In Re Guardianship of K.W., M.W., and A.W. , 813 S.E.2d 154 ( 2018 )

IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
January 2018 Term FILED
_______________ May 10, 2018
released at 3:00 p.m.
No. 17-0692 EDYTHE NASH GAISER, CLERK
SUPREME COURT OF APPEALS
_______________ OF WEST VIRGINIA
IN RE GUARDIANSHIP OF K.W., M.W., and A.W.
____________________________________________________________
Appeal from the Circuit Court of Cabell County
Honorable Alfred Ferguson, Judge
Civil Action No. 16-FIG-16
REVERSED AND REMANDED
____________________________________________________________
Submitted: April 10, 2018
Filed: May 10, 2018
Michael S. Bailey, Esq. Arik C. Paraschos, Esq.
BAILEY LEGAL SERVICES, PLLC SAMMONS, OLIVERO & PARASCHOS
Barboursville, West Virginia Huntington, West Virginia
Counsel for Petitioners Guardian ad Litem for K.W., M.W., and
A.W.
G.T. and D.T., pro se
Respondents
JUSTICE WALKER delivered the Opinion of the Court.
SYLLABUS BY THE COURT
1. “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, 459 S.E.2d 415(1995).
2. Consistent with the plain language of Rule 13 of the Rules of Practice
and Procedure for Minor Guardianship Proceedings and Rule 48a of the Rules of Practice
and Procedure for Family Court, once a family court removes an infant guardianship case
to circuit court because the basis for the guardianship is, in part, abuse and neglect, the
case, in its entirety, remains in circuit court and may not be remanded.
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, 665 S.E.2d 300 (2008).
i
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.
ii
WALKER, Justice:
In this appeal we consider the validity of a family court order granting
permanent guardianship of K.W., M.W., and A.W.1 to their maternal grandparents, D.T.
and G.T. The case was originally removed from family court to circuit court because the
preceding petition for temporary guardianship was based on allegations of abuse and
neglect. However, contrary to Rule 13 of the Rules of Practice and Procedure for Minor
Guardianship Proceedings (Rule 13) as well as Rule 48a of the Rules of Practice and
Procedure for Family Court (Rule 48a), which provide that once removed to circuit court,
neither the matter, nor any portion of it, may be remanded back to family court, the circuit
court remanded this case back to family court to proceed as a guardianship case rather than
an abuse and neglect case. The circuit court reasoned that the case was unnecessarily
removed to circuit court because the children were under the protection of a then-temporary
guardianship order. L.W. and S.W., the biological parents, argue that the family court
lacked subject-matter jurisdiction to grant the permanent guardianship because the matter
was improperly remanded from the circuit court to family court. We conclude that because
the allegations of abuse and neglect were substantiated, the circuit court erred in concluding
that the temporary guardianship order negated the need for the abuse and neglect petition
and therefore erred in remanding the matter to family court. Accordingly, the permanent
1
Due to the sensitive facts of this case, we protect the identities of the parties
involved by using their initials rather than full names. See W. Va. R. App. P. 40. See e.g.,
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).
1
guardianship order is vacated for want of subject-matter jurisdiction. We remand this
matter to the circuit court for further proceedings under Chapter 49 of the West Virginia
Code, with instructions that during the pendency of those proceedings, the children will
remain in the temporary guardianship of their maternal grandparents unless the circuit court
deems them unfit for that task.
I. FACTUAL AND PROCEDURAL BACKGROUND
K.W., M.W., and A.W. are the biological children of Petitioners L.W. and
S.W. In late April of 2015, L.W., the mother, filed a domestic violence petition against
S.W., the father, and sought a protective order for herself and her three children. The
mother’s petition alleged that the father “shoved [her] forcefully into a wall in [their]
home,” “grabbed the back of [her] neck and pushed [her] head to [her] chest,” and further
stated that this incident was the latest of many episodes of physical violence throughout
the history of their marriage. The Family Court of Cabell County granted the domestic
violence protective order (DVPO) for a period of 180 days to expire November 2, 2015,
and allowed the father to have supervised visitation with the three children. Shortly
thereafter on May 18, 2015, a criminal complaint was issued against the father for violation
of the DVPO because he went to the residence, pounded on the door, and repeatedly texted
and called L.W. The following day, the mother filed a motion to modify the DVPO to
suspend all visitation and to extend the terms until November 30, 2015. The family court
2
granted that motion and appointed Arik Paraschos as Guardian ad Litem for the three
children.
