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A.A. v. S.H.

Supreme Court of Appeals of West Virginia

November 22, 2019

A.A., Petitioner Below, Petitioner
v.
S.H., Respondent Below, Respondent

          Submitted: November 5, 2019

          Appeal from the Circuit Court of Mingo County The Honorable Miki Thompson, Judge Civil Action No. 15-D-351.

          Paul R. Sheridan, Esq. Legal Aid of West Virginia Logan, West Virginia Counsel for the Petitioner

          C. Christopher Younger, Esq. Logan, West Virginia Counsel for the Respondent.

          Marsha Webb-Rumora, Esq. Guardian Ad Litem for B.A. Williamson, West Virginia.

         SYLLABUS BY THE COURT

         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." Syllabus, Carr v. Hancock, 216 W.Va. 474');">216 W.Va. 474, 607 S.E.2d 803 (2004).

         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." Syllabus Point 1, Chrystal R.M. v. Charlie A.L., 194 W.Va. 138');">194 W.Va. 138, 459 S.E.2d 415 (1995).

         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." Syllabus Point 4, In re Guardianship of K.W., 240 W.Va. 501');">240 W.Va. 501, 813 S.E.2d 154 (2018).

          OPINION

          Walker, Chief Justice.

         Petitioner A.A. is the biological mother of the minor child B.A.[1] Respondent S.H. is B.A's paternal grandmother and court-appointed guardian. Petitioner's request for visitation with her child was rejected by the family court, which considered Respondent's allegations of neglect of B.A. by Petitioner and determined that visitation was not in B.A.'s best interest and that Petitioner had failed to show a change in her circumstances warranting a modification of the guardianship order. The circuit court denied Petitioner's appeal of the family court ruling. But, Petitioner contends that she has never been adjudicated an unfit parent or been afforded the protections of a statutory abuse and neglect proceeding, and that the family court's order is a de facto termination of her parental rights. We agree and find that the family court lacked jurisdiction to hear the case. Under Rule 48a(a) of the Rules of Practice and Procedure for Family Court and Rule 13 of the Rules of Practice and Procedure for Minor Guardianship Proceedings, [2] the family court should have removed this case to the circuit court for hearing. So, we vacate the family court's order granting Respondent permanent guardianship and remand this matter to the circuit court for further proceedings under Chapter 49 of the West Virginia Code, with instructions to hold a hearing within thirty days to consider whether Petitioner should be granted supervised visitation with her child.

         I. FACTUAL AND PROCEDURAL BACKGROUND

         B.A. was born in December 2014 and is the minor child of Petitioner A.A. and her husband F.A. In late July 2015, following an incident of domestic violence between Petitioner and F.A., Petitioner and B.A. were taken to a domestic violence shelter by law enforcement and F.A. was arrested.[3]

         Approximately two days after the domestic violence incident, Child Protective Services (CPS) received a referral about an alleged incident of domestic violence between Petitioner and F.A. The anonymous source of the referral, described by CPS as "the reporter," also indicated that Petitioner was bipolar, that the baby needed to be placed with "a paternal grandparent because mom is not able to take care of [him]," and that Petitioner "had another child that had cigarette burns on it and that child is placed with the maternal grandparents." The CPS notes describe allegations of maltreatment against Petitioner for "neglect - failure or inability to supply necessary supervision" and against both Petitioner and F.A. for "abuse - domestic violence." That day, CPS went to the domestic violence shelter and conducted a face-to-face interview with Petitioner and B.A. According to CPS notes, F.A. hit the Petitioner, causing bruising on her arms. The CPS worker noted that B.A. "was clean and appropriately dressed. He had no marks or bruising."

