In Re S.W

IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
September 2015 Term
_________________ FILED
November 5, 2015
No. 15-0333 released at 3:00 p.m.
RORY L. PERRY II, CLERK
SUPREME COURT OF APPEALS
OF WEST VIRGINIA
________________
IN RE S.W.
_________________________________________________________
Appeal from the Circuit Court of Brooke County
The Honorable Martin Gaughan, Judge
Civil Action No. 10-JA-11
REVERSED AND REMANDED WITH DIRECTIONS
__________________________________________________________
Submitted: October 14, 2015
Filed: November 5, 2015
James T. Carey, Esq. Patrick Morrisey, Esq.
Carey Law Office Attorney General
Weirton, West Virginia Michael Jackson, Esq.
Counsel for Petitioners S.S. and H.S. Assistant Attorney General
Charleston, West Virginia
Sara Hawthorne Bohn, Esq. Counsel for Respondent DHHR
Weirton, West Virginia
Guardian ad litem Ann Marie Morelli, Esq.
Weirton, West Virginia
Counsel for K.M.
CHIEF JUSTICE WORKMAN delivered the Opinion of the Court.
34
SYLLABUS BY THE COURT
1. “When this Court reviews challenges to the findings and conclusions of the
circuit court, a two-prong deferential standard of review is applied. We review the final
order and the ultimate disposition under an abuse of discretion standard, and we review the
circuit court’s underlying factual findings under a clearly erroneous standard.” Syl.,
McCormick v. Allstate Ins. Co., 197 W.Va. 415, 475 S.E.2d 507 (1996).
2. “‘“The exercise of discretion by a trial court in awarding custody of a minor
child will not be disturbed on appeal unless that discretion has been abused; however, where
the trial court’s ruling does not reflect a discretionary decision but is based upon an erroneous
application of the law and is clearly wrong, the ruling will be reversed on appeal.” Syllabus
point 2, Funkhouser v. Funkhouser, 158 W.Va. 964, 216 S.E.2d 570 (1975), superseded by
statute on other grounds as stated in David M. v. Margaret M., 182 W.Va. 57, 385 S.E.2d
912 (1989).’ Syl. Pt. 1, In re Abbigail Faye B., 222 W.Va. 466, 665 S.E.2d 300 (2008).”
Syl. Pt. 2, In re Antonio R.A., 228 W.Va. 380, 719 S.E.2d 850 (2011).
3. “Although parents have substantial rights that must be protected, the
primary goal in cases involving abuse and neglect, as in all family law matters, must be the
health and welfare of the children.” Syl. Pt. 3, In re Katie S., 198 W.Va. 79, 479 S.E.2d 589(1996).
Workman, Chief Justice:
This is a joint appeal by the paternal grandparents1 and guardian ad litem of a
child (hereinafter jointly referenced as “the petitioners” or separately referenced as “the
grandparents” or “the GAL”). The petitioners appeal a circuit court order terminating the
grandparents’ legal guardianship of their grandchild, S.W. (hereinafter “the child”), and
returning the child to his mother.2 The Department of Health and Human Resources
(hereinafter “the DHHR”) also supports the petitioners’ contentions in this appeal.
Subsequent to thorough review of the pleadings and record designated for review, the briefs
and oral arguments of the parties, and for the reasons stated herein, we reverse the order of
the Circuit Court of Brooke County, West Virginia, terminating the grandparents’
guardianship of S.W. and remand this matter for entry of an order consistent with this
opinion.
I. Factual and Procedural History
S.W. was born in 2009. An abuse and neglect petition was filed on June 30,
2010, alleging that the child’s mother, K.M., was under the influence of drugs while caring
1
Because this case involves sensitive facts, we protect the identities of those involved
by using only the parties’ initials. See State ex rel. W.Va. Dept. of Human Servs. v. Cheryl
M., 177 W.Va. 688, 689 n.1, 356 S.E.2d 181, 182 n.1 (1987); see also W.Va. R. App. P. 40.
2
Based upon this Court’s stay of the circuit court’s order returning the child to his
mother, the child currently resides with his paternal grandparents.
1
for him. The DHHR placed the child in the care of his paternal grandparents, and a pre­
adjudicatory improvement period was granted to the mother on September 29, 2010. The
mother and the maternal grandparents were also granted visitation with the child.
