Nancy Viola R. v. Randolph W.

Decision Date09 April 1987
Docket NumberNo. 17144,17144
Citation177 W.Va. 710,356 S.E.2d 464
CourtWest Virginia Supreme Court
PartiesNANCY VIOLA R. v. RANDOLPH W. and Grady W.

Syllabus by the Court

1. " 'A parent has the natural right to the custody of his or her infant child, and, unless the parent is an unfit person because of misconduct, neglect, immorality, abandonment, or other dereliction of duty, or has waived such right, or by agreement or otherwise has permanently transferred, relinquished or surrendered such custody, the right of the parent to the custody of his or her infant child will be recognized and enforced by the courts.' Syllabus, State ex rel. Kiger v. Hancock, 153 W.Va. 404, 168 S.E.2d (1969)." Syl. pt. 2, Hammack v. Wise, 158 W.Va. 343, 211 S.E.2d 118 (1975).

2. A conviction of first degree murder of a child's mother by his father and the father's prolonged incarceration in a penal institution for that conviction are significant factors to be considered in ascertaining the father's fitness and in determining whether the father's parental rights should be terminated.

3. Where parental rights of a father have been terminated because of his conviction of the first degree murder of the child's mother, and other acts of violence to her and threats of violence to the child, permanent guardianship may be given to the West Virginia Department of Human Services. W.Va.Code, 49-6-5(a)(6) [1984].

Norman Googel, Welch, Joanne Schulman, Van Nuys, Cal., for appellant.

Abishi C. Cunningham, Welch, for appellee.

Carolyn F. Corwin, Alan Tawshunsky, Covington & Burling, Washington, D.C., Barbara Fleischauer, Morgantown, for amicus curiae.

McHUGH, Justice:

This case is before this Court upon the appeal of Nancy R. from the Circuit Court of McDowell County. 1 Mrs. R. had sought custody of her nephew, Randolph W. II, then age 4. Custody, however, was awarded to the child's paternal uncle, Grady W. The child's father, Randolph W. I, who had been indicted for the first degree murder of the child's mother, had sought to appoint Grady W. as the child's guardian. Mrs. R. also appeals from the denial of her motion to reconsider the court's previous order of custody to Grady W. because of the subsequent conviction of Randolph W. for the first degree murder of Alesha W., the child's mother. Randolph W. was sentenced to life in prison with a recommendation of mercy. This Court has before it the petition for appeal, all matters of record and briefs. 2

I

At the time of his wife's death on December 14, 1984, Randolph W. had one child, Randolph W. II, who was three years old at the time of his mother's death. 3

Throughout her six-year marriage, Alesha W. had been the victim of repeated acts of violence and abuse by her husband. She and the child sought refuge on many occasions with members of her family, including the appellant, Nancy R. Two of Alesha's friends testified that Randolph had, on at least two separate occasions, threatened to kill Alesha, the child and himself. On at least two occasions, Randolph had stabbed Alesha, causing her to receive stitches in her arm, finger and breast. When Alesha and their child left Randolph after these assaults, Grady W., the party who has been awarded custody of the child, never contacted or visited Alesha or the child. Prior to her death, Alesha and the child had been separated from Randolph for about four months.

After Alesha's death, the child resided with the appellant, Nancy R., and her three children. Since Alesha's death in 1984, Nancy R. has been the child's primary caretaker and helped him cope with the loss of his mother.

Grady W. has attempted twice to visit the child at the appellant's home during that period. Shortly before Christmas in 1984, he requested that Randolph W. II be allowed to spend Christmas week with his family. Believing it was too soon after the death of the child's mother and that he was still adjusting, the appellant did not permit him to go with Grady; however, she never refused to allow Grady to visit the child. Grady W. made no further attempts to visit the child until April 3, 1985, after Randolph W. had attempted to appoint him as the child's guardian, at which time he went to the appellant's home intending to take custody of the child. Upon the appellant's refusal to let Grady W. take the child, he and Randolph W. sought to obtain custody by filing a habeas corpus petition.

As a result, the appellant filed this custody proceeding. The trial court ruled that both the appellant and Randolph W. were fit, but that Randolph, as the father of the child, was entitled to designate Grady W. as guardian of the child. The child has remained with Nancy R. during the appeal process.

In the criminal case against Randolph W., the jury heard the testimony of several eyewitnesses to the crime. After this testimony had been presented, Randolph W. entered a plea of guilty to first degree murder of his wife. As a result of that conviction, Nancy R. sought a reconsideration of the order granting custody of the child to Grady W.

