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In re T. M.

Supreme Court of Appeals of West Virginia

November 4, 2019

IN RE: T. M. AND S. M.

          Submitted: October 2, 2019

          Appeal from the Circuit Court of Webster County The Honorable Jack Alsop, Judge Case Nos. 17-JA-121 and 122

          Jared S. Frame, Esq. Sutton, West Virginia Attorney for Petitioner A. M.

          Howard Blyler, Esq. Cowen, West Virginia Attorney for Respondent B. M.

          Mary Elizabeth Snead, Esq. Webster Springs, West Virginia Guardian ad Litem for T. M. and S. M.

          Patrick Morrisey, Esq. Attorney General Melinda C. Dugas, Esq. Assistant Attorney General Charleston, West Virginia Attorneys for West Virginia Department of Health and Human Resources

         SYLLABUS

         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., McCormick v. Allstate Ins. Co., 197 W.Va. 415, 475 S.E.2d 507 (1996)." Syl. Pt. 1, In re S. W., 236 W.Va. 309, 779 S.E.2d 577 (2015).

         2. "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." Syl. Pt. 1, Chrystal R. M. v. Charlie A. L., 194 W.Va. 138, 459 S.E.2d 415 (1995).

         3. Pursuant to Rule 6 of the West Virginia Rules of Procedure for Child Abuse and Neglect Proceedings, the circuit court retains jurisdiction to oversee the custodial placement of children subject to abuse and neglect proceedings at the close of those proceedings, irrespective of the disposition of the petition under West Virginia Code § 49-4-604(b) (2019), as well as any future custody, visitation, or support proceedings. Only where a petition has been dismissed for failure to state a claim or children are returned to cohabitating parents may the family court regain jurisdiction for any future proceedings involving the children.

         4. The mandatory deferral of jurisdiction over the children involved in abuse and neglect proceedings to the circuit court necessarily requires the circuit court to make any custodial and decision-making allocations the family court was foreclosed from making if the children are reunified with parents, guardians, or custodians who are no longer cohabitating at the close of the proceedings.

         5. A circuit court is obligated to apply the factors and considerations set forth in West Virginia Code §§ 48-9-206 (2018) and -207 (2001) in allocating custodial and decision-making responsibilities when reunifying children subject to abuse and neglect proceedings with parents, guardians, or custodians who are no longer cohabitating at the close of the proceedings. Where findings of abuse and/or neglect have been established, the circuit court must further employ the mandatory considerations and procedures set forth in West Virginia Code § 48-9-209 (2016), in order to protect the children from further abuse and/or neglect.

          WORKMAN, J.

         This is an appeal by the non-offending mother, A. M. [1] (hereinafter "petitioner"), of the circuit court's dispositional order giving primary custody of the two children, T. M. and S. M., to respondent father B. M. (hereinafter "respondent"), following his successful completion of an improvement period in this abuse and neglect proceeding. The circuit court found that the award of primary custody to respondent was in the children's best interests based upon their expressed preference to reside with respondent and its conclusion that he provided a more stable environment for the children. Petitioner asserts that the circuit court erred in its placement determination and, in particular, improperly gave deference to the children's expressed preference where their preference allegedly did not rise to the level of "firm and reasonable" as characterized in West Virginia Code § 48-9-206(a)(2) (2018).

         Upon careful review of the briefs, the appendix record, the arguments of the parties, and the applicable legal authority, we find that the circuit court failed to give proper consideration to the custodial, decision-making, and limiting factors set forth in West Virginia Code §§ 48-9-206, 207, and 209 in making its custodial allocation upon dismissal of the abuse and neglect petition against respondent. We therefore reverse and remand with instructions for the circuit court to conduct an analysis of those factors and enter an order allocating custodial and decision-making responsibility which complies with the requirements of West Virginia Code §§ 48-9-206, 207, and 209. In so doing, the circuit court is further directed to ensure proper consideration of the children's preferences, as set forth more fully herein.

         I. FACTS AND PROCEDURAL HISTORY

         The Department of Health and Human Resources (hereinafter "DHHR") filed an abuse and neglect petition in December, 2017, against respondent after he overdosed on pills in an effort to commit suicide and threatened to "shoot up" anyone who approached his home. The children, T. M. and S. M. (then ages 10 and 13, respectively), were home at the time; petitioner and the children wrestled a rifle away from him and S. M. jumped on respondent's back to prevent him from retrieving a pistol from his vehicle. Respondent was apparently upset that petitioner had been involved with another man. After this incident, petitioner left the home, moving with the children into her mother's home, and respondent was hospitalized due to his overdose.

         Respondent admitted to all of the allegations in the petition and was adjudicated abusive and neglectful. He then began an improvement period, consisting of a "treatment program, "[2] and was apparently successful in the improvement period. At all times, petitioner was designated as a non-offending parent and, during the pendency of the proceedings, was given primary physical custody of the children, with visitation to respondent.

