Brandon L.E., In Interest of

• Citation: 394 S.E.2d 515,183 W.Va. 113
• Decision Date: 18 April 1990
• Docket Number: No. 19429,19429
• Parties: , 15 A.L.R.5th 1093 In the Interest of BRANDON L.E.
• Court: Supreme Court of West Virginia

Page 515

394 S.E.2d 515

183 W.Va. 113, 15 A.L.R.5th 1093

In the Interest of BRANDON L.E.

No. 19429.

Supreme Court of Appeals of

West Virginia.

April 18, 1990.

Syllabus by the Court

1. The Uniform Child Custody Jurisdiction Act, W.Va.Code §§ 48-10-1 to -26 (1986), is premised on the theory that the best interests of a child are served by limiting jurisdiction to modify a child custody decree to the court which has the maximum amount of evidence regarding the child's present and future welfare.

2. Notwithstanding their intent to require states adopting the Uniform Child Custody Jurisdiction Act to recognize custody decrees entered by sister states, the Act's drafters in no uncertain terms provided jurisdiction to both the original "custody court" and other courts to determine whether modification of the initial custody decree is in the best interest of the child.

3. "The law does not recognize any absolute right in any person or claimant to the custody of a child." Syl. Pt. 6, in part, Lemley v. Barr, 176 W.Va. 378, 343 S.E.2d 101 (1986).

4. If a child has resided with an individual other than a parent for a significant period of time such that the non-parent with whom the child resides serves as the child's psychological parent, during a period when the natural parent had the right to maintain continuing substantial contact with the child and failed to do so, the equitable rights of the child must be considered in connection with any decision that would alter the child's custody. To protect the equitable rights of a child in this situation, the child's environment should not be disturbed without a clear showing of significant benefit to him, notwithstanding the parent's assertion of a legal right to the child.

Michael T. Clifford, Charleston, W.Va., for Brandon L.E.

Sandra Bullman, Charleston, W.Va., for father, Randy E.

WORKMAN, Justice:

This case involves application of the Uniform Child Custody Jurisdiction Act (UCCJA or Act). After assuming jurisdiction on a petition for a writ of habeas corpus, the Kanawha County Circuit Court subsequently decided that it did not have jurisdiction of this child custody matter under the UCCJA. Having examined the record of this case in conjunction with the UCCJA, this Court is of the opinion that the circuit court erred in declining jurisdiction of this child custody dispute.

The child at issue in this case, Brandon L.E., was born in Houston, Texas, on July 28, 1982. Brandon's mother and father, Randy E., separated in September 1983. ¹ The record in this case does not set forth the amount of contact, if any, that Randy E. had with his son after the separation. It does reflect, however, that Brandon's father had virtually no contact with Brandon after 1985 until the State of Florida contacted him in connection with a dependency proceeding ² which was initiated by the Florida Health and Rehabilitative Services (HRS) in the Circuit Court of the Fourth Judicial Circuit in Duval County, Florida.

At the outset of the dependency proceeding, the Florida state court placed Brandon in the temporary care, custody and control of Ann B., his maternal grandmother and the petitioner in this case. The Florida HRS initiated the dependency proceeding following the involuntary commitment of Brandon's mother on September 15, 1987, based on a diagnosis of Munchauser's syndrome by proxy. This syndrome is a malignant parental disorder which manifests itself as a form of child abuse. Afflicted parents relate fictitious histories, symptoms, and illnesses to treating physicians or attempt to administer medical treatment themselves. Of those individuals diagnosed with Munchauser's syndrome by proxy, it has been recognized that the parent, almost always the mother, typically has a nursing background or other work experience in a health-care setting. Brandon's mother, a former nurse, treated him for alleged diabetic seizures for over two years by administering insulin injections, when in fact Brandon was not diabetic. She also falsely reported that he suffered from a seizure disorder and medicated him with phenobarbital.

Ann B. moved to West Virginia with Brandon on May 27, 1988. Because Mrs. B. failed to obtain the court's consent to take Brandon out of state, the Florida court held an emergency hearing on May 31, 1988, and granted physical custody to the Florida HRS. After receiving a teletype from the Florida HRS, the Kanawha County Sheriff removed Brandon from Mrs. B.'s physical custody on June 1, 1988. On June 2, 1988, a Kanawha County Circuit Court Judge stayed the transfer directives and ordered physical custody returned to Mrs. B. pending further proceedings in Florida already scheduled for June 23, 1988.

