In re K.H., No. 14–0363.

CourtSupreme Court of West Virginia
Writing for the CourtWORKMAN, Chief Justice
Citation773 S.E.2d 20,235 W.Va. 254
Docket NumberNo. 14–0363.
Decision Date10 April 2015
PartiesIn re K.H.

235 W.Va. 254
773 S.E.2d 20

In re K.H.

No. 14–0363.

Supreme Court of Appeals of West Virginia.

Submitted Jan. 28, 2015.
Decided April 10, 2015.


Lyne Ranson, Esq., Lyne Ranson Law Offices, LC, Charleston, WV, for Petitioner.

Allyson E. Hilliard, Esq., Swartz Law Offices, PLLC, St. Albans, WV, for Respondent.

Opinion

WORKMAN, Chief Justice:

235 W.Va. 256

This is an appeal by Glenna. H. (hereinafter “grandmother”)1 from an order of the Circuit Court of Kanawha County affirming an order of the family court terminating the grandmother's eight-year guardianship of her granddaughter, K.H. The family court granted full custody to Anthony B., the child's father (hereinafter “father”) with no ongoing visitation granted to the grandmother. On appeal, the grandmother contends that the family court erred in failing to recognize her as the psychological parent of the child; failing to properly consider the child's best interests or material changes in circumstances; and failing to grant any ongoing visitation to the grandmother.

Subsequent to a thorough review of the appendix record, the parties' briefs, and oral arguments of counsel, this Court affirms the family court and circuit court orders terminating the grandmother's guardianship of the child, but we remand this matter with directions to the circuit court to remand to the family court for a hearing on the issue of visitation and the entry of an order granting liberal visitation rights to the grandmother, the specific contours of which are to be fashioned by the family court.

I. Factual and Procedural History

K.H. was born in June of 2006. The father had no contact with the child during the first year of her life and requested multiple paternity tests. He first saw the child on August 1, 2007. The child's mother and brother died in an automobile accident on September 15, 2007, and the maternal grandmother, petitioner Glenna H., thereafter filed for guardianship of the child on September 27, 2007. By order dated October 30, 2007, the family court appointed the grandmother as guardian of the child. The father appeared at the guardianship hearing and did not object to the grandmother's appointment.

773 S.E.2d 23
235 W.Va. 257

On November 6, 2008, the father filed a petition to establish custodial responsibility for the child. This action resulted in an April 2009 agreed order granting primary custody to the grandmother with parenting time to the father every other weekend and one night per week. The father also began paying child support. On November 18, 2010, the father filed a petition to revoke or terminate the grandmother's guardianship. This action resulted in a 2011 agreed order granting the father additional parenting time. The father and grandmother also agreed to refrain from seeking further modification of the custody arrangements until December 31, 2012.

On January 16, 2013, the father filed another petition to terminate the grandmother's guardianship of the child.2 By order dated April 11, 2013, Attorney Woody Hill was appointed as the guardian ad litem for the child. Subsequent to his investigation, Mr. Hill opined that the child should be placed in the custody of the father.3 Mr. Hill reported that he considered the child's best interests and determined that the father was capable of providing a stable environment for the child, with no further need for guardianship.

On July 16, 2013, the grandmother filed a motion with the family court seeking to be designated as the child's “psychological parent” and also objected to the termination of her guardianship of the child. The family court held hearings in July, October, and November, 2013. In addition to the parties and the guardian ad litem, Dr. Timothy Saar, a psychologist retained by the grandmother, testified that the grandmother and the child have a significant bond and that the child honestly views the grandmother as “mom.” Dr. Saar did not meet with the father.4

By order dated December 18, 2013, the family court terminated the grandmother's guardianship and denied her motion to be considered a psychological parent. The grandmother appealed to the Circuit Court of Kanawha County on January 17, 2014. The circuit court refused the appeal, and the grandmother thereafter appealed to this Court.

II. Standard of Review

This Court has held that the standard of review in custody decisions, including guardianships, 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, 385 S.E.2d 912 (1989).” Syl. Pt. 1, In re Abbigail Faye B., 222 W.Va. 466, 665 S.E.2d 300 (2008).

Syl. Pt. 2, In re Antonio R.A., 228 W.Va. 380, 719 S.E.2d 850 (2011). We have also explained as follows:

In reviewing a final order entered by a circuit court judge upon a review of, or upon a refusal to review, a final order of a family court judge, we review the findings of fact made by the family court judge
235 W.Va. 258
773 S.E.2d 24
under the clearly erroneous standard, and the application of law to the facts under an abuse of discretion standard. We review questions of law de novo.

Syllabus, Carr v. Hancock, 216 W.Va. 474, 607 S.E.2d 803 (2004). Guided by these standards, we now consider the parties' arguments.

III. Discussion

A. West Virginia Code § 44–10–3, Best Interests, and Changed Circumstances

The grandmother asserts that the family court and lower court erred in the consideration of the father's petition to terminate the guardianship by failing to properly evaluate the best interests of the child and the existence of changed circumstances. In so arguing, the grandmother raises the issue of the legislative amendments to the requirements articulated in West Virginia Code § 44–10–3 that became effective between the father's filing of the petition for termination of the guardianship and the court's hearings on the matter.5 The grandmother contends that the family court erred by applying the version of the statute in effect at the time of the filing, rather than the amended version. The primary distinction between the prior and amended versions is the addition of the requirement for consideration of the best interests of the child and a material change in circumstances supporting the need to terminate the guardianship.

