In re K.R. and J.R.

STATE OF WEST VIRGINIA

SUPREME COURT OF APPEALS

FILED

In re K.R. and J.R. April 9, 2018

EDYTHE NASH GAISER, CLERK

No. 17-1012 (Wood County 15-JA-54 and 55) SUPREME COURT OF APPEALS

OF WEST VIRGINIA

MEMORANDUM DECISION

Petitioners R.J.-1 and R.J.-2, the children’s maternal grandparents, by counsel Judith A.

McCullough, appeal the Circuit Court of Wood County’s October 20, 2017, order denying them

placement of K.R. and J.R.1 The West Virginia Department of Health and Human Resources

(“DHHR”), by counsel Lee Niezgoda, filed a response in support of the circuit court’s order. The

guardian ad litem (“guardian”), Katrina M. Christ, filed a response on behalf of the children in

support of the circuit court’s order. Father S.R., by counsel Wells H. Dillon, filed a response in

support of the circuit court’s order. On appeal, petitioners argue that the circuit court erred in

denying them an evidentiary hearing on their motion concerning their alleged status as

psychological parents and in denying them the opportunity to participate in the children’s in

camera interviews.2

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.

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); Melinda H. v. William R. II, 230 W.Va. 731, 742 S.E.2d 419 (2013);

State v. Brandon B., 218 W.Va. 324, 624 S.E.2d 761 (2005); State v. Edward Charles L., 183

W.Va. 641, 398 S.E.2d 123 (1990). Additionally, because petitioners share the same initials, we

will refer to them as R.J.-1 and R.J.-2 throughout this memorandum decision.

2

We note that West Virginia Code §§ 49-1-1 through 49-11-10 were repealed and

recodified during the 2015 Regular Session of the West Virginia Legislature. The new

enactment, West Virginia Code §§ 49-1-101 through 49-7-304, has minor stylistic changes and

became effective on May 20, 2015. In this memorandum decision, we apply the statutes as they

existed during the pendency of the proceedings below. It is important to note, however, that the

abuse and neglect statutes underwent minor stylistic revisions and the applicable changes have

no impact on the Court’s decision herein.

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In April of 2015, the DHHR filed an abuse and neglect petition against the mother and

her husband that alleged they subjected the children to domestic violence. These allegations

stemmed, in part, from an incident in which the husband physically attacked the mother and

brandished a knife while he threatened to kill her, all in the children’s presence. As the petition

related to the father, it indicated that, due to his incarceration, he received no parenting time with

the children following the parents’ divorce in 2012. However, the family court that entered the

final divorce decree indicated that the father could petition to amend the parenting plan upon his

release and completion of certain services. During the abuse and neglect proceedings, the DHHR

did not make allegations against the father, although he was not considered for placement upon

the children’s initial removal from the mother. At that time, the children were placed with the

maternal grandparents, petitioners herein.

During an adjudicatory hearing in July of 2015, the circuit court ordered that the father

have additional visitation with the children, including overnight visits, in order to facilitate the

children’s gradual transition from petitioners’ home to that of the father. In August of 2015,

petitioners filed a motion to intervene and for custody. In support, petitioners alleged that they

were the children’s psychological parents and requested that the circuit court reconsider its prior

order transitioning custody to the father.

In September of 2015, the circuit court held a hearing on petitioners’ motion and

ultimately found that they did not qualify as the children’s psychological parents. The circuit

court further ordered that petitioners be provided notice of all future multidisciplinary team

meetings and the opportunity to attend the same, but did not permit them to remain present when

issues specific to the parents were addressed. The circuit court also declined to transfer full

custody of the children to the father at this time because of concerns over requiring the children

to change schools while the mother was participating in an improvement period. It did, however,

award the father overnight visits every weekend. Following this order, the DHHR and the

guardian both reported that petitioners did not wish to facilitate a relationship between the father

and the children and created issues with allowing visits as ordered.

In June of 2016, the circuit court awarded custody of the children to the mother,

following her successful completion of her improvement period. Thereafter, the father filed a

motion for contempt that alleged the mother refused him visits with the children as ordered.

However, prior to a hearing on the motion, the mother died.3 Subsequent to the mother’s death,

petitioners refused the father visitation. They further obtained a temporary protective order in the

Magistrate Court of Ritchie County to prohibit the father from having contact with the children.

In support of their petition for a protective order, petitioners alleged that the father murdered the

3

According to the record, the mother’s death was investigated as a homicide. It also

appears from the record that, following the mother’s death, the children again resided with

petitioners.

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mother and that K.R. was afraid of him.4 The Family Court of Ritchie County eventually denied

the protective order after the court became aware of the pending abuse and neglect proceedings

in the Circuit Court of Wood County.

In May of 2017, petitioners renewed their motion for intervention and custody of the

children and alleged the children did not wish to live with the father. Petitioners again asserted

their status as psychological parents in support of these motions. Petitioners also filed a motion

to modify the circuit court’s prior dispositional order. That same month, the circuit court held a

hearing on the motions, at which time petitioners also moved to remove the guardian on the

grounds that he previously represented the father in an unrelated matter. The circuit court granted

petitioners’ motion to intervene and to replace the guardian, although it did not rule on

petitioners’ remaining motions.