Upon appointment, the Guardian ad Litem met and interviewed the mother.
She provided a lengthy account, in writing, of the extensive and ongoing physical and
emotional abuse in their home.2 She recounted episodes when the father shoved her up
against the wall while she was pregnant, and frequently pushed her, slapped her, and kicked
her. She reported an incident when the father told her he was going to kill her and began
choking her, but stopped when K.W. entered the room. The father was arrested for that
incident, but his charges were reduced to disorderly conduct and he was sentenced to six
months of probation and anger management classes. She also reported that even after
undergoing anger-management classes, the father head-butted her in the face—breaking
her nose—in front of their children, and choked her in front of them earlier that year.
Despite multiple attempts at marriage counseling, the mother reported that the physical and
emotional abuse was extensive and ongoing.
2
The mother stipulated to the authenticity and truth of the matters asserted in this
document and does not dispute that there has been a history of abuse in their home. The
father likewise stipulated to the truth of the matters asserted in this document, but
acknowledged that because it was told through the mother’s perspective, he would have
some “fill-in-the-gaps” type of evidence to offer as a supplement. The parents’ position is
that they are rehabilitated as a result of counseling.
3
As to her children, the mother indicated that the father previously slapped
K.W. leaving a red handprint on her face and also slapped A.W. She also recounted that
she saw the father cover K.W. and A.W.’s mouths and noses with his hand so as to smother
them. She alleged that the father was verbally abusive to all three children, and was
controlling and aggressive. Any time the mother attempted to step in to protect the children
from his abuse, she reported that he would physically abuse her as well. The mother
expressed considerable concern that the father had been very harsh, emotionally, to K.W.
and caused many of the anxiety issues she suffered, and also detailed that her other children
suffered from anxiety disorders, as well. She reported that K.W. and A.W. have suffered
from mouth ulcers as a physical manifestation of their anxiety and stress, and that K.W.
also suffers from insomnia. As a result of their anxiety issues, the mother reported that the
children had been in and out of public school and homeschooled. All three children
participate in counseling in an attempt to remedy the issues. These issues were exacerbated
when visiting with their father in the duration of the DVPO, to the point that K.W. told her
mother that she would “kill [herself] before [she would] visit with him again.” The mother
also stated to the Guardian ad Litem that she observed an obvious improvement in the
physical, mental, and emotional health of all three children since they ceased contact with
their father.
The Guardian ad Litem also interviewed the children, all of whom indicated
that they had no desire to have contact with their father. K.W. confirmed L.W.’s accounts
4
of instances when she witnessed her father physically abusing her mother. She reported
witnessing her father head-butt her mother, breaking her nose, recalled that her mother was
often covered in bruises on her body, and stated that her father choked her mother until she
was unconscious on more than one occasion. K.W. confirmed the abuse she suffered as
well, including, specifically, that her father slapped her on multiple occasions, that he
pinned her on a bed suffocating her with his chest and stomach, and that he held her down
and covered her nose and mouth with his hand. K.W. also reportedly told the Guardian ad
Litem that “she was sure her father would kill one of them eventually.”
The Guardian ad Litem reported that K.W. was reluctant to have contact with
her mother because her mother had been physically abusive to her as well, and had been
present for much of the abuse yet did nothing to stop it. K.W. reported that her mother hit
her with a dowel rod and that she slammed her head on the table, which A.W. confirmed
she witnessed. After a stint when the parents were separated, K.W. reported that she
objected to them getting back together and her mother tackled her and struck her.
A.W. reported that in the past, her father struck her with a dowel rod, struck
her in the face, busted her lip, and hit her in the back of the head on several occasions.
A.W. reported that often her mother was present for the abuse, but sometimes was not, and
that she did not feel safe with her parents. M.W., the youngest child, reported that she saw
her father push her mother against the wall and saw him choke her. M.W. expressed a
5
desire to live with her mother, but also stated that she wanted to live with A.W., and A.W.
would not live with their mother.
