In re K.R., No. 11–0961.

CourtSupreme Court of West Virginia
Writing for the CourtWORKMAN
Citation229 W.Va. 733,735 S.E.2d 882
PartiesIn re K.R. and P.R.
Decision Date20 November 2012
Docket NumberNo. 11–0961.

229 W.Va. 733
735 S.E.2d 882

In re K.R. and P.R.

No. 11–0961.

Supreme Court of Appeals of
West Virginia.

Submitted Sept. 25, 2012.
Decided Nov. 20, 2012.


[735 S.E.2d 883]



Syllabus by the Court

1. “ ‘ “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 Syllabus point 2, Funkhouser v. Funkhouser, 158 W.Va. 964, 216 S.E.2d 570 (1975), superseded by statute on other grounds as stated in David M. v. Margaret M., 182 W.Va. 57, 385 S.E.2d 912 (1989).’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).

2. “Pursuant to West Virginia Code § 48–20–102(g) (2001), ‘home state’ means the state in which a child lived with a parent or a person acting as a parent for at least six consecutive months immediately before the commencement of a child custody proceeding. In the case of a child less than six months of age, the term means the state in which the child lived from birth with any of the persons mentioned. A period of temporary absence of any of the mentioned persons is part of the period.” Syl. Pt. 3, Rosen v. Rosen, 222 W.Va. 402, 664 S.E.2d 743 (2008).

3. To determine whether a state qualifies as a child's “home state” for purposes of determining initial jurisdiction under W. Va.Code § 48–20–201(a) (Repl.Vol.2009), a court must analyze whether any state qualified as the child's “home state” at any time within the six months immediately preceding commencement of the action.

4. “ ‘In the law concerning custody of minor children, no rule is more firmly established than that the right of a natural parent to the custody of his or her infant child is paramount to that of any other person; it is a fundamental personal liberty protected and guaranteed by the Due Process Clauses of the West Virginia and United States Constitutions.’ Syl. Pt. 1, In re Willis, 157 W.Va. 225, 207 S.E.2d 129 (1973).” Syl. Pt. 6, In re Antonio R.A., 228 W.Va. 380, 719 S.E.2d 850 (2011).

5. “ ‘A parent has the natural right to the custody of his or her infant child and, unless the parent is an unfit person because of misconduct, neglect, immorality, abandonment or other dereliction of duty, or has waived such right, or by agreement or otherwise has transferred, relinquished or surrendered such custody, the right of the parent to

[735 S.E.2d 884]

the custody of his or her infant child will be recognized and enforced by the courts.’ Syllabus, Whiteman v. Robinson, 145 W.Va. 685, 116 S.E.2d 691 (1960).” Syl. Pt. 7, In re Antonio R.A., 228 W.Va. 380, 719 S.E.2d 850 (2011).

6. “ ‘Although parents have substantial rights that must be protected, the primary goal ... in all family law matters ... must be the health and welfare of the children.’ Syllabus point 3, in part, In re Katie S., 198 W.Va. 79, 479 S.E.2d 589 (1996).” Syl. Pt. 10, In re Abbigail Faye B., 222 W.Va. 466, 665 S.E.2d 300 (2008).

7. “ ‘ “While courts always look to the best interests of the child in controversies concerning his or her custody, such custody should not be denied to a parent merely because some other person might possibly furnish the child a better home or better care.” Syllabus point 3, Hammack v. Wise, 158 W.Va. 343, 211 S.E.2d 118 (1975).’ Syl. Pt. 12, In re Abbigail Faye B., 222 W.Va. 466, 665 S.E.2d 300 (2008).” Syl. Pt. 8, In re Antonio R.A., 228 W.Va. 380, 719 S.E.2d 850 (2011).

8. “Rule 48a(a) of the West Virginia Rules of Practice and Procedure for Family Court requires that if a family court presiding over a petition for infant guardianship brought pursuant to W. Va.Code § 44–10–3 learns that the basis for the petition, in whole or in part, is an allegation of child abuse and neglect as defined by W. Va.Code § 49–1–3, then the family court is required to remove the petition to circuit court for a hearing thereon. Furthermore, ‘[a]t the circuit court hearing, allegations of child abuse and neglect must be proven by clear and convincing evidence.’ West Virginia Rules of Practice and Procedure for Family Court 48a(a).” Syl. Pt. 7, In re Abbigail Faye B., 222 W.Va. 466, 665 S.E.2d 300 (2008).

