In re J.C.
| Decision Date | 31 May 2019 |
| Docket Number | No. 18-0355,18-0355 |
| Citation | 242 W.Va. 165,832 S.E.2d 91 |
| Parties | IN RE J.C. |
| Court | West Virginia Supreme Court |
Gerald R. Linkous, Esq., Mercer County Public Defender, Princeton, West Virginia, Attorney for Petitioner A.B.-C.
Andrew T. Waight, Esq., Childlaw Services, Inc., Princeton, West Virginia, Shannon L. Baldwin, Esq., Baldwin Law Office PLLC, Bluefield, West Virginia, Guardians ad Litem for J.C.
Patrick Morrisey, Esq., Attorney General, Brandolyn N. Felton-Ernest, Esq., Assistant Attorney General, Attorneys for Respondent, Department of Health and Human Resources
This appeal was brought by A.B.-C. (hereinafter "Petitioner") from the May 31, 2018, order of the Circuit Court of Mercer County that terminated her parental rights to her infant son, J.C.1 The controlling issue on appeal is whether the circuit court had subject matter jurisdiction to terminate Petitioner’s parental rights. Upon careful review of the briefs, the appendix record, the arguments of the parties, and the applicable legal authority, we reverse and remand.
During the early evening hours of August 25, 2017, the Petitioner was observed walking around for about an hour, with her son J.C., near an Advanced Auto store in Princeton, West Virginia.2 An employee at the store contacted the local police to investigate Petitioner’s behavior. After the police arrived they contacted the Respondent, West Virginia Department of Health and Human Resources (hereinafter "DHHR"), and requested a child protective service worker be dispatched to investigate the child’s safety. At around 8:30 p.m. a DHHR child protective service worker arrived at the store.3 During its investigation, DHHR learned that the Petitioner was from Richlands, Virginia. The Petitioner informed DHHR that she was hitchhiking her way to Taylorsville, North Carolina, where she hoped to live with a relative and find work.4 DHHR learned that the Petitioner was married to a man named O.C., an alleged illegal immigrant from Mexico, who resided in Richlands. It was also reported to DHHR that Petitioner left home because of a domestic dispute she had with O.C. and her mother.
At some point during the questioning by DHHR, Petitioner was taken to the Princeton police station to continue the investigation. DHHR was able to contact O.C. by phone. O.C. indicated that he did not have a vehicle, but that he would try to find a way to come to Princeton. O.C. was able to get the Petitioner’s uncle to drive him to the police station in Princeton. Upon his arrival, O.C. informed DHHR that Petitioner had mental health issues and needed to go to a hospital. DHHR was able to learn from O.C. that Virginia authorities had previously provided child protective services to O.C. and Petitioner.5 DHHR contacted child protective services in Virginia, but was informed that information regarding Petitioner and O.C. could not be disclosed. DHHR was told by Virginia child protective services that any family incident occurring in West Virginia had to be handled in West Virginia by DHHR.
At the conclusion of the interview with Petitioner and O.C., DHHR decided not to release J.C. to his parents. Instead, DHHR filed an application for temporary emergency custody with the Magistrate Court of Mercer County. The reasons for taking custody of J.C. were set out in the application as follows:
Mother stated that she was leaving Richlands to go to NC, but was found in Princeton, WV with no ride or place to stay with the baby. Mother told different stories, but one was that she left because of a domestic between the child’s father & her mother. No protective caregiver.
After DHHR took custody of J.C., the Petitioner and O.C. left West Virginia.6
On August 28, 2017, DHHR filed a child abuse and neglect petition against the Petitioner and O.C. The basis for the petition was DHHR’s concerns about Petitioner’s mental health and ability to care for J.C., a prior child protective service involvement in Virginia, and O.C.’s alleged alcohol use and his failure to protect J.C.
On September 11, 2017, the circuit court held a preliminary hearing to determine whether there was probable cause that J.C. was abused or neglected and in imminent danger. The Petitioner and O.C. were at the hearing but did not testify.7 DHHR informed the circuit court that a family member of the Petitioner, an aunt named T.C., was given temporary custody of J.C. by the state of Virginia, but that the custody order had expired.8 T.C. was also designated as the payee for social security benefits that Petitioner received. DHHR also informed the court that T.C. and other family members were trying to have the Petitioner committed to a group home because of her mental health issues. The court was further informed that when the Petitioner reached North Carolina, after J.C. was taken from her, she lived in a shelter for several days before she was permitted to stay at the home of one of her cousins. At the conclusion of the preliminary hearing, the circuit court found probable cause for the abuse and neglect petition to proceed to an adjudicatory hearing.
