In re A.A.

• Decision Date: 26 April 2022
• Docket Number: 21-0019
• Parties: IN RE A.A.
• Court: West Virginia Supreme Court

874 S.E.2d 708

IN RE A.A.

No. 21-0019

Supreme Court of Appeals of West Virginia.

Submitted: January 4, 2022

Filed: April 26, 2022

John M. Butler, Esq., Law Office of John M. Butler, St. Marys, West Virginia, Counsel for Petitioner B.M.

David C. White, Esq., Law Office of Neiswonger and White, Moundsville, West Virginia, Guardian ad Litem for A.A.

Jessica E. Myers, Esq., Myers Law Offices, Parkersburg, West Virginia, Counsel for Respondents K.V. and N.V.

Patrick Morrisey, Esq., Attorney General, Andrea Nease Proper, Esq., Assistant Attorney General, Charleston, West Virginia, Counsel for Respondent West Virginia, Department of Health and Human Resources.

WOOTON, Justice:

In June 2019, Child Protective Services ("CPS") temporarily removed the minor child A.A.¹ from a hotel room in St. Marys, West Virginia, after her father, M.A., was arrested for unlawful possession of firearms. At the time of removal, CPS contacted A.A.’s paternal grandmother, Petitioner B.M. ("Petitioner"), to take custody of the child. Petitioner declined to take custody, so the DHHR placed A.A. with the Respondent Foster Parents, K.V. and N.V. ("Respondent Foster Parents"). Shortly thereafter, the West Virginia Department of Health and Human Resources ("DHHR") filed an abuse and neglect petition alleging that A.A. was found in the hotel room with an unrelated person, and that drugs and drug paraphernalia were also in the room. The petition further alleged that M.A. and the child's biological mother, D.A., were habitual drug users such that they could not care for the child. The petition indicated that A.A.’s last known residence was in South Carolina.

Ten months after the underlying proceedings began, Petitioner intervened in and filed a motion to transfer custody of A.A. to her, asserting the statutory grandparent preference. After an evidentiary hearing the circuit court denied that motion, finding that such a transfer would not be in A.A.’s best interest. Petitioner now appeals that order, asserting, among other things, that the circuit court lacked jurisdiction over the proceedings under the Uniform Child Custody Jurisdiction Enforcement Act ("UCCJEA"), West Virginia Code §§ 48-20-101 to - 404 (2001). Because we find that the circuit court appropriately exercised jurisdiction in this matter, and because we find Petitioner's remaining assignments of error to be without merit, we affirm.

I. FACTUAL AND PROCEDURAL BACKGROUND

The facts relevant to this appeal are somewhat complicated; we must necessarily examine matters that occurred before the inception of the underlying abuse and neglect matter in order to resolve the jurisdictional question raised. Therefore, to set out the facts in a manner most conducive to our analysis, we have divided this recitation into separate, chronological categories.

A. Pre-Petition

A.A. was born in Washington, Pennsylvania, in July 2015. Shortly after her birth she and the biological parents, M.A. and D.A., moved to New Martinsville, Wetzel County, West Virginia. The record contains little to no information about A.A.’s place of residence from the time she moved to New Martinsville until the filing of an abuse and neglect petition in Wetzel County on May 3, 2018 (the "2018 petition").

The 2018 petition alleged that A.A.’s mother, D.A., appeared at the New Martinsville Police Department in April 2018 while under the influence of controlled substances. A.A. was with her at the time. D.A. informed the police that A.A.’s father, M.A., had kidnapped the child from Petitioner's home in New Jersey in March 2018.² The petition further alleged that: D.A. was homeless; M.A. was absent; both parents suffered from substance abuse issues; and there was no family to take custody of A.A. After a hearing, the Circuit Court of Wetzel County dismissed the 2018 petition on May 16, 2018, without explanation. There is nothing in the record establishing the reason for the dismissal, nor has an explanation been proffered by the parties to the instant appeal. That said, the parties make multiple allusions to Petitioner's conduct after the dismissal of the petition, and in particular that she transported the child back to New Jersey.

We can further glean from the record that A.A. returned to West Virginia at some point in the summer of 2018, as both Petitioner and the Respondent Foster Parents testified that A.A. was in the care of the Respondent Foster Parents for approximately two weeks ending in mid-August 2018 after M.A. left the child in their home.³ After leaving the Respondent Foster Parents’ home in August 2018, it is undisputed that A.A. traveled to Pennsylvania where she resided with M.A. and Petitioner until relocating to South Carolina at the beginning of February 2019.⁴

B. Removal and the Filing of the Instant Petition

On June 5, 2019, following a high-speed chase, M.A. was arrested in Ohio County, West Virginia, for unlawful possession of firearms. The same day A.A. was removed from a hotel room in St. Marys, Pleasants County, West Virginia. Evidence adduced below establishes that M.A. brought A.A. to West Virginia three days prior to her removal.

