773 S.E.2d 20 (W.Va. 2015), 14-0363, In re K.H.

Docket Nº:14-0363
Citation:773 S.E.2d 20, 235 W.Va. 254
Opinion Judge:Workman, Chief Justice:
Party Name:IN RE K.H
Attorney:For the Petitioner: Lyne Ranson, Esq., Lyne Ranson Law Offices, LC, Charleston, West Virginia. For the Respondent: Allyson E. Hilliard, Esq., Swartz Law Offices, PLLC, St. Albans, West Virginia.
Judge Panel:Justice BENJAMIN, deeming himself disqualified, did not participate in the decision of this case. Judge NIBERT, sitting by temporary assignment.
Case Date:April 10, 2015
Court:Supreme Court of Appeals of West Virginia

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773 S.E.2d 20 (W.Va. 2015)

235 W.Va. 254

IN RE K.H

No. 14-0363

Supreme Court of Appeals of West Virginia

April 10, 2015

Submitted January 28, 2015.

Appeal from the Circuit Court of Kanawha County. The Honorable Carrie Webster, Judge. Civil Action No. 07-FIG-142.

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[235 W.Va. 255] SYLLABUS

1. " '" 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 Syllabus point 2, Funkhouser v. Funkhouser, 158 W.Va. 964, 216 S.E.2d 570 (1975), superseded by statute on other grounds as stated in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).

2. " In reviewing a final order entered by a circuit court judge upon a review of, or upon a refusal to review, a final order of a family court judge, we review the findings of fact made by the family court judge under the clearly erroneous standard, and the application of law to the facts under an abuse of discretion standard. We review questions of law de novo." Syllabus, Carr v. Hancock, 216 W.Va. 474, 607 S.E.2d 803 (2004).

3. " 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." Syl. Pt. 1, State ex rel.

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[235 W.Va. 256] Cash v. Lively, 155 W.Va. 801, 187 S.E.2d 601 (1972).

4. " 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 the Interest of 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).

5. " In the law concerning custody of minor children, no rule is more firmly established than that the right of a natural parent to the custody of his or her infant child is paramount to that of any other person; it is a fundamental personal liberty protected and guaranteed by the Due Process Clauses of the West Virginia and United States Constitutions." Syl. Pt. 1, In re Willis, 157 W.Va. 225, 207 S.E.2d 129 (1973).

6. " A parent has the natural right to the custody of his or her infant child, unless the parent is an unfit person because of misconduct, neglect, immorality, abandonment or other dereliction of duty, or has waived such right, or by agreement or otherwise has transferred, relinquished or surrendered such custody, the right of the parent to the custody of his or her infant child will be recognized and enforced by the courts." Syllabus, Whiteman v. Robinson, 145 W.Va. 685, 116 S.E.2d 691 (1960).

For the Petitioner: Lyne Ranson, Esq., Lyne Ranson Law Offices, LC, Charleston, West Virginia.

For the Respondent: Allyson E. Hilliard, Esq., Swartz Law Offices, PLLC, St. Albans, West Virginia.

Justice BENJAMIN, deeming himself disqualified, did not participate in the decision of this case. Judge NIBERT, sitting by temporary assignment.

OPINION

Workman, Chief Justice:

This is an appeal by Glenna. H. (hereinafter " grandmother" )1 from an order of the Circuit Court of Kanawha County affirming an order of the family court terminating the grandmother's eight-year guardianship of her granddaughter, K.H. The family court granted full custody to Anthony B., the child's father (hereinafter " father" ) with no ongoing visitation granted to the grandmother. On appeal, the grandmother contends that the family court erred in failing to recognize her as the psychological parent of the child; failing to properly consider the child's best interests or material changes in circumstances; and failing to grant any ongoing visitation to the grandmother.

Subsequent to a thorough review of the appendix record, the parties' briefs, and oral arguments of counsel, this Court affirms the family court and circuit court orders terminating the grandmother's guardianship of the child, but we remand this matter with directions to the circuit court to remand to the family court for a hearing on the issue of visitation and the entry of an order granting liberal visitation rights to the grandmother, the specific contours of which are to be fashioned by the family court.

I. Factual and Procedural History

K.H. was born in June of 2006. The father had no contact with the child during the first year of her life and requested multiple paternity tests. He first saw the child on August 1, 2007. The child's mother and brother died in an automobile accident on September 15, 2007, and the maternal grandmother, petitioner Glenna H., thereafter filed for guardianship of the child on September 27, 2007. By order dated October 30, 2007, the family court appointed the grandmother as guardian of the child. The father appeared at the guardianship hearing and did not object to the grandmother's appointment.

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[235 W.Va. 257] On November 6, 2008, the father filed a petition to establish custodial responsibility for the child. This action resulted in an April 2009 agreed order granting primary custody to the grandmother with parenting time to the father every other weekend and one night per week. The father also began paying child support. On November 18, 2010, the father filed a petition to revoke or terminate the grandmother's guardianship. This action resulted in a 2011 agreed order granting the father additional parenting time. The father and grandmother also agreed to refrain from seeking further modification of the custody arrangements until December 31, 2012.

On January 16, 2013, the father filed another petition to terminate the grandmother's guardianship of the child.2 By order dated April 11, 2013, Attorney Woody Hill was appointed as the guardian ad litem for the child. Subsequent to his investigation, Mr. Hill opined that the child should be placed in the custody of the father.3 Mr. Hill reported that he considered the child's best interests and determined that the father was capable of providing a stable environment for the child, with no further need for guardianship.

On July 16, 2013, the grandmother filed a motion with the family court seeking to be designated as the child's " psychological parent" and also objected to the termination of her guardianship of the child. The family court held hearings in July, October, and November, 2013. In addition to the parties and the guardian ad litem, Dr. Timothy Saar, a psychologist retained by the grandmother, testified that the grandmother and the child have a significant bond and that the child honestly views the grandmother as " mom." Dr. Saar did not meet with the father.4

By order dated December 18, 2013, the family court terminated the grandmother's guardianship and denied her motion to be considered a psychological parent. The grandmother appealed to the Circuit Court of Kanawha County on January 17, 2014. The circuit court refused the appeal, and the grandmother thereafter appealed to this Court.

II. Standard of Review

This Court has held that the standard of review in custody decisions, including guardianships, is as follows: " '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). We have also explained as follows: In reviewing a final order entered by a circuit court judge upon a review of, or upon a refusal to review, a final order of a family court judge, we review the findings of fact made by the family court judge

Page 24 [235 W.Va. 258] under the clearly erroneous standard, and the application of law to the facts under an abuse of discretion standard. We review questions of law de novo.

Syllabus, Carr v. Hancock, 216 W.Va. 474, 607 S.E.2d 803 (2004). Guided by these standards, we now consider the parties' arguments.

III. Discussion

A. West Virginia Code § 44-10-3, Best Interests, and Changed Circumstances

The grandmother asserts that the family court and lower court erred in the consideration of the father's petition to terminate the guardianship by failing to properly evaluate the best interests of the child and the existence of changed circumstances. In so arguing, the grandmother raises the issue of the legislative amendments to the requirements articulated in West Virginia Code § 44-10-3 that became effective between the father's filing of the petition for termination of the guardianship and the court's hearings on...

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