In early August 2015, the father petitioned the family court to modify the
protective order to grant him unsupervised visitation, which was denied. In late August,
the mother filed a petition to terminate the DVPO because separate residences had been
established and she no longer felt that there was a risk of violence. In response, the
Guardian ad Litem presented his report attesting to the purported abuse that had been
reported to him, and recommending that the children continue to have no contact with their
father. The family court denied the petition to terminate the DVPO, but permitted the
children to have visitation with their father if their therapist and the family court approved
it. The family court did not refer the case to Child Protective Services (CPS) nor did it
remove the case to circuit court as a cross-over case because the mother did not intend to
expose the children to the father at that time.
The mother filed for divorce on October 20, 2015, and Mr. Paraschos was
appointed as Guardian ad Litem for those proceedings as well. Shortly thereafter, the
parents reconciled and the divorce petition was voluntarily dismissed on March 9, 2016.
Presumably aware that the parties were reconciling, D.T. and G.T., the children’s maternal
grandparents, filed a petition for guardianship just days before the divorce petition was
dismissed, alleging that the children were in danger. The family court held an emergency
6
hearing and granted the maternal grandparents temporary guardianship of the three
children, finding that the father was a threat to his children and that the mother failed to
protect them. Accordingly, it also imposed a no-contact order between the children and
their parents. The family court, acknowledging that allegations of abuse and neglect
formed the basis of the guardianship petition, removed the case to circuit court in
accordance with Rule 48a and Rule 13, and made a referral to the Department of Health
and Human Resources (DHHR).
The circuit court directed DHHR to conduct an investigation and report its
findings to the circuit court. DHHR substantiated that there had been maltreatment and
impending danger and opened the case for ongoing CPS intervention. At a hearing on May
4, 2016, DHHR provided the circuit court with a summary of its findings and indicated that
its petition for abuse and neglect had been previously submitted to the Cabell County
Prosecuting Attorney’s Office to be filed. During the hearing, the Guardian ad Litem
recommended to the court that the matter be remanded to family court because the children
were no longer in danger of abuse at the hands of their parents by virtue of the fact that
they were presently in the custody of their grandparents. Counsel for DHHR indicated that
she had serious concerns due to the extensive history of abuse, but conceded that “if the
children are going to remain with the grandparents, then from the Department’s
perspective, I guess the abuse has been addressed. I just don’t want a situation where they
7
will be petition [sic] in the next year or two trying to move the children back with them
saying things have changed.”
The circuit court concluded that the children were adequately protected by
the family court’s temporary order granting guardianship to the maternal grandparents and
prohibiting contact with the parents. Therefore, finding that a petition for abuse and neglect
was unnecessary, the circuit court concluded that the matter could be remanded back to
family court for guardianship proceedings. The parents filed a motion for reconsideration
arguing that remand to family court was inappropriate in light of the plain language of Rule
48a and Rule 13 prohibiting remand of any portion of a case when it had been removed to
circuit court under those rules. The circuit court denied the motion. Accordingly, the CPS
case worker informed the father that because the circuit court did not accept the case and
it was being referred back to family court that CPS would no longer be involved with his
family. She advised him that he would have to abide by all rulings and orders made by the
family court and that his daughters remained in the temporary legal and physical custody
of their maternal grandparents.
On October 5, 2016, the maternal grandparents filed a petition for permanent
guardianship of the children. Two weeks later, the family court held an evidentiary hearing
on the permanent guardianship, during which the parents again objected to the family
court’s jurisdiction. The family court noted their objection but proceeded with the hearing,
8
acknowledging that the circuit court had already twice determined that remand was
appropriate. The family court held a lengthy hearing and heard testimony from the
Guardian ad Litem, the father’s Batterer Intervention Program therapist, the children’s
psychologist, the parents’ psychologist, the maternal grandmother, and the mother.
Ultimately, the family court found that all three children had witnessed extreme domestic
violence; all three children suffered psychological abuse at the hands of their parents; the
two older children suffered physical abuse at the hands of their father; K.W., the eldest,
had suffered physical abuse at the hands of her mother; and that K.W., being over the age
of 14, had expressed a preference to live with her grandparents. Based on these findings,
the family court concluded that the maternal grandparents should be the permanent
guardians of the three children. The family court put in place a no-contact order as to the
father and a limited electronic contact order as to the mother, with the possibility for
increasing contact if the children’s psychologist and the Guardian ad Litem agreed it was
appropriate.
