In re S.C., 20-0816

CourtSupreme Court of West Virginia
Writing for the CourtWALKER, Justice
Citation245 W.Va. 677,865 S.E.2d 79
Parties IN RE S.C.
Docket NumberNo. 20-0816,20-0816
Decision Date29 October 2021

245 W.Va. 677
865 S.E.2d 79

IN RE S.C.

No. 20-0816

Supreme Court of Appeals of West Virginia.

Submitted: September 15, 2021
Filed: October 29, 2021


Kristen D. Antolini, Esq., Morgantown, West Virginia, Counsel for Petitioner

Molly A. Russell, Esq., Legal Aid of WV, Inc., Morgantown, West Virginia, Christina J. Rumbach, Esq., Legal Aid of West Virginia, Inc., Clarksburg, West Virginia, Counsel for Intervenors

Patrick Morrisey, Esq., Attorney General, Brittany N. Ryers-Hindbaugh, Esq., Assistant Attorney General, Brandolyn N. Felton-Ernest, Assistant Attorney General, Charleston, West Virginia, Counsel for Respondent DHHR

Rachel L. Fetty, Esq., Morgantown, West Virginia, Guardian ad litem

WALKER, Justice:

Petitioner C.C. is the father of S.C., who is now eleven years old.1 S.C. lived with her

865 S.E.2d 83

father and mother—who both abused illegal drugs—for the first four years of her life, but then Petitioner moved to Florida and her mother continued to abuse drugs. So for the past seven years, S.C. has lived her with her maternal great-grandparents, Respondents J.M and P.M. Although Petitioner had very little contact with his child for several years, no abuse and neglect petition was filed against him (or the child's mother) until after he sought custody of the child in 2019. During the proceedings against Petitioner in circuit court, it became clear that: (1) Petitioner had improved his circumstances significantly and was gradually rebuilding a relationship with his child through regular visitation, after a long period of absence from her life; and (2) the great-grandparents provide a stable, supportive, and loving home for the child. At disposition, the circuit court terminated Petitioner's parental rights under West Virginia Code § 49-4-604(c)(6) (2020) (disposition 6).

On appeal, Petitioner contends that the circuit court erred by finding that the statutory grounds for termination were met. He also raises due process and other challenges to the way the disposition hearing was conducted. The great-grandparents support the circuit court's order. And although Respondent West Virginia Department of Health and Human Resources (DHHR) and the guardian ad litem did not recommend that the circuit court terminate Petitioner's parental rights below, they now advocate that we affirm its order. We agree with the circuit court that the great-grandparents should have been named as the child's custodians and it is clearly in the child's best interest that she remain in their custody. But we also agree with Petitioner that the two distinct statutory requirements of disposition 6 were not met. Based on the convergence of these findings, and the unusual circumstances presented, we reverse the order of the circuit court and remand with directions to enter disposition under West Virginia Code § 49-4-604(c)(5) (disposition 5)2 and to appoint the great-grandparents as the child's guardians. We also direct the circuit court to set the matter for further proceedings to address continued visitation between Petitioner and the child.

I. FACTUAL AND PROCEDURAL BACKGROUND

We begin by looking back to relevant events that happened years before the DHHR filed an abuse and neglect petition. When the child was born in 2010, her mother and Petitioner were teenagers.3 Petitioner dropped out of school in the 11th grade and went to work to provide for the child. The couple lived together for approximately the first four years of the child's life but never married. They received assistance from family members. During this time, Petitioner abused cocaine.

In 2014, Petitioner moved to Florida for employment and then had very little contact with his child for several years. He visited her a handful of times but neither supported the child financially and emotionally nor tended to her educational needs.4 Petitioner did not know that the child was living with her great-grandparents, who were fulfilling those parental responsibilities because the child's mother was addicted to methamphetamine.

But while in Florida, Petitioner appears to have improved his circumstances and now wishes to have a relationship with his daughter. He is now married with a young son, R.C., and no longer uses illicit drugs. Petitioner is employed in the construction industry and his wife is a teacher.

