In re N.R.

• Decision Date: 02 October 2020
• Docket Number: No. 20-0204,No. 20-0202,20-0202,20-0204
• Court: West Virginia Supreme Court
• Parties: In re N.R., A.R.-1, and A.W.

In re N.R., A.R.-1, and A.W.

No. 20-0202

No. 20-0204

STATE OF WEST VIRGINIA SUPREME COURT OF APPEALS

October 2, 2020

(Ohio County 13-CJA-33, 14-CJA-76, 14-CJA-77, and 14-CJA-78)

CORRECTED MEMORANDUM DECISION

Petitioners, Mother A.R.-2, by counsel David C. Fuellhart, and Father A.R.-3, by counsel Jeremy B. Cooper, appeal the Circuit Court of Ohio County's January 27, 2020, order terminating their parental rights to N.R., A.R.-1, and A.W.¹ The West Virginia Department of Health and Human Resources ("DHHR"), by counsel Lee A. Niezgoda, filed a response in support of the circuit court's order. The guardian ad litem, Joseph J. Moses, filed a response on behalf of the children in support of the circuit court's order. On appeal, petitioners argue that the circuit court erred in denying their respective motions to transfer the proceedings to the Indian Tribal Court.

This Court has considered the parties' briefs and the record on appeal. The facts and legal arguments are adequately presented, and the decisional process would not be significantly aided by oral argument. Upon consideration of the standard of review, the briefs, and the record presented, the Court finds that the circuit court erred in denying petitioners' motions on the basis that they did not have standing. This case satisfies the "limited circumstances" requirement of Rule 21(d) of the West Virginia Rules of Appellate Procedure, and a memorandum decision is appropriate to vacate and remand the matter.

Many of the pertinent facts of this case are set forth in our prior opinion, In re N.R., 242 W. Va. 581, 836 S.E.2d 799 (2019). Briefly, the circuit court "entered a final dispositional order . . . pursuant to West Virginia Code § 49-4-604(b)(5) (2016), placing the children . . . in the legal and physical custody of the [DHHR] upon finding that the abusing parents were presently unableto adequately care for their children." Id. at --, 836 S.E.2d at 802. The parents appealed and argued that the circuit court failed to comply with the Indian Child Welfare Act ("ICWA"), 25 U.S.C. §§ 1901 to -1923, and sought to dismiss the case. Id. The DHHR and guardian filed separate appeals, arguing that the circuit court erred in failing to terminate the parents' parental rights. This Court found "no violation of the ICWA" and further found that "the circuit court erred by not terminating the mother's and father's parental rights." Id. Accordingly, we reversed the circuit court's order "only insofar as it orders disposition under West Virginia Code § 49-4-604(b)(5)[(2019)]" and remanded "for entry of a final dispositional order terminating the [parents'] parental rights pursuant to West Virginia Code § 49-4-604(b)(6)[(2019)]." The above-mentioned opinion was filed on November 7, 2019, and the mandate was issued on January 9, 2020.

On November 13, 2019, both parents filed motions to transfer the proceedings from the circuit court to the Indian Tribal Court of the Manchester-Point Arenas Band of Pomo Indians, pursuant to 25 U.S.C. § 1911(b). Later in November of 2019, the circuit court denied both motions on the basis that the parents lacked standing pursuant to this Court's opinion. On January 27, 2020, the circuit court modified its prior dispositional order and terminated the parents' parental rights. Petitioners now appeal.²

The Court has previously held:

"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 evidence is left with the definite and firm conviction that a mistake has been committed. However, a reviewing court may not overturn a finding simply because it would have decided the case differently, and it must affirm a finding if the circuit court's account of the evidence is plausible in light of the record viewed in its entirety." Syl. Pt. 1, In Interest of Tiffany Marie S., 196 W.Va. 223, 470 S.E.2d 177 (1996).

Syl. Pt. 1, In re Cecil T., 228 W. Va. 89, 717 S.E.2d 873 (2011).

On appeal, petitioners argue that the circuit court erred in denying their motions to transfer the proceedings to Indian Tribal Court. Petitioners argue that the circuit court incorrectly denied these motions on the basis of standing. Although this Court's prior opinion in In re N.R.directed the circuit court to terminate petitioners' parental rights, petitioners aver that they retained their parental rights until the circuit court entered an order terminating their parental rights. Therefore, at the time that the circuit court denied their motions, they had standing under the ICWA to move for the transfer of the proceedings. We agree.

