Lacy) v. Justice

• Decision Date: 04 May 2011
• Docket Number: No. 35633.,35633.
• Citation: 710 S.E.2d 526,227 W.Va. 424
• Parties: Dawn Renee PALMER (Now Lacy), Petitioner Below, Appelleev.Mickey JUSTICE, Respondent Below, Appellant.
• Court: West Virginia Supreme Court

227 W.Va. 424

710 S.E.2d 526

Dawn Renee PALMER (Now Lacy), Petitioner Below, Appellee

v.Mickey JUSTICE, Respondent Below, Appellant.

No. 35633.

Supreme Court of Appeals of West Virginia.

Submitted Jan. 26, 2011.Decided May 4, 2011.

Syllabus by the Court

1. “ ‘In reviewing a final order entered by a circuit court judge upon a review of, or upon a refusal to review, a final order of a family court judge, we review the findings of fact made by the family court judge under the clearly erroneous standard, and the application of law to the facts under an abuse of discretion standard. We review questions of law de novo.’ Syllabus, Carr v. Hancock, 216 W.Va. 474, 607 S.E.2d 803 (2004).” Syl. Pt. 1, Storrie v. Simmons, 225 W.Va. 317, 693 S.E.2d 70 (2010).

2. “ ‘The Due Process Clauses of Article III, Section 10 of the Constitution of West Virginia and of the Fourteenth Amendment of the Constitution of the United States protect the fundamental right of parents to make decisions concerning the care, custody, and control of their children.’ Syl. Pt. 3, Lindsie D.L. v. Richard W.S., 214 W.Va. 750, 591 S.E.2d 308 (2003).” Syl. Pt. 3, Turley v. Keesee, 218 W.Va. 231, 624 S.E.2d 578 (2005).

3. “Although an unwed father's biological link to his child does not, in and of itself, guarantee him a constitutional stake in his relationship with that child, such a link combined with a substantial parent-child relationship will do so. When an unwed father demonstrates a full commitment to the responsibilities of parenthood by coming forward to participate in the rearing of his child, his interest in personal contact with his child acquires substantial protection under the Due Process Clause in Section 10 of Article III of the West Virginia Constitution.” Syl. Pt. 2, State ex rel. Roy Allen S. v. Stone, 196 W.Va. 624, 474 S.E.2d 554 (1996).

4. “In visitation as well as custody matters, we have traditionally held paramount the best interests of the child.” Syl. Pt. 5, Carter v. Carter, 196 W.Va. 239, 470 S.E.2d 193 (1996).

5. A guardian ad litem shall make a full and independent investigation of the facts involved in the proceeding and make recommendations to the court by testimony or in writing, unless otherwise ordered by the court.

Christopher T. Pritt, Pritt & Pritt, Charleston, WV, for the Appellant.Travis A. Griffith, Charleston, WV, Guardian Ad Litem.Dawn R. Palmer, pro se, Appellee.

McHUGH, J.:

This is an appeal of an order entered January 26, 2010, in the Circuit Court of Kanawha County, which affirmed a family court order denying Appellant Mickey Justice's Petition for Modification of a parenting plan involving his special needs son. At issue is whether certain orders of the family court were so vague as to the requirements necessary for a modification that it was impossible for Appellant to satisfy the burden of proving that the requested modification was warranted, in violation of Appellant's constitutional right of due process.

Upon careful consideration of the arguments of the parties and the applicable legal authority, and for the reasons discussed below, we reverse the order of the circuit court and remand this matter for further proceedings.

I. Factual and Procedural Background

Appellant and Appellee Dawn Renee Palmer (now Lacy) were involved in a relationship that produced a child. The couple never married and parted ways during Appellee's pregnancy. The baby, referred to herein as L.S. ¹ , was born twenty-five weeks prematurely on July 2, 2005. As a result of his premature birth, L.S. suffers from neurological and other health problems and is characterized as “special needs.”

On or about September 9, 2005, Appellant was served with a Complaint to Establish Paternity, Child Support and Retroactive Support ² filed by the West Virginia Department of Health and Human Resources and Appellee. Thereafter, on October 17, 2005, Appellant filed an Answer and Counter Petition in which he admitted his paternity and alleged Appellee has repeatedly denied him visitation, thereby “disrupting the formation of [Appellant's] ability [sic] to bond with the child.” ³ Appellant also asserted his custodial rights as a father.

