D.B. v. J.R.

• Decision Date: 22 May 2015
• Docket Number: No. 14–0403.,14–0403.
• Citation: 774 S.E.2d 75,235 W.Va. 409
• Court: West Virginia Supreme Court
• Parties: D.B., D.B., Petitioners v. J.R., Respondent.

235 W.Va. 409

774 S.E.2d 75

D.B., D.B., Petitioners

v.J.R., Respondent.

No. 14–0403.

Supreme Court of Appeals of West Virginia.

Submitted Feb. 25, 2005.

Decided May 22, 2015.

Jane Moran, Esq., Jane Moran Law Office, Williamson, WV, for Petitioners.

Timothy P. Lupardus, Esq., Pineville, WV, for Respondent.

Diana C. Wiedel, Esq., Williamson, WV, Guardian Ad Litem.

Opinion

WORKMAN, Chief Justice:

This case is before the Court upon the appeal of the Petitioners D.B.¹ (hereinafter “the Petitioner grandfather”) and D.B.² (hereinafter “the Petitioner grandmother”) from the February 27, 2014, final order of the Circuit Court of Mingo County, West Virginia, denying their³ petition for guardianship of their granddaughter, F.R.⁴ The Petitioners contend that the circuit court erred: 1) in finding that the Temporary Agreed Order granting the Petitioners temporary custody of the child terminated at the commencement of the guardianship hearing; 2) in ordering transfer of the custody of the child to the Respondent father, J.R. (hereinafter also referred to as “the Respondent father”), the child's biological father, without requiring clear and convincing evidence of the Respondent father's fitness as a parent; 3) by ignoring the opinions of the Petitioners' expert witness, Dr. Amelia Santiago, the child's treating physician; and 4) by ignoring the Petitioners' clear and convincing evidence that a change of custody of the child would constitute a significant detriment to the child.⁵ Upon review of the parties' briefs⁶ and oral arguments, the appendix record and all other matters submitted before this Court, we find that the circuit court erred in failing to apply the standard enunciated by this Court in Overfield v. Collins, 199 W.Va. 27, 483 S.E.2d 27 (1996). We therefore reverse the circuit court's decision and remand the case for further proceedings consistent with this opinion.

I. FACTS

B.B. and the Respondent father were in a relationship. They had a child, F.R., who is now three years old. B.B. died in a single vehicle accident on July 12, 2012.

According to the undisputed testimony of the Petitioner grandfather at the guardianship hearing, B.B. and F.R. resided with the Petitioners from the time F.R. was three months old until about a month before B.B.'s death,⁷ when she and F.R. moved in with B.B.'s mother.⁸

Following B.B.'s death, the Petitioner grandfather filed a petition for guardianship on July 24, 2012, which the Respondent father answered.⁹ On October 1, 2012, the parties entered into an Agreed Temporary Order, wherein they agreed that the Petitioner grandfather was the “Temporary Guardian of the infant,” F.R. The Respondent father also agreed to temporary weekend visitation and a guardian ad litem was appointed for the child. The language of the order provides that “the parties had reached a temporary parenting agreement until a Final Evidentiary Hearing could be held by the Court.”

The evidentiary hearing¹⁰ referred to in the Agreed Temporary Order did not occur until over a year later on December 18, 2013.¹¹ According to Rebecca Marcum with Child Protective Services (“CPS”), who testified at the hearing, as a result of the guardianship petition being filed, CPS received an order from the court¹² “to open up a case and do a family function assessment” on the Respondent father. Ms. Marcum testified that they were able to substantiate domestic violence between the Respondent father and B.B.

The first instance of domestic violence occurred on February 24, 2011, five months before F.R.'s birth. Ms. Marcum testified that the Respondent father admitted that he stopped B.B.'s car and “took her keys and her cell phone and was hitting her and she filed an EPO [or Emergency Protective Order] and stated that she feared for her life and F[.R.]'s life.”

About a month later, in March of 2011, there was another domestic violence incident. Ms. Marcum testified that the Respondent father admitted to hitting B.B. after the Respondent father became mad when B.B. laughed at him after he accused her of stealing items from him. The Respondent father told Ms. Marcum that he did not know that B.B. was pregnant at the time he hit her.