9. “It is a traumatic experience for children to undergo sudden and dramatic changes in their permanent custodians. Lower courts in cases such as these should provide, whenever possible, for a gradual transition period, especially where young children are involved. Further, such gradual transition periods should be developed in a manner intended to foster the emotional adjustment of the children to this change and to maintain as much stability as possible in their lives.” Syl. Pt. 3, James M. v. Maynard, 185 W.Va. 648, 408 S.E.2d 400 (1991).


Amy C. Crossan, Esq., Bouchillon, Crossan & Colburn, L.C., Huntington, WV, for Petitioner.

David J. Lockwood, Esq., Lockwood & Lockwood, and Ryan Turner, Esq., Bellomy & Turner, L.C., Huntington, WV, for Respondent.


WORKMAN, Justice:

Petitioner, Kelly R. (hereinafter “Kelly” or “petitioner”), appeals the circuit court's May 23, 2011, order granting permanent guardianship of her two children, P.R. and K. R., to respondent Linda J. (hereinafter “Linda” or “respondent”), their paternal grandmother. Petitioner asserts that the circuit court erred in exercising jurisdiction under W. Va.Code § 48–20–101 et seq. (Repl.Vol.2009), the Uniform Child Custody Jurisdiction and Enforcement Act (hereinafter “the UCCJEA”) and by transferring custody from a biological mother without a finding of unfitness. For the reasons set forth more fully below, we reverse the order of the circuit court awarding guardianship to Linda J., restore petitioner Kelly R.'s custodial rights, and remand this matter for further proceedings as indicated herein and as further consistent with this opinion.

I. FACTS AND PROCEDURAL HISTORY

K.R., currently fourteen-years-old, and P.R., currently twelve-years-old, are the children of Kelly R. and James R. (hereinafter “James”), now deceased.1 Kelly and James lived together in Mississippi with their children until their separation in August, 2006, and subsequent divorce in August, 2008. In October, 2008, P.R. and K.R. began residing

[735 S.E.2d 885]

with Gary and Armilda M. (hereinafter the “M. family,”), who reside in Wayne County and are extended relatives of P.R. and K.R. P.R. and K.R. were brought to Wayne County to live with the M. family due to personal and financial hardships occasioned by the divorce of their parents who continued to live in Mississippi; they were enrolled in school in Wayne County at that time. In December, 2008, the M. family filed a guardianship petition in Wayne County seeking permanent guardianship of the children; they apparently alleged that Kelly and her live-in boyfriend at the time, Brian Y. were drug abusers. The circuit court found that, given that the family resided in Pearl River County, Mississippi, that Mississippi had jurisdiction over those issues and made referral to their “home jurisdiction” for handling of that matter. Child Protective Services in Mississippi, accepting the referral from Wayne County, investigated, finding that the home was adequate with food, that Kelly and her boyfriend, Brian Y., were working on their substance abuse problems, and that Kelly was not receiving support from the children's father, James R. Upon receipt of that information, the children were returned to the care of their mother in Mississippi in January, 2009, whereupon the Circuit Court of Wayne County, finding the matter properly in the hands of the children's home state, closed its file.2

Apparently for many years, Kelly and James permitted the children to spend the summer with James' mother, respondent Linda J., in Wayne County. Following their return to Mississippi in 2009, the children again returned to spend the summer with Linda in Wayne County, beginning in June, 2010.3 The children would stay with Linda primarily, but on days when Linda worked late, they would spend the night with R. family member Sally S., a cousin to James. In August, 2010, while the children were still in West Virginia, Kelly and James reconciled; the home they owned in Mississippi was foreclosed on and both moved to Louisiana. The precise date in August on which they moved is found nowhere in the record or briefs of the parties. At some point in August, Linda returned the children to Louisiana at the request of Kelly and they were enrolled in school there. Linda testified that they were returned to Louisiana at the “end of August,” although the precise day they left West Virginia is found nowhere in the record. Linda testified that the children were gone from West Virginia for four weeks.