On March 16, 2011, the GAL filed a motion to terminate the mother’s pre­
adjudicatory improvement period because she had tested positive for oxycodone and
morphine on two separate occasions. The improvement period was terminated on March 24,
2011, and the mother admitted that she was abusing drugs.3
On May 12, 2011, the mother admitted that she had been under the influence
of drugs in the presence of the child and had neglected to take reasonable care of the child
due to her drug addiction. The circuit court adjudicated her as a neglectful parent. During
a June 23, 2011, status hearing, the circuit court was advised that the mother had completed
a rehabilitation program and was participating in an outpatient program.
On September 8, 2011, the circuit court granted the mother a post-adjudicatory
improvement period, requiring her to discontinue her abuse of controlled substances and
refrain from contact with felons. On November 10, 2011, the child was returned to the
3
On April 14, 2011, the GAL also informed the circuit court that the mother was living
with a registered sex offender.
2
mother’s care, but legal custody remained with the DHHR. Approximately four months later,
on March 9, 2012, the GAL filed a motion to return physical custody of the child to the
DHHR because the mother had violated the terms of the post-adjudicatory improvement
period by refusing to answer the door to her home and submit to a drug test. The child was
thereafter removed from the mother’s care and placed back in the custody of the paternal
grandparents.
On July 12, 2012, the circuit court granted supervised visitation to the mother,
contingent upon her cooperation with drug testing. The mother was unable to appear for a
September 2012 hearing due to her incarceration on a charge of possession of drugs with
intent to deliver. Subsequent to a June 21, 2013, dispositional hearing, the circuit court
entered an order on August 5, 2013, stating that the mother had been arrested in September
2012 for possession with intent to deliver, had refused to be drug tested, and had exhibited
erratic behavior. The court held that under West Virginia Code § 49-6-5(a)(5) (2012),4 the
child would remain in the physical custody of the paternal grandparents, with visitation
permitted with the mother and maternal grandparents.5
4
That section, now recodified as West Virginia Code § 49-4-604(b)(5) (2015),
provided that the circuit court may commit the child temporarily to the State Department or
a person who may be appointed guardian.
5
The circuit court also stated that an abuse and neglect action was pending against the
child’s father, J.W. The father’s parental rights to S.W. were ultimately terminated, and that
aspect of this matter is not before this Court.
3
On September 3, 2013, the mother was released from incarceration and placed
on probation for five years as a result of her guilty pleas to felony and misdemeanor drug
charges. On December 12, 2013, the circuit court held a permanency hearing and granted
legal guardianship to the paternal grandparents. The mother graduated from Drug Court on
September 11, 2014,6 and filed a “Petition to Overturn Legal Guardianship” on November
19, 2014. In that petition, she asserted that she had been in recovery for over one year, and
she argued that her recovery and continued sobriety constituted a material change in
circumstances justifying a modification of the custody of her son.
A hearing on the mother’s petition was held on January 15, 2015. The mother
testified concerning her strong bond with the child and her maintenance of sobriety. She
indicated that the child calls her “Mommy,” comes to her for safety and comfort, and
sometimes throws tantrums in an effort to be permitted to stay with her. Ms. Gina Hicks, the
mother’s supervising officer and Mental Health Court Coordinator, testified that the mother
had completed the rehabilitation program successfully and noted distinct improvements in
the mother’s performance during her participation in the program the second time. The
mother’s probation officer, Terry Stuck, testified that the mother was compliant with all
6
The mother also married on June 6, 2014, and she now has another child, who is a
half-sibling to S.W.
4
terms of her probation.
The paternal grandmother also testified concerning her bond with the child, and
she explained that she has encouraged the mother’s role in the child’s life and had not tried
to assume the role of mother. The GAL testified that the child wished to remain living at his
grandparents’ home, with visits to his mother’s home.
On April 1, 2015, the circuit court terminated the grandparents’ legal
guardianship and ordered the transfer of the child to the mother within ten days. The
grandparents and the GAL appeal that ruling, contending the lower court ruled in favor of
the mother based upon her right to parent her child, rather than in accordance with the
statutorily-required analysis of the child’s best interests. Specifically, the petitioners contend
that the circuit court (1) ignored the best interests of the child by modifying the dispositional
order and removing the child from the grandparents and (2) erred in modifying the
dispositional order two years after it was entered, depriving the child of permanency. The
petitioners further contend that if a transfer of custody to the mother is mandated, the circuit
court should provide a period of gradual transition, as well as continued association with the
grandparents.