This Court's review of the record reveals that the family court recognized the existence of the statutory amendment in its order, but it did not specifically identify the statutory underpinnings for its conclusion that the grandmother's guardianship should be terminated. It simply stated that the father had filed his petition for termination under West Virginia Code § 44–10–3(c)(4), and it thereafter proceeded to articulate its findings. The family court did, however, address the issue of the best interests of the child and the change in circumstances that had gradually occurred in the father's level of participation in his daughter's life. The family court observed that “striking a balance between a biological parent's constitutional rights and the child's best interests can be difficult.” The court also recognized the immeasurable importance of the child's best interests, as discussed by this Court in In re Antonio , 228 W.Va. at 388, 719 S.E.2d at 858. The court explained that the “record clearly reflects that throughout the years Father has continually stepped up to care for his child and has willingly assumed additional and substantial parental responsibilities as well as all caretaking functions for his minor daughter.”

This Court finds the parties' arguments regarding deficiencies in the application of the statute to be unavailing. Beyond any statutory requirement for consideration of best interests and changed circumstances, this Court has emphatically declared the requirement for a thorough consideration of

235 W.Va. 259
773 S.E.2d 25

the best interests of the child and changed circumstances in all matters relating to altering custody of children. The substantive law in effect at both the time of filing of the petition and the time of hearings on the matter required such consideration. This Court addressed these requirements in the specific context of a termination of guardianship in In re Haylea G., 231 W.Va. 494, 745 S.E.2d 532 (2013), and has consistently required analysis of best interests and changed circumstances in matters involving custody of children. Id. at 498, 745 S.E.2d at 536. A child's best interests have been heralded as the paramount consideration...

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1829 practice notes
  • W. Va. State Police v. J.H., No. 19-0741
    • United States
    • Supreme Court of West Virginia
    • 29 Marzo 2021
    ...in cases with sensitive facts, we use initials where necessary to protect the identities of those involved in this case. See In re K.H. , 235 W. Va. 254, 256 n.1, 773 S.E.2d 20, 22 n.1 (2015).2 We note that the Trooper Defendants and the Officer Defendants have not filed any documents in th......
  • W.Va. State Police v. J.H., No. 19-0741
    • United States
    • Supreme Court of West Virginia
    • 26 Marzo 2021
    ...in cases with sensitive facts, we use initials where necessary to protect the identities of those involved in this case. See In re K.H., 235 W. Va. 254, 256 n.1, 773 S.E.2d 20, 22 n.1 (2015). 2. We note that the Trooper Defendants and the Officer Defendants have not filed any documents in t......
  • West Virginia v. Benny W., No. 18-0349
    • United States
    • Supreme Court of West Virginia
    • 18 Octubre 2019
    ...and sensitive facts, we use the initials where necessary to protect the identities of those involved in this case. See In re K.H., 235 W. Va. 254, 256 n.1, 773 S.E.2d 20, 22 n.1 (2015). 2. H.A. was born in 2002, and J.L. was born in 2003. 3. It appears that the Petitioner was in his bedroom......
  • Christopher J. v. Ames, No. 17-0994
    • United States
    • Supreme Court of West Virginia
    • 10 Junio 2019
    ...involving sensitive facts, we use the initials where necessary to protect the identities of those involved in this case. See In re K.H. , 235 W. Va. 254, 256 n.1, 773 S.E.2d 20, 22 n.1 (2015).2 When this case was filed the Respondent was Ralph Terry, Acting Warden of Mount Olive Correctiona......
  • Request a trial to view additional results
1836 cases
  • W. Va. State Police v. J.H., No. 19-0741
    • United States
    • Supreme Court of West Virginia
    • 29 Marzo 2021
    ...in cases with sensitive facts, we use initials where necessary to protect the identities of those involved in this case. See In re K.H. , 235 W. Va. 254, 256 n.1, 773 S.E.2d 20, 22 n.1 (2015).2 We note that the Trooper Defendants and the Officer Defendants have not filed any documents in th......
  • W.Va. State Police v. J.H., No. 19-0741
    • United States
    • Supreme Court of West Virginia
    • 26 Marzo 2021
    ...in cases with sensitive facts, we use initials where necessary to protect the identities of those involved in this case. See In re K.H., 235 W. Va. 254, 256 n.1, 773 S.E.2d 20, 22 n.1 (2015). 2. We note that the Trooper Defendants and the Officer Defendants have not filed any documents in t......
  • West Virginia v. Benny W., No. 18-0349
    • United States
    • Supreme Court of West Virginia
    • 18 Octubre 2019
    ...and sensitive facts, we use the initials where necessary to protect the identities of those involved in this case. See In re K.H., 235 W. Va. 254, 256 n.1, 773 S.E.2d 20, 22 n.1 (2015). 2. H.A. was born in 2002, and J.L. was born in 2003. 3. It appears that the Petitioner was in his bedroom......
  • Christopher J. v. Ames, No. 17-0994
    • United States
    • Supreme Court of West Virginia
    • 10 Junio 2019
    ...involving sensitive facts, we use the initials where necessary to protect the identities of those involved in this case. See In re K.H. , 235 W. Va. 254, 256 n.1, 773 S.E.2d 20, 22 n.1 (2015).2 When this case was filed the Respondent was Ralph Terry, Acting Warden of Mount Olive Correctiona......
  • Request a trial to view additional results

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