         According to the CPS Client Contact Report, three days later, a person, described by CPS as "a reporter," also relayed the following information:

[T]he mother and father got into a domestic incident on Friday July 31st and [F.A.] was taken to jail. . . . this is the [third] incident of [domestic violence] between the couple in the past year all with the child present in the home. The reporter also stated that the mother . . . has pending charges of petty larceny and identity theft, [West Virginia State Police] is investigating. When asked the reporter stated that both parents are taking prescription medication but nothing that is not prescribed. The mother allegedly has a history of mental health issues that she is treated for . . . .When asked the reporter stated that they did not believe that excessive drinking was an issue in the home. The reporter stated that the mother no longer has custody of an older child and the father also does not have custody of [two] older children. The cause though is not known if voluntary or terminated by court. The mother is currently at a shelter [in] Williamson with the child but according to the reporter may be arrested late on Aug[ust] [third] or on Aug[ust] [fourth].

         On August 18, 2015, CPS received information that "[Petitioner] has been arrested and her son [B.A.] has been left alone at the shelter."[4] In a Family Functioning Assessment Report (CPS report) dated August 31, 2015, the CPS case worker observed that

[Petitioner] is very interactive with [B.A.] and [B.A.'s] eyes light up when [Petitioner] walks into a room. [Petitioner] is protective as a caregiver, as evidenced by her protecting [B.A.] when she was being abused, and leaving the home to keep [B.A.] away from his father. . . Petitioner uses resources necessary to meet [B.A.'s] needs, as evidenced by her getting food stamps and a medical card for him along with WIC benefits. [Petitioner] is emotionally able to intervene to protect [B.A.] as evidenced by her signing temporary custody of her child over to [K.E.], until she is released from jail. [Petitioner] has a strong bond with [B.A.], as evidenced by his reaction, when she walks into the room.

         The CPS report found that

[i]n regards to [B.A.] Maltreatment has not been substantiated, and impending dangers have not been found. Maltreatment in the form of Neglect for Failure or Inability to Supply Necessary Supervision has not been substantiated on [Petitioner]. Maltreatment in the form of Abuse for Domestic Violence has not been substantiated on [F.A.].

         The shelter workers indicated to CPS that Petitioner had "done very well with [B.A.]." They reported that Petitioner fed and interacted with B.A. and that they have had no concern with her. They stated that when she got out of jail she could come back to the shelter. The CPS Report noted,

[Petitioner] protected [B.A.] and herself by going to the shelter and filing an [emergency protective order] and for divorce. [Petitioner] was keeping herself and [B.A.] away from [F.A.], [who] did get incarcerated, but the charges were not abuse/neglect related. [Petitioner] signed over custody to an appropriate individual, who will care for and protect [B.A.], until [Petitioner] is released from jail.

         A. Guardianship Proceeding

         On September 14, 2015, Respondent filed a Motion for Emergency Order of Guardianship in the family court.[5] In her motion, Respondent noted that Petitioner and F.A. were both incarcerated and that Petitioner's half-sister, K.E, and K.E.'s parents, were caring for B.A. Respondent alleged that she was the paternal grandmother of B.A., that K.E.'s family had no blood relation to the child, and that Petitioner had only known K.E. for a short period of time, although they were half siblings. She contended that B.A. had no prior contact with K.E. and her parents prior to his placement with them, and that K.E.'s family had an inability to focus on B.A.'s needs because of the number of other children in their home. In that same petition, Respondent alleged that she had had substantial contact with B.A., and had also provided babysitting services for him since his birth. She further asserted that neither of the biological parents has maintained any employment, with the paternal grandmother, paternal grandfather, and paternal step-grandmother "providing all of the care, nurturing, financial support and emotional support required and needed by the infant child."[6]

         Respondent's motion cited Syllabus Point 1 of Whiteman v. Robinson, [7] which states:

while the Court has continually recognized the right of a parent to the custody of their children, the Court has also recognized and considered parents to be unfit, thereby losing their right to custody, because of misconduct, neglect, immorality, abandonment or other dereliction of duty or otherwise has transferred, relinquished or surrendered such custody.

