Terrence E. v. Julie R.

• Citation: 842 S.E.2d 755
• Decision Date: 06 April 2020
• Docket Number: No. 18-0832,18-0832
• Parties: TERRENCE E., Respondent Below, Petitioner v. CHRISTOPHER R. and Julie R., Petitioners Below, Respondents
• Court: West Virginia Supreme Court

842 S.E.2d 755

TERRENCE E., Respondent Below, Petitioner

v.CHRISTOPHER R. and Julie R., Petitioners Below, Respondents

No. 18-0832

Supreme Court of Appeals of West Virginia.

Submitted: February 18, 2020

Filed: April 6, 2020

Michael M. Cary, Charleston, West Virginia, Attorney for the Petitioner

Allison K. Huson, Huntington, West Virginia, Attorney for the Respondents

Krista Conway, Conway Law Office, Huntington, West Virginia, Guardian ad Litem

Jenkins, Justice:

The petitioner, Terrence E.¹ ("Father"), appeals from the August 21, 2018 order entered by the Circuit Court of Cabell County. The circuit court's order denied Father's request to terminate² the guardianship of the respondents, Christopher R. and Julie R. ("the Guardians"), maternal grandparents and current guardians of Father's child, K.E. In its ruling, the court determined that Father had not demonstrated a "material change of circumstances" as required by West Virginia Code section 44-10-3(j) (LexisNexis 2014) to support a termination of the current guardianship. On appeal to this Court, Father argues that he has satisfied the statutory criteria for the termination of his child's guardianship and that, as the child's biological father, he has a superior right to her custody as compared to the Guardians. Upon a review of the parties’ arguments and briefs, the appendix record and its supplement, and the pertinent authorities, we conclude the circuit court erred by requiring Father to demonstrate a "material change of circumstances" in order to terminate the existing guardianship. Accordingly, we reverse the circuit court's ruling and remand this case to the circuit court to determine whether the current guardianship should continue or whether the child's custody should be returned to one or both of her parents.

I.FACTS AND PROCEDURAL HISTORY

In 2017, Kathryn R. ("Mother") and Father were charged with child abuse and neglect of K.E. The petition primarily alleged that Mother, as a result of her substance abuse and addiction, had abused and/or neglected K.E. and that Father had failed to protect K.E. from Mother's substance abuse. Later, Father also was charged with failure to provide support because he was delinquent in his child support payments. Eventually, the circuit court found that both parents had corrected the conditions constituting abuse and/or neglect and returned custody of K.E. to Mother and Father. The court also entered a parenting order that gave primary custody of K.E. to Mother and visitation to Father, including two overnight weekend visitations per month.

The following month, November 2017, Mother was arrested; charged with a violation of the conditions of her release and possession with the intent to deliver heroin; and incarcerated. As a result of Mother's incarceration, Guardians, who are Mother's parents, filed a petition to be appointed guardians of the child. Father claims that he was not notified of Mother's arrest or of the guardianship petition until after the petition had been granted on an emergency basis and a temporary guardianship hearing had been scheduled. With counsel, Father appeared at the temporary guardianship hearing, objected to the Guardians’ appointment as the child's guardian, and requested custody. Mother consented to the guardianship, and the circuit court entered a temporary order appointing the maternal grandparents as Guardians of K.E.

During a subsequent hearing in January 2018, Father, by counsel, again objected to the guardianship and requested custody of his child. Ultimately, Father agreed that, because the child was doing well in school and it would be disruptive to change her school during the middle of the school year, continuation of the guardianship through the end of the school year would be in the child's best interest. It was suggested, however, that the guardianship arrangement could be reexamined at the end of the school year. The circuit court entered an order on February 20, 2018, finding it to be in the child's best interests to grant the maternal grandparents’ (Guardians’) petition to be named as her guardians and to continue Father's visitation pursuant to the parenting order entered at the end of the abuse and neglect proceedings. Father did not appeal from this order.

In April 2018, Father filed a petition to modify³ the Guardians’ guardianship. Pursuant to West Virginia Code section 44-10-3(j),

[f]or a petition to revoke or terminate a guardianship filed by a parent, the burden of proof is on the moving party to show by a preponderance of the evidence that there has been a material change of circumstances and that a revocation or termination is in the child's best interest.