II

Because of the trial court's finding that Randolph W. was a fit parent, we must decide whether or not he was a fit parent and whether or not the evidence is sufficient to support that finding. 4

This Court has enunciated the standard by which the fitness of a parent is to be judged in several decisions:

'A parent has the natural right to the custody of his or her infant child, and, unless the parent is an unfit person because of misconduct, neglect, immorality, abandonment or other dereliction of duty, or has waived such right, or by agreement or otherwise has permanently transferred, relinquished or surrendered such custody, the right of the parent to the custody of his or her infant child will be recognized and enforced by the courts.' Syllabus, State ex rel. Kiger v. Hancock, 153 W.Va. 404, 168 S.E.2d (1969).

Syl. pt. 2, Hammack v. Wise, 158 W.Va. 343, 211 S.E.2d 118 (1975). Accord, syl. pt. 2, Collins v. Collins, --- W.Va. ----, 297 S.E.2d 901 (1982); syl. pt. 1, Leach v. Bright, 165 W.Va. 636, 270 S.E.2d 793 (1980); syllabus, Whiteman v. Robinson, 145 W.Va. 685, 116 S.E.2d 691 (1960).

Under the State's child welfare laws, a parent may lose custody of a child to the State Department of Human Services upon a finding that the child has been abused or neglected and upon a finding that the parent is unwilling or unable to provide adequately for the child's needs. W.Va.Code, 49-6-5(a)(5) [1984]. 5 Furthermore, abuse and neglect proceedings may ultimately result in termination of parental rights pursuant to W.Va.Code, 49-6-5(a)(6) [1984] "[u]pon a finding that there is no reasonable likelihood that the conditions of neglect or abuse can be substantially corrected in the near future[.]"

Of particular relevance in the case before us is the fact that the legislature has stated expressly that the "conditions of neglect or abuse" which constitute grounds for termination of parental rights include:

(1) The abusing parent or parents have habitually abused or are addicted to alcohol ... to the extent that proper parenting skills have been seriously impaired....

....

(5) The abusing parent or parents have repeatedly or seriously injured the child physically or emotionally, ... and the degree of family stress and the potential for further abuse and neglect are so great as to preclude the use of resources to mitigate or resolve family problems or assist the abusing parent or parents in fulfilling their responsibilities to the child; ...

W.Va.Code, 49-6-5(b)(1) and (5) [1984] (emphasis added).

It is clear from the evidence adduced at the custody proceeding that Randolph W. habitually abused alcohol. During this proceeding, Randolph W. admitted that his drinking habits severely interfered with his personal life. Testimony was also introduced which established that he was continually absent from his home and did not provide adequate support for his family. Thus, there was uncontroverted evidence before the trial court requiring it to find that Randolph W.'s excessive drinking hampered his familial relationships. 6

In addition to Randolph W.'s abuse of alcohol, we believe that his abuse of his wife is an important consideration in this case. During the marriage of Randolph and Alesha W., she was repeatedly abused. The trial court, however, determined that the only basis for an assertion that Randolph W. was unfit to have custody of his child was the fact that he was under indictment for the murder of his wife.

We have recognized that spousal abuse is a factor to be considered in determining parental fitness for child custody. Collins v. Collins, --- W.Va. ----, 297 S.E.2d 901 (1982). In Collins, we upheld the trial court's determination that the appellant had demonstrated violent tendencies that rendered her unfit for custody. The trial court concluded that the appellant had " 'demonstrated [a] tendency to be violent as evidenced by her willingness to threaten with and to actually shoot a deadly weapon at human beings when she was upset, but not in any way threatened.' " Id. at 902.

Other courts also regard spousal abuse as an important consideration in child custody cases. See, e.g., In re Marriage of Cline, 433 N.E.2d 51, 54 (Ind.Ct.App.1982); In re Marriage of Ballinger, 222 N.W.2d 738, 739 (Iowa 1974); Hosey v. Myers, 240 So.2d 252, 253 (Miss.1970); Schiele v. Sager, 174 Mont. 533, 540, 571 P.2d 1142, 1146 (1977).

The Supreme Court of Iowa reasoned that assaults of a spouse reveal violent tendencies which may render a parent unfit for custody of his or her child. In re Marriage of Snyder, 241 N.W.2d 733 (Iowa 1976). In Snyder, the court, citing evidence that the father had pulled a gun on his child's mother, reversed the trial judge's finding of fitness. Although there was no indication that the father had ever abused the child, the court awarded custody to the mother, holding that the father's "meanness, aggressiveness, and tendency...

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