In re A.C.

• Decision Date: 08 November 2017
• Docket Number: No. 16-0672,16-0672
• Citation: 807 S.E.2d 271
• Court: West Virginia Supreme Court
• Parties: IN RE: GUARDIANSHIP OF A.C.

807 S.E.2d 271

IN RE: GUARDIANSHIP OF A.C.

No. 16-0672

Supreme Court of Appeals of West Virginia.

Submitted: October 11, 2017

Filed: November 8, 2017

Kimberley D. Crockett, Esq., Crockett Law, Guardian ad Litem for A.C., Falling Waters, West Virginia, Counsel for the Petitioner

Patrick Morrisey, Esq., Attorney General, Lee Niezgoda, Esq., West Virginia Department of Health and Human Resources, Fairmont, West Virginia, Counsel for the Respondents

Ashton Bias, Esq., Lynn Ranson Law Offices, Charleston, West Virginia, Guardian ad litem for Father, K.W.

E. B., pro se, Respondent

Workman, Justice:

This is an appeal by a twelve-year-old girl, A.C.,¹ through her guardian ad litem, Kimberley D. Crockett (hereinafter "the Petitioner"). The Petitioner contends the Circuit Court of Berkeley County erred in awarding guardianship of A.C. to her grandmother, A.H. The Petitioner argues the circuit court's placement of A.C. is not in her best interests and fails to include an appropriate evaluation of the Guardianship Screening Factors enumerated in Rule 10 of the West Virginia Rules of Practice and Procedure for Minor Guardianship Proceedings. Upon this Court's review of the parties' arguments, the record presented for appellate consideration, and pertinent authorities, we reverse the decision of the circuit court and remand this case for further proceedings consistent with this opinion.

I. Factual and Procedural History

The child's mother, T.C., died of a heroin overdose in the presence of the child on February 24, 2016. In March 2016, E.B., the godmother of A.C. and a resident of Florida, filed a petition for guardianship of A.C. The mother and E.B. had been friends since childhood, and the mother and child had lived with E.B. in 2005-06 and again in 2015. E.B.'s request for guardianship included a "Temporary Guardianship Agreement" executed by A.C.'s mother in August 2012, naming E.B. as A.C.'s custodian "[f]or as long as necessary." E.B. testified that the mother had executed the agreement to provide for A.C.'s care and that "[i]f anything ever happened to her, she wanted me to take care of [A.C.]." According to the "Report and Recommendation of Guardian ad Litem," the child's father also contacted E.B. immediately after the death of the child's mother requesting that she seek custody of the child. E.B. left Florida to come to West Virginia within hours of the mother's death.

A.C.'s father, K.W., did not know of her existence until she was five years old and was incarcerated for most of her life. He was released from prison in 2016 after serving a sentence of eight and one-half years for conspiracy to deliver a controlled substance. After her mother's death in 2016, A.C. lived in a home with her grandmother A.H., great-grandparents, and another man who was a boyfriend of A.C.'s aunt and a registered sex offender.

On March 8, 2016, the Petitioner was appointed as guardian ad litem for the child, and the Department of Health and Human Resources (hereinafter "the DHHR") received a referral from the circuit court, providing as follows: "Court ordered assessment, 16-JAA-18, Mother notarized temporary guardianship in 2012. Mother is deceased and child's father is incarcerated." According to the DHHR, it completed a family functioning assessment focusing on the biological father and the petitioning godmother, E.B. It found no maltreatment by the father and found that appropriate provisions had been made for the care of the child in the father's absence. The DHHR had no further involvement in the case until it received a referral from the Petitioner in October 2016 regarding possible drug abuse in the home, and it did not ultimately find any maltreatment of the child.

The child's grandmother, A.H., also filed a petition seeking guardianship of the child on March 14, 2016. In her petition, she included a "Temporary/Permanent Guardianship Agreement" in which A.C.'s father, while still in prison, had granted guardianship rights of A.C. to her grandmother, A.H., with specified dates of March 20, 2016, to December 12, 2016.

