In re in Re: L.H., 17-0102
| Decision Date | 07 November 2017 |
| Docket Number | No. 17-0103,No. 17-0102,17-0102,17-0103 |
| Court | West Virginia Supreme Court |
| Parties | In Re: L.H. AND In Re: L.H. and I.H. |
(Raleigh County No. 14-JA-275K)
(Raleigh County No. 14-JA-276K)
This case arises out of child abuse and neglect proceedings. The Mother of two infant children, M.H.1 ("Mother"),2 appeals from an order entered on December 29, 2016, wherein the Circuit Court of Raleigh County awarded permanent subsidized guardianship of the children to others with reasonable visitation for Mother. Infant I.H. was placed in the custody of her paternal grandmother, P.H. ("Grandmother").3 E.H., the Father of I.H. ("Father 2"), did not appeal the award of permanent guardianship with visitation. Infant L.H. was placed in the custody of non-related intervenors, C.F. and H.F. ("Standing Grandparents"),4 who had cared for the child rather than in the custody of his biologicalfather, R.E. ("Father 1"),5 against whom no allegations of abuse and neglect were made. Father 1 appeals the order insofar as it divested him of custody of L.H. and granted him only undefined reasonable and seasonable visitation rights. The Guardian ad litem ("Guardian")6 and the Department of Health and Human Resources ("DHHR")7 submit that the order of subsidized guardianship as to both children was in error and further support placement of L.H. with his fit biological father, Father 1. Standing Grandparents, joined by Grandmother, argue that the findings and conclusions of the circuit court should be affirmed.
Upon our review of the parties' arguments, the appendix record, and the pertinent authorities, we find that the circuit court erred by ordering that infant L.H. be placed in the home of a non-relative third party rather than in the custody of his non-offending biological father, Father 1, against whom no allegations of abuse and neglect were made. We also find that it is in the best interest of L.H. to have a change of placement managed in accordance with a properly developed transitional plan, and, once transition is accomplished, to continue to maintain his relationship with Standing Grandmother such that reasonable visitation must be afforded. Accordingly, we reverse and remand this case for further hearings consistent with the findings and directions announced herein. Furthermore, in consideration of the Rule 11(j) update material submitted to this Court, we find that the parental rights of Mother to L.H. and I.H. must be, and they hereby are, terminated inasmuch as there is no reasonable likelihood that the conditions of abuse and neglect can be substantially corrected in the near future. Additionally, in consideration of the Rule 11(j) update material, this Court directs the circuit court to immediately convene a hearing to determine whether the parental rights of the biological father of I.H., Father 2, should be terminated. Because this case does not present a new or significant issue of law, and for the reasons set forth herein, we find this case satisfies the "limited circumstances" requirements of Rule 21(d) of the West Virginia Rules of Appellate Procedure and is proper for disposition as a memorandum decision.
On December 8, 2014, a Petition to Institute Child Abuse and Neglect Proceedings was filed by DHHR seeking, among other things, custody of two infant children: L.H., born in 2010, and I.H., born in 2014. According to the Petition, DHHR received a referral on December 1, 2014, that the Mother of both children was a hospital patient who had given birth to baby girl I.H. while testing positive for THC, cocaine, and opiates. It also was reported that Mother may be homeless and that her other child, L.H., was "bounced" from family member to family member. It further was asserted that Mother admitted to drugaddiction, using illegal drugs during the course of her pregnancy with I.H., and taking the narcotic "roxy 30" the day she went into labor. Subsequently, it was learned that baby I.H. was suffering from withdrawal. The DHHR worker also interviewed Father 2, who admitted knowing that Mother abused drugs during the pregnancy and that she had made an unsuccessful attempt at detox. DHHR further asserted that Standing Grandmother reported that she had provided care for L.H. since birth, less approximately an eight-month period when Mother cared for L.H. Standing Grandmother indicated that Mother provided no financial support for L.H. and went long periods of time without contact. No allegations were made against L.H.'s father, Father 1, who lived in Arizona.
