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In re B.C.

Supreme Court of West Virginia

March 15, 2019

In re B.C., E.C., and G.C.

          (Mercer County 17-JA-083-MW, 17-JA-084-MW, and 17-JA-085-MW)

          MEMORANDUM DECISION

         Petitioner Grandmother S.L., by counsel Michael A. French, appeals the Circuit Court of Mercer County's September 13, 2018, order denying her permanent placement of B.C., E.C., and G.C.[1] The West Virginia Department of Health and Human Resources ("DHHR"), by counsel Brandolyn N. Felton-Ernest, filed a response in support of the circuit court's order. The guardian ad litem ("guardian"), Raeann Osborne, filed a response on behalf of the children in support of the circuit court's order. Respondent foster parent K.C., by counsel John E. Williams Jr., filed a response in support of the circuit court's order. On appeal, petitioner argues that the circuit court erred in removing the children from her custody and in denying her permanent placement of the children.[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 that the circuit court erred in removing the children from petitioner's custody on the basis of insufficient evidence, without appointing her an attorney, and without affording her an opportunity to be heard. This case satisfies the "limited circumstances" requirement of Rule 21(d) of the West Virginia Rules of Appellate Procedure, and a memorandum decision is appropriate to vacate and remand the matter.

          In March of 2017, petitioner was granted temporary guardianship of B.C., E.C., and G.C.[3] Later that month, the DHHR filed an abuse and neglect petition alleging that the parents of the children were abusing controlled substances and could not adequately parent the children. According to the DHHR, when the children were removed from their parents, they were suffering from various physical ailments that required constant oversight by their physicians. The petition did not include allegations against petitioner, nor was she named as a party or appointed counsel. However, the DHHR did allege that petitioner was the children's legal guardian and caring for the children at the time the petition was filed.

         In October of 2017, the circuit court held an emergency placement hearing following the removal of the children from petitioner's home. According to the DHHR and guardian, petitioner purposely failed to take the children to their required medical appointments and failed to reschedule those appointments. Petitioner was not present or represented by counsel during this hearing. The DHHR did not file an amended petition to include allegations against petitioner or present evidence regarding the allegations. Nevertheless, the circuit court approved the transfer of custody of the children to the maternal aunt. Thereafter, in February of 2018, the guardian filed a motion to remove C.C. from petitioner's custody on the basis that she failed to follow a court order to cooperate with the DHHR and the guardian. The circuit court appointed counsel to represent petitioner.

         In May of 2018, the circuit court heard evidence regarding the guardian's motion to remove C.C. from petitioner's custody.[4] The circuit court ruled that a multidisciplinary team ("MDT") meeting was in the best interest of all the children and ordered petitioner to participate in the meeting. The circuit court held a review hearing in June of 2018 and was advised that petitioner was "making progress." The DHHR proposed the maternal aunt's custody as permanent placement for B.C., E.C., and G.C. Petitioner filed a motion that opposed the DHHR's proposed permanency plan and requested for B.C., E.C., and G.C. to be placed in her custody permanently.

         In August of 2018, the circuit court held a dispositional hearing and the parents relinquished their parental rights to all of the children. Afterwards, the circuit court heard argument regarding the permanent placement of B.C., E.C., and G.C. The guardian expressed her support of the DHHR's permanency plan and moved to transfer the custody of C.C. to the maternal aunt in order to avoid sibling separation. Ultimately, the circuit court ordered that petitioner participate in a home study, ordered that B.C., E.C., and G.C. would remain with their maternal aunt and took the custody of C.C. under advisement pending petitioner's home study.

         The circuit court memorialized its decision in its September 13, 2018, order. Petitioner now appeals that order.[5]

         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).

         On appeal, petitioner argues that the circuit court erred in removing the children from her custody because the DHHR failed to establish that the children were in imminent danger while in her care. We agree with petitioner for reasons more fully detailed below. Additionally, as we find cause to remand this proceeding on the basis of petitioner's first assignment of error, we decline to address petitioner's second assignment of error at this time.[6]

         West Virginia Code § 49-4-602(c) describes the procedure for removal of a child during the pendency of an abuse and neglect case and provides as follows:

(c) Emergency removal by department during pendency of case. - Regardless of whether the court has previously granted the department care and custody of a child, if the department takes physical custody of a child during the pendency of a child abuse and neglect case (also known as removing the child) due to a change in circumstances and without a court order issued at the time of the removal, the department must immediately notify the court and a hearing shall take place within ten days to determine if there is imminent danger to the physical well-being of the child, and there is no ...

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