In Re: A.H. and J.H.

STATE OF WEST VIRGINIA

SUPREME COURT OF APPEALS

FILED

April 21, 2016

released at 3:00 p.m.

In re: A.H. and J.H. RORY L. PERRY, II CLERK

SUPREME COURT OF APPEALS

OF WEST VIRGINIA

Nos. 15-0828 & 15-0832 (Mingo County 13-JA-53 & 13-JA-65)

MEMORANDUM DECISION

The petitioner T.W.,1 by counsel Diana Carter Wiedel, and the petitioner S.W., by

counsel Susan J. Van Zant, appeal from the Circuit Court of Mingo County’s “Order from

Preliminary Hearing as to the Amended Petition” entered on July 27, 2015.2 The petitioners

argue that the circuit court erred by not applying the procedures set forth in the West Virginia

Code pertaining to child abuse and neglect proceedings before the court permanently

removed two children from their home. The children’s guardian ad litem, Karen S. Hatfield,

reports that the immediate removal of the children from the petitioners’ home was necessary

for the children’s safety, but she asserts that an adjudicatory hearing should have thereafter

been afforded the petitioners. The West Virginia Department of Health and Human

Resources (“DHHR”), by counsel S.L. Evans, responds in support of the circuit court’s order.

After a careful consideration of the parties’ written and oral arguments, as well as the

record on appeal, we conclude the circuit court committed procedural error necessitating that

the circuit court’s order be reversed, in part, and remanded to the circuit court for further

proceedings. This case satisfies the “limited circumstances” requirement of Rule 21(d) of

the Rules of Appellate Procedure and, therefore, is properly decided in a memorandum

decision.

1

Because this case involves children and sensitive matters, we follow our practice of

using initials to refer to the children and the parties. See W.Va. R. App. P. 40(e); State v.

Edward Charles L., 183 W.Va. 641, 645 n.1, 398 S.E.2d 123, 127 n.1 (1990). The children’s

biological mother has the same initials as another person, so she will be referred to herein as

the “mother.”

2

The “Amended Petition” referred to in the title of the order was the DHHR’s second

amended abuse and neglect petition. The petitioners filed separate appeals from that order;

their appeals have been consolidated for purposes of argument and decision.

1

Factual and Procedural History

J.H. was born in November of 2011.3 When he was approximately five months old,

he was placed in the care of his mother’s aunt, T.W., and T.W.’s husband, S.W., who are the

petitioners herein. By order of the Mingo County Family Court entered on July 18, 2012,

T.W. and S.W. obtained legal guardianship of J.H. pursuant to the provisions of West

Virginia Code § 44-10-3 (2014), the statute providing for appointment of a guardian for a

minor child.

The mother had another child, A.H., who was born in June of 2013. When A.H. was

approximately three and one-half weeks old, the mother placed her in the care of T.W. and

S.W. Soon thereafter, on July 18, 2013, T.W. and S.W. filed a pro se petition in the family

court seeking to be appointed as A.H.’s legal guardians.4

On July 22, 2013, the DHHR filed an abuse and neglect petition against the mother

and the children’s respective biological fathers. The fathers were absent from the children’s

lives. The DHHR alleged that the mother engaged in abusive and neglectful behavior toward

A.H. and failed to comply with a voluntary case plan established a few days after A.H.’s

birth. Although the July 22nd petition listed only the infant A.H. as a subject child in the case,

the petition was later amended to also include J.H. As the children’s guardians/custodians,

S.W. and T.W. were permitted to intervene and participate in the abuse and neglect case.

During the pendency of the proceedings against the biological parents, and until the events

discussed below, the children continued to reside in the home of S.W. and T.W.

After further proceedings, the circuit court terminated all rights the mother had to both

children. Although the circuit court announced the termination ruling at a dispositional

hearing on January 7, 2014, the written order was not entered until July 27, 2015. In

addition, the circuit court terminated all rights of the children’s fathers at a hearing held on

November 22, 2013, as reflected in a separate written order also entered on July 27, 2015.

3

The DHHR’s second amended petition and the circuit court’s order incorrectly

designate J.H.’s birth year as 2012.

4

It appears that the petition for legal guardianship of A.H. was not ruled upon. The

abuse and neglect case, which was initiated a few days later, would have deprived the family

court of jurisdiction.

2

The permanency plan for J.H. and A.H. was a private adoption by T.W. and S.W.

However, no adoption proceedings were initiated. T.W. testified that they had not begun the

adoption process due to the expense of hiring a lawyer. Moreover, the children could not be

adopted until the circuit court entered the dispositional orders terminating the biological

parents’ rights.

Meanwhile, on December 8, 2014, the DHHR filed a second amended petition

alleging that S.W. and T.W. had also abused and neglected the children. The circuit court

modified the style of the abuse and neglect case to reflect that S.W. and T.W. had become

party respondents, appointed them separate counsel, and received testimony at a preliminary

hearing on December 15, 2014. The basis for the second amended petition was an episode

of violence in the home on October 29, 2014. The evidence presented during the preliminary

hearing revealed that S.W. had referred to his current wife, T.W., using his ex-wife’s name.

