Andra F. v. Anthony H., etc.

STATE OF WEST VIRGINIA

SUPREME COURT OF APPEALS

Andra F., Petitioner Below,

Petitioner FILED

vs) No. 15-0445 (Upshur County 11-D-164) February 16, 2016

RORY L. PERRY II, CLERK

SUPREME COURT OF APPEALS

Anthony H., Respondent Below, OF WEST VIRGINIA

and Daniel Q. and Mildred Q.,

Intervenors Below,

Respondents

MEMORANDUM DECISION

Petitioner Andra F., by counsel Robert J. O’Brien, appeals the Circuit Court of Upshur

County’s April 9, 2015, order refusing her petition for appeal from the family court.1

Respondents, and intervening paternal grandparents below, Daniel Q. and Mildred Q.

(hereinafter referred to as “respondents”), by counsel Shannon R. Thomas, filed a response and a

supplemental appendix. The guardian ad litem, David L. Orndorff, filed a response on behalf of

the children supporting the circuit court’s order. Petitioner filed a reply. On appeal, petitioner

alleges that the family court erred in ignoring the other parties’ unfit behavior and ignoring her

own disapproval of the children living in the grandparent’s home. Petitioner further alleges that

the parties have ignored the family court’s final order; that prior guardian ad litem Paula

Cunningham’s testimony was unjust; that accepting the grandparents as psychological parents is

a “flawed concept;” that the Tri-County Visitation Center’s restrictions on her parenting time

constitutes a violation of her constitutional rights; and that the current guardian ad litem in these

proceedings acted inappropriately.2

1

Consistent with our long-standing practice in cases with sensitive facts, we use initials

where necessary to protect the identities of those involved in this case. See In re K.H., 235

W.Va. 254, 773 S.E.2d 20 (2015); In re Jeffrey R.L., 190 W.Va. 24, 435 S.E.2d 162 (1993); State

v. Edward Charles L., 183 W.Va. 641, 398 S.E.2d 123 (1990).

2

On appeal, respondents Daniel Q. and Mildred Q. raise a cross-assignment of error and

argue that the family court erred in improperly obtaining evidence, sua sponte, after the close of

evidence without notice to the parties and without offering them an opportunity to present

evidence in response. However, respondents do not cite to a single case, statute, rule, or other

authority to support their argument. Rule 10(c)(7) of the West Virginia Rules of Appellate

Procedure requires that

[t]he brief must contain an argument exhibiting clearly the points of fact and law

presented, the standard of review applicable, and citing the authorities relied on . .

(continued . . . )

1

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 no substantial question of law and no prejudicial error. For these

reasons, a memorandum decision affirming the circuit court’s order is appropriate under Rule 21

of the Rules of Appellate Procedure.

The parents, Anthony H. and petitioner Andra F., had two children, A.H.-1 and A.H.-2.

According to the family court, the parties, including petitioner and the paternal grandparents, all

have a significant history involving domestic-related civil and criminal litigation. Specifically,

respondent Daniel Q. pled no contest on April 19, 2011, to an assault involving the parents.

According to the family court, the paternal grandparents “have had a troubled past marriage and

relationship,” but noted that most of the resulting litigation preceded the children’s birth.

According to the family court, following the birth of A.H.-2 in November of 2010, petitioner

utilized third parties “to a significant extent” to care for the children. In fact, the family court

found that the children spent a significant amount of time with respondents.

In November of 2012, petitioner and the father entered into an agreed parenting plan,

whereby the father was the primary residential parent. At the time, the father lived with

respondents, though he worked away from the home during the week and was at home

occasionally on weekends. The family court entered an agreed order regarding the parenting plan

in January of 2013. As to petitioner, the agreed order allowed her to exercise parenting time on

alternating weekends. The father was also ordered to pay child support to the mother in the

amount of $177.40 per month.3

. [and] must contain appropriate and specific citations to the record on appeal[.]

The Court may disregard errors that are not adequately supported by specific

references to the record on appeal.

(emphasis added). Additionally, in an Administrative Order entered December 10, 2012, Re:

Filings That Do Not Comply With the Rules of Appellate Procedure, then-Chief Justice Menis E.

Ketchum specifically noted in paragraph two that “[b]riefs that lack citation of authority [or] fail

to structure an argument applying applicable law” are not in compliance with this Court’s rules.

Further, “[b]riefs with arguments that do not contain a citation to legal authority to support the

argument presented and do not ‘contain appropriate and specific citations to the . . . record on

appeal . . .’ as required by rule 10(c)(7)” are not in compliance with this Court’s rules. Here,

respondents’ brief in regard to their cross-assignment of error is inadequate as it fails to comply

with the administrative order and the West Virginia Rules of Appellate Procedure. Thus, we

decline to address respondents’ cross-assignment of error as it was not properly developed on

appeal.