Brandon and his grandmother appeared for the June 23, 1988 hearing before the Florida court. At this hearing, the Florida HRS opined that "Randy [E.] has acknowledge[d] intent to seek custody of Brandon but he has not demonstrated the effort or interest shown by [the natural mother]" and "[i]t would be preferable for Brandon to remain in the care of his grandmother." The court went along with the opinion of the Florida HRS and continued custody with Mrs. B.

Prompted by the plan submitted to the Florida court by the HRS, Mr. E. attempted to become familiarized with Brandon in August 1988. Although the plan as originally formulated contemplated that Brandon and his father would have a one week period to get acquainted in Florida, Mr. E. chose to be in town for only two and one-half days for this purpose. From the limited record on this issue, it appears that Randy E. only visited with his son on two separate brief occasions within this time period.

Based on the fact that Brandon's mother had stipulated to "neglect," the Florida court ruled on September 29, 1988 that custody of Brandon would be transferred to his father absent a showing of abuse, neglect, or abandonment on his part. ³ A hearing was held on December 19, 1988, in connection with an amended petition of dependency filed against Mr. E. by Brandon's guardian ad litem which alleged, inter alia, abandonment. Remarkably, the court ruled that Mr. E. had not abandoned Brandon despite the fact that the father had failed to visit, financially support, or communicate with Brandon in any way for a number of years. On December 21, 1988, the Florida court awarded physical and legal custody of Brandon to Randy E. ⁴ Mrs B. was not present at this court proceeding because she had been advised by the Florida judge that she did not have to appear at the December 21, 1988 hearing and further that custody was not going to be resolved at this time. ⁵

Because Mrs. B. refused to recognize the Florida custody decree, Mr. E. filed a petition for a writ of habeas corpus in the Kanawha County Circuit Court seeking physical custody of Brandon on January 24, 1989. The circuit court, Judge Patrick Casey, granted immediate custody to Mr. E. On this same date, a petition for a writ of habeas corpus filed by Ann B. was assigned to Judge Kaufman. Mrs. B. and her counsel as well as Judge Kaufman were unaware of the writ filed by Mr. E. During a hearing held on January 25, 1989, Judge Kaufman was advised that the Florida order granting custody to Mr. E. was being appealed. Not wanting to disrupt Brandon's school year and recognizing that the Florida appeal could be resolved by the end of the school term, Judge Kaufman ordered that Brandon remain in Mrs. B.'s custody until a hearing could be scheduled after the school year ended.

A hearing was scheduled for May 9, 1989 before Judge Kaufman, but Mr. E. failed to appear. He claims that his attorney failed to provide him with notice of the hearing. When this matter next came before Judge Kaufman on October 23, 1989, the Florida circuit court's award of custody to Mr. E. had been upheld on appeal. At this hearing, Judge Kaufman, despite his previous exercise of jurisdiction, ruled that the Kanawha County Circuit Court did not have jurisdiction under the UCCJA to re-open the issue of Brandon's custody.

Following the October 23, 1989 hearing where Judge Kaufman declined jurisdiction, Brandon lived with his father in Greenville, North Carolina, until December 14, 1989. On that date, Mrs. B., based on a stay of execution which was entered by the West Virginia Supreme Court on December 5, 1989 and clarified on December 13, 1989, obtained a court order from a North Carolina state court authorizing her to take Brandon to West Virginia. In the clarifying order, this Court reinstated the order of the Circuit Court of Kanawha County entered on February 1, 1989, which directed that Mrs. B. should retain temporary custody of Brandon pending further hearings and awarded monthly visitation rights to Mr. E. to take place in West Virginia. The North Carolina court rescinded its order of December 14, 1989 on December 15, 1989, but the rescission was of no consequence as Brandon had already been removed from North Carolina to West Virginia.

This case presents us with classic UCCJA application issues. Florida enters a child custody decree in December 1988. Child no longer resides in Florida at this time, having moved in May 1988 to West Virginia with his grandmother. Mother, although living in Florida, because of her involuntary commitment and consent to termination of her parental rights, is no longer a contestant with respect to custody. Father lives in North Carolina and has not seen child or expressed an interest in child for years. Based on this abbreviated factual scenario, we are asked to decide whether a West Virginia circuit court has jurisdiction under the UCCJA to hear this case given the entry of a prior custody decree by our sister state, Florida. We believe that the UCCJA unquestionably grants West Virginia jurisdiction to hear Mrs. B.'s petition and to modify the Florida court's decision if it deems modification in Brandon's best interest.

The UCCJA "is premised on the theory that the best...