In July of 2017, the circuit court held a hearing during which it encouraged the parties to

come to a resolution on custody through mediation. After these efforts failed, the circuit court

issued a temporary order directing that the children receive counseling, the father receive

increased visitation, and the parties report on the status of a final parenting plan in September of

2017. Thereafter, the guardian filed a motion that alleged the current parenting plan was no

longer in the children’s best interest and asked that the children be permitted to speak with the

circuit court concerning the plan. The following month, the guardian filed a report that

recommended the children be placed with the father, with petitioners receiving visitation as long

as they cooperated.

In October of 2017, the circuit court held a hearing on the guardian’s motion and

conducted in camera interviews with both children. The circuit court then issued an order

addressing the children’s placement and reiterating that the father was never found to be an

abusing parent. The circuit court also reiterated that petitioners did not qualify as the children’s

psychological parents. The circuit court further noted that it had been two years since it ordered

that the children be transitioned into the father’s home and that a “principal factor” in the failure

to achieve such transfer was “[petitioners] and their lack of co-operation in effecting such

gradual transition.” Ultimately, the circuit court awarded the father full custody and required

petitioners to file a motion for visitation if they sought the same so that visitation did not

“substantially interfere with the parent-child relationship.” It is from the resulting order that

petitioners appeal.

The Court has previously established the following standard of review:

“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

4

According to the record, the father was eventually ruled out as a suspect in the mother’s

death after it was established that he was at work in Morgantown, West Virginia, at the time of

her death.

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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). Upon our review, the Court finds

no error in the proceedings below.

First petitioners argue that the circuit court erred in denying them an evidentiary hearing

on their May of 2017 motion to be named the children’s psychological parents.5 The Court,

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In support of this assignment of error, petitioners assert that several of the circuit court’s

factual findings from its resulting order are erroneous. However, petitioners fail to establish how

these factual findings, made after the hearing on their second motion asserting their alleged

status as psychological parents, in any way support their assertion that they should have been

entitled to an evidentiary hearing on their motion. Instead, petitioners appear to argue that such

findings would not have been made had the circuit court permitted them an evidentiary hearing

on their second motion. The Court, however, declines to address these allegations of erroneous

findings because they are irrelevant to the assignment of error at issue, especially in light of the

fact that the record shows conclusively that petitioners did not qualify as the children’s

psychological parents.

We have held as follows:

“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 . . . .” Syl. Pt. 3, In re Clifford K., 217 W.Va. 625, 619

S.E.2d 138 (2005).

Syl. Pt. 4, in part, In re K.H., 235 W.Va. 254, 773 S.E.2d 20 (2015) (emphasis added). Here, it is

clear that petitioners never provided care for the children for any duration other than a temporary

one and never with the consent and encouragement of the children’s parents. Instead, petitioners

were granted temporary custody of the children pursuant to the abuse and neglect proceedings

(continued . . . )

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however, finds that petitioners are entitled to no relief in this regard because (1) the record shows

that the circuit court granted them an evidentiary hearing on their status as psychological parents

pursuant to their August of 2015 motion and (2) petitioners failed to preserve the issue for

appeal. As noted above, petitioners filed two separate motions asserting their status as

psychological parents. Following the first motion, the circuit court held an evidentiary hearing in

September of 2015.6 According to the record, the circuit court ruled that “the evidence did not

establish [petitioners] are psychological parents of the children . . . .” As such, it is disingenuous

for petitioners to argue that they did not receive an evidentiary hearing on the issue of whether

they constituted the children’s psychological parents.

Petitioners further allege that they had multiple witnesses prepared to testify to the issue

at a hearing in July of 2017, but the circuit court ultimately required the parties to engage in

mediation instead of presenting evidence. Thereafter, petitioners assert that they lacked sufficient

notice of the circuit court’s scheduled hearings in October of 2017 to secure the presence of these

witnesses. However, petitioners fail to cite to the record to illustrate that they objected to the

alleged lack of notice or otherwise requested a continuance in order to secure their witnesses’

presence. “‘Our general rule is that nonjurisdictional questions . . . raised for the first time on

appeal, will not be considered.’ Shaffer v. Acme Limestone Co., Inc., 206 W.Va. 333, 349 n. 20,

524 S.E.2d 688, 704 n. 20 (1999).” Noble v. W.Va. Dep’t of Motor Vehicles, 223 W.Va 818, 679

S.E.2d 650 (2009). For these reasons, we find that petitioners are entitled to no relief in this

regard.

Finally, petitioners argue that the circuit court erred in denying them the opportunity to

participate in or attend the in camera interviews of the children. According to petitioners, the

circuit court failed to comply with Rule 8 of the Rules of Procedure for Child Abuse and Neglect

Proceedings in that it did not permit them or their counsel to attend or participate in the

interviews, submit questions to be asked during the interviews, or otherwise make a recording of

with the express intention of returning the children to either parent at such time as that placement

was appropriate. Moreover, the father sought to enforce his right to custody of the children at

several points during the proceedings, thereby evidencing his lack of consent to, and

encouragement for, the children’s placement with petitioners. Accordingly, regardless of whether

the factual findings at issue are erroneous, the record clearly shows that petitioners were not the

children’s psychological parents. Therefore, it is unnecessary to address the allegation that the

circuit court made erroneous findings of fact that are wholly unrelated to the specific argument

that the failure to hold an evidentiary hearing on the motion constituted error.