At the time of removal, A.A. was found in a hotel room with an unrelated adult woman, and it was determined that drugs and drug paraphernalia were present in the room. Beyond this, the facts become somewhat unclear, but we can glean from the record—largely based on Petitioner's testimony below—that when Child Protective Services ("CPS") arrived at the hotel room to remove A.A., the unrelated adult woman contacted Petitioner by telephone to inform her that M.A. had been arrested and that CPS was taking custody of the child. At some point during that conversation, the attending CPS worker spoke to Petitioner and asked if she would take custody of A.A. It is undisputed that Petitioner declined to take custody of the child because she feared she would not pass a home study as her other adult son, a felon on parole, was living in her home. Petitioner then suggested CPS place A.A. with the Respondent Foster Parents as they had previously provided care for her.⁵ Respondent Foster Mother also testified below that

[Petitioner] asked if we could get her, get [A.A.]. We went and got [her] and at that point CPS was there. So CPS and [the unrelated woman] was there, the other girl in the hotel room. And [the unrelated woman] was on speaker phone. [Petitioner] was on the phone with her when we got there. They were all on the phone the whole time even when CPS brought [A.A.] to our home.

At this point, the CPS worker informed Petitioner that she should seek assistance from an attorney.⁶

Upon removing A.A. from the hotel room, the DHHR filed an application for ratification of the emergency removal in the Circuit Court of Pleasants County. That application listed A.A.’s last known residence as an address in Anderson, South Carolina. The circuit court entered an order ratifying the removal on June 6, 2019.

On June 7, 2019, the DHHR filed the instant abuse and neglect petition (the "2019 petition") alleging as follows: (1) M.A. was arrested and incarcerated; (2) A.A. was located in a hotel room with an unrelated adult woman and suspected controlled substances and drug paraphernalia; (3) D.A.’s whereabouts were unknown; (4) both M.A. and D.A. were habitual users of illegal controlled substances; and (5) neither M.A. nor D.A. were presently able to provide care for A.A. Additionally, the 2019 petition alleged that "[a]t the time of the removal, the child [A.A.] resided with the respondent father at St. Marys Motel" in Pleasants County, but also that the child had at different times lived in Anderson, South Carolina, New Martinsville, West Virginia, and an unknown address in New Jersey.

C. The Abuse and Neglect Proceedings

M.A. and D.A. waived their preliminary hearings on June 13, 2019. The circuit court then scheduled an adjudicatory hearing for July 24, 2019, but such hearing was continued multiple times. Ultimately, D.A. stipulated to the allegations raised in the 2019 petition, admitting that she engaged in the abuse of controlled substances to the extent that her parenting was impaired and she could not provide for A.A. Thereafter, the circuit court adjudicated D.A. an abusive and neglectful parent, and granted her a post-adjudicatory improvement period by order dated October 2, 2019. D.A. failed to participate in the terms of that improvement period insofar as she failed to submit to random drug screening, so the circuit court proceeded to disposition with regard to her parental rights on November 9, 2019. The circuit court determined there was no reasonable likelihood the conditions of neglect or abuse could be substantially corrected in the near future as a result of D.A.’s unwillingness to comply with the terms of her improvement period, and thus terminated her parental rights by order dated December 10, 2019.

Throughout the proceedings, M.A. remained incarcerated. His adjudicatory hearing was held on December 16, 2019, and the circuit court entered an order adjudicating him an abusing and neglectful parent on February 13, 2020. The record does not contain a motion on the part of M.A. for a post-adjudicatory improvement period, nor does it appear the circuit court granted him one. Instead, the circuit court set the matter for disposition, and such disposition was repeatedly continued due to M.A.’s unavailability resulting from his multiple prison transfers. The dispositional hearing finally occurred on February 24, 2020, but the circuit court left the record open until March 5, 2020, so M.A. could file with the court his federal sentencing orders. The circuit court ultimately determined that M.A. was unable to correct the conditions of abuse and neglect in the foreseeable future, considering not only his incarceration, but also his inability to participate in an improvement period, his lengthy history of criminal behavior, and illegal drug use. As such, the circuit court terminated M.A.’s parental...