Approximately a month later, on October 4, 2010, James and Kelly executed a “Provisional Custody by Mandate” signing over temporary guardianship of the children to Sally S. and returned the children to Wayne County to be enrolled in school. Kelly testified—and it was undisputed—that Kelly and James intended to move to West Virginia in February, 2011, after James completed a chemical handling certification which would allow them to relocate. Their intended purpose in sending the children to West Virginia was to get them enrolled and integrated into school sooner than later. Linda testified that, as they did in the summer months, despite the Mandate vesting guardianship in Sally S., the children resided with both Linda and Sally S. intermittently depending on Linda's work schedule.

On January 10, 2011, James was killed in a workplace accident in Louisiana. Kelly returned to West Virginia on January 12, 2011, for his funeral services. She alleges that she verbally revoked the Mandate at that time. Regardless, it appears undisputed that for the next month, Kelly...

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24 practice notes
  • In re Timber M., No. 12–1138.
    • United States
    • Supreme Court of West Virginia
    • June 5, 2013
    ...Appellant has not raised the sufficiency of the trial court's dispositional order, we address this issue sua sponte.”). Cf. In re K.R., 229 W.Va. 733, 744 n. 23, 735 S.E.2d 882, 893 n. 23 (2012) (“While neither party assigned this specific ruling as error, this does not affect this Court's ......
  • Ocegueda v. Perreira, C073176
    • United States
    • California Court of Appeals
    • January 5, 2015
    ...216 [“The child's physical location is the central factor to be considered when determining the home state.”]; see also In re K.R. (2012) 229 W.Va. 733, 742, 735 S.E.2d 882, 891 [the word “lived” is not to be confused with “residency” or “domicile”]; see also Sajjad v. Cheema (App.Div.2012)......
  • Ocegueda v. Perreira, C073176
    • United States
    • California Court of Appeals
    • January 5, 2015
    ...analysis in Stover to be persuasive; other courts throughout the United States have come to the same conclusion.5 In re K.R. (2012) 229 W.Va. 733, 742, [735 S.E.2d 882, 891] [the word “lived” is not to be confused with “residency” or “domicile”]; see also Pierce v. Pierce (Ala.Civ.App.2010)......
  • Ocegueda v. Perreira, C073176
    • United States
    • California Court of Appeals
    • January 5, 2015
    ...216 [“The child's physical location is the central factor to be considered when determining the home state.”]; see also In re K.R. (2012) 229 W.Va. 733, 742, 735 S.E.2d 882, 891 [the word “lived” is not to be confused with “residency” or “domicile”]; see also Sajjad v. Cheema (App.Div.2012)......
  • Request a trial to view additional results
23 cases
  • In re Timber M., No. 12–1138.
    • United States
    • Supreme Court of West Virginia
    • June 5, 2013
    ...Appellant has not raised the sufficiency of the trial court's dispositional order, we address this issue sua sponte.”). Cf. In re K.R., 229 W.Va. 733, 744 n. 23, 735 S.E.2d 882, 893 n. 23 (2012) (“While neither party assigned this specific ruling as error, this does not affect this Court's ......
  • Ocegueda v. Perreira, C073176
    • United States
    • California Court of Appeals
    • January 5, 2015
    ...216 [“The child's physical location is the central factor to be considered when determining the home state.”]; see also In re K.R. (2012) 229 W.Va. 733, 742, 735 S.E.2d 882, 891 [the word “lived” is not to be confused with “residency” or “domicile”]; see also Sajjad v. Cheema (App.Div.2012)......
  • Ocegueda v. Perreira, C073176
    • United States
    • California Court of Appeals
    • January 5, 2015
    ...analysis in Stover to be persuasive; other courts throughout the United States have come to the same conclusion.5 In re K.R. (2012) 229 W.Va. 733, 742, [735 S.E.2d 882, 891] [the word “lived” is not to be confused with “residency” or “domicile”]; see also Pierce v. Pierce (Ala.Civ.App.2010)......
  • Ocegueda v. Perreira, C073176
    • United States
    • California Court of Appeals
    • January 5, 2015
    ...216 [“The child's physical location is the central factor to be considered when determining the home state.”]; see also In re K.R. (2012) 229 W.Va. 733, 742, 735 S.E.2d 882, 891 [the word “lived” is not to be confused with “residency” or “domicile”]; see also Sajjad v. Cheema (App.Div.2012)......
  • Request a trial to view additional results

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