In re S.W.

• Decision Date: 05 November 2015
• Docket Number: No. 15–0333.,15–0333.
• Citation: 779 S.E.2d 577
• Court: West Virginia Supreme Court
• Parties: In re S.W.

779 S.E.2d 577

In re S.W.

No. 15–0333.

Supreme Court of Appeals of West Virginia.

Submitted Oct. 14, 2015.

Decided Nov. 5, 2015.

James T. Carey, Esq., Carey Law Office, Weirton, West Virginia, Counsel for Petitioners S.S. and H.S.

Sara Hawthorne Bohn, Esq., Weirton, West Virginia, Guardian ad litem.

Patrick Morrisey, Esq., Attorney General, Michael Jackson, Esq., Assistant Attorney General, Charleston, West Virginia, Counsel for Respondent DHHR.

Ann Marie Morelli, Esq., Weirton, West Virginia, Counsel for K.M.WORKMAN, Chief Justice:

This is a joint appeal by the paternal grandparents¹ and guardian ad litem of a child (hereinafter jointly referenced as "the petitioners" or separately referenced as "the grandparents" or "the GAL"). The petitioners appeal a circuit court order terminating the grandparents' legal guardianship of their grandchild, S.W. (hereinafter "the child"), and returning the child to his mother.² The Department of Health and Human Resources (hereinafter "the DHHR") also supports the petitioners' contentions in this appeal. Subsequent to thorough review of the pleadings and record designated for review, the briefs and oral arguments of the parties, and for the reasons stated herein, we reverse the order of the Circuit Court of Brooke County, West Virginia, terminating the grandparents' guardianship of S.W. and remand this matter for entry of an order consistent with this opinion.

I. Factual and Procedural History

S.W. was born in 2009. An abuse and neglect petition was filed on June 30, 2010, alleging that the child's mother, K.M., was under the influence of drugs while caring for him. The DHHR placed the child in the care of his paternal grandparents, and a pre-adjudicatory improvement period was granted to the mother on September 29, 2010. The mother and the maternal grandparents were also granted visitation with the child.

On March 16, 2011, the GAL filed a motion to terminate the mother's pre-adjudicatory improvement period because she had tested positive for oxycodone and morphine

on two separate occasions. The improvement period was terminated on March 24, 2011, and the mother admitted that she was abusing drugs.³

On May 12, 2011, the mother admitted that she had been under the influence of drugs in the presence of the child and had neglected to take reasonable care of the child due to her drug addiction. The circuit court adjudicated her as a neglectful parent. During a June 23, 2011, status hearing, the circuit court was advised that the mother had completed a rehabilitation program and was participating in an outpatient program.

On September 8, 2011, the circuit court granted the mother a post-adjudicatory improvement period, requiring her to discontinue her abuse of controlled substances and refrain from contact with felons. On November 10, 2011, the child was returned to the mother's care, but legal custody remained with the DHHR. Approximately four months later, on March 9, 2012, the GAL filed a motion to return physical custody of the child to the DHHR because the mother had violated the terms of the post-adjudicatory improvement period by refusing to answer the door to her home and submit to a drug test. The child was thereafter removed from the mother's care and placed back in the custody of the paternal grandparents.

On July 12, 2012, the circuit court granted supervised visitation to the mother, contingent upon her cooperation with drug testing. The mother was unable to appear for a September 2012 hearing due to her incarceration on a charge of possession of drugs with intent to deliver. Subsequent to a June 21, 2013, dispositional hearing, the circuit court entered an order on August 5, 2013, stating that the mother had been arrested in September 2012 for possession with intent to deliver, had refused to be drug tested, and had exhibited erratic behavior. The court held that under West Virginia Code § 49–6–5(a)(5) (2012),⁴ the child would remain in the physical custody of the paternal grandparents, with visitation permitted with the mother and maternal grandparents.⁵

On September 3, 2013, the mother was released from incarceration and placed on probation for five years as a result of her guilty pleas to felony and misdemeanor drug charges. On December 12, 2013, the circuit court held a permanency hearing and granted legal guardianship to the paternal grandparents. The mother graduated from Drug Court on September 11, 2014,⁶ and filed a "Petition to Overturn Legal Guardianship" on November 19, 2014. In that petition, she asserted that she had been in recovery for over one year, and she argued that her recovery and continued sobriety constituted a material change in circumstances justifying a modification of the custody of her son.

