In re Z.H.

• Citation: 859 S.E.2d 399
• Decision Date: 11 June 2021
• Docket Number: No. 20-0377,20-0377
• Court: West Virginia Supreme Court
• Parties: IN RE: Z.H.

859 S.E.2d 399

IN RE: Z.H.

No. 20-0377

Supreme Court of Appeals of West Virginia.

Submitted: March 24, 2021

Filed: June 11, 2021

John G. Byrd, Esq., Mercer County Public Defender Corp., Princeton, West Virginia, Counsel for Petitioner Mother.

Patrick Morrisey, Esq., Attorney General, S. L. Evans, Esq., Assistant Attorney General, Charleston, West Virginia, Counsel for Respondent W.Va. Dept. of Health and Human Resources.

Andrea P. Powell, Esq., Princeton, West Virginia, Guardian ad Litem.

HUTCHISON, Justice:

The petitioner mother, C.S., appeals the Circuit Court of Mercer County's March 5, 2020, order terminating all her rights to her infant son, Z.H., in an abuse and neglect proceeding. The petitioner contends that the circuit court lacked subject matter jurisdiction over this case pursuant to the Uniform Child Custody Jurisdiction and Enforcement Act ("UCCJEA"),¹ and even if there was jurisdiction, the court erred by not imposing a disposition less than termination of all of her rights. The respondents herein, the West Virginia Department of Health and Human Resources ("DHHR") and the child's guardian ad litem ("GAL"), contend that there was no error.

Having considered the parties’ arguments, the appendix record on appeal, and the pertinent authorities, we conclude that the circuit court lacked subject matter jurisdiction under the provisions of the UCCJEA. The State of Virginia has subject matter jurisdiction over the custody of this child, and there is no evidence that a Virginia court ever declined to exercise that jurisdiction. We therefore vacate the circuit court's final order and remand this case with directions for the circuit court to contact a Virginia court to inquire about the declination of jurisdiction and to take further actions in accordance with this opinion.

I. Facts and Procedural Background

Z.H. was born on May 8, 2018, at the Bluefield Regional Medical Center in Bluefield, Mercer County, West Virginia. Because the petitioner mother used narcotics while pregnant, Z.H. was born drug exposed and required in-patient medical care. The putative father is the petitioner's boyfriend, L.H. On May 9, the petitioner cut off the hospital's infant security bracelet and attempted to remove Z.H. from the hospital but was stopped by hospital staff. That same day, the DHHR assumed emergency legal custody of the child.² These events were reported to the Circuit Court of Mercer County, West Virginia, which immediately held an emergency hearing and found probable cause to believe the child was in imminent danger of being deprived of medical care. That same day, May 9, the court entered an order ratifying the temporary emergency custody, appointing counsel, and setting a preliminary hearing date and time.

On May 10, the DHHR filed an abuse and neglect petition³ with the circuit court alleging that Z.H. was abused and/or neglected because of the petitioner's drug use during pregnancy and because of medical neglect based upon the attempt to remove the newborn from the hospital during treatment. In the petition, the DHHR stated that the petitioner and L.H. are residents of Tazewell County, Virginia; nonetheless, the petition asserted that the circuit court had jurisdiction over this matter "because [West Virginia] is the home state of the child at the time of the commencement of this proceeding."

The abuse and neglect petition also reported that the petitioner and L.H. were the respondents in a prior child abuse and neglect case in Giles County, Virginia, in which their rights to another child were involuntarily terminated. The petition was subsequently amended to provide additional information about the Virginia case, including that the involuntary termination of parental rights to the other child was based upon the parents’ drug use and had been finalized just two months before Z.H. was born. The circuit court held a preliminary hearing on May 23, affirmed its prior finding of imminent danger, scheduled a meeting of the multi-disciplinary treatment ("MDT") team, and scheduled the case for an adjudicatory hearing.

When the DHHR was granted emergency legal custody of Z.H., the petitioner and L.H. returned home to Bluefield, Tazewell County, Virginia.⁴ The child remained in the hospital for several more weeks. Upon discharge from the hospital, Z.H. was placed with foster parents in West Virginia. The child has continuously resided with foster parents throughout this abuse and neglect proceeding.

