A.A. v. S.H.

• Citation: 836 S.E.2d 490,242 W.Va. 523
• Decision Date: 22 November 2019
• Docket Number: No. 18-0804,18-0804
• Court: West Virginia Supreme Court
• Parties: A.A., Petitioner Below, Petitioner v. S.H., Respondent Below, Respondent

242 W.Va. 523

836 S.E.2d 490

A.A., Petitioner Below, Petitioner

v.S.H., Respondent Below, Respondent

No. 18-0804

Supreme Court of Appeals of West Virginia.

Submitted: November 5, 2019

Filed: November 22, 2019

Paul R. Sheridan, Esq., Legal Aid of West Virginia, Logan, West Virginia, Counsel for the Petitioner

C. Christopher Younger, Esq., Logan, West Virginia, Counsel for the Respondent

Marsha Webb-Rumora, Esq., Guardian Ad Litem for B.A., Williamson, West Virginia

WALKER, Chief Justice:

Petitioner A.A. is the biological mother of the minor child B.A.¹ Respondent S.H. is B.A.’s paternal grandmother and court-appointed guardian. Petitioner’s request for visitation with her child was rejected by the family court, which considered Respondent’s allegations of neglect of B.A. by Petitioner and determined that visitation was not in B.A.’s best interest and that Petitioner had failed to show a change in her circumstances warranting a modification of the guardianship order. The circuit court denied Petitioner’s appeal of the family court ruling. But, Petitioner contends that she has never been adjudicated an unfit parent or been afforded the protections of a statutory abuse and neglect proceeding, and that the family court’s order is a de facto termination of her parental rights. We agree and find that the family court lacked jurisdiction to hear the case. Under Rule 48a(a) of the Rules of Practice and Procedure for Family Court and Rule 13 of the Rules of Practice and Procedure for Minor Guardianship Proceedings,² the family court should have removed this case to the circuit court for hearing. So, we vacate the family court’s order granting Respondent permanent guardianship and remand this matter to the circuit court for further proceedings under Chapter 49 of the West Virginia Code, with instructions to hold a hearing within thirty days to consider whether Petitioner should be granted supervised visitation with her child.

I. FACTUAL AND PROCEDURAL BACKGROUND

B.A. was born in December 2014 and is the minor child of Petitioner A.A. and her husband F.A. In late July 2015, following an incident of domestic violence between Petitioner and F.A., Petitioner and B.A. were taken to a domestic violence shelter by law enforcement and F.A. was arrested.³

Approximately two days after the domestic violence incident, Child Protective Services (CPS) received a referral about an alleged incident of domestic violence between Petitioner and F.A. The anonymous source of the referral, described by CPS as "the reporter," also indicated that Petitioner was bipolar, that the baby needed to be placed with "a paternal grandparent because mom is not able to take care of [him]," and that Petitioner "had another child that had cigarette burns on it and that child is placed with the maternal grandparents." The CPS notes describe allegations of maltreatment against Petitioner for "neglect – failure or inability to supply necessary supervision" and against both Petitioner and F.A. for "abuse – domestic violence." That day, CPS went to the domestic violence shelter and conducted a face-to-face interview with Petitioner and B.A. According to CPS notes, F.A. hit the Petitioner, causing bruising on her arms. The CPS worker noted that B.A. "was clean and appropriately dressed. He had no marks or bruising."

According to the CPS Client Contact Report, three days later, a person, described by CPS as "a reporter," also relayed the following information:

[T]he mother and father got into a domestic incident on Friday July 31^st and [F.A.] was taken to jail. ... this is the [third] incident of [domestic violence] between the couple in the past year all with the child present in the home. The reporter also stated that the mother ... has pending charges of petty larceny and identity theft, [West Virginia State Police] is investigating. When asked the reporter stated that both parents are taking prescription medication but nothing that is not prescribed. The mother allegedly has a history of mental health issues that she is treated for ....When asked the reporter stated that they did not believe that excessive drinking was an issue in the home. The reporter stated that the mother no longer has custody of an older child and the father also does not have custody of [two] older children. The cause though is not known if voluntary or terminated by court. The mother is currently at a shelter [in] Williamson with the child but according to the reporter may be arrested late on Aug[ust] [third] or on Aug[ust] [fourth].