An argument ensued that escalated into physical violence, including S.W. punching T.W. in

the face and pushing her to the ground. Their daughter’s adult boyfriend then intervened in

the altercation and inflicted severe injuries upon S.W. The children were in the home at the

time: J.H. was in an adjacent room and A.H. was upstairs. As a result of these events, S.W.

was criminally charged with domestic assault and domestic battery, while their daughter’s

boyfriend was charged with unlawful assault. In addition, during the preliminary hearing a

DHHR child protective services worker testified that S.W. has a history of domestic violence.

T.W. testified that S.W.’s prior acts of domestic violence involved his ex-wife, and the

incident on October 29th was the first time he had ever hit her.

The circuit court’s ruling was announced during the December 15, 2014, preliminary

hearing and was set forth in a written order on July 27, 2015. The court concluded that the

immediate removal of the children from T.W. and S.W.’s home was necessary to ensure the

children’s safety. The court found probable cause to believe that T.W. and S.W. have a

volatile relationship that escalated into physical violence wherein S.W. injured T.W.; they

live in an unstable environment; they allow an inappropriate adult–their minor daughter’s

boyfriend–to reside in the home; this environment placed the subject children in imminent

danger and at risk of further neglect; and remaining in the home would be contrary to the

children’s best interests. The circuit court also ruled that T.W. and S.W. had only a

“temporary placement” with no parental rights to the subject children, therefore it was not

necessary to proceed to an adjudicatory hearing on the allegations against them. T.W. and

S.W. appeal this ruling.5

5

Pursuant to the ongoing child abuse and neglect case, the children now reside in the

home of a different aunt and uncle who wish to adopt them.

3

Standard of Review

This Court has a well-established standard of review for abuse and neglect cases:

“Although conclusions of law reached by a circuit court are subject to

de novo review, when an action, such as an abuse and neglect case, is tried

upon the facts without a jury, the circuit court shall make a determination

based upon the evidence and shall make findings of fact and conclusions of

law as to whether such child is abused or neglected. These findings shall not

be set aside by a reviewing court unless clearly erroneous. A finding is clearly

erroneous when, although there is evidence to support the finding, the

reviewing court on the entire evidence is left with the definite and firm

conviction that a mistake has been committed. However, a reviewing court

may not overturn a finding simply because it would have decided the case

differently, and it must affirm a finding if the circuit court’s account of the

evidence is plausible in light of the record viewed in its entirety.” Syl. Pt. 1,

In Interest of Tiffany Marie S., 196 W.Va. 223, 470 S.E.2d 177 (1996).

Syl. Pt. 1, In re Cecil T., 228 W.Va. 89, 717 S.E.2d 873 (2011). With this standard in mind,

we consider the parties’ arguments.

Discussion

The circuit court ruled that the petitioners were not entitled to the procedures set forth

in the abuse and neglect statutes because they had no parental rights to these children. The

petitioners argue they were entitled to an adjudicatory hearing and, if adjudicated as abusive,

the other procedures set forth in state law because they were J.H.’s court-ordered legal

guardians, and A.H.’s custodians, before any abuse and neglect petition was filed. A review

of the abuse and neglect statutes, when applied to the specific facts of this case, supports this

argument.

West Virginia Code § 49-6-2(c) (2012),6 setting forth the right to an adjudicatory

hearing, does not limit that right to only “parents.” Rather, it provides certain rights to “the

party or parties having custodial or other parental rights or responsibilities to the child”:

6

We apply the 2012 version of the abuse and neglect statutes to this appeal, as that was

the law controlling the circuit court’s rulings at the December 2014 hearing. In 2015, the

Legislature repealed West Virginia Code §§ 49-1-1 through 49-11-10 and recodified these

provisions, with minor changes, into West Virginia Code §§ 49-1-101 through 49-7-304.

4

In any proceeding pursuant to the provisions of this article, the party or

parties having custodial or other parental rights or responsibilities to the child

shall be afforded a meaningful opportunity to be heard, including the

opportunity to testify and to present and cross-examine witnesses. The petition

shall not be taken as confessed. A transcript or recording shall be made of all

proceedings unless waived by all parties to the proceeding. The rules of

evidence shall apply. Where relevant, the court shall consider the efforts of the

state department [DHHR] to remedy the alleged circumstances. At the

conclusion of the hearing, the court shall make a determination based upon the

evidence and shall make findings of fact and conclusions of law as to whether

such child is abused or neglected and, if applicable, whether the parent,

guardian, or custodian is a battered parent, all of which shall be incorporated

into the order of the court. The findings must be based upon conditions

existing at the time of the filing of the petition and proven by clear and

convincing proof.

Id. (emphasis added). Furthermore, for purposes of child abuse and neglect proceedings, the

statutory definitions of “abusing parent,” “abused child,” and “child abuse and neglect”

include guardians and custodians:

(1) “Abused child” means a child whose health or welfare is harmed or

threatened by:

(A) A parent, guardian or custodian who knowingly or

intentionally inflicts, attempts to inflict or knowingly allows

another person to inflict, physical injury or mental or emotional

injury, upon the child or another child in the home[.]