Relying on David M. v. Margaret M., [8] a divorce case, Respondent also asserted that

to be considered fit, the primary caretaker parent must: (1) feed and clothe the child appropriately; (2) adequately supervise the child and protect him or her from harm; (3) provide habitable housing; (4) avoid extreme discipline, child abuse, and other similar vices; and (5) refrain from immoral behavior under circumstances that would affect the child.[9]

         Respondent argued that it was in the best interests of the child for her to be appointed guardian. On September 17, 2015, the criminal complaint against Petitioner was dismissed without prejudice when the complaining officer failed to appear at the preliminary hearing. So, Petitioner was released from jail, after she had been incarcerated for approximately thirty days.

         In her response filed after her release, Petitioner stated that it would be inappropriate to appoint a guardian for her child over her objection since she had not abused or abandoned her child or been "proven to be in any way unfit," and B.A. had been returned to her care. Petitioner did not object to some "temporary visitation for [Respondent] pending [F.A.'s] release from incarceration," noting that she would "like to control the schedule of the visitation." Following a hearing on October 8, 2015, [10] the family court ordered that Petitioner would have primary custodial responsibility for B.A. on a temporary basis, with Respondent having grandparent visitation from Friday at 6:00 p.m. to Monday at 10:00 a.m., unless the parties were able to agree on other days of the week of equal time. F.A. was not permitted contact with the child without the supervision of Respondent.

         The record suggests that later, the guardian ad litem filed a motion for reconsideration and for an emergency hearing to "make sure mom was seeing the child."[11] Despite Petitioner maintaining legal custody of B.A. under the family court's prior order, the transcript of a hearing on November 12, 2015 reflects that the circumstances had, at some point, changed, as Respondent alleged during the hearing that Petitioner didn't have a home and she "ended up keeping the child all the time because they couldn't locate her."[12] Petitioner's counsel stated at this hearing that Petitioner "ha[d] not had much contact for the past week or so," but did "get a visit" the day prior to the hearing. At the November hearing, temporary physical custody was granted to Respondent, giving Petitioner an opportunity to get "back on her feet" and find an apartment, get moved in, and get a job. At the hearing, the family court told Petitioner:

This doesn't take any rights whatsoever you have of that baby, ok? Just for right now, he's just going to live with Grandma until - because we want you to have him, you know, you're his Mom. You're always going to be his mom and we want you to be the one taking care of him. But this is just going to help you get on your feet.

         The court ordered that Petitioner "shall have as much visitation as possible, at least two times per week, with the infant child," and set the next hearing date for January 7, 2016.

         Prior to the January 7, 2016 hearing, Petitioner entered a guilty plea to the charges of identity theft that had previously been dropped but were later re-filed, and a sentencing order was entered on December 15, 2015.[13] Petitioner was incarcerated until April 2016. After the January 7, 2016 hearing, the family court entered a temporary order that did not restrict Petitioner's visitation with B.A. Petitioner's husband, F.A., who had been released from jail, appeared at the hearing and consented to Respondent having temporary guardianship.

         A Final Order of Appointment of Guardian was entered by the family court on March 18, 2016, while Petitioner was still incarcerated. In this brief order, the family court concluded that it was in the best interest of the child that Respondent serve as guardian. The order noted that "the guardianship appointment made herein shall remain in effect until such time that the appropriate conditions, as applicable are reached and satisfied pursuant to West Virginia Code § 44-10-3(c) and (d), and any other pertinent provisions arising under state law."[14] The order gave F.A. supervised visitation, but was silent as to Petitioner's visitation rights.

         Petitioner was released from jail in April 2016. Within a month of her release, she attempted to make contact with Respondent by telephone and requested visitation with B.A. Respondent refused and told Petitioner she would have to go back to court prior to getting access to B.A. Respondent later testified that she was afraid she would lose custody of B.A. if she permitted the Petitioner to start visitation without a court order.

