Snyder v. Scheerer

• Decision Date: 16 July 1993
• Docket Number: No. 21223,21223
• Citation: 436 S.E.2d 299,190 W.Va. 64
• Court: West Virginia Supreme Court
• Parties: , 4 NDLR P 121 Gretchen Smith SNYDER and Daniel John Smith, an Infant, Petitioners Below, Appellants, v. Paul E. SCHEERER and Nancy H. Scheerer, Respondents Below, Appellees.

Page 299

436 S.E.2d 299

190 W.Va. 64, 4 NDLR P 121

Gretchen Smith SNYDER and Daniel John Smith, an Infant Petitioners Below, Appellants, v. Paul E. SCHEERER and Nancy H. Scheerer, Respondents Below, Appellees.

No. 21223.

Supreme Court of Appeals of West Virginia.

Submitted March 9, 1993.

Decided July 16, 1993.

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 child will be recognized and enforced by the courts." Syl. pt. 2, Hammack v. Wise, 158 W.Va. 343, 211 S.E.2d 118 (1975); Syllabus, State ex rel. Kiger v. Hancock, 153 W.Va. 404, 168 S.E.2d 798 (1969); Syllabus, Whiteman v. Robinson, 145 W.Va. 685, 116 S.E.2d 691 (1960).' Syl. pt. 1 Leach v. Bright, 165 W.Va. 636, 270 S.E.2d 793 (1980)." Syllabus, Ford v. Ford, 172 W.Va. 25, 303 S.E.2d 253 (1983).

2. " 'When a parent, by agreement or otherwise, has transferred, relinquished or surrendered the custody of his or her child to a third person and subsequently demands the return of the child, the action of the court in determining whether the custody of the child shall remain in such third person or whether the child shall be returned to its parent depends upon which course will promote the welfare and the best interests of the child; and the parent will not be permitted to reclaim the custody of the child unless the parent shows that such change of custody will materially promote the moral and physical welfare of the child.' Point 4 Syllabus, State ex rel. Harmon v. Utterback, W.Va. , [ (1959) ]." Syl. Pt. 1, Davis v. Hadox, 145 W.Va. 233, 114 S.E.2d 468 (1960).

3. "If a child has resided with an individual other than a parent for a significant period of time such that the non-parent with whom the child resides serves as the child's psychological parent, during a period when the natural parent had the right to maintain continuing substantial contact with the child and failed to do so, the equitable rights of the child must be considered in connection with any decision that would alter the child's custody. To protect the equitable rights of the child in this situation, the child's environment should not be disturbed without a clear showing of significant benefit to him, notwithstanding the parent's assertion of a legal right to the child." Syl. Pt. 4, In re Brandon L.E., 183 W.Va. 113, 394 S.E.2d 515 (1990).

4. "The granting of temporary custody of a child by its natural parent to a third person is not tantamount to a divestiture of the right of the parent to custody of the child." Syl. Pt. 1, McCartney v. Coberly, --- W.Va. ----, 250 S.E.2d 777 (1978).

5. "When a parent transfers temporary custody of a child to a third person, the parent may reclaim custody without showing that the change of custody will materially promote the moral and physical welfare of the child." Syl. Pt. 2, McCartney v. Coberly, --- W.Va. ----, 250 S.E.2d 777 (1978).

Mike Kelly, Charleston, for appellants.

Homer A. Speaker, Martinsburg, for appellees.

PER CURIAM:

The Appellant, Gretchen Smith Snyder, appeals from a December 6, 1991, order of the Circuit Court of Jefferson County denying her petition for habeas corpus to regain custody of her son, Daniel John Smith. The Appellant contends that the lower court erred in concluding that she was medically unfit and in allowing custody to remain with the Appellant's sister, Nancy H. Scheerer, and her husband Paul E. Scheerer. We agree and reverse the decision of the lower court.

I.

The Appellant, presently age forty-three, has suffered repeated episodes of mental illness throughout the past twenty years. In 1979, her condition was diagnosed as bi-polar disorder, commonly known as manic-depressive disorder. This disorder was treated with therapy and closely monitored lithium medication. The Appellant discontinued her use of lithium in 1983, however, due to weight gain associated with the drug. Upon discontinuation of the drug, the Appellant became ill and was hospitalized.