On October 2, 2017, an adjudicatory hearing was held. Neither the Petitioner nor O.C. appeared at the hearing.9 No witnesses were called at the hearing. Instead, the circuit court incorporated the evidence taken at the preliminary hearing. Based upon the preliminary hearing evidence, the circuit court found that the child was neglected. Further, the court held that because of the failure of Petitioner and O.C. to attend the hearing, the child was deemed abandoned as an aggravating factor.10
A dispositional hearing was held on January 8, 2018. The Petitioner appeared at the hearing, but O.C. did not.11 No witness testimony was taken during the hearing. However, the circuit court was informed that arrangements had been made for Petitioner to have a psychological evaluation. It was also revealed that efforts were being made to place J.C. with a relative in North Carolina if parental rights were terminated. The court was also informed that Petitioner was pregnant. Petitioner’s counsel requested an improvement period. The circuit court held that it would only consider an improvement period for Petitioner if she "consent[ed] to jurisdiction for the child she’s carrying right now." At the request of counsel for O.C., the circuit court continued the dispositional hearing so that arrangements could be made for O.C. to be present.
On April 9, 2018, the dispositional hearing reconvened. However, neither the Petitioner nor O.C. appeared at the hearing. The circuit court was informed by Petitioner’s counsel that the Petitioner called counsel on the morning of the hearing and informed him that she had given birth to a child in North Carolina.12 The court was also informed that North Carolina’s child protective services had taken the newborn into custody. DHHR and the Guardian ad Litem informed the court that efforts were being made to try and have J.C. turned over to family members in North Carolina. The circuit court continued the hearing to give DHHR an opportunity to try and arrange for placement of J.C. with family members in North Carolina.13
The dispositional hearing reconvened again on April 23, 2018. Neither the Petitioner nor O.C. appeared at the hearing. Counsel for Petitioner informed the circuit court that an active child protective services case was pending in a court in North Carolina, regarding the child Petitioner gave birth to in that state.14 Petitioner’s counsel requested the circuit court contact the North Carolina court to discuss relinquishing jurisdiction of the West Virginia case to the court in North Carolina. DHHR informed the circuit court that North Carolina’s child protective services believed that it should retain jurisdiction of the child born there, and that the circuit court should keep jurisdiction of J.C. The circuit court ruled that it would try to contact the North Carolina judge to determine whether that judge wanted to take jurisdiction over J.C. The hearing was continued until May 21, 2018.
On May 21, 2018, the dispositional hearing once again reconvened. The Petitioner and O.C. did not appear at the hearing.15 At the outset of the hearing the circuit court informed the attorneys in the case that he called the North Carolina judge on at least five occasions in May, in an attempt to discuss the case. However, the circuit court was never able to speak directly with the North Carolina judge. Petitioner’s counsel informed the circuit court that the attorney representing Petitioner in the child custody proceeding in North Carolina, informed him that the North Carolina judge believed the case should be transferred to North Carolina.16 Petitioner’s counsel also informed the circuit court that the North Carolina judge needed to have an order that authorized the circuit court to speak with the North Carolina judge. The circuit court stated that it would not write such an order.17 After hearing testimony from a witness called by DHHR, the circuit ruled that it was terminating the parental rights of Petitioner and O.C.18 A subsequent order was entered terminating parental rights on May 31, 2018. Petitioner thereafter filed this appeal.19
We apply the following standard of review to dispositional determinations made by the circuit court in abuse and neglect cases:
Although conclusions of law reached by a circuit court are subject to de novo review, when an action, such as an abuse and neglect case, is tried upon the facts without a jury, the circuit court shall make a determination based upon the evidence and shall make findings of fact and conclusions of law as to whether such child is abused or neglected. These findings shall not be set aside by a reviewing court unless clearly erroneous. A finding is clearly erroneous when, although there is evidence to support the finding, the reviewing court on the entire...
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