In re H.J., C.J., and M.J.

FILED
January 12, 2022
EDYTHE NASH GAISER, CLERK
STATE OF WEST VIRGINIA SUPREME COURT OF APPEALS
SUPREME COURT OF APPEALS OF WEST VIRGINIA
In re H.J., C.J., and M.J.
No. 21-0452 (Raleigh County 20-JA-133, 20-JA-135, and 20-JA-136)
MEMORANDUM DECISION
Petitioner J.C., by counsel Daniel J. Burns, appeals the Circuit Court of Raleigh County’s
May 4, 2021, order terminating any rights he had to H.J., C.J., and M.J. 1 The West Virginia
Department of Health and Human Resources (“DHHR”), by counsel Patrick Morrisey and Brittany
Ryers-Hindbaugh, filed a response in support of the circuit court’s order. The guardian ad litem
(“guardian”), Colleen M. Brown-Bailey, filed a response on the children’s behalf in support of the
circuit court’s order. Petitioner filed a reply. On appeal, petitioner argues that the circuit court
erred in terminating his “psychological” parental rights by finding that he was a “psychological”
parent with rights to terminate and in finding that petitioner was properly “served with the petition
and notices of the proceedings.”
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.
In October of 2020, the DHHR filed an abuse and neglect petition alleging that the mother
and petitioner, the live-in boyfriend or “paramour,” physically abused the children with excessive
corporal punishment. According to the DHHR, the children’s nonabusing father and the mother
shared custody, and the father filed a petition for a domestic violence protective order after he
repeatedly found bruises on the children. The Child Protective Services (“CPS”) worker
investigated and interviewed the children. Then-six-year-old H.J. reported that the mother and
petitioner were fighting, and that petitioner was no longer allowed to touch the children. During
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). The proceedings in circuit court also concerned additional
children that are not at issue on appeal.
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the questioning of H.J., petitioner entered the room, cussed at the worker, and forced her to leave.
Eventually, the worker returned with law enforcement officers and removed the children. The
worker interviewed the mother who denied that petitioner disciplined the children. However,
during a subsequent interview a few weeks later, the mother admitted that petitioner whipped H.J.
and then-three-year-old C.J. for jumping naked on the bed with two-year-old M.J. The worker
eventually interviewed petitioner who admitted spanking H.J. and C.J., busting one of the
children’s lips during an incident when the boys were jumping on the bed, and throwing a chair at
C.J. Petitioner admitted to being in a relationship with the mother and living in the home with the
children.
At the preliminary hearing, the court asked petitioner whether he had received a copy of
the petition and petitioner answered “no.” When asked whether he had gone over the contents of
the petition with his attorney and understood the allegations against him, petitioner answered,
“yes.” Petitioner then knowingly and voluntarily waived his right to challenge the removal of the
children in a contested preliminary hearing.
In January of 2021, the circuit court held an adjudicatory hearing, but continued the matter
because the children’s Child Advocacy Center (“CAC”) interviews had not been distributed among
counsel. No evidence was taken at this hearing. On March 11, 2021, the parties convened a
multidisciplinary team (“MDT”) meeting to formulate a case plan. Petitioner and the mother failed
to appear, but they were represented by counsel.
The continued adjudicatory hearing was held in March of 2021, during which petitioner
failed to appear but was represented by counsel. Petitioner’s counsel stated that he had not spoken
with his client since the preliminary hearing, that the phone number petitioner provided him was
no longer in service, and that the letters he sent to petitioner’s address were returned. Likewise,
the mother’s counsel stated that he lost contact with her in January of 2021. Having heard counsels’
responses, the circuit court found that petitioner and the mother had an ongoing obligation to
remain in contact with their counsel “so that they can make their appearances and assert their rights
or challenge anything that is alleged against them.” The court found that the parents’ failure to
appear was voluntary. Ultimately, the court adjudicated petitioner as an abusing parent for
excessive physical discipline of the children. The court specifically found petitioner as a “custodial
parent” or a “psychological” parent “based upon the ongoing relationship” with the mother.
Finally, at the request of petitioner’s counsel, the court ordered notice by publication for the final
dispositional hearing.
In April of 2021, the circuit court held a dispositional hearing. Petitioner appeared in person
and by counsel. The mother testified that she had been in a relationship with petitioner for two
years, and that prior to the instant petition being filed, she had primary custody of the children.
The DHHR worker testified that she took over the case in late January of 2021 and had not had
any contact with petitioner. Petitioner testified that he “assisted in raising the kids,” that the
children looked to him as a “father figure,” and named several activities he did with them when he
was off work such as watching television with the children, playing video games, and taking the
children to the Y.M.C.A. Petitioner denied excessive physical punishment of the children and
stated that the allegations in the petition were false. Based upon the apparent relationship between
petitioner and the mother and the children, and petitioner’s participation in “rearing and raising the
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children,” the circuit court deemed petitioner a “psychological” parent of the children. The court
then terminated “any rights [petitioner] would have as a psychological parent” to the children and
found that said termination was in the children’s best interests. Petitioner appeals the May 4, 2021,
dispositional order terminating his “psychological parental rights.” 2
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
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).
We first address petitioner’s argument that the circuit court erred in finding that he was
properly “served with the petition and notices of the proceedings.” Petitioner argues that there was
no proof of service of the petition to petitioner via certified mail or personal service. See W. Va.