         B. Motion to Modify and/or Terminate Appointment of Guardian

         On June 30, 2017, fourteen months after her release from jail, Petitioner sought modification and/or termination of the guardianship order, arguing that she had a material change in circumstances because she had been released from jail. In response, Respondent asserted that she and her ex-husband, L.A. (B.A.'s paternal grandfather) and T.A., his wife, had provided the sole care for the infant since he was five months old and that the child knew only them as his parents. Respondent asserted that Petitioner made absolutely no effort to make contact with the child or support the child and did not remember his birthdays or other holidays.

         Respondent asserted that the child suffered and continued to suffer from severe and debilitating injuries sustained in the short time he was in the care of the Petitioner. Respondent alleged various injuries sustained by B.A. such as numerous cockroach bites, breathing problems, physical problems, dental problems, and vision problems as the result of Petitioner's "neglect, abuse and maltreatment."[15] Respondent alleged that Petitioner had unsuitable housing and filthy, unfit living conditions. She also asserted that Petitioner had an older twelve-year-old son with whom she had no contact. Respondent alleged that Petitioner never paid child support for B.A. and never spent time helping him reach his milestones or nurturing him during that process. Respondent alleged that because the child was so young and did not know Petitioner, it would be psychologically and emotionally damaging for B.A. to be subjected to contact with Petitioner because he did not recognize or remember her.

         Alleging that she, her ex-husband, and his wife were the child's psychological parents, Respondent asserted that Petitioner had effectively abandoned the child. Respondent relied again on the two cases cited in her initial motion for guardianship, Whiteman[16] and David M. v. Margaret M., [17] regarding the parent's duty of fitness. She also cited a provision contained in our adoption statute, West Virginia Code § 48-22-306 (Repl. Vol. 2015), "Conduct presumptively constituting abandonment," which provides:

(a) Abandonment of a child over the age of six months shall be presumed when the birth parent:
(1) Fails to financially support the child within the means of the birth parent; and
(2) Fails to visit or otherwise communicate with the child when he or she knows where the child resides, is physically and financially able to do so and is not prevented from doing so by the person or authorized agency having the care or custody of the child: Provided, That such failure to act continues uninterrupted for a period of six months immediately preceding the filing of the adoption petition.

L.A. and T.A. also filed a motion to intervene following Respondent's motion and asked that the Court place B.A. in their care, custody and control if Respondent was unable to care for him.

         During an extensive hearing held on September 12, 2017, the family court asked the parties whether there was ever a referral made to CPS and if any findings of abuse and neglect were made. Respondent stated that "No, there was nothing like that filed on it. I know, well, one of the troopers had went up to check at the apartments where she had him once before, and he said it was the most roach infested place he had ever been in." Petitioner's counsel indicated that her goal was simply to obtain visitation, and that she was not, at that stage, seeking a termination of guardianship. The family court noted the serious allegations of maltreatment by the Petitioner and stated, "that's one of the reasons that you establish a visitation now, and when these allegations are proven, and we do have serious allegations to deal with, then that kind of complicates the matter." Petitioner's counsel argued that no attempt to terminate the parental rights had been made, so there were due process issues at stake. The family court agreed and stated,

[B]ut I have to agree, the Department would not have sought to terminate her rights because child's with Grandma. Hey, the Department, I'm not knocking them, I've worked with them. I love them all, but a child (unintelligible) going down the road, I mean, that's just how CPS is. The child could have been abused for years, but that child's now with Grandma. She's safe. The Department goes down the road. You know what I'm saying?
So I would like to know what these allegations are and if she did abuse and neglect this child before I begin to view this.

         During the hearing, Respondent's counsel discussed the various allegations of Petitioner's neglect and unfitness with the family court. The court noted that it was very troubled by the fact that Petitioner had gone for over a year without making any sort of legal efforts to ensure visitation with her child once Respondent refused visitation. The Court appointed the current guardian ad litem at that hearing and set the matter for a final hearing to be had at a later date.[18] The order appointing the guardian ad litem specifically stated:

The Court FINDS a Guardian ad litem is necessary in that the allegations before the ...

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