....

(2) “Abusing parent” means a parent, guardian or other custodian, regardless

of his or her age, whose conduct, as alleged in the petition charging child

abuse or neglect, has been adjudged by the court to constitute child abuse or

neglect.

....

(4) “Child abuse and neglect” or “child abuse or neglect” means physical

injury, mental or emotional injury, sexual abuse, sexual exploitation, sale or

attempted sale or negligent treatment or maltreatment of a child by a parent,

guardian or custodian who is responsible for the child’s welfare, under

circumstances which harm or threaten the health and welfare of the child.

5

W.Va. Code § 49-1-3(1), (2), (4) (2012) (emphasis added). The disposition statute also

references custodial and guardianship rights, for example:

(a)(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, [the court shall] terminate the parental,

custodial and guardianship rights and responsibilities of the abusing parent[.]

....

(c) The court may, as an alternative disposition, allow the parents or custodians

an improvement period[.]

W.Va. Code § 49-6-5(a)(6), (c) (2012).

Pursuant to the provisions of West Virginia Code § 44-10-3, the petitioners had the

court-ordered legal guardianship of J.H. for an entire year before the initial abuse and neglect

petition was filed. During that year, the petitioners were entirely responsible for J.H.’s

welfare, and they provided all of his care and support. Furthermore, although there was not

enough time for the petitioners to obtain a legal guardianship over the newborn A.H., they

already had a legal guardianship over her sibling and their physical custodianship of A.H.

was bestowed by the mother before the abuse and neglect petition was filed. Given these

facts, we conclude the petitioners had “custodial or other parental rights or responsibilities

to” the children pursuant to the provisions of the adjudication statute, West Virginia Code

§ 49-6-2(c). The circuit court was clearly wrong when finding the petitioners had only a

“temporary placement.”

Our conclusion should not be interpreted to mean that any person with whom a child

is placed during the pendency of an abuse and neglect case is entitled to the adjudication and

disposition procedures if the child is removed from the placement. Indeed, it is irrelevant to

our decision today that the petitioners retained physical custody of the children during the

pendency of the abuse and neglect proceedings against the biological parents. The key

determinative fact is that the petitioners had a legal guardianship over J.H., which they

exercised, for a significant period of time before the abuse and neglect case was initiated.

Their custodial relationship with A.H. also pre-dated the filing of the initial petition.

During the December 2014 preliminary hearing, the DHHR presented evidence of a

severe incident of domestic violence in the petitioners’ home, and the circuit court correctly

removed the children due to emergent safety concerns. However, the court should have then

6

proceeded to accord the petitioners, as the children’s guardians/custodians,7 an adjudicatory

hearing. This case must be remanded for the circuit court to comply with the procedures set

forth in the abuse and neglect statutes.8

Conclusion

For the foregoing reasons, we affirm the portion of the circuit court’s July 27, 2015,

“Order from Preliminary Hearing as to the Amended Petition” insofar as the court ruled that

the immediate removal of the children from the petitioners’ home was necessary to ensure

the children’s safety. However, we reverse the order to the extent that the court ruled the

petitioners were not entitled to an adjudicatory hearing. This case is remanded to the circuit

court with instructions to expeditiously hold an adjudicatory hearing. If the circuit court

adjudicates one or both of the petitioners as abusing, the court should proceed with whatever

post-adjudicatory proceedings and disposition the circuit court finds appropriate.

The Clerk of this Court is directed to issue the mandate order contemporaneously with

this memorandum decision.

Affirmed, in part; reversed, in part; and remanded with directions.

7

The petitioners also argue they should receive full procedural rights under the abuse

and neglect statutes because, as the only “parents” these children have ever known, they

qualify as psychological parents. See In re Clifford K., 217 W.Va. 625, 619 S.E.2d 138

(2005) (recognizing concept of “psychological parent”). Because we have already decided

this case by applying the aforementioned statutory language, we need not address the issue

of psychological parenting. However, we note that there is no indication in the three

appendix records submitted in this consolidated appeal that the petitioners ever asked the

circuit court to declare them to be psychological parents. Moreover, in the past we have

emphasized that being a psychological parent does not necessarily translate into being

awarded custody. In re N.A., 227 W.Va. 458, 469, 711 S.E.2d 280, 291 (2011).

8

T.W. asserts in a separate assignment of error that the circuit should have required

the DHHR to pursue the allegations against her via the filing of a “new and separate”

petition, rather than by filing an amended petition in the existing abuse and neglect case. Her

argument is undermined, however, because it relies entirely upon language that was removed

from a procedural rule when that rule was amended in 2012. The present version of Rule

19(b) of the West Virginia Rules of Procedure for Child Abuse and Neglect Proceedings

directs that if new allegations arise after the final adjudicatory hearing, the allegations should

be included in an amended petition and the adjudicatory hearing shall be re-opened.

7

ISSUED: April 21, 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

8