On April 16, 2015, this Court granted a stay of the transfer of custody. In
5
updates to this Court, the mother reports that she, her husband, and her newborn child are
residing in the basement of her parents’ home and are in the process of renovating separate
living quarters for their own family at that location. Although the mother has been married
since June 6, 2014, she and her current husband were briefly separated prior to the most
recent October 2015 update on the status of the child. S.W., currently in the first grade, has
remained in the custody of the paternal grandparents since 2010, with the exception of the
four-month period in which custody was transferred back to the mother in 2012.
II. Standard of Review
This Court’s standard of review in a child abuse and neglect case was
addressed in In re Beth Ann B., 204 W.Va. 424, 513 S.E.2d 472 (1998). This Court
explained that we employ the two-pronged standard of review enunciated in the syllabus of
McCormick v. Allstate Insurance Company, 197 W.Va. 415, 475 S.E.2d 507 (1996):
When this Court reviews challenges to the findings and
conclusions of the circuit court, a two-prong deferential standard
of review is applied. We review the final order and the ultimate
disposition under an abuse of discretion standard, and we review
the circuit court’s underlying factual findings under a clearly
erroneous standard.
We have also held that the following standard of review is applicable in custody decisions:
“‘The exercise of discretion by a trial court in awarding
custody of a minor child will not be disturbed on appeal unless
that discretion has been abused; however, where the trial court’s
ruling does not reflect a discretionary decision but is based upon
an erroneous application of the law and is clearly wrong, the
6
ruling will be reversed on appeal.’ Syllabus point 2, Funkhouser
v. Funkhouser, 158 W.Va. 964, 216 S.E.2d 570 (1975),
superseded by statute on other grounds as stated in David M. v.
Margaret M., 182 W.Va. 57, 385 S.E.2d 912 (1989).” Syl. Pt. 1,
In re Abbigail Faye B., 222 W.Va. 466, 665 S.E.2d 300 (2008).
Syl. Pt. 2, In re Antonio R.A., 228 W.Va. 380, 719 S.E.2d 850 (2011). With these standards
as guidance, we address the issues raised in this case.
III. Discussion
The petitioners contend that the circuit court erred in ignoring the best interests
of the child in modifying the dispositional order and terminating the legal guardianship of
the grandparents. The mother’s petition requesting modification of the guardianship order
was premised upon West Virginia Code § 49-6-6 (2014). That statute clearly provides two
prerequisites to modification of disposition. First, there must be a showing of material
change in circumstances, and second, the alteration must serve the best interests of the child.
As applicable to these proceedings,7 West Virginia Code § 49-6-6(a) provides, in pertinent
part:
Upon motion of a child, a child’s parent or custodian or
the department alleging a change of circumstances requiring a
different disposition, the court shall conduct a hearing . . . and
may modify a dispositional order if the court finds by clear and
convincing evidence a material change in circumstances and that
7
West Virginia Code § 49-6-6 was recodified, effective May 17, 2015, as West
Virginia Code § 49-4-606 (2015), with minor modifications that do not affect the issues
currently before this Court.
7
such modification is in the child’s best interests. . . .
In her memorandum to the circuit court in support of her petition, the mother
also cited West Virginia Code § 44-10-3 (2014). That statute also distinctly provides that a
request for a termination of legal guardianship must be supported by evidence of a material
change in circumstances and must serve the best interests of the child. Further, West
Virginia Code § 44-10-3(j) specifies that the burden of proof is upon the movant, in this case,
the child’s mother. The relevant portion of that statute provides as follows:
(i) The court, the guardian or the minor may revoke or terminate
the guardianship appointment when:
. . . .
(4) A petition is filed by the guardian, the minor,
a parent or an interested person or upon the
motion of the court stating that the minor is no
longer in need of the assistance or protection of a
guardian due to changed circumstances and the
termination of the guardianship would be in the
minor’s best interest.
(j) For a petition to revoke or terminate a guardianship filed by
a parent, the burden of proof is on the moving party to show by
a preponderance of the evidence that there has been a material
change of circumstances and that a revocation or termination is
in the child’s best interest.
W.Va. Code § 44-10-3(i)(4) and 44-10-3(j) (emphasis added). Additionally, Rule 46 of the
West Virginia Rules for Child Abuse and Neglect is consistent with the statutory
requirements and states that modification of a court order is permissible upon a showing of
a material change in circumstances and clear and convincing evidence that modification is
8
in the best interests of the child.