3

Sometime after this order, petitioner gave birth to a third child with father Forrest R.

That child is not at issue in this matter.

2

In September of 2013, petitioner filed a motion for temporary relief and a petition for

contempt in the family court. Thereafter, the family court appointed Paula Cunningham as the

children’s guardian ad litem. In December of 2013, respondents moved to intervene in the

proceedings. Thereafter, because of continued problems contacting petitioner and also issues

surrounding her behavior with the children and on social media, the guardian moved to limit

petitioner’s visitation. The family court held a hearing on this motion and ultimately limited

petitioner’s visitation.

In June of 2014, Paula Cunningham was removed as guardian ad litem for the children

because of concerns over her own personal litigation and her continuing credibility. She was

replaced by David L. Orndorff. In August of 2014, the family court held a hearing on whether

the intervening paternal grandparents are psychological parents to the children. Following this

hearing, the family court granted respondents status as psychological parents.

The family court held a hearing on placement for the children in November of 2014.

Ultimately, the family court ordered respondents to be the primary residential parents and

awarded the biological parents structured visitation. The family court also ordered that the parties

must ensure that the children receive counseling and that all parties must submit to a

psychological evaluation. Thereafter, petitioner appealed to the circuit court in February of 2015.

In April of 2015, the circuit court denied petitioner’s appeal. It is from this order that petitioner

appeal.

We have previously established the following standard of review:

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., Carr v. Hancock, 216 W.Va. 474, 607 S.E.2d 803 (2004). To begin, the Court notes that it

will not address petitioner’s assignment of error related to allegations that certain parties have

not complied with aspects of the family court’s final order. Specifically, petitioner argues that

respondents have not complied with the family court’s direction that all parties complete an

intervention program for perpetrators of domestic violence as was directed in the final order

appealed to the circuit court. This Court has often held that a party must assert a right below to

preserve the issue for appellate review. See State v. Jessie, 225 W.Va. 21, 27, 689 S.E.2d 21, 27

(2009) (“general rule is that nonjurisdictional questions not raised at the circuit court level will

not be considered to the first time on appeal”) (citation omitted). Because this allegation is more

appropriate for consideration on a motion for contempt in the family court below, we decline to

address the same on appeal.

Next, the Court finds no error in regard to the allegation that the family court ignored acts

by respondents that allegedly render them unfit to have custody of the children. In support of this

assignment of error, petitioner relies heavily on allegations regarding respondents’ past criminal

conduct. However, the record is clear that the family court was presented with this evidence and

3

considered it in rendering its final decision. As noted above, the family court specifically found

that “the parties have significant history relating to domestic related civil and criminal litigation,”

and further that respondents have had “a good deal of domestic civil and criminal litigation

between them.” However, the family court also found that the litigation between respondents

mostly preceded the children’s birth. As such, it is clear that the family court did not ignore these

acts, as petitioner alleges. Instead, the family court considered these factors and made its ruling

based upon the entirety of the evidence. That it ultimately failed to make the finding that

petitioner believes is accurate is not evidence that the relevant factors were not considered. For

these reasons, we find no error in this regard.

As to petitioner’s next assignment of error, the Court finds no error in the testimony from

Paula Cunningham, the prior guardian ad litem below. On appeal, petitioner alleges that Ms.

Cunningham’s testimony somehow prejudiced her because, prior to testifying, Ms. Cunningham

was removed as guardian ad litem due to her own pending litigation that the family court found

“may [have] affect[ed] her participation and credibility . . . .” In support of this argument,

petitioner cites extensively to alleged conduct by the guardian that is wholly unrelated to the

proceedings at issue. However, petitioner cites to no authority that would render Ms.

Cunningham’s testimony inadmissible. Instead, this assignment of error is best discussed in

terms of credibility, as petitioner has alleged Ms. Cunningham’s actions rendered her unfit to

perform her duties as guardian ad litem. On this issue, we have consistently emphasized that “[a]

reviewing court cannot assess witness credibility through a record. The trier of fact is uniquely

situated to make such determinations and this Court is not in a position to, and will not, second

guess such determinations.” Michael D.C. v. Wanda L.C., 201 W.Va. 381, 388, 497 S.E.2d 531,

538 (1997). Petitioner cites to no testimony from Ms. Cunningham that is in any way unreliable.