The circuit court held an adjudicatory hearing in August of 2018, where the petitioner and L.H. were adjudicated as abusing parents.⁵ The petitioner received both a post-adjudicatory improvement period and a post-dispositional improvement period. During dispositional hearings in July 2019 and January 2020, the DHHR presented evidence that the petitioner had failed to cooperate with drug screens and treatment; did not consistently participate in services, even when providers went to her home; never provided proof of a prescription for the Suboxone

that she was taking; never obtained regular employment; did not obtain a required psychological evaluation; did not consistently visit with Z.H.; missed hearings and MDT meetings; and continued to have contact with L.H., whose rights had already been terminated. The DHHR also asserted that the petitioner refused to acknowledge the conditions of abuse and neglect. The petitioner testified and denied most of the DHHR's assertions. She stated that she did not drug test in this proceeding because she was unable to produce a urine sample while being observed; she was obtaining weekly drug treatment at a Suboxone clinic in the State of Tennessee; she earned money through various internet sites and applications; she missed hearings and MDT meetings for this case because the DHHR failed to renew her bus pass; and the service providers who were hired to drive her to visits with the child had stopped showing up. The petitioner never produced any records or other corroborating evidence that she was being treated at a Suboxone clinic in Tennessee, and she never produced any records of any drug screens given at a clinic. She asserted that she removed the hospital security bracelet from the newborn Z.H. because she was unhappy with the medical care being rendered and desired to go to a different hospital, but she had not made any arrangements with another hospital or other medical provider to render care to the drug exposed infant.

There is no indication in the appellate appendix record that any party raised with the circuit court the issue of whether the court had subject matter jurisdiction over this case. Nonetheless, evidence relevant to this issue was presented. A DHHR child protective services ("CPS") worker testified during the adjudicatory hearing that the petitioner resided in a particular apartment complex in the State of Virginia.⁶ The CPS worker also testified that she did not know of any connections that the petitioner had with West Virginia other than being at Bluefield Regional Hospital to give birth. Similarly, the petitioner testified during the adjudicatory hearing that she lived in Bluefield, Virginia; neither she nor the child had ever lived in West Virginia; and she had no connections with West Virginia other than going to the hospital in Bluefield, West Virginia. The petitioner also testified about taking a bus from her home in Virginia to attend some of the West Virginia court hearings. Furthermore, during the adjudicatory hearing, the CPS worker was asked whether "any other jurisdiction respond[ed] to exercise jurisdiction over the matter?" She answered, "to my knowledge, no." However, there is no indication in the record that a court in Virginia was ever contacted regarding the exercise of jurisdiction.

Ultimately, the circuit court determined that the petitioner failed to comply with her improvement periods, many of the services offered to her, and her visitation opportunities. The court found that the petitioner was "manipulative" and gave "an excuse for everything[.]" Upon concluding that termination of the petitioner's parental, custodial, and guardianship rights was necessary for the welfare of the child, the court terminated these rights by order entered with the circuit clerk on March 5, 2020.⁷ The petitioner is now appealing that order to this Court.

II. Standard of Review

The dispositive issue in this appeal is the question of subject matter jurisdiction under the UCCJEA. "[J]urisdictional issues are questions of law[.]" State ex rel. Universal Underwriters Ins. Co. v. Wilson , 239 W. Va. 338, 343, 801 S.E.2d 216, 221 (2017) (citation omitted). "Where the issue on an appeal from the circuit court is clearly a question of law or involving an interpretation of a statute, we apply a de novo standard of review." Syl. Pt. 1, Chrystal R.M. v. Charlie A.L. , 194 W. Va. 138, 459 S.E.2d 415 (1995) ; accord Syl. Pt. 1, In re Tiffany Marie S. , 196 W. Va. 223, 470 S.E.2d 177 (1996) (recognizing that in appeals of abuse and neglect orders, questions of law are subject to de novo review). With this plenary standard in mind, we consider the parties’ arguments.

III. Discussion

In her first assignment of error, the petitioner contends that the circuit court erred by failing to order a disposition less restrictive than the full termination of her rights. She suggests that the circuit court could have terminated only her guardianship and custodial rights, while leaving her parental rights in place. In her second assignment of error, the petitioner argues that the circuit court lacked subject matter jurisdiction over this case pursuant to the provisions of the UCCJEA, West Virginia Code §§ 48-20-101 to - 404 (2001). She concedes that to protect the child from immediate harm, the circuit court had temporary jurisdiction pursuant to a provision in the UCCJEA to allow the DHHR to assume emergency custody. See W. Va. Code § 48-20-204(a) (2001).⁸ However, she argues that the circuit court...