On August 18, 2015, CPS received information that "[Petitioner] has been arrested and her son [B.A.] has been left alone at the shelter."⁴ In a Family Functioning Assessment Report (CPS report) dated August 31, 2015, the CPS case worker observed that

[Petitioner] is very interactive with [B.A.] and [B.A.’s] eyes light up when [Petitioner] walks into a room. [Petitioner] is protective as a caregiver, as evidenced by her protecting [B.A.] when she was being abused, and leaving the home to keep [B.A.] away from his father ... Petitioner uses resources necessary to meet [B.A.’s] needs, as evidenced by her getting food stamps and a medical card for him along with WIC benefits. [Petitioner] is emotionally able to intervene to protect [B.A.] as evidenced by her signing temporary custody of her child over to [K.E.], until she is released from jail. [Petitioner] has a strong bond with [B.A.], as evidenced by his reaction, when she walks into the room.

The CPS report found that

[i]n regards to [B.A.] Maltreatment has not been substantiated, and impending dangers have not been found. Maltreatment in the form of Neglect for Failure or Inability to Supply Necessary Supervision has not been substantiated on [Petitioner]. Maltreatment in the form of Abuse for Domestic Violence has not been substantiated on [F.A.].

The shelter workers indicated to CPS that Petitioner had "done very well with [B.A.]." They reported that Petitioner fed and interacted with B.A. and that they have had no concern with her. They stated that when she got out of jail she could come back to the shelter. The CPS Report noted,

[Petitioner] protected [B.A.] and herself by going to the shelter and filing an [emergency protective order] and for divorce. [Petitioner] was keeping herself and [B.A.] away from [F.A.], [who] did get incarcerated, but the charges were not abuse/neglect related. [Petitioner] signed over custody to an appropriate individual, who will care for and protect [B.A.], until [Petitioner] is released from jail.

A. Guardianship Proceeding

On September 14, 2015, Respondent filed a Motion for Emergency Order of Guardianship in the family court.⁵ In her motion, Respondent noted that Petitioner and F.A. were both incarcerated and that Petitioner’s half-sister, K.E., and K.E.’s parents, were caring for B.A. Respondent alleged that she was the paternal grandmother of B.A., that K.E.’s family had no blood relation to the child, and that Petitioner had only known K.E. for a short period of time, although they were half siblings. She contended that B.A. had no prior contact with K.E. and her parents prior to his placement with them, and that K.E.’s family had an inability to focus on B.A.’s needs because of the number of other children in their home. In that same petition, Respondent alleged that she had had substantial contact with B.A., and had also provided babysitting services for him since his birth. She further asserted that neither of the biological parents has maintained any employment, with the paternal grandmother, paternal grandfather, and paternal step-grandmother "providing all of the care, nurturing, financial support and emotional support required and needed by the infant child."⁶

Respondent’s motion cited Syllabus Point 1 of Whiteman v. Robinson ,⁷ which states:

while the Court has continually recognized the right of a parent to the custody of their children, the Court has also recognized and considered parents to be unfit, thereby losing their right to custody, because of misconduct, neglect, immorality, abandonment or other dereliction of duty or otherwise has transferred, relinquished or surrendered such custody.

Relying on David M. v. Margaret M .,⁸ a divorce case, Respondent also asserted that

to be considered fit, the primary caretaker parent must: (1) feed and clothe the child appropriately; (2) adequately supervise the child and protect him or her from harm; (3) provide habitable housing; (4) avoid extreme discipline, child abuse, and other similar vices; and (5) refrain from immoral behavior under circumstances that would affect the child.^{[9 ]}

Respondent argued that it was in the best interests of the child for her to be appointed guardian. On September 17, 2015, the criminal complaint against Petitioner was dismissed without prejudice when the complaining officer failed to appear at the preliminary hearing. So, Petitioner was released from jail, after she had been incarcerated for approximately thirty days.

In her response filed after her release, Petitioner stated that it would be inappropriate to appoint a guardian for her child over her objection since she had not abused or abandoned her child or been "proven to be in any way unfit," and B.A. had been returned to her care. Petitioner did not object to some "temporary visitation for [Respondent] pending [F.A.’s] release from incarceration," noting that she would "like to control the schedule of the visitation." Following a hearing on October 8, 2015,¹⁰ the family court ordered that Petitioner would have primary custodial responsibility for B.A. on a temporary basis, with Respondent having grandparent visitation from Friday at 6:00 p.m. to Monday at 10:00 a.m., unless the parties were able to agree on other days of the week of equal time. F.A. was not permitted contact with the child without the supervision of Respondent.

The record suggests that later, the guardian ad litem filed a motion for reconsideration and for an emergency hearing...