Based upon the rule and the statutory mandates outlined above, the December
12, 2013, disposition in this case, providing legal guardianship to the paternal grandparents,
may be modified only if a circuit court finds both a change in circumstances and that
modification is in the child’s best interests. The petitioners argue that the record in this case
reveals insufficient evidence to support a conclusion that returning the child to the mother
is in his best interests. In presenting evidence on the best interests issue, the mother relied
primarily on her status as the child’s mother and the bond they had established. She did not
identify any other significant evidence indicating that a modification of the custodial
arrangements would be in the child’s best interests. She argues on appeal that the GAL’s
recommendations should not be accorded significant weight because the GAL failed to view
the interactions between the mother and the child. The mother also argues that the opinions
of the child’s school counselor, Mr. Paul Weigel, should be disregarded because Mr. Weigel
was treating the child for unrelated issues at school and did not observe the mother/child
relationship.8
8
The school issues prompting the therapy with Mr. Weigel involved an incident
involving the child’s behavior issues on the school bus and his inability to concentrate in his
Kindergarten class. Mr. Weigel recommended that the child should remain with the
grandparents due to the potential traumatic effects of separating him from his current
caretakers. In her most recent October 2015 update to this Court, the GAL explained that the
child is still engaged in therapy with Paul Weigel. Mr. Weigel informed the GAL that the
child has responded well to the consistency of rules implemented by the grandparents in their
(continued...)
9
To the contrary, the grandparents, GAL, and DHHR adamantly contend that
the circuit court erred in modifying the dispositional order based upon such extremely limited
evidence that a modification would serve the best interests of the child. The DHHR asserts
that while the mother unquestionably underwent a substantial and positive change in her own
circumstances, there is a glaring absence of evidence that a modification of the disposition
is in the child’s best interests. The petitioners contend that the circuit court essentially
ignored the key element of the best interests of the child and elevated the rights of the mother
over those of the child.
Although this Court has observed that a circuit court has statutory authority to
modify a guardianship, evidence regarding each of the two elements required by the statute
must be presented. As explained above, both West Virginia Code § 49-6-6 and West
Virginia Code § 44-10-3 clearly identify the two requirements for alteration of custody in this
case. The significance of the best interests of the child cannot be overstated; it is a statutory
requirement and has been repeatedly and strenuously emphasized by this Court. In syllabus
point three of In re Katie S., 198 W.Va. 79, 479 S.E.2d 589 (1996), for instance, this Court
explained: “Although parents have substantial rights that must be protected, the primary goal
8
(...continued)
home. He also indicated that the child seem “bothered” about the most recent changes in the
mother’s living arrangements.
10
in cases involving abuse and neglect, as in all family law matters, must be the health and
welfare of the children.” See also Syl. Pt. 1, State ex rel. Cash v. Lively, 155 W.Va. 801, 187
S.E.2d 601 (1972) (“In a contest involving the custody of an infant the welfare of the child
is the polar star by which the discretion of the court will be guided.”) (internal citation
omitted); Syl. Pt. 5, Carter v. Carter, 196 W.Va. 239, 470 S.E.2d 193 (1996) (“In visitation
as well as custody matters, we have traditionally held paramount the best interests of the
child.”).
This Court also addressed these requirements in the specific context of a
termination of guardianship in In re K.H., 235 W.Va. 254, 773 S.E.2d 20 (2015). In that
case, this Court recognized that an analysis of the best interests of the child is imperative in
matters involving modification of custody. This Court’s evaluation of the guardianship
issues in K.H. specified that the statutory scheme requires consideration of the change in
circumstances, as well as the best interests of the child. Id. at 258, 773 S.E.2d at 24; see also
In re Haylea G., 231 W.Va. 494, 745 S.E.2d 532 (2013) (examining grounds for termination
of legal guardianship). The statutes and rule prohibit modification of an existing
guardianship in the absence of evidence that the child’s best interests will be served by the
modification and that there has been a change in circumstances.
