Marriage/Children Of: Roger JR M. v. Jennilea M., 14-1318

Decision Date11 September 2015
Docket NumberNo. 14-1318,14-1318
CourtWest Virginia Supreme Court
PartiesIn Re: The Marriage/Children of: Roger M., Jr., Respondent Below, Petitioner v. Jennilea M., Petitioner Below, Respondent

(Kanawha County 11-D-2297)


Petitioner Roger M., Jr.1 ("Father"), pro se, appeals the order of the Circuit Court of Kanawha County, entered December 3, 2014, denying his appeal from an October 17, 2014, order of the Family Court of Kanawha County denying the motion for restoration of his custodial rights and requiring him to pay one-half of the children's guardian ad litem's fees. Respondent Jennilea M. ("Mother"), pro se, did not file a response. Respondents Gary S. and Carolyn S. ("Grandparents"), by counsel Kevin Hughart, filed a response. The guardian ad litem ("GAL"), D. Randall Clarke, filed a response on behalf of the children, M.M. and L.M. Petitioner filed a separate reply to each response.

The 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. This case satisfies the "limited circumstances" requirement of Rule 21(d) of the Rules of Appellate Procedure and is appropriate for a memorandum decision rather than an opinion. For the reasons expressed below, the decision of the family court is affirmed, in part, and reversed, in part, and this case is remanded to the family court for a determination as to whether a non-indigent party should be required to pay the remainder of the GAL's fees, or whether the GAL should be paid by this Court, pursuant to West Virginia Trial Court Rule 21.05.

While Mother previously filed a petition for divorce in the Family Court of Kanawha County, Mother and Father have since reconciled and are living together in South Carolina. Earlier in the proceedings, the family court awarded custody of Mother and Father's minor children—M.M. and L.M.2—to Mother's stepfather and mother, the Grandparents.3

The family court first awarded legal custody of the children to the Grandparents following Mother's arrest on misdemeanor charges of (first offense) driving under the influence and possession of drugs on September 3, 2012. According to the criminal complaint, Mother admitted to smoking marijuana and taking pills. M.M. and L.M. were in Mother's vehicle at the time of her arrest. The children were not restrained by either car seats or seat belts. At an October 10, 2012, emergency hearing, Mother admitted to being arrested on September 3, 2012, and further testified that on another occasion, the children witnessed her fighting with her boyfriend4 following a visit to the boyfriend's residence to smoke pot. According to M.M. and L.M., Mother left them alone in the car while she went inside and they were "scared for their safety." However, Mother testified that she took the children inside the residence with her and that they slept on an air mattress while she smoked marijuana with her boyfriend in his bedroom. Mother testified that it was in the children's best interests to remain in the Grandparents' care. During his testimony, Father admitted that both he and his wife "had problems with marijuana in the past." Father testified that he smoked pot with Mother on September 24, 2012, when she visited him in South Carolina. While stating that he could "quit anytime," Father admitted that he had smoked marijuana when the children were in the home. Father testified that Mother had been treated multiple times for using cocaine and taking pills at various hospitals and rehabilitation centers.

The Grandparents already had physical custody of M.M. and L.M. at the time of the October 10, 2012, hearing.5 At the hearing, the GAL appointed to represent the children's interests presented the testimony of Timothy Saar, Ph.D. Based on his interview with the children, Dr. Saar found that the children had an emotional bond with the Grandparents and that the Grandparents had played a substantial role in caring for the children. Dr. Saar also found that Mother had exposed the children to emotional and physical harm. Dr. Saar concluded that removing M.M. and L.M. from the Grandparents' care would not be in their best interests. The family court awarded legal custody of the children to the Grandparents. The family court required Mother to undergo (1) random drug testing; (2) substance abuse counseling; and (3) a parental fitness evaluation. Mother was ordered to provide the family court with "written verification" of the completion of counseling and a parental fitness evaluation. The family court further ordered that if Father failed his October 10, 2012, drug test, he must comply with the same requirements as Mother. (Both Mother and Father tested positive for marijuana on their October 10, 2012, drug screens.) Finally, the family court ordered that Mother and Father have visitation at the discretion of and supervised by the Grandparents.