The Appellant also smoked marijuana at times during the course of her illness, diminishing the effectiveness of the lithium treatments. She contends, however, that she has not used marijuana or other illegal drugs since August 1987. The Appellant again discontinued her lithium treatment in 1987 in order to attempt to have a child. A substitute medication was prescribed but was ineffective. The Appellant became pregnant in December 1987 while residing in a board and care facility as a ward of a Butte County, California court. The Appellant contends that she is uncertain as to the identity of the father.

While pregnant, the Appellant began to fear that the State of California would remove her child from her custody after the child was born. Thus, she contacted her mother and discussed plans to reside at her mother's home in Wisconsin. During the pregnancy, however, the Appellant's mother died, and the Appellant thereafter resided in Shepherdstown, West Virginia, with Appellees Nancy and Paul Scheerer. The Appellant began residing with them on May 31, 1988, during her fifth month of pregnancy. She delivered her son, Daniel John Smith, at Jefferson Memorial Hospital in Charles Town, West Virginia, on September 10, 1988.

Based upon her desire to breast-feed her son, the Appellant continued to abstain from her lithium medication after the child's birth. She subsequently suffered another episode of mental illness in November 1988 and was hospitalized in Winchester Medical Center, Winchester, Virginia, for approximately twenty days. On January 4, 1989, the Appellant attempted suicide and was hospitalized again until March 2, 1989. Upon her release, she signed a custody agreement granting temporary custody of Daniel to the Appellees. Although a permanent custody arrangement was discussed and the Appellees' attorney drafted such a permanent agreement, the Appellant agreed only to temporary custody. She contends that she recognized the limitations of her ability to care for her infant during the pendency of her struggle with mental illness and desired only a temporary custody arrangement with her sister. Specifically, the agreement provided that the Appellant was "unable to care for said Daniel John Smith, an infant, because she has been recently hospitalized and a period of recuperation will be required before she can properly care for her son...." The Appellees were given "temporary custody of the said Daniel John Smith ..." and the Appellant was given visitation for four hours every week. Further, the Appellant was not required to provide any monetary support for Daniel, and the agreement could "be changed or modified by the parties or by an Order of a court of competent jurisdiction upon a showing that the best interests of said Daniel John Smith would be served by a change or modification of the terms hereof."

Upon the Appellant's March 2, 1989, release from the hospital, the Appellees informed her that she could not continue to reside in their home. The Appellant thereafter resided in Winchester, Virginia, in order to obtain work, allowing her son to remain in the custody of her sister. In June 1989, the Appellant obtained employment as a certified nursing assistant at a nursing care facility. She began her initial attempts to regain custody of Daniel in September 1989, approximately six months after the temporary custody agreement had been signed and when Daniel was approximately one year of age. The Appellees were uncooperative with the Appellant's attempts to gradually transfer custody back to her. When the Appellant realized that her informal attempts seemed fruitless, she retained an attorney to contact the Appellees regarding a plan for a gradual transition of custody. On September 28, 1989, the attorney wrote to the Appellees and proposed expanded visitation affording a gradual transition of custody back to the Appellant. The Appellees, responding through their own attorney, indicated that they were not interested in negotiating additional visitation. The restricted visitation provided in the temporary custody agreement continued for an additional year. During this period, the Appellant suffered two orthopedic injuries unrelated to her mental condition. After recovering, the Appellant filed a petition for a writ of habeas corpus with the Circuit Court of Jefferson County on August 31, 1990, requesting custody of Daniel. On October 29, 1990, the lower court denied the Appellant's motion, but expanded her visitation rights to include overnight and weekend visits. Visitation was further expanded in subsequent orders entered June 5, 1991, and August 8, 1991.

The Appellant enrolled in community college courses and was accepted by the Shenandoah University School of Nursing for the fall 1991 term. She has continued her lithium therapy and has not suffered a recurrence of her condition since her release from hospitalization on March 2, 1989. Her treating psychiatrist, Dr. A. C. Kiczales, testified that her prognosis is excellent and that she is fully capable of caring for Daniel, meeting his daily needs, providing adequate supervision, and handling the stress associated with coping with a child of his age. Dr. Kiczales also testified that the Appellant is motivated to continue taking her medication and is no longer a suicide risk.

The Appellant currently resides with Mr. Jim Butler in Cross Junction, Virginia. Although the Appellant and Mr. Butler apparently have no present plans for marriage, they testified regarding their devotion to one another and to Daniel and regarding the possibility of marriage in the future. Mr. Butler has been a high school teacher for approximately twenty years and...