Upon review of the present case, this Court finds the evidentiary record
11
insufficient to support a conclusion that S.W.’s best interests would be served by modifying
the disposition and terminating the paternal grandparents’ legal guardianship.9 Were this
simply a question of the safety and welfare of this child, this Court would be compelled to
conclude that the evidence indicates that both the mother and the paternal grandparents
would be stable and venerable caretakers for this child. But, that is not the question before
this Court. The statutes and rule prohibit a modification of the disposition in this case in the
absence of a showing that the child’s best interests would be served by altering the status
quo. We commend the mother on her extremely substantial success in conquering her
addiction issues, and we encourage her meaningful and extensive involvement in the life of
her son. At this juncture, however, there is insufficient evidence to indicate that an alteration
in the custody arrangements would be in the best interests of the child. He is entitled to a
sense of stability and permanency in his life. This Court has consistently emphasized the
importance of achievement of permanency to the greatest degree possible. See In re: Isaiah
A., 228 W.Va. 176, 718 S.E.2d 775 (2010); In re: Jonathan G., 198 W.Va. 716, 482 S.E.2d
893 (1996); State ex rel. Amy M. v. Kaufman, 196 W.Va. 251, 470 S.E.2d 205 (1996); In re
9
This Court observes that the abuse and neglect statute at issue here, West Virginia
Code § 49-6-6, requires clear and convincing evidence that the best interests of the child will
be served by the modification. Rule 46 of the West Virginia Rules for Child Abuse and
Neglect also requires clear and convincing evidence. The statute addressing a termination
of legal guardianship, however, requires only a preponderance of the evidence on the issue
of best interests. See W.Va. Code § 44-10-3. We find that the evidence on that issue in this
case is insufficient to meet either of those evidentiary standards.
12
Brian D., 194 W.Va. 623, 461 S.E.2d 129 (1995).10
As revealed in the record, the home provided for this young boy by his paternal
grandparents has been the only stable home he has known. The circuit court order did not
identify any factors indicating that termination of the guardianship would be in the child’s
best interests, basing the conclusion primarily upon the mother’s change in circumstances.
The petitioners emphasize the fact that the mother was asked to address the issue of how
removing the child from his grandparents would serve the child’s best interests. She
responded by saying that a child should be with his mother, but she did not offer evidence
on issues which might impact the best interests analysis. For instance, she was unaware of
issues such as whether the child would have to change schools if custody were to be
transferred. The record is devoid of sufficient evidence indicating that alteration of custody
would serve the child’s best interests at this time.
Based upon the foregoing, we reverse the April 1, 2015, order of the circuit
court.11 On remand to the circuit court, the rights of the mother and maternal grandparents
10
See also Syl. Pt. 6, Holstein v. Holstein, 152 W.Va. 119, 160 S.E.2d 177 (1968) (“A
change of custody should not be based only upon speculation that such change will be
beneficial to the children.”).
11
The Petitioners presented two arguments regarding gradual transition and the right
to continued association, applicable only if this Court had affirmed the holding of the circuit
court. Based upon this Court’s reversal of the circuit court, we do not address those
(continued...)
13
to visitation with the child should be specifically established. As in other child custody
matters, the visitation schedule will be subject to modification as circumstances warrant and
as the child advances in age.12
The visitation schedule should provide extensive contact between the child and
his mother and “should give due consideration to . . . work and home schedules and to the
parameters of the child’s daily school and home life, and should be developed in a manner
intended to foster the emotional adjustment” of the child “while not unduly disrupting the
lives of the parties or the [child].” Honaker v. Burnside, 182 W.Va. 448, 452, 388 S.E.2d
322, 325 (1989). This Court also explained in Honaker:
[u]ndoubtedly, ... [the child’s] best interests must be the primary
standard by which we determine [the child’s] rights to continued
contact with other significant figures in [the child’s] life.
Clearly, “these interests are interests of the child and not of the
parent. Visitation is, to be sure, a benefit to the adult who is
granted visitation rights with a child. But it is not the adult’s
benefit about which the courts are concerned. It is the benefit of
the child that is vital.”
Id. (footnotes and internal citations omitted).
No matter how artfully or deliberately the trial court judge draws
11
(...continued)
alternative arguments.
12
The mother’s continued recovery efforts will obviously have an impact on her rights
to visitation and the potential expansion of those rights. If she suffers a relapse into drug
abuse, the visitation schedule should be modified, within the discretion of the circuit court.
14
the plan for these coming months, however, its success and
indeed the chances for [the child’s] future happiness and
emotional security will rely heavily on the efforts of these . . .
[caretakers]. The work that lies ahead for . . . them is not
without inconvenience and sacrifice on both sides. Their
energies should not be directed even partially at any continued
rancor at one another, but must be fully directed at developing
compassion and understanding for one another, as well as
showing love and sensitivity to the [child’s] feelings at a
difficult time in all their lives.
Id. at 453, 388 S.E.2d at 326-27. Fortunately, this appears to be a situation in which all
parties are cooperating remarkably well to provide emotional security for the child, and we
encourage the continuation of this unity of effort for the benefit of the child.
IV. Conclusion
The April 1, 2015, order of the Circuit Court of Brooke County is reversed, and
this matter is remanded with directions for the entry of an order establishing visitation rights
for the mother and maternal grandparents.
Reversed and remanded with directions.
15