6

On appeal to this Court, petitioners failed to include the following documents in their

appendix: (1) the transcript of the hearing on their motion to intervene and for custody, in which

they asserted their alleged standing as psychological parents, and (2) the resulting order ruling on

this motion. However, the circuit court’s final order contains several detailed findings of fact

regarding the prior motion, hearing, and subsequent ruling.

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the interviews available prior to resuming the evidentiary hearing.7 Although it is uncontested

that the circuit court did not strictly comply with this rule, the Court, nonetheless and under the

specific limited circumstances of this case, finds that petitioners are not entitled to relief in this

regard.

We have previously held that

“[w]here it appears from the record that the process established by the

Rules of Procedure for Child Abuse and Neglect Proceedings and related statutes

for the disposition of cases involving children [alleged] to be abused or neglected

has been substantially disregarded or frustrated, the resulting order . . . will be

vacated and the case remanded for compliance with that process and entry of an

appropriate . . . order.” Syllabus point 5, in part, In re Edward B., 210 W.Va. 621,

558 S.E.2d 620 (2001).

Syl. Pt. 3, In re Emily G., 224 W.Va. 390, 686 S.E.2d 41 (2009). Here, petitioners argue that

“[t]he language [in Rule 8(b)] regarding counsel’s right to be present or to materially participate

in such interviews is mandatory, not discretionary . . . .” We do not agree. The plain language of

that rule permits the circuit court to exclude the parties’ attorneys “when the court determines

that the presence of attorneys will be especially intimidating to the child witness.” Here, there is

no specific finding regarding such a determination, but the rule is clear that the circuit court is

afforded discretion in excluding counsel, contrary to petitioners’ argument. Moreover, the rule

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Rule 8(b) of the Rules of Procedure for Child Abuse and Neglect Proceedings provides

as follows:

The court may conduct in camera interviews of a minor child, outside the

presence of the parent(s). The parties’ attorneys shall be allowed to attend such

interviews, except when the court determines that the presence of attorneys will

be especially intimidating to the child witness. When attorneys are not allowed to

be present for in camera interviews of a child, the court shall, unless otherwise

agreed by the parties, have the interview electronically or stenographically

recorded and make the recording available to the attorneys before the evidentiary

hearing resumes. Under exceptional circumstances, the court may elect not to

make the recording available to the attorneys but must place the basis for a

finding of exceptional circumstances on the record. Under these exceptional

circumstances, the recording only will be available for review by the Supreme

Court of Appeals. When attorneys are present for an in camera interview of a

child, the court may, before the interview, require the attorneys to submit

questions for the court to ask the child witness rather than allow the attorneys to

question the child directly, and the court may require the attorney to sit in an

unobtrusive manner during the in camera interview. Whether or not the parties’

attorneys are permitted to attend the in camera interview, they may submit

interview questions and/or topics for consideration by the court.

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permits the circuit court to elect not to make a recording of the interview available to the parties

“[u]nder exceptional circumstances” as set forth on the record. Again, the circuit court did not

make the required findings, but the rule clearly grants the circuit court discretion in making the

recording available, contrary to petitioners’ argument. Further, when the parties’ attorneys are

excluded, they are permitted to submit interview questions for the circuit court’s consideration.

Nothing in the rule requires the circuit court to ask any questions submitted, again reinforcing the

circuit court’s discretion in handling in camera interviews with minors.

Further, the record is clear that petitioners suffered no prejudice as a result of the circuit

court’s error. There is no indication that the father’s attorney was permitted to participate in the

interviews or otherwise submit questions for the same. It appears that only the children’s

guardian was permitted to attend the interviews. Moreover, the evidence obtained from the

interviews strongly favored petitioners. Specifically, the record shows that the in camera

interviews “indicate[d] that a close, affectionate relationship between [the father] and his sons . .

. has not been fully achieved.” Further, the record shows that during his in camera interview,

K.R. made statements that evidenced his preference to be placed with petitioners over his father.

In short, this testimony supported petitioners’ position that they should be the permanent

placement for the children. As such, we find, under the specific circumstances of this case, that

the circuit court’s failure to strictly comply with Rule 8(b) does not constitute a substantial

frustration or disregard of the applicable rules and statutes such that vacation of the circuit

court’s final order is warranted.

For the foregoing reasons, we find no error in the decision of the circuit court, and its

October 20, 2017, order is hereby affirmed.

Affirmed.

ISSUED: April 9, 2018

CONCURRED IN BY:

Chief Justice Margaret L. Workman

Justice Robin Jean Davis

Justice Menis E. Ketchum

Justice Allen H. Loughry II

Justice Elizabeth D. Walker

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