Subsequent to extensive investigation in her role as guardian ad litem, the Petitioner recommended that the child be placed with E.B., the godmother, with whom the child had previously lived for substantial periods of time. The Petitioner based her recommendation, in part, upon the Guardianship Screening Factors enumerated in Rule 10 of the Rules of Practice and Procedure for Minor Guardianship Proceedings.² The Petitioner found that A.H. would not be a fit guardian for the child based upon various concerning factors such as A.H. permitting a sex offender to reside in the home with her and the child; abusing alcohol, driving on a revoked license subsequent to two DUI convictions; driving while intoxicated; and permitting other family members who abused illegal substances to live in the home.

On April 27, 2016, the circuit court held an evidentiary hearing and conducted an in-camera interview with A.C. and the Petitioner. A.C., age eleven at that time,³ informed the circuit court that she had been repeatedly and frequently exposed to alcohol and drug abuse in A.H.'s home and that A.H. was "drunk all the time," allowed drug use in the home, and had not attempted to prevent A.C.'s mother from abusing drugs. A.C. specifically stated that she did not want to live in the home with A.H. because her mother had died in the home and the family abused drugs there. She further explained she would prefer to live with E.B., felt safe in E.B.'s home, had previously attended school there, and had personal possessions in E.B.'s home. A.C. informed the circuit court that A.H. had pressured her to testify that she wanted to remain with A.H. in West Virginia. A.C. also testified that her grandmother drove a vehicle while intoxicated.

A.C.'s cousin, J.S., age nineteen, testified that A.H. was not a fit parent and had physically attacked J.S. after she read a report by the Petitioner regarding A.H.'s alleged unfitness for guardianship. J.S. also testified that she had witnessed A.H. driving her vehicle with the child in the car on multiple occasions, despite her loss of a drivers' license based upon her DUI convictions.

On June 14, 2016, the circuit court awarded guardianship of the child to the grandmother, A.H., over the objection of the Petitioner. The circuit court noted that the child would be permitted to maintain contact with E.B. through the use of her cell phone. Observing that the registered sex offender had moved out of the grandmother's home, the circuit court further held that the child "is 11, and permanence and distance to Florida is unrealistic and looking at the long term, the least amount of harm will be placed upon the child if she remained with family in Martinsburg. She lived in Florida only a couple months and then only with her mother."

The circuit court also stated the DHHR had not made a finding of abuse by the grandmother, the father wanted the child placed with family, E.B. lives over a thousand miles away, and it

would create an unreasonable burden on the biological father and given that no guardian ad litem had been appointed to permit the respondent father to attend [the hearing], the only final result that could be achieved in this hearing would be to award guardianship consistent with the wishes of the biological father.

During the course of the proceedings, grandmother A.H. requested that a guardian ad litem be appointed for the father. The circuit court noted the request and responded: "[the] request for a Guardian ad Litem on behalf of [the father] is taken under advisement pending decision on the merits given the distance that the original petitioner [E.B.] traveled to attend the hearing and given than [sic] the Respondent Father did express his preference in writing." The circuit court did not ultimately appoint a guardian ad litem for the father.

On October 24, 2016, the Petitioner filed an appeal with this Court, contending that the circuit court's award of guardianship to the grandmother, A.H., was not in the child's best interests and should be reversed.⁴ While this appeal was pending, the child's father filed a petition for termination of the grandmother's guardianship. In September 2017, this Court entered an order finding that the circuit court no longer had jurisdiction over matters involved in this case because this Court had assumed jurisdiction. Further, this Court appointed Ashton Bias to represent the father's interests. On October 4, 2017, Ashton Bias, as guardian ad litem for the father, filed a brief indicating that the father agreed with the placement with the grandmother during the circuit court proceedings below. He alleged, however, that the circuit court abused its discretion in failing to appoint a guardian ad litem for the father to allow him to be actively involved in the proceeding below.

II. Standard of Review

In syllabus point one of McCormick v. Allstate Insurance Co., 197 W. Va. 415, 475 S.E.2d 507 (1996), this Court held:

When this Court reviews challenges to the findings and conclusions of the circuit court, a two-prong deferential standard of review is applied. We review the final order and the ultimate disposition under an abuse of discretion standard, and we review the circuit court's underlying factual findings under a clearly erroneous standard.

We have also held the standard of review applicable to custody decisions, including guardianship decisions, 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,

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