Code § 49-4-601(e)(3). However, in his brief, petitioner concedes that he discussed the petition
with counsel prior to waiving his right to a preliminary hearing. As such, any alleged error by the
DHHR in failing to serve petitioner with the petition had been apparently cured as petitioner
appeared for his preliminary hearing, testified that he was aware of the petition’s contents, had
discussed the consequences of the petition with counsel, and voluntarily and knowingly waived
his right to a contested preliminary hearing. Considering the above, petitioner was clearly on notice
of the allegations against him. As such, we find that petitioner is entitled to no relief in this regard.
Regarding petitioner’s alleged lack of notice for the dispositional hearing, we likewise find
this argument without merit. Petitioner cites West Virginia Code § 49-4-601(e)(4) that provides
that “[i]f service cannot be obtained by personal service or by certified mail, notice shall be by
publication as a Class II legal advertisement in compliance with § 59-3-1 et seq. of this code.”
However, this code section is inapplicable. Petitioner’s complaint is in regard to the notice of
hearing for the final dispositional hearing, and this code applies to service of the petition and notice
of the preliminary hearing, which we already addressed above. Nevertheless, petitioner appeared
2
The mother’s parental rights were also terminated below. The children’s biological father
is nonabusing, and the children remain in his care.
3
and testified at the dispositional hearing, thereby proving that he was aware of the hearing, and
negating any alleged error. 3
Finally, petitioner argues that circuit court erred in terminating his “psychological” parental
rights by finding that he was a “psychological” parent with rights to terminate. According to
petitioner, there was insufficient evidence to show that he was a psychological parent as there was
no indication that he filled the psychological, physical, emotional, or financial needs of the
children. Petitioner further asserts that his relationship with the children was not of “substantial
duration.” Petitioner asserts that inasmuch as there existed a psychological parent relationship, the
relationship ended upon the removal of the children, as petitioner did not attempt to visit the
children. As such, petitioner argues that the circuit court unnecessarily terminated rights which
petitioner did not possess.
The Court has previously defined a “psychological parent” 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. To the extent that this holding is inconsistent with our 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).
The evidence below shows that there was sufficient evidence to find petitioner as a
psychological parent as the majority of the above elements were met. During the dispositional
hearing, the mother testified to being with petitioner for over two years and having primary custody
of the children during this time. Considering the children’s young ages, two years could be
considered a substantial amount of time to be living with the mother’s paramour—indeed M.J. was
approximately two years old when removed. Additionally, petitioner testified that he worked to
support the household and would engage in activities with the children after work such as watching
television or taking the children to the Y.M.C.A. As such, it appears that petitioner lived, played,
and interacted with the children on a daily basis, and specifically testified that he believed the
children saw him as a “father figure.” Additionally, we can deduce that the mother consented to
3
In petitioner’s brief, he indicates that “most if not all of the proceedings occurred via
Microsoft Teams.” Therefore, petitioner’s participation required that he have a working e-mail or
phone to participate. As evidenced by his appearances at the preliminary and dispositional
hearings, petitioner had access to this remote platform, knew how to participate, and either clicked
on a link within an e-mail or called a specific number to join the hearing. Apparently, petitioner
failed to stay in contact with counsel or the court regarding any change in e-mail address or phone
number prior to the adjudicatory hearing in March of 2021.
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petitioner’s relationship with the children, since she lived with petitioner and the children.
Moreover, petitioner’s inaction regarding visitation of the children after they were removed has no
bearing on the fact that he had a significant role in the children’s lives prior to their removal.
Further, petitioner ignores the fact that West Virginia Code § 49-4-601(b) requires that
[e]ach petition shall name as a party each parent, guardian, custodian, other person
standing in loco parentis of or to the child allegedly neglected or abused and state
with specificity whether each parent, guardian, custodian, or person standing in
loco parentis is alleged to have abused or neglected the child.
(Emphasis added). The record shows that the circuit court found petitioner to be a “custodial
parent” at the adjudicatory hearing, and the record supports this finding as petitioner shared “actual
physical possession or care and custody” of the children with the mother, despite not having been
“granted custody of the child[ren] by any contract or agreement.” W. Va. Code § 49-1-204; see
also Rule 3 of the West Virginia Rules of Procedure for Child Abuse and Neglect Proceedings
(“Parent” means “an individual defined as a parent by law or on the basis of a biological
relationship, marriage to a person with a biological relationship, legal adoption or other recognized
grounds, pursuant to W.Va. Code § 49-1-204.”). As such, regardless of whether or not the circuit
court erred in finding that petitioner was a psychological parent, the record clearly establishes that
petitioner exercised custodial rights to the children such that West Virginia Code § 49-4-601
required that he be a named respondent in the proceedings.
Most importantly, the evidence showed that petitioner and the mother had no plans of
separating and they intended to stay together regardless of the outcome of the proceedings.
Therefore, it logically stands that if the children were to be reunified in the home, the case plan
would have needed to address petitioner and his excessive discipline of the children before
returning the children to his care. With this in mind, coupled with petitioner’s testimony that he
assisted in raising the children and that the children saw him as a father figure, the court did not
err in terminating “any rights [petitioner] would have as a psychological parent” to the children.
As set forth above, petitioner, at the very least, had custodial rights available for termination, and
the circuit court did not err in terminating these rights.
For the foregoing reasons, we find no error in the decision of the circuit court, and its May
4, 2021, order is hereby affirmed.
Affirmed.
ISSUED: January 12, 2022
CONCURRED IN BY:
Chief Justice John A. Hutchison
Justice Elizabeth D. Walker
Justice Tim Armstead
Justice Evan H. Jenkins
Justice William R. Wooton
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