A hearing on the mother's petition was held on January 15, 2015. The mother testified concerning her strong bond with the child and her maintenance of sobriety. She indicated that the child calls her "Mommy," comes to her for safety and comfort, and sometimes throws tantrums in an effort to be permitted to stay with her. Ms. Gina Hicks, the mother's supervising officer and Mental Health Court Coordinator, testified that the mother had completed the rehabilitation program successfully and noted distinct improvements in the mother's performance during her participation in the program the second time. The mother's probation officer, Terry Stuck, testified that the mother was compliant with all terms of her probation.

The paternal grandmother also testified concerning her bond with the child, and she explained that she has encouraged the mother's role in the child's life and had not tried to assume the role of mother. The GAL testified that the child wished to remain living at his grandparents' home, with visits to his mother's home.

On April 1, 2015, the circuit court terminated the grandparents' legal guardianship and ordered the transfer of the child to the mother within ten days. The grandparents and the GAL appeal that ruling, contending the lower court ruled in favor of the mother based upon her right to parent her child, rather than in accordance with the statutorily-required analysis of the child's best interests. Specifically, the petitioners contend that the circuit court (1) ignored the best interests of the child by modifying the dispositional order and removing the child from the grandparents and (2) erred in modifying the dispositional order two years after it was entered, depriving the child of permanency. The petitioners further contend that if a transfer of custody to the mother is mandated, the circuit court should provide a period of gradual transition, as well as continued association with the grandparents.

On April 16, 2015, this Court granted a stay of the transfer of custody. In updates to this Court, the mother reports that she, her husband, and her newborn child are residing in the basement of her parents' home and are in the process of renovating separate living quarters for their own family at that location. Although the mother has been married since June 6, 2014, she and her current husband were briefly separated prior to the most recent October 2015 update on the status of the child. S.W., currently in the first grade, has remained in the custody of the paternal grandparents since 2010, with the exception of the four-month period in which custody was transferred back to the mother in 2012.

II. Standard of Review

This Court's standard of review in a child abuse and neglect case was addressed in In re Beth Ann B., 204 W.Va. 424, 513 S.E.2d 472 (1998). This Court explained that we employ the two-pronged standard of review enunciated in the syllabus of McCormick v. Allstate Insurance Company, 197 W.Va. 415, 475 S.E.2d 507 (1996) :

When this Court reviews challenges to the findings and conclusions of the circuit court, a two-prong deferential standard of review is applied. We review the final order and the ultimate disposition under an abuse of discretion standard, and we review the circuit court's underlying factual findings under a clearly erroneous standard.

We have also held that the following standard of review is applicable in custody decisions:

" ‘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). With these standards as guidance, we address the issues raised in this case.

III. Discussion

The petitioners contend that the circuit court erred in ignoring the best interests of the child in modifying the dispositional order and terminating the legal guardianship of the grandparents. The mother's petition requesting modification of the guardianship order was premised upon West Virginia Code § 49–6–6 (2014). That statute clearly provides two prerequisites to modification of disposition. First, there must be a showing of material change in circumstances, and second, the alteration must serve the best interests of the child. As applicable to these proceedings,⁷ West Virginia Code § 49–6–6(a) provides, in pertinent part:

Upon motion of a child, a child's parent or custodian or the department alleging a change of circumstances requiring a different disposition, the court shall conduct a hearing ... and may modify a dispositional order if the court finds by clear and convincing evidence a material change in circumstances and that such modification is in the child's best interests....

In her memorandum to the circuit court in...