         During the course of the proceedings, petitioner moved from her mother's home to her sister's home because there was insufficient space at her mother's house. Subsequently, petitioner's boyfriend was apparently found to have been engaging in the solicitation of minors via the internet and was criminally charged. Although the record is not well-developed with regard to this issue, it appears that upon this discovery, petitioner separated from the boyfriend, but in a hearing before the circuit court lied about having continued contact with him.[3] Petitioner was convicted of a misdemeanor as a result of this misrepresentation and spent a night in jail, losing her job as a result.[4] Petitioner apparently subsequently left her sister's home and moved in with a different boyfriend in July, 2018 and lived with this boyfriend in his home at the time of the dispositional hearing.[5]

         During the course of the abuse and neglect proceedings, petitioner and respondent filed for divorce in family court. A divorce was granted in March, 2018, by the family court. By way of property settlement, petitioner gave up rights to the marital home, where she had lived with respondent for fifteen years, but kept a vehicle, camper, boat, and four-wheeler. With regard to the children, the family court order notes only that the circuit court had jurisdiction over them.

         Upon respondent's successful completion of his improvement period, the circuit court held a dispositional hearing on November 29, 2018. Testimony was taken from petitioner and respondent, the visitation supervisor, the children's therapist, and a Child Protective Services (hereinafter "CPS") representative. The children did not testify, nor did the court examine them in camera.

         Petitioner testified regarding the children's performance in school and their good relationship with her boyfriend. She testified that prior to her separation from respondent, she provided the majority of the caretaking for the children, despite both she and respondent working. She requested full custody, with the children residing with her during the week and spending weekends with respondent. She testified that she was not currently working and preferred to be a stay-at-home mother. When questioned about where she would reside if she broke up with her boyfriend, petitioner indicated she had no plan in place. Petitioner testified that she believed that the children had expressed a preference to live with respondent because he had cell and internet service at his home and she did not.

         Respondent testified that he had worked for the local public service district for a year and a half and that his employer was quite lenient in permitting time off such that he could accommodate the children's activities and school schedule. He also stated that he had an adult daughter who could assist in caretaking during the summer. Respondent further testified that he had a girlfriend who also had children and stayed at his house when she did not have custodial time with her children. When asked if he planned to move his girlfriend into his home, respondent indicated: "I ain't going to say that it won't happen[.]" Respondent assured the court he anticipated no further suicidal incidents because he had completed therapy and understood he had "resources" in the future to deal with stress.

         The CPS representative indicated that the children's placement preferences had vacillated throughout the proceedings, but both ultimately indicated a desire to live with respondent. When asked the children's reasoning for this preference, the CPS representative testified that "[t]hey have not given a reason, they just say they want to go live with their dad." When pressed further, the CPS representative testified, "they just want to go live with their dad. There was no specific-because I asked them if something happened or if there is anything going on, and they said no, they just want to go live at their dad [sic]." Accordingly, the DHHR recommended that legal and physical custody be given to respondent, with visitation for petitioner.

         The guardian ad litem likewise represented to the court that initially, both children wanted equally-shared custody with their parents; however, T. M. subsequently expressed a preference to live primarily with respondent. S. M. initially expressed a desire to live primarily with petitioner, but did not want to be separated from T. M., who wanted to live with respondent. Ultimately, just before the dispositional hearing, both expressed to the guardian ad litem that they wanted to live with respondent. The guardian ad litem indicated the children had a strong bond with both parents and confirmed that they were unable to articulate why they preferred to live with respondent. She nevertheless recommended that respondent be awarded primary custody. As a result of the foregoing testimony, petitioner argued that the children's preference was not "firm and reasonable," as required by West Virginia Code § 48-9-206(a)(2) and/or was based on an insubstantial reason, i.e. the desire for cell and internet service.

         At the close of the hearing, the circuit court dismissed the petition against respondent and stated that it was retaining jurisdiction over the children pursuant to Rule 6 of the West Virginia Rules of Procedure for Child Abuse and Neglect Proceedings. In that regard, the circuit court found that the emotional trauma the children endured due to respondent's suicide attempt was "significant," but that throughout the proceedings, petitioner had "place[d] her primary interest above those of her children." The court discussed petitioner's misrepresentation regarding contact with the prior boyfriend, noted her relinquishment of the family home in the divorce, and criticized her living situation, stating that it had "a substantial risk of being unstable in light of the conduct of the mother, her constant moving[6] and failure to obtain stability." (footnote added). The court then found that the children's best interests would be served by awarding primary custody to respondent, but with a shared parenting schedule with petitioner. The schedule provided for petitioner to have the children three weekends a month during the school year, splitting holidays between the parties, and petitioner having the children during the summer except for every other weekend and two, one-week vacations with respondent. This appeal followed.

         II. STANDARD OF REVIEW

As is well-established,
"[w]hen 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., McCormick v. Allstate Ins. Co., 197 W.Va. 415, 475 S.E.2d 507 (1996).