In fact, the opposite is true. Regardless of whatever issues occurred in Ms. Cunningham’s

personal life, the current guardian ad litem for the children agreed with Ms. Cunningham’s

recommendations and argues on appeal that her testimony was “quite probative.” As such, we

decline to second guess the family court’s credibility determinations on appeal, and find no error

in this regard.

Next, the Court finds no error in regard to petitioner’s assignment of error concerning

respondents’ status as psychological parents. It is unclear on appeal whether petitioner is arguing

that the very notion of a psychological parent in the abstract is a “flawed concept” or that

respondents specifically did not meet the elements to be considered psychological parents, but

either way she is entitled to no relief in this regard. First, the Court declines to reconsider our

prior holdings concerning psychological parents and denies petitioner relief to the extent she is

urging the same. We have previously held that

“[a] psychological parent is a person who, on a continuing day-to-day

basis, through interaction, companionship, interplay, and mutuality, fulfills a

child’s psychological and physical needs for a parent and provides for the child’s

emotional and financial support. The psychological parent may be a biological,

adoptive, or foster parent, or any other person. The resulting relationship between

the psychological parent and the child must be of substantial, not temporary,

duration and must have begun with the consent and encouragement of the child’s

legal parent or guardian. To the extent that this holding is inconsistent with our

4

prior decision of In re Brandon L.E., 183 W.Va. 113, 394 S.E.2d 515 (1990), that

case is expressly modified.” Syl. Pt. 3, In re Clifford K., 217 W.Va. 625, 619

S.E.2d 138 (2005).

Syl. Pt. 9, In re Antonio R.A., 228 W.Va. 380, 719 S.E.2d 850 (2011). The evidence introduced

in the family court below clearly supports respondents’ status as psychological parents.

Specifically, the family court found that respondent grandparents “have clearly provided for the

daily care of the children, including medical, dental, educational, bedtime routines, providing

meals and bearing all of the financial obligations of the children without assistance from the

parents since December of 2012.” The family court added that the “evidence also supported a

substantial parenting role prior to that time, including the time in which [petitioner] was

incarcerated.” Further, the family court found that petitioner consented to the relationship

between respondents and the children by granting custody to the father with full knowledge that

he lived with respondents and that they would provide substantial care for the children. In fact,

the family court found that petitioner failed to object to respondents’ role as primary caretakers

for the children and knowingly left the children with respondents “for lengthy time periods,

knowing they were providing for them as psychological parents.” Additionally, testimony below

established that the children had a significant bond with respondents. For these reasons, it is clear

that the family court did not err in granting respondents psychological parent status.

Petitioner also argues in support of this assignment of error that the family court erred in

failing to include a determination of fitness in its analysis of whether respondents qualified as

psychological parents. This argument, however, is misplaced. Pursuant to the holding cited

above, fitness to have custody of a child is not a consideration in determining whether an

individual qualifies as a psychological parent. While that consideration would be integral in

determining whether a psychological parent should have continued custody of a child, it has no

bearing on the level of care the individual has provided in the past necessary to be considered a

psychological parent. In this matter, the family court ultimately found respondents were fit to be

awarded primary residential custody of the children, and there is nothing in the record to suggest

this determination was improper. Similarly, petitioner cites to no evidence that establishes

respondents are unfit to parent the children. While it is true that respondents have criminal

histories, the family court specifically found those prior instances of criminal conduct to be so

remote as to have no bearing on their fitness to parent the children at issue. Further, the family

court found that “Child Protective Services . . . has no concerns about [respondents’] home.”

Conversely, petitioner’s own actions necessitated limited contact with the children.

Specifically, the family court found that petitioner’s actions were having a detrimental effect on

at least one child who was anxious about the proceedings due to petitioner talking to the children

about the litigation and their father’s incarceration. Further, it was noted that petitioner refused to

cooperate with the guardian ad litem’s investigation into the matter. For these reasons, the Court

finds no error in regard to the family court’s determination as to the permanent placement and

custodial arrangement for the children.

Next, the Court finds no error in the family court ordering that the Tri-County Visitation

Center supervise petitioner’s visitations with the children. As noted above, petitioner’s own

actions necessitated this restriction on her parenting time because of the detrimental effect on the

5

children and difficulties arising during custody exchanges of the children. In addition to talking

to the children about their father’s incarceration, petitioner also showed the children a

photograph that depicted the father in custody. Further, petitioner was involved in an altercation

with the father’s girlfriend that the guardian believed “caused great concern” for the children’s

wellbeing. Additionally, supervised visitation was necessary because of petitioner’s failure to

provide the parties with her accurate address. According to the family court, shortly before

ordering supervised visitation, petitioner relocated and failed to provide any information about

her living arrangements to the guardian or the family court. As such, the family court was

unaware where petitioner would exercise visitation with the children. For these reasons, the

Court finds no error in the family court ordering supervised visitation with petitioner during

these proceedings, especially in light of petitioner’s refusal to cooperate with the family court in

exercising her visitation rights.