The parents filed objections to the order as prepared by the Guardian ad
Litem, arguing that the findings and conclusions were factually inaccurate and did not
reflect the court’s findings at the hearing. The family court overruled that objection and
entered the order. The parents filed a motion for reconsideration with the family court,
which was denied. The parents then filed an appeal to the circuit court and raised the
impropriety of the remand from circuit court to family court. The circuit court denied the
9
appeal, finding that “it does not make logical sense to interpret Rule 13 of the Rules for
Minor Guardianship Proceedings and Rule 48a of the Rules [of] Practice and Procedure of
Family Court to give the Circuit Court absolutely no discretion on whether or not to accept
a crossover case when they find a case should not have been referred to the Circuit Court.”
It is from that order that the parents appeal to this Court.
II. STANDARD OF REVIEW
We are asked to determine whether the circuit court properly disregarded
Rule 13 and Rule 48a when it remanded this case to the family court with instructions to
proceed as an infant guardianship case as opposed to an abuse and neglect matter. More
pointedly, we must determine whether the family court had subject-matter jurisdiction to
grant permanent guardianship in this case. “Whether a court has subject matter jurisdiction
over an issue is a question of law[.]”3 Similarly, inquiry into the issue of subject-matter
jurisdiction necessarily implicates a review of the court rules relevant to the circuit court’s
remand. Accordingly, our review is plenary: “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.”4
3
Snider v. Snider, 209 W. Va. 771, 777, 551 S.E.2d 693, 699 (2001).
4
Syl. Pt. 1, Chrystal R.M. v. Charlie A.L., 194 W. Va. 138, 459 S.E.2d 415 (1995).
10
III. ANALYSIS
On appeal, the parents reiterate the jurisdictional argument made below,
namely, that the circuit court erred in remanding the matter to family court. As a
consequence of the improper remand, the parents argue that the family court’s grant of
permanent custody was made without subject-matter jurisdiction and should be nullified.
The parents also argue that the family and circuit courts erred by granting and upholding
permanent guardianship to the maternal grandparents and divesting them of their
constitutional rights to the custody of their children without a specific finding of unfitness,
and that the permanent guardianship order effectually terminated their parental rights
without offering them the procedural safeguards of child abuse and neglect proceedings
under Chapter 49 of the West Virginia Code.
The parents argue that Rule 48a of the Rules of Practice and Procedure for
Family Court and Rule 13 of the Rules of Practice and Procedure for Minor Guardianship
Proceedings5 are undeniably clear—those rules provide, in relevant part, the following:
Removal by a family court to circuit court of infant
guardianship cases involving child abuse and neglect. — If a
family court learns that the basis, in whole or part, of a petition
for infant guardianship brought pursuant to W. Va. Code § 44-
10-3, is an allegation of child abuse and neglect as defined in
5
Rule 48a of the Rules of Practice and Procedure for Family Court and Rule 13 of
the Rules of Practice and Procedure for Minor Guardianship are duplicative rules that
contain the same language. We include references to both only to ensure that this Opinion
is understood as applicable to both.
11
W. Va. Code § [49-1-201],[6] then the family court before
whom the guardianship proceeding is pending shall remove the
case to the circuit court for hearing. . . . Once removed, the case
(or any portion) shall not be remanded to family court. . . .
The Guardian ad Litem does not dispute that the remand was technically error based on a
plain reading of this rule. Rather, he supports the circuit court’s remand by relying on the
fact that the family court and circuit court have concurrent jurisdiction in guardianship
matters as well as arguing that Rules 13 and 48a impose an arbitrary requirement to
remand.7
6
The text of Rule 48a retains the reference to precodification section (W. Va. Code
§ 49-1-3). As reflected in Rule 13, that section was recodified as West Virginia Code §
49-1-201.
7
Because the arguments advanced by the grandparents in both their brief and
subsequent correspondence to this Court vacillate dramatically, we reference the arguments
of the Guardian ad Litem for purposes of deciding the legal issue before us. For example,
the grandparents recanted their prior sworn statements that the parents were unfit and went
so far as to allege that it was abuse to keep the children away from their parents. In their
summary response, the grandparents indicated that they had been pressured by Mr.