In the context of West Virginia abuse and neglect proceedings, we have recognized that

[a] final order terminating a person's parental rights, as the result of either an involuntary termination or a voluntary relinquishment of parental rights, completely severs the parent-child relationship, and, as a consequence of such order of termination, the law no longer recognizes such person as a "parent" with regard to the child(ren) involved in the particular termination proceeding.

Syl. Pt. 4, In re Cesar L., 221 W. Va. 249, 654 S.E.2d 373 (2007). We have further held that, following the severance of the parent-child relationship, the individual "does not have standing as a 'parent,' pursuant to [West Virginia Code § 49-4-606], to move for a modification of disposition of the child with respect to whom his/her parental rights have been terminated." Id, at 251, 654 S.E.2d at 375, syl. pt. 6, in part. Accordingly, our prior holdings provide that an individual retains standing to act as a parent while their parental rights to their respective children remain intact.

25 U.S.C. § 1911(b) permits the parents of Indian children to petition state courts to transfer certain proceedings to the children's respective tribal courts:

[i]n any State court proceeding for the foster care placement of, or termination of parental rights to, an Indian child not domiciled or residing within the reservation of the Indian child's tribe, the court, in the absence of good cause to the contrary, shall transfer such proceeding to the jurisdiction of the tribe, absent objection by either parent, upon the petition of either parent or the Indian custodian or the Indian child's tribe: Provided, That such transfer shall be subject to declination by the tribal court of such tribe.

According to the relevant federal regulations, "[e]ither parent, the Indian custodian, or the Indian child's tribe may request, at any time, orally on the record or in writing, that the State court transfer a foster-care or termination-of-parental-rights proceeding to the jurisdiction of the child's Tribe." 25 C.F.R. § 23.115 (emphasis added). At the time the circuit court denied petitioners' motions, they were the biological parents of Indian children who were subject to a West Virginia state court proceeding for the determination of their foster care placement.³ Asparents with their parental rights intact to the Indian children at issue, petitioners had standing to bring a motion to transfer the proceedings to the Indian tribal court.

For the foregoing reasons, we vacate the circuit court's November 18, 2019, and November 22, 2019, orders denying petitioners' respective motions to transfer the proceedings to the Indian tribal court and remand the matter to the circuit court for an adjudication of these motions on the merits.⁴ If a circuit court, or another party, asserts that good cause to deny the transfer exists, then all parties must be granted an opportunity to provide their views on the matter.⁵ The circuit court is hereby ordered to hold the appropriate hearings and issue a final order in this case within sixty days. The Clerk is hereby directed to issue the mandate contemporaneously herewith.

Vacated and remanded.

ISSUED: October 2, 2020

CONCURRED IN BY:

Chief Justice Tim Armstead

Justice Elizabeth D. Walker

Justice Evan H. Jenkins

Justice John A. Hutchison

DISSENTING AND WRITING SEPARATELY:

Justice Margaret L. Workman

Workman, J., dissenting:

I dissent from the majority opinion because, figuratively speaking, it continues after seven years to administer "death by due process" to three young children who have suffered not only long-term serious and aggravated physical abuse from their parents, but sustained abuse by a legal system that seems to want to count how many angels can dance on the head of a pin⁶ rather than giving these kids the emotional safety of a forever family to which their entitlement is long overdue.

These West Virginia abuse and neglect proceedings were initiated because petitioner father admitted to causing N. R. to sustain two fractures: a classic metaphysical fracture of the left distal tibia (also referred to as a bucket handle fracture) and a left clavicle fracture. In re N.R., 242 W. Va. 581, 836 S.E.2d 799, 803 (2019), cert. denied sub nom. Rios v. W. Virginia Dep't of Health & Human Res., 140 S. Ct. 1550, 206 L. Ed. 2d 385 (2020) ("N. R. I"). But even before that, there were abuse and neglect proceedings in Hawaii based on aggravated physical abuse when the children were even younger. Enough is enough. These children have rights, too.

None of this discussion is intended to denigrate the importance which the United States Congress has accorded the preservation of the Native American culture through the Indian Child Welfare Act ("ICWA").⁷ But examining the history of this case, Justice Hutchison,writing for the Court in our earlier decision N. R. I, painstakingly went through every aspect of the lower ...