Submitted: November 6, 2019
from the Circuit Court of Kanawha County The Honorable Daniel
W. Greear, Judge Civil Action No. 17-FIG-183
Clinton W. Smith, Esq. Law Office of Clinton Smith
Charleston, West Virginia Counsel for the Petitioner
Carrico, Esq. Carrico Law Offices LC Charleston, West
Virginia Counsel for the Respondents
BY THE COURT
"In reviewing a final order entered by a circuit court
judge upon a review of, or upon a refusal to review, a final
order of a family court judge, we review the findings of fact
made by the family court judge under the clearly erroneous
standard, and the application of law to the facts under an
abuse of discretion standard. We review questions of law
de novo." Syl. Pt., Carr v. Hancock,
216 W.Va. 474, 607 S.E.2d 803 (2004).
"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[.]" Syl. Pt. 3, in part,
In re Guardianship of K.W., 240 W.Va. 501, 813
S.E.2d 154 (2018).
C.H. and B.H.,  (the "Great-Grandparents") are
the great-grandparents of H.L. (the "Child") and
the grandparents of Petitioner, M.H., who is H.L.'s
mother (the "Mother"). The Great-Grandparents filed
a minor guardianship petition regarding the Child in the
Family Court of Kanawha County, alleging that the Child was
abused and neglected. Rule 13 of the West Virginia Rules of
Practice and Procedure for Minor Guardianship Proceedings
provides that when a family court receives a minor
guardianship petition that is based on an allegation of child
abuse and neglect, the family court shall remove the case to
circuit court. Instead of promptly removing the case to
circuit court, the family court held an emergency hearing and
appointed the Great-Grandparents as temporary guardians of
the Child. The family court later held an evidentiary hearing
on the petition and entered a final order appointing the
Great-Grandparents as guardians of the Child. The Mother
appealed to circuit court, and the circuit court affirmed the
family court's order. The Mother then filed this appeal.
on the record before us, the arguments of the parties, and
the applicable law, we find that the family court erred by
failing to immediately remove the Great-Grandparents'
minor guardianship petition to the circuit court and that the
family court was without subject matter jurisdiction to take
any other action on the petition.
we vacate the family court's orders and the circuit
court's order affirming the family court and remand this
case to the circuit court for further proceedings in
accordance with the West Virginia Rules of Practice and
Procedure for Minor Guardianship Proceedings.
FACTUAL AND PROCEDURAL BACKGROUND
Child was born in December 2011. His biological father is
J.L. (the "Father"). In or about August or September
2016, when the Child was not yet five, the Mother began
working at a new job. According to the Mother, her job
required her to report to work at 7:00 a.m., so she arranged
with B.H. (the "Great-Grandmother") to drop the
Child off at the Great-Grandparents' house to catch the
school bus. When school was over, the Great-Grandmother would
meet the Child at the bus and babysit him at her house until
the Mother got off work. The Mother would then pick up the
Child and take him home for the night.
later, the Child began spending nights at the
Great-Grandmother's house so the child could wake up
later to meet the bus. According to the Mother, she picked up
the Child after work and brought him to her home. There she
fed him supper, helped him with his school work, and gave him
a bath. She then returned him to the Great-Grandmother's
house to sleep. The Mother reports that this arrangement
lasted "approximately a month."
about December 2016, the Child appears to have said something
at school that, according to the family court, led to
"some sort of investigation" by Child Protective
Services ("CPS"). According to the
Great-Grandmother, a CPS worker named Vivian Fury came to her
home and advised her that CPS would seek to take the Child if
the Child left the Great-Grandmother's care.
Mother says that the CPS worker never contacted her.
She says that she learned about the alleged CPS
investigation, and the alleged threat to take the Child, from
the Great-Grandmother, who suggested that the Mother transfer
custody of the Child to the Great-Grandmother.