Syl. Pt. 1, In re S. W., 236 W.Va. 309, 779 S.E.2d 577 (2015). However, "[w]here 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." Syl. Pt. 1, Chrystal R. M. v. Charlie A. L., 194 W.Va. 138, 459 S.E.2d 415 (1995).

         III. DISCUSSION

         On appeal, petitioner asserts that the circuit court erred in granting primary custody to respondent over a non-offending parent on the basis of the children's preferences, which preferences failed to rise to the level of "firm and reasonable" as required in West Virginia Code § 48-9-206(a)(2).[7] We find that this assignment of error as characterized presumes the applicability of Chapter 48's child custody statutes and therefore presents the threshold legal issue of whether and under what circumstances those statutory directives are applicable to custodial placement determinations which may arise in the course of abuse and neglect proceedings.[8]

         More specifically, the Court must determine which standard the circuit court is obligated to apply to make a custodial placement determination where there is a dispositional dismissal of an abuse and neglect petition and reunification with non-cohabitating parents-the broad, "best interests" standard utilized in making placement determinations in abuse and neglect proceedings pursuant to Chapter 49 or the statutory considerations mandated in certain of the "Allocation of Custodial Responsibility and Decision-Making Responsibility of Children" statutes set forth in the domestic relations portion of the Code-West Virginia Code §§ 48-9-206 through 209.

         A. Jurisdiction to Determine Custodial Placement at the Close of Abuse and Neglect Proceedings

         Before determining the applicability of Chapter 48's custodial allocation provisions, we find it appropriate to first examine the basis of the circuit court's jurisdiction to allocate custodial responsibility upon dismissal of an abuse and neglect petition. West Virginia Code § 49-4-604(b) (2019), in part, provides for the following hierarchy of dispositions for an abuse and neglect petition:

Disposition decisions. -- The court shall give precedence to dispositions in the following sequence:
(1) Dismiss the petition;
(2) Refer the child, the abusing parent, the battered parent or other family members to a community agency for needed assistance and dismiss the petition;
(3) Return the child to his or her own home under supervision of the department;
(4) Order terms of supervision calculated to assist the child and any abusing parent or battered parent or parents or custodian which prescribe the manner of supervision and care of the child and which are within the ability of any parent or parents or custodian to perform;
(5) Upon a finding that the abusing parent or battered parent or parents are presently unwilling or unable to provide adequately for the child's needs, commit the child temporarily to the care, custody, and control of the state department, a licensed private child welfare agency, or a suitable person who may be appointed guardian by the court.
(6) Upon a finding that there is no reasonable likelihood that the conditions of neglect or abuse can be substantially corrected in the near future and, when necessary for the welfare of the child, terminate the parental, custodial and guardianship rights and responsibilities of the abusing parent and commit the child to the permanent sole custody of the nonabusing parent, if there be one, or, if not, to either the permanent guardianship of the department or a licensed child welfare agency.

         (emphasis added). In this case, the circuit court availed itself of "Disposition 1," i.e. dismissal of the petition given respondent's successful completion of his improvement period. Notably, neither this statute nor the remainder of West Virginia Code § 49-4-601 et seq. regarding "Procedures in Cases of Child Neglect or Abuse" provide further guidance regarding custodial allocation in the event of a dispositional dismissal where the child is reunified with one or more adjudicated parents.

         In this case, the family court which heard the parties' divorce appropriately deferred jurisdiction of the children to the circuit court where the abuse and neglect action was pending. Rule 48(d) of the Rules of Practice and Procedure for Family Court provides that the family court loses jurisdiction over children who are or become involved in abuse and neglect proceedings:

The family court shall retain full jurisdiction of proceedings until an abuse or neglect petition is filed. If an abuse or neglect petition is filed and the family court has entered an order regarding the allocation of custodial and decision-making responsibility between the parents, orders of the circuit court shall supercede and take precedence over any order of the family court regarding the allocation of custodial and decision-making responsibility between the parents. If the family court has not entered an order for the allocation of custodial and decision-making responsibility between the parents, the family court shall stay any further proceedings concerning the allocation of custodial and decision-making responsibility between the parents and defer to the orders of the circuit court.

See also W.Va. Code § 51-2A-2(c) (2018) (removing family court jurisdiction over "allocation of custodial and decision-making responsibility" in event of filing of an abuse and neglect petition). As the family court appropriately concluded, it had no jurisdiction to entertain the allocation of custodial or decision-making responsibilities it would otherwise have been required to determine to finalize the divorce, given the pendency of the abuse and neglect proceedings.

         Commensurately, at the close of the abuse and neglect proceedings, the circuit court expressed its intention to retain jurisdiction over the custodial placement of the children pursuant to Rule 6 of the West Virginia Rules of Procedure for Child Abuse and Neglect Proceedings. Rule 6 states, in part:

Each child abuse and neglect proceeding shall be maintained on the circuit court's docket until permanent placement of the child has been achieved. The court retains exclusive jurisdiction over placement of the child while the case is pending, as well as over any subsequent requests for modification, ...

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