Paraschos to file for guardianship and never believed that the children were in danger,
despite the fact that they had made sworn statements to the contrary and were represented
by their own counsel at that time. Shortly before oral argument, this Court was provided
with a letter and attachments from the maternal grandmother alleging that they were
pressured by the parents to file the response brief to this Court in which they recanted their
prior statements, and now deeply regretted doing so. As a result, this Court accords scant
merit to the arguments and representations made by the grandparents in this appeal.
While the opposition to the parent’s legal arguments is sufficiently briefed by the
Guardian ad Litem, due to the ambivalence and recklessness with which the grandparents
have approached the allegations and retractions they have made under oath and to this
Court, we are left with weighty factual questions such that the ultimate disposition of these
children may be affected. The gravity of these already-troubling circumstances is
12
Indeed, the family court and circuit court have concurrent jurisdiction in
guardianship matters pursuant to Rule 2 of the Minor Guardianship Rules, but, as explained
in that rule, the family court’s jurisdiction is subject to the removal provisions in Rule 13.
The removal provisions of Rule 13 and Rule 48 are abundantly clear that “[o]nce removed,
the case (or any portion) shall not be remanded to family court.” Consistent with the plain
language of Rule 13 of the Rules of Practice and Procedure for Minor Guardianship
Proceedings and Rule 48a of the Rules of Practice and Procedure for Family Court, once a
family court removes an infant guardianship case to circuit court because the basis for the
guardianship is, in part, abuse and neglect, the case, in its entirety, remains in circuit court
and may not be remanded. As we held in In re Abbigail Faye B.,
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).[8]
underscored by our inability to discern whether or not the grandparents, the guardians of
these children for the past two years, believe the children to be in danger from their parents,
whether they might expose the children to their parents, and whether they wish for the
guardianship to remain in place.
8
Syl. Pt. 7, In re Abbigail Faye B., 222 W. Va. 466, 665 S.E.2d 300 (2008)
(emphasis added).
13
This is consistent with our holdings relating to the scope of family court
jurisdiction: “Among such limits imposed upon a family court’s jurisdiction are the
inability of a family court to hear a matter involving child abuse or neglect insofar as such
cases are within the exclusive authority of the circuit court . . . .”9 Accordingly, the family
court appropriately entered an order for temporary guardianship as contemplated in Rule
13 and 48a as well as West Virginia Code § 44-10-3,10 and relinquished jurisdiction to the
circuit court for investigation and filing of a child abuse and neglect petition, if so
warranted. The circuit court, though aware that the allegations of abuse and neglect were
substantiated and that a petition was forthcoming, nonetheless remanded the case to family
court. The circuit court justified the remand based on the Guardian ad Litem’s assertions
that the children were no longer in danger because they were, at the time of the hearing, in
the custody of their grandparents and adequately protected by the family court’s order,
which also prevented contact between the children and their parents.
9
In the Interest of J.L., Jr., 234 W. Va. 116, 120, 763 S.E.2d 654, 658 (2014).
10
Rules 13 and 48a provide, in relevant part, that “[s]hould the family court learn
of such allegations of child abuse and neglect during the hearing, then the family court
shall continue the hearing, subject to an appropriate temporary guardianship order, and
remove the case to the circuit court . . . .” West Virginia Code § 44-10-3, which sets forth
the requirements for appointment and termination of minor guardianships, provides that
“the court may appoint a temporary guardian for a minor upon a showing that an immediate
need exists[.]” W. Va. Code § 44-10-3(g) (2016 Repl. Vol.).