December 16, 2016, the Mother and the Great-Grandmother
signed a one-sentence, notarized document giving the
Great-Grandmother "temporary custody of" the Child
"until further notice." According to the Mother,
she signed the document because she was "[f]earful that
CPS would take the Child from her[.]"
Child remained with the Great-Grandparents. In or about
February 2017, the Mother contacted CPS about the status of
the alleged investigation. She says she was told "that
there had been a case but that it had been
'dropped[.]'" The Mother states that she then
asked the Great-Grandmother to return the Child, but the
"[Great-]Grandmother stalled and put her off."
According to the Great-Grandmother, and as found by the
family court, the Mother did not ask to have the Child back
until the end of June 2017.
Mother claims that she spoke to CPS again at the CPS office
on or about June 25, 2017, "and learned there was not an
open case." Late that evening, the Mother texted the
Great-Grandmother and asked her for the name and phone number
of the CPS worker the Great-Grandmother had spoken to. The
Great-Grandmother indicated that she did not know, and
challenged the Mother to name the person the Mother had
spoken to at CPS. The Mother replied that the person to whom
she had spoken at CPS said the matter "was there but has
been dropped for awhile [and] that I could have my
Great-Grandmother responded that she would "pack all his
stuff[, ]" but in the texts that followed she made clear
that she was uncomfortable with the Child returning home to
be babysat by the Mother's boyfriend, A.H., (the
"Boyfriend") during the summer months when the
Child would be off from school.
Great-Grandmother did not return the Child. Instead, on June
26, 2017, she filed a domestic violence petition against the
Boyfriend on behalf of the Child. The parties have not
provided us with a copy of the domestic violence petition,
but the Mother reports that it accused the Boyfriend of
"'whipp[ing]' the child until he 'pooped his
pants'" and of "lock[ing] the child in a dark
room for punishment[.]"
family court held a final hearing on the domestic violence
petition on July 5, 2017, and dismissed the petition.
Undeterred, the Great-Grandparents filed-that same day-a
petition for minor guardianship pursuant to W.Va. Code §
44-10-3 (2013) (appointment and termination of minor
guardianships). As grounds for their petition, they made
various allegations of abuse and neglect.
that same day, July 5, 2017, the family court held a hearing
on the minor guardianship petition. At 3:30 p.m., the family
court judge signed an emergency order appointing the
Great-Grandparents as temporary guardians of the Child with
"sole decision-making authority." The Mother was
granted "supervised parenting time with [the Child] as
[sic] the discretion of the [Great-Grandparents]." The
Boyfriend was to "have no contact whatsoever with the
family court held a final hearing on the minor guardianship
petition on September 18, 2017, and entered a final order on
October 10, 2017. The final order summarized the parties'
testimony and determined, based on Overfield v.
Collins, 199 W.Va. 27');">199 W.Va. 27, 483 S.E.2d 27 (1996),
that the Mother bore the burden of proving "by . . .
clear and convincing evidence that she is fit and proper to
have custody returned to her[.]" According to the family
court, she failed to carry her burden:
[The Mother] has not taken any interest or responsibility for
this child's educational, medical or overall well-being
for the last year; has allowed . . . [the Boyfriend] to whip
this child until he used the bathroom on himself; continues
to reside with [the Boyfriend] even though he may have abused
this child; does not have a bedroom for this child and has
only seen the child 5 times since June 26, 2017 and for each
of those times for 1 hour or less.
final order appointed the Great-Grandparents guardians of the
Child's person with "sole decision-making
authority[.]" The Mother was "granted regular
parenting time with [the Child, ]" but the Boyfriend was
not to be present.
Mother appealed to circuit court. On appeal, she argued-among
other things-that W.Va. Code § 44-10-3 is
unconstitutional because it (allegedly) allows a guardian to
be appointed without reference to the parent's fitness.
She found similar fault with Overfield, contending
that it "improperly and unconstitutionally saddled"
her with the burden of proving "her own fitness by clear
and convincing evidence . . . regardless of whether there was
ever any ...