In 2019, Petitioner filed a Petition for Support and/or Allocation of Custodial Responsibility

865 S.E.2d 84

in the Family Court of Taylor County, naming the child's mother as respondent. During a hearing on April 3, 2019, Petitioner testified that since he moved to Florida in 2014, he had seen the child three times, the last time in August 2018. Petitioner stated that he heard the child's mother was abusing methamphetamine and had been evicted from her apartment. The mother denied abusing drugs, accused Petitioner of having a history of drug use, and stated she did not want the child around Petitioner. Following the family court hearing, the mother tested positive for buprenorphine, benzodiazepines, methamphetamine, and marijuana. Petitioner also tested positive for THC, for which he had a valid prescription.5 Based on the parties’ testimony and drug test results, the family court alerted Child Protective Services (CPS) and the matter was transferred to circuit court.

Quoting the family court's findings of fact and conclusions of law, the DHHR filed a child abuse and neglect petition against Petitioner and the mother in April 2019. The DHHR alleged that the child's mother was an abusive/neglectful parent due to her ongoing drug abuse, her inability to supply the child's basic needs, and forfeiting care of the child to others.

As to Petitioner, the DHHR stated that he was interviewed about his alleged abandonment of the child. Petitioner maintained that he had contact with the child after he moved to Florida. He documented some additional visits with the child, as well as other occasions when he attempted to visit her but was unsuccessful.6 The DHHR alleged that Petitioner was an abusive/neglectful parent through his illegal drug history and his expenditures on drugs before meeting the basic needs of his child. It also alleged that Petitioner neglected the child emotionally by sporadic and inconsistent contact with her. And the DHHR alleged that Petitioner abandoned the child and failed to intervene to protect her when aware of the mother's drug addiction.

The circuit court held a preliminary hearing in April 2019. Petitioner waived his right to present evidence and requested supervised visits with the child, which the circuit court granted. It also ordered the DHHR to begin the Interstate Compact on the Placement of Children (ICPC) process so that a home study of Petitioner's home would be conducted.

The DHHR learned that the child had been living with her great-grandparents.7 The child was permitted to stay with her great-grandparents after they agreed that the mother could not visit without supervision. Further investigation revealed that the child had been living with the great-grandparents the entire time she attended elementary school.8

The circuit court conducted an adjudicatory hearing in July 2019.9 Petitioner stipulated that he could have taken additional legal action sooner to seek custody of the child from the mother. He agreed that his failure to do so constituted failure to protect the child and neglect on his part. Petitioner also admitted that he abused drugs when he was younger but stated that he had not abused drugs for many years. Petitioner testified

865 S.E.2d 85

that, "I just feel like I need to move forward and I've grown up and I am ready to provide for my child." The circuit court accepted Petitioner's stipulation and adjudicated him an abusive/neglectful parent. On the record, the circuit court found that Petitioner failed to provide any support to the child until recently, took little action to protect the child from the mother's drug abuse, and that his drug use adversely impacted his ability to parent. Although the circuit court did not make a finding of abandonment, it stated that Petitioner abdicated his role as a parent and that the great-grandparents filled that void. It also noted that there would have to be a showing that it would be in the child's best interest before it would disturb the child's secure placement with great-grandparents, where she was thriving.10

In August 2019, Petitioner underwent a psychological evaluation. The evaluator had no concerns about Petitioner's ability to provide adequate parenting for the child. In September 2019, Petitioner began having unsupervised visits with the child for a period of six hours every three weeks.

At a disposition hearing regarding the mother in October 2019, the circuit court terminated her parental rights due to her complete absence from the proceedings. The guardian ad litem submitted a report prior to this hearing stating that remaining with the great-grandparents was in the child's best interest. As the guardian ad litem explained, the child (then age nine),

is a quiet young person with firm views and significant insight into her difficulties and her mother's challenges. She is deeply attached to [her great-grandparents]. She loves her parents, but
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