14
While the Guardian ad Litem acknowledges that the remand was technically
in error, he nonetheless argues that Rule 13 and Rule 48a arbitrarily deprive the circuit
court of any discretion to remand the case to family court when DHHR or the court
concludes it is unnecessary to file a petition, while Rule 3a of the Rules of Procedure for
Child Abuse and Neglect Proceedings (Rule 3a) permits a circuit court to decline
jurisdiction under those same conditions. Rule 3a dictates procedure for pre-petition
investigations. Rule 3a(b), to which the Guardian ad Litem refers, provides in relevant
part:
Mandamus Relief. — Following review of an
investigation report in which the Department concludes that a
civil petition is unnecessary, if the circuit court believes that
the information in the family court’s written referral and the
Department’s investigation report, considered together,
suggest circumstances upon which the Department would have
a duty to file a civil petition, the court shall treat the written
referral as a petition for writ of mandamus in the name of and
regarding the affected child or children. A show-cause order
shall issue by the court setting a prompt hearing to determine
whether the respondent Department has a duty to file a civil
petition under the particular circumstances set forth in the
written referral and investigation report. If it is determined by
the court that the Department has a nondiscretionary duty
pursuant to W. Va. Code § 49-4-605 to file a petition seeking
to terminate parental rights, the Department shall be directed
by writ to file such petition within a time period set by the
court. . . .
Unlike Rules 13 and 48a, Rule 3a, the Guardian ad Litem argues, allows the
circuit court to look at factual circumstances in a family court referral and to determine
whether to require DHHR to file a petition of abuse and neglect if DHHR finds it is
15
unnecessary. Ergo, if the circuit court, in the exercise of its discretion, does not require
DHHR to file the petition, it effectively declines jurisdiction over the proceeding and the
family court maintains jurisdiction. The Guardian ad Litem argues that the outcome should
be no different in the context of guardianship proceedings because the circuit court
exercised sound discretion in remanding the matter to family court once it perceived that a
petition for abuse and neglect was unnecessary.
Based on the facts before us, we find that argument unpersuasive because it
grossly oversimplifies DHHR’s position regarding the need for a petition for abuse and
neglect against the parents. In this case, DHHR substantiated the allegations of abuse and
had already sent the petition to the Cabell County Prosecuting Attorney’s Office to be filed.
To say that DHHR believed that a petition for abuse and neglect was unnecessary
fundamentally misstates the representations made to the circuit court below and
misappropriates the intent and principle of Rule 3a. Rule 3a permits a circuit court to
“decline jurisdiction” by accepting DHHR’s conclusions in the investigative report that a
petition is unnecessary due to unsubstantiated allegations of abuse or neglect.11 No such
11
West Virginia Code § 49-4-605(b) does, however, outline particular
circumstances in which DHHR may elect not to file a petition when ordinarily it would
have a duty to do so:
(b) The department may determine not to file a petition to terminate
parental rights when:
(1) At the option of the department, the child has been placed
permanently with a relative by court order;
16
representation was made to the circuit court in DHHR’s investigative report. In fact, in
addition to its report substantiating the allegations and finding impending danger, DHHR
expressed significant concerns regarding the physical and emotional abuse that these
children witnessed and endured and, ironically, foreshadowed apprehension that the
parents would attempt to regain custody. Thus, the circuit court did not “decline
jurisdiction” as contemplated in Rule 3a due to unsubstantiated allegations of abuse. While
counsel for DHHR did assent that if the children were going to remain in the custody of
their grandparents, from its perspective the abuse was addressed, the fact of the matter is
that the children were in the custody of their grandparents by temporary order of the family
court.
The temporary guardianship put in place by the family court was an attempt
to protect these children from their parents in the face of imminent need, not unlike removal
by DHHR prior to filing a petition under West Virginia Code § 49-4-303 and temporary
custodial placement during the pendency of that proceeding under West Virginia Code §
(2) The department has documented in the case plan made
available for court review a compelling reason, including, but not limited to,
the child’s age and preference regarding termination or the child’s placement
in custody of the department based on any proceedings initiated under part
seven [§§ 49-4-701 et seq.] of this article, that filing the petition would not
be in the best interests of the child; or
(3) The department has not provided, when reasonable efforts to
return a child to the family are required, the services to the child’s family as
the department deems necessary for the safe return of the child to the home.
17
49-4-602. In fact, had the grandparents not preemptively sought guardianship before the
Guardian ad Litem made DHHR aware that the mother had reconciled with the father,
based on DHHR’s report, the children would likely have been removed from the parents’
home and placed with the maternal grandparents in any case. The form of the transfer of
custody does not subvert the substance of it—the children were temporarily removed from
their parents’ custody due to allegations of abuse and neglect, DHHR substantiated those
allegations and provided the prosecutor with a petition for abuse and neglect to proceed
against the parents. The circuit court’s conclusion that a petition was unnecessary because
the children were in the temporary custody of their grandparents is no more sound than
concluding that a child’s temporary placement with foster parents prior to institution of an
abuse and neglect proceeding negates the need for a petition against the parents in and of
itself.
