suffered from anxiety disorders, as well. She reported that K.W. and A.W. have suffered from mouth ulcers as a physical manifestation of their anxiety and stress, and that K.W. also suffers from insomnia. As a result of their anxiety issues, the mother reported that the children had been in and out of public school and homeschooled. All three children participate in counseling in an attempt to remedy the issues. These issues were exacerbated when visiting with their father in the duration of the DVPO, to the point that K.W. told her mother that she would "kill [herself] before [she would] visit with him again." The mother also stated to the Guardian ad Litem that she observed an obvious improvement in the physical, mental, and emotional health of all three children since they ceased contact with their father.

         The Guardian ad Litem also interviewed the children, all of whom indicated that they had no desire to have contact with their father. K.W. confirmed L.W.'s accounts of instances when she witnessed her father physically abusing her mother. She reported witnessing her father head-butt her mother, breaking her nose, recalled that her mother was often covered in bruises on her body, and stated that her father choked her mother until she was unconscious on more than one occasion. K.W. confirmed the abuse she suffered as well, including, specifically, that her father slapped her on multiple occasions, that he pinned her on a bed suffocating her with his chest and stomach, and that he held her down and covered her nose and mouth with his hand. K.W. also reportedly told the Guardian ad Litem that "she was sure her father would kill one of them eventually."

         The Guardian ad Litem reported that K.W. was reluctant to have contact with her mother because her mother had been physically abusive to her as well, and had been present for much of the abuse yet did nothing to stop it. K.W. reported that her mother hit her with a dowel rod and that she slammed her head on the table, which A.W. confirmed she witnessed. After a stint when the parents were separated, K.W. reported that she objected to them getting back together and her mother tackled her and struck her.

         A.W. reported that in the past, her father struck her with a dowel rod, struck her in the face, busted her lip, and hit her in the back of the head on several occasions. A.W. reported that often her mother was present for the abuse, but sometimes was not, and that she did not feel safe with her parents. M.W., the youngest child, reported that she saw her father push her mother against the wall and saw him choke her. M.W. expressed a desire to live with her mother, but also stated that she wanted to live with A.W., and A.W. would not live with their mother.

         In early August 2015, the father petitioned the family court to modify the protective order to grant him unsupervised visitation, which was denied. In late August, the mother filed a petition to terminate the DVPO because separate residences had been established and she no longer felt that there was a risk of violence. In response, the Guardian ad Litem presented his report attesting to the purported abuse that had been reported to him, and recommending that the children continue to have no contact with their father. The family court denied the petition to terminate the DVPO, but permitted the children to have visitation with their father if their therapist and the family court approved it. The family court did not refer the case to Child Protective Services (CPS) nor did it remove the case to circuit court as a cross-over case because the mother did not intend to expose the children to the father at that time.

         The mother filed for divorce on October 20, 2015, and Mr. Paraschos was appointed as Guardian ad Litem for those proceedings as well. Shortly thereafter, the parents reconciled and the divorce petition was voluntarily dismissed on March 9, 2016. Presumably aware that the parties were reconciling, D.T. and G.T., the children's maternal grandparents, filed a petition for guardianship just days before the divorce petition was dismissed, alleging that the children were in danger. The family court held an emergency hearing and granted the maternal grandparents temporary guardianship of the three children, finding that the father was a threat to his children and that the mother failed to protect them. Accordingly, it also imposed a no-contact order between the children and their parents. The family court, acknowledging that allegations of abuse and neglect formed the basis of the guardianship petition, removed the case to circuit court in accordance with Rule 48a and Rule 13, and made a referral to the Department of Health and Human Resources (DHHR).

         The circuit court directed DHHR to conduct an investigation and report its findings to the circuit court. DHHR substantiated that there had been maltreatment and impending danger and opened the case for ongoing CPS intervention. At a hearing on May 4, 2016, DHHR provided the circuit court with a summary of its findings and indicated that its petition for abuse and neglect had been previously submitted to the Cabell County Prosecuting Attorney's Office to be filed. During the hearing, the Guardian ad Litem recommended to the court that the matter be remanded to family court because the children were no longer in danger of abuse at the hands of their parents by virtue of the fact that they were presently in the custody of their grandparents. Counsel for DHHR indicated that she had serious concerns due to the extensive history of abuse, but conceded that "if the children are going to remain with the grandparents, then from the Department's perspective, I guess the abuse has been addressed. I just don't want a situation where they will be petition [sic] in the next year or two trying to move the children back with them saying things have changed."

         The circuit court concluded that the children were adequately protected by the family court's temporary order granting guardianship to the maternal grandparents and prohibiting contact with the parents. Therefore, finding that a petition for abuse and neglect was unnecessary, the circuit court concluded that the matter could be remanded back to family court for guardianship proceedings. The parents filed a motion for reconsideration arguing that remand to family court was inappropriate in light of the plain language of Rule 48a and Rule 13 prohibiting remand of any portion of a case when it had been removed to circuit court under those rules. The circuit court denied the motion. Accordingly, the CPS case worker informed the father that because the circuit court did not accept the case and it was being referred back to family court that CPS would no longer be ...

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