Ms. Marcum was also prepared to testify regarding an August 31, 2011, incident of domestic violence between the Respondent father and B.B. It was during Ms. Marcum's testimony, however, that the circuit court, sua sponte, questioned the relevancy of the testimony, stating that the court didn't “think it [wa]s relevant to the issue ... [of] the guardianship between” the Respondent father and the Petitioners. The circuit court questioned “the relevance of what occurred in regard to any form of domestic violence after the death of B [.B.] on ... July 12, 2012.” The circuit court again stated: “If B [.B.] was still alive and if this were a domestic case, this would be very relevant; however, after her death that cause, in effect, ceases with her death. I'm going to sustain the objection as to relevance.”

Despite the circuit court instructing the Petitioners' counsel not to go any further into the domestic violence incidents because “they do not count as far as the relevance,” the circuit court did allow a proffer of what the testimony would be concerning the August 31, 2011, incident. The Petitioners' counsel then proffered that the evidence would establish that the Respondent father admitted to shooting a BB into a car when B.B. and the child were inside the car. The circuit court also allowed the Petitioner grandfather to testify about the incident involving the BB gun. The Petitioner grandfather testified that he observed his daughter's car after the incident and took photographs of the car. The Petitioner grandfather also testified that his grandchild was inside the vehicle at the time of the incident. The Respondent father testified and admitted that he told Ms. Marcum that he shot at B.B.'s car. He, however, denied knowing that the child was in car. The Respondent father testified that the child was not in the car at the time he shot the BB gun at the vehicle.

There was also evidence of an incident involving domestic violence that occurred on April 5, 2012.¹³ Deputy Barry Moore with the Mingo County Sheriff's Department testified that he investigated an incident in which the Respondent father struck B.B. with a flashlight and then followed her car in a threatening and erratic fashion while F.R., who was then nine months old, was in the car. The Respondent father was charged with domestic battery and child neglect creating a risk of injury. The Respondent father served time for domestic battery, but the child neglect charge was dismissed as part of a plea deal.

In addition to the domestic violence incidents, Ms. Marcum also testified regarding a home visit to the Respondent father's house in which she found the Respondent father's mother, a caregiver of the child on occasion,¹⁴ under the influence of oxycodone. Ms. Marcum testified that when she went to the Respondent father's mother's job to interview her, his mother also appeared to be under the influence while at work. Drug testing was conducted on the Respondent father's mother and she tested positive for oxycodone

. She subsequently quit participating in random drug testing. Additionally, Ms. Marcum testified that the Respondent father's mother's husband was uncooperative and was aggressive at times. He refused to undergo any random drug testing. The Respondent father agreed that neither of these individuals would be appropriate care givers for the child.¹⁵

Ms. Marcum testified to the following report made as a result of her investigation:

“There is history of severe domestic violence between J[.R.] and B[.B.] However, B[.B.] is now deceased and J[.R.] is not in another relationship for worker to be able to evaluate him presently. J[.R.] was exposed to domestic violence from an early age. Worker substantiated emotional abuse due to domestic violence in the presence of the child. Worker feels that J[.R.] lacks impulse control and does not think before he acts. J[.R.] has a history of not protecting his child and placing her in dangerous situations by exposing her to domestic violence when his anger becomes out of control.”

Despite this report, Ms. Marcum also testified on cross-examination when asked if the Respondent father was an appropriate caregiver: “He was very compliant. He cooperated, he completed parenting, he completed adult life skills, he completed anger management. We can't say that he's not an appropriate care giver.” She further testified that “ [h]ypothetically, if a parent cooperates and they complete their services and they show a change, then, yes, we recommend reunification.”¹⁶

Finally, Ms. Marcum testified that she found that the Petitioners were appropriate guardians for F.R. She further testified that the child had bonded with the Petitioner grandmother and calls her “mommy.”

The Respondent father testified and admitted to engaging in domestic violence with B.B. and that it continued after F.R.'s birth. The Respondent father also testified that on August 9, 2013, during a scheduled visitation, he was arrested for driving a motorcycle sixty miles an hour in a forty-five mile an hour zone. During this episode, his daughter was in the care and custody of his mother. He testified that he did not know that his mother was taking oxycodone, but also acknowledged that his mother was not a “primary caregiver for my daughter.” Further, the Respondent father agreed that his stepfather, grandmother and brother were not appropriate caregivers for the child. The Respondent father acknowledged that F.R. was very close to the Petitioners. He also testified that if he had custody of his daughter he would not eliminate the relationship F.R. had with the Petitioners.

Lastly, there was significant testimony from F.R.'s board certified pediatrician, Amelia J. Santiago, concerning the child's asthma

. Dr. Santiago testified that F.R. was diagnosed with asthma on December...