This reasoning is consistent with West Virginia Code § 49-4-605, which
outlines when DHHR efforts to terminate parental rights are required, and when they are
discretionary. In relevant part, that section provides:
(a) Except as provided in subsection (b) of this section, the
department shall file or join in a petition or otherwise seek a
ruling in any pending proceeding to terminate parental rights:
...
(2) If a court has determined that the child is
abandoned, tortured, sexually abused, or
chronically abused[.]
****
18
(b) The department may determine not to file a petition to
terminate parental rights when:
(1) At the option of the department, the child has
been placed permanently with a relative by court
order.[12]
The circuit court was presented with ample evidence that the mother and these children
were chronically abused physically and emotionally sufficient to compel DHHR to file a
petition against the parents. Yet, it determined that a petition seeking to adjudicate their
parental or custodial rights was unnecessary based on the children’s temporary placement
with relatives. The remand was not only contrary to Rules 13 and 48a, but also
jurisdictionally precluded the filing of a petition against the parents, which we are of the
conviction was DHHR’s nondiscretionary duty to file. While we are cognizant that the
circuit court was, appropriately, most concerned with assuring the safety of the children in
the immediate context, its approach to these particular circumstances of abuse was
insufficient procedurally and substantively insofar as it did not contemplate the need for
permanency. We therefore hold that 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.
12
Emphasis added.
19
Having determined that the need for an abuse and neglect petition existed at
the time of the circuit court’s remand, and that the circuit court maintains exclusive
jurisdiction over such proceedings, we conclude that the circuit court should have retained
jurisdiction and its remand to the family court was error. It follows then, that the family
court, in issuing its permanent guardianship order, was without subject-matter jurisdiction
to do so. Without question, subject-matter jurisdiction “must exist as a matter of law for
the court to act.”13 Consequently, “any decree made by a court lacking [subject-matter]
jurisdiction is void[,]”14 and the permanent guardianship must be set aside for want of
subject-matter jurisdiction, however situationally appropriate it may have been.15
However, because the record before us is replete with corroborated
allegations of physical and emotional abuse, which is apparently ongoing even in spite of
the no-contact order, we do not find it appropriate, given the already-extended duration of
these proceedings and plainly manifested danger to the children, to return custody of the
13
State ex rel. Smith v. Thornsbury, 214 W. Va. 228, 233, 588 S.E.2d 217, 222
(2003).
14
State ex rel. TermNet Merchant Servs., Inc. v. Jordan, 217 W. Va. 696, 700, 619
S.E.2d 209, 213 (2005) (citation omitted).
15
Because we have determined that the permanent guardianship order must be set
aside for lack of jurisdiction, it is unnecessary to address the parents’ constitutional
concerns that the permanent guardianship effectively terminated their parental rights
without the protections afforded them by Chapter 49 of the West Virginia Code.
20
children to their parents.16 The children will remain in the temporary guardianship of their
maternal grandparents pending a hearing to be conducted within ten (10) days of the
issuance of this Opinion at which the circuit court will determine whether the maternal
grandparents are fit to continue as the temporary guardians of the children.17 Further, the
circuit court is instructed to provide DHHR leave to file an abuse and neglect petition
against the parents, if still judged appropriate, and to proceed according to Chapter 49 of
the West Virginia Code so as to allow for CPS involvement and development of a
permanency plan for these children.
IV. CONCLUSION
For the foregoing reasons, we reverse the July 10, 2017 order of the Circuit
Court of Cabell County and remand for further proceedings consistent with this opinion.
The Clerk is directed to issue the mandate concurrently with the opinion.
Reversed and remanded.
16
See syl. pt. 6, In re Timber M., 231 W. Va. 44, 743 S.E.2d 352 (2013) (“In cases
involving the abuse and neglect of children, when it appears from this Court’s review of
the record on appeal that the health and welfare of a child may be at risk as a result of the
child’s custodial placement, regardless of whether that placement is an issue raised in the
appeal, this Court will take such action as it deems appropriate and necessary to protect
that child.”).
17
See supra n.7.
21