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M.H. v. C.H.

Supreme Court of Appeals of West Virginia

November 20, 2019

M.H., Petitioner
C.H. and B.H., Respondents

          Submitted: November 6, 2019

          Appeal 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

          Tim C. Carrico, Esq. Carrico Law Offices LC Charleston, West Virginia Counsel for the Respondents


         1. "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).

         2. "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).


         Respondents, C.H. and B.H., [1] (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.

         Based 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.

         Accordingly, 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.


         The Child was born in December 2011. His biological father is J.L. (the "Father").[2] 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.

         Sometime 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."

         In or 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").[3] 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.

         The 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.

         On 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[.]"

         The 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.

         The 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 child[.]"

         The 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.

         The 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[.]"

         The 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.[4]

         Also 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 minor child."

         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), [5] 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.

         The 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.

         The 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 ...

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