Thereafter, the circuit court entered an order finding the children to be in imminent danger and transferring their custody to DHHR. The Court further directed that a multidisciplinary team meeting ("MDT") be convened. Finally, a Guardian ad litem was appointed for the children, and counsel was appointed for Mother, Father 2, and Father 1.
On December 22, 2014, at the preliminary hearing, Standing Grandparents filed a Petition to Intervene as to L.H. together with a Motion to Dismiss the Abuse and Neglect Petition as to L.H. Standing Grandparents also filed a motion seeking custody of L.H., which included a draft petition for adoption and name change with exhibits consisting of a prepared typed and notarized document styled "Unconditional Relinquishment and Consent for Adoption" supporting their adoption of L.H., which had been executed by Mother on December 5, 2014. An additional exhibit consisted of a copy of a handwritten, notarized document regarding L.H. dated February 11, 2013, signed by Father 1 and representing that Father 1 "grant[s] guardianship to [Standing Grandparents] [unreadable] them to undertake full financial and medical responsibilities in the absence of my presence." The note further stated that Standing Grandparents Counsel for Standing Grandparents was permitted to appear at the preliminary hearing.8
Among other things, at the preliminary hearing, the circuit court was informed that DHHR had placed I.H. with Grandmother and had placed L.H. with Standing Grandparents because "the child was there," and no allegations had been made against them. In regard to Standing Grandparents, the court remarked that it "sensed" that "perhaps" they were psychological grandparents to L.H. As to Father 1, the circuit court commented: The order reflecting the preliminary hearing concluded there was probable cause to proceed against Mother and Father 2, and that custody of both children with DHHR was proper. Further, an Interstate Compact Placement Agreement ("ICPC") home study of Father 1 in Arizona was ordered. The motion of Standing Grandparents to intervene was denied as premature.
An adjudicatory hearing was held on February 11, 2015. Mother and Father 2 filed voluntary written stipulations admitting abuse and neglect of the respective children and both requested six-month post-adjudicatory improvement periods. By order entered on March 24, 2015, the circuit court found that Mother had abused and neglected I.H. and L.H. and that Father 2 had abused and neglected I.H. A six-month improvement period, including rehabilitation treatment and drug testing, was ordered for both parents.
On April 22, 2015, Standing Grandparents filed a Renewed Petition to Intervene as of Right regarding L.H. contending that they had been the primary custodians of L.H. since he was about two months old. They further argued that Father 1 had relinquished his rights to the child by granting them guardianship of L.H. in February 2013, and by abandoning L.H. due to failing to maintain contact or provide financial support. Father 1 responded in opposition to the motion to intervene arguing that he was a non-offending father and had undergone a positive home study. He further denied relinquishing his rights to L.H. or that he had abandoned his son. Father 1 additionally claimed that the February 2013 document was written and signed in response to being told that Standing Grandparents were babysitting L.H. frequently. He claimed that he wanted to ensure his son's health and safety in the "absence of his presence." Father 1 also stated that he had paid child support to Mother; had had multiple visits with his son from four hours to two weeks in duration; had spoken on the telephone with his son hundreds of times; had sent gifts; and asserted that as a fit, non-offending, biological father, he should have custody.
An improvement period review hearing was held on May 1, 2015. The circuit court directed that the status quo continue. Following an improvement period hearing on July 22, 2015, the circuit court ordered DHHR to transport L.H. to Arizona for two weeks and to travel to Arizona for his return to West Virginia.
On August 28, 2015, an improvement hearing was held during which the circuit court received information regarding Mother and Father 2's participation in rehabilitation programs. DHHR updated the circuit court as to L.H.'s visit with Father 1 in Arizona reporting that the child seemed happy, there were no incidents, and the child was able to do a lot of activities unavailable locally. DHHR, Mother, and the Guardian agreed that L.H.should be placed with his fit and non-offending father, Father 1, who sought to return to Arizona with his son. Over objection, the circuit court concluded that Standing Grandparents should be made intervenors subject to the control of the court. Additionally, the circuit court denied the request that Father 1 be permitted to return to Arizona with his son choosing, instead, to maintain the status quo and have a full hearing at a subsequent...
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