Additionally, Appellant filed the first of several proposed parenting plans in the Family Court of Kanawha County in which he requested regular and enforceable parenting time with his son. Following a May 4, 2006, hearing, an Agreed Order was entered on May 15, 2006, indicating that the parties agreed that Appellant “would take training classes offered by West Virginia Birth to Three on proper care of this special needs child[,]” and that during the pendency of the classes, Appellant would have visitation with L.S. at Appellee's home every other Saturday for four hours. The order further provided that the parties agreed that once Appellant “has concluded said classes with West Virginia Birth to Three, the parties would work to establish a parenting plan and will discuss including a provision which would allow [Appellant] to take [L.S.] ... to his home for overnight visits.” ⁴ Indeed, it is Appellant's unrelenting desire to have overnight visitation with his son that underlies the instant appeal.

On July 6, 2007, Appellant filed a Petition for Contempt, indicating that he “attempted to receive training classes from Birth to Three but was advised by Birth to Three that it did not offer training classes outside the child's home.” ⁵ Appellant alleged that after he sought and subsequently completed healthcare classes elsewhere, he “made many attempts to negotiate more parenting time with his son” but Appellee refused to allow any additional visitation.

The parties subsequently reached a temporary agreement and, following a hearing on August 20, 2007, the family court entered an order on October 1, 2007, which specifically expanded Appellant's unsupervised parenting time by approximately eight hours each month. It was further ordered, inter alia, that Appellant “will participate in as many therapy sessions as possible and shall give reasonable notice to [Appellee] of the therapy sessions he will attend. ⁶ ... Following three (3) months of the [Appellant's] participation in the therapy sessions as set forth above, [Birth to Three Coordinator] Robin Halstead shall invoke the services of a licensed social worker to inspect the [Appellant's] home to assure that it is suitable for the minor child, given the child's special needs. Thereafter, the therapy sessions shall be conducted one-half in the [Appellee's] home and one-half in the [Appellant's] home.

(Footnote added)

On January 13, 2009, Appellant again sought to modify the parenting plan, requesting, inter alia, overnight visits in his home every other weekend. According to the record, on February 13, 2009, Appellant also filed with the court a letter dated November 27, 2007, from the Birth to Three program, which indicated that Appellant participated in six “therapy/intervention sessions” with L.S. and Appellee and that Appellant participated in the annual treatment planning meeting on October 9, 2007.⁷ The letter further indicated that Appellant was present during two out of six individual home visits with Appellee for “service coordination needs.” ⁸

Appellant also filed with the family court a Social Work Assessment completed on November 16, 2007, by Evangeline Reed, a licensed social worker with Birth to Three. The assessment was conducted in Appellant's home and included an interview of Appellant and an inspection of his home for safety in light of L.S.'s disabilities. The assessment was favorable overall and also indicated that Appellant accepted suggestions for minor adjustments to the home to ensure L.S.'s safety.

Appellee opposed Appellant's petition to modify the parenting plan, arguing that Appellant “has failed to attend the appropriate number of therapy sessions” and that he should be ordered to do so to ensure that he is “sufficiently prepared to spend parenting time” with L.S.

In an order entered February 23, 2009, the family court denied Appellant's petition to modify the parenting plan. The court found, inter alia, that due to Appellant's work schedule,⁹ Appellant “admitted that his attendance at the therapy sessions scheduled by the West Virginia Birth to Three program was sporadic.” The court concluded that “as a result of the [Appellant's] failure to attend the requisite therapy sessions with the infant child of the parties, the [Appellant] is in need of additional therapy/counseling sessions with a professional provider thereof in order to properly educate the [Appellant] in the appropriate care for the special needs child.” It was ordered that Appellant be granted leave to file a subsequent petition to modify after he has

“successfully completed the appropriate number of therapy/counseling sessions with the professional care givers for [L.S.] at the Children's Therapy Clinic and the physical therapy center. The [Appellant] shall document his attendance and successful completion of said therapy/counsel sessions by providing the Court with written documentation from the professional service providers for the benefit of [L.S.].”

On July 20, 2009, after attending two occupational therapy, three physical therapy and three vision therapy sessions, Appellant filed another Petition for Modification. Appellant's petition stated that in addition to the above, he hoped to attend more therapy sessions when his schedule allows. Appellant's petition was denied by order of August 17, 2009, because the family court determined he had “failed to provide to the Court with [sic] verifiable documentation of his completion of attendance and successful completion of therapy/counseling sessions from the provider as required by the Order entered on February 23, 2009.”

On September 1, 2009, Appellant attempted to comply with the court's August 17, 2009, order by submitting documentation showing that he attended the various therapy sessions previously...