Following a hearing on January 17, 2013, the family court reaffirmed its November 29, 2012, order that the Grandparents should have legal custody of M.M. and L.M. At this hearing, Mother and Father testified that they had reconciled and requested the return of the children to their custody. However, the children's GAL objected to the custody request because the parents had failed their October 10, 2012, drug tests and were noncompliant with the conditions set forth in the November 29, 2012, order. The family court determined that "the evidence presented by [Mother] fails to prove that she has complete[d] a program of substance abuse counseling and a parental fitness evaluation." With regard to Father, the family court found, as follows:

The Court finds the evidence presented by [Father] indicates he completed a one (1) week substance abuse program, but has only a partial record from Highland Hospital which is unauthenticated. The Court needs to review all records and drug screens to determine if [Father] has fully complied with its prior Order. The Court finds that the evidence presented by [Father] fails to prove that he has completed a parental fitness evaluation for review by the Court.

(emphasis in original). Accordingly, the family court denied Mother and Father's request to have the children returned to them. The family court ordered that each parent could re-petition for custody of M.M. and L.M. provided that "he/she has fully complied with the Court's directives to them in its [November 29, 2012, order] and addressed his/her substance abuse and parental fitness issues." The family court memorialized its rulings from the January 17, 2013, hearing in an order entered on March 6, 2013. Also in its March 6, 2013, order, the family court granted the GAL's motion to be paid his fees.

On July 15, 2014, Father filed a motion for restoration of his custodial rights to M.M. and L.M. Father noted that he had undergone a parental fitness evaluation and indicated a willingness to cooperate with "many," but not all, of the recommendations of the evaluator. Father's parental fitness evaluation was performed on April 28, 2014, by licensed psychologist Clifton R. Hudson. Dr. Hudson diagnosed Father with a history of both Cannabis and cocaine dependence and noted the presence of antisocial traits. Dr. Hudson noted that "[Father] has made a deliberate choice to maintain his professed indigency rather than pursuing gainful full-time employment in support of his family" and recommended that both Father and Mother "demonstrate their capacity to maintain appropriate employment prior to any movement toward reunification with the children." Dr. Hudson's other recommendations for Father included the following: (1) intensive outpatient substance abuse treatment; (2) continued drug screening with any missed or tampered with tests being treated as a failed test; (3) at least weekly individual therapy to address issues of personality or interpersonal relationships, including relationships with Mother and the children; and (4) prioritization of the best interests of the children over other considerations, including compliance with the family court's requirements. Dr. Hudson concluded that if Father does not prioritize the children's best interests and does not comply with the family court's requirements, the prognosis for Father's ability to parent in a minimally adequate way would continue to be "guarded."

Mother also underwent a parental fitness evaluation on April 28, 2014, which was performed by licensed psychologist Jennifer Mills Price. Dr. Price diagnosed Mother with a major depressive disorder and cannabis dependence. Dr. Price noted her concern that "[Mother] may be using Ativan as a substitute for marijuana." Dr. Price's recommendations for Mother included the following: (1) intensive outpatient substance abuse treatment; (2) continued drug screening with random pill counts; (3) at least weekly individual therapy to address issues of personality or interpersonal relationships, including relationships with Father and the children; (4) pharmacotherapy for depression, but that prescription of benzodiazepines is contraindicated because of Mother's history of substance abuse; and (5) compliance with all court orders. Dr. Price concluded that at the time of the evaluation, the prognosis for Mother's ability to parent in a minimally adequate way was "guarded to poor."

In a report signed on September 3, 2014, M.M. and L.M.'s GAL recommended that Father and Mother be required to complete all of Dr. Clifton and Dr. Price's recommendations "prior to the [family court] considering [Father's] request for a modification of custody." The GAL also reported that on June 13, 2014, Mother was arrested for misdemeanor child endangerment, possession of narcotics, and an expired inspection sticker in DuPont City, West Virginia, at 1:30 a.m. while in the Grandparents' motor vehicle6 with her oldest child (who was picked up by her grandmother).7...

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