Moreover, petitioner argues that certain restrictions on her parenting time constitute a

violation of her constitutional rights. Specifically, she argues that the Tri-County Visitation

Center allowed her only one hour of visitation with the children and would not allow her to visit

with the children outside of the facility. The Court, however, does not agree. While it may be

true that the family court did not specifically limit petitioner’s parenting time to one hour in its

order, it did order that Tri-County Visitation Center was to supervise the visitation. Obviously

this indicated that petitioner did not have unfettered access to the children and she was subject to

the restrictions imposed by the supervising entity. The Court finds that petitioner suffered no

violation of her constitutional rights in the reasonable restrictions imposed on her supervised

visitation with the children.

Next, petitioner argues that the current guardian ad litem to this matter acted

inappropriately after he was appointed to replace Paula Cunningham, the prior guardian for the

children. Specifically, petitioner argues that the guardian did not seek an opportunity for

petitioner to regain custody of her children. However, petitioner’s argument on this issue ignores

both the guardian’s duty in these proceedings and also the evidence introduced below. Pursuant

to Rule 47(c) of the Rules of Practice and Procedure for Family Court, “[t]he guardian ad litem

acts as an independent fact finder, investigator and evaluator as to what furthers the best interests

of the child.” Petitioner has cited to no authority that dictates that the newly-appointed guardian

had a duty to seek the children’s return to her custody. In fact, the evidence introduced in this

case established that such action would be detrimental to the children. As addressed above,

petitioner’s limited interactions with the children during the proceedings had a negative impact

on the children such that the family court had to impose supervised visitation. As such, the

guardian was required to advocate for the children’s best interests, which necessitated remaining

in their placement with respondents. For these reasons, the Court finds no error in regard to the

guardian’s actions in the proceedings below.

Finally, petitioner argues that the family court did not acknowledge her disapproval

regarding her children’s extended living situation with respondents, nor the fact that she never

executed a writing that transferred custody to them. To the first point, the family court did

address petitioner’s implicit approval of the parenting situation by finding that she knowingly

allowed respondents to provide substantial care for the children without seeking to regain

custody of them. Noting that petitioner argued she never voluntarily relinquished custody of the

6

children, the family court nevertheless found that she agreed to give the father residential

custody with the full knowledge that the father lived with respondents and relied heavily upon

them to perform care-taking functions because of his employment. Moreover, the family court

found that petitioner allowed this arrangement to occur for years without seeking to modify

custody, all the while allowing the children to form a substantial bond with respondents.

In support of this assignment of error, petitioner relies heavily on our prior holding,

wherein we stated that if a parent intends to voluntarily transfer either permanent or temporary

custody of a child to a third party, then a document effecting that transfer should expressly

provide that it is the parent’s intention to do so. See Syl. Pts. 4 and 5, Overfield v. Collins, 199

W.Va. 27, 483 S.E.2d 27 (1996). Petitioner’s reliance on this holding, however, is misplaced. In

a subsequent custody matter, this Court noted that

“[i]n Overfield . . . , this Court did not hold that a circuit court may never grant

permanent custody of a minor child to a party other than one of the child’s natural

parents. Instead, we indicated that a circuit court may not take such action where

there is no proof that the petition requesting such action was served upon the

child’s mother and where a notice of the hearing on such matter was not served

upon the mother.”

Ronald James G. v. Gilda Gae C., 204 W.Va. 587, 589, 514 S.E.2d 818, 820 (1999). As such, it

is clear that the Overfield holding is not directly analogous to the matter on appeal.

More importantly, a determination of whether an individual constitutes a psychological

parent does not require any written transfer of custody, either temporary or permanent, to that

individual by the parent. It requires only that the parent allow the individual to assume the role of

psychological parent with his or her consent and encouragement. As noted above, petitioner

actively consented to and encouraged respondents’ relationship as primary caregivers to the

children. For these reasons, we find no error in this regard.

For the foregoing reasons, we affirm.

Affirmed.

ISSUED: February 16, 2016

CONCURRED IN BY:

Chief Justice Menis E. Ketchum

Justice Robin Jean Davis

Justice Brent D. Benjamin

Justice Margaret L. Workman

Justice Allen H. Loughry II

7