To support his petition, Father stated:

A change in circumstances has occurred because [Father] has systematically shown this Court that he is a fit parent and can provide the proper care and stability for the minor child.

At the filing of this Petition, the biological mother is incarcerated and unable to provide adequate care for the minor child.

[Father] has no criminal history.^[4] Therefore, it is in the best interests of the minor child to be under the care, custody, and control of the biological father.

Furthermore, [Father] recently switched to day shift at his place of employment to accommodate the minor child's school schedule and to ensure he will be available when she is getting out of school.

(Footnote added). The Guardians objected to Father's motion, and the circuit court held hearings on the matter.

By order entered August 21, 2018, the circuit court denied Father's motion to terminate the Guardians’ guardianship and continued the child's placement in their care. The circuit court ruled as follows:

The Court FINDS that there has not been a substantial change of circumstances warranting any modification of the current guardianship[,] and the Petition for Modification shall be dismissed. The Court further FINDS it is in the best interests of the minor child for the guardianship to remain.

In summary, the circuit court ordered that "[t]he minor child shall remain in her current guardianship," but also ordered that K.E. "shall continue to have visitation [with Father] as in the prior order." From this order, Father appeals to this Court.

II.STANDARD OF REVIEW

The sole issue presented by this appeal is whether the guardianship appointing the child's maternal grandparents as her Guardians should continue or whether Father is entitled to the custody of his child. Our review of the circuit court's ruling continuing the guardianship order is governed by the following standards of review. First, when reviewing decisions rendered by a circuit court, we are guided by our holding in Syllabus point 4 of Burgess v. Porterfield , 196 W. Va. 178, 469 S.E.2d 114 (1996) : "This Court reviews the circuit court's final order and ultimate disposition under an abuse of discretion standard. We review challenges to findings of fact under a clearly erroneous standard; conclusions of law are reviewed de novo ." See also Syl. pt. 1, McCormick v. Allstate Ins. Co. , 197 W. Va. 415, 475 S.E.2d 507 (1996) ("When this Court reviews challenges to the findings and conclusions of the circuit court, a two-prong deferential standard of review is applied. We review the final order and the ultimate disposition under an abuse of discretion standard, and we review the circuit court's underlying factual findings under a clearly erroneous standard.").

With specific respect to a circuit court's order concerning a minor child's custody, we previously have held that

" ‘ "[t]he exercise of discretion by a trial court in awarding custody of a minor child will not be disturbed on appeal unless that discretion has been abused; however, where the trial court's ruling does not reflect a discretionary decision but is based upon an erroneous application of the law and is clearly wrong, the ruling will be reversed on appeal." Syl. pt. 2, Funkhouser v. Funkhouser , 158 W. Va. 964, 216 S.E.2d 570 (1975), superseded by statute on other grounds as stated in David M. v. Margaret M. , 182 W. Va. 57, 385 S.E.2d 912 (1989).’ Syl. Pt. 1, In re Abbigail Faye B. , 222 W. Va. 466, 665 S.E.2d 300 (2008) [, superseded by statute on other grounds as stated in In re Antonio R.A. , 228 W. Va. 380, 719 S.E.2d 850 (2011) ]." Syl. Pt. 2, In re Antonio R.A. , 228 W. Va. 380, 719 S.E.2d 850 (2011).

Syl. pt. 2, In re Guardianship of A.C. , 240 W. Va. 23, 807 S.E.2d 271 (2017). See also Syl. pt. 4, Hammack v. Wise , 158 W. Va. 343, 211 S.E.2d 118 (1975) ("Although the exercise of discretion by a trial court in awarding custody of a child will not ordinarily be disturbed, when it clearly appears that such discretion has been abused, the decision awarding custody will be reversed.").

Finally, because guardianship matters are governed by statutory law in this State, we further accord a plenary review to the circuit court's interpretation and application of the relevant statute. "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). See also Syl. pt. 1, Appalachian Power Co. v. State Tax Dep't of W. Va. , 195 W. Va. 573, 466 S.E.2d 424 (1995) ("Interpreting a statute or an administrative rule or regulation presents a purely legal question subject to de novo review."). With these standards in mind, we proceed to consider the parties’ arguments.

III.DISCUSSION

In his appeal to this Court, Father contends that the Guardians’ role as guardians of his minor child should be terminated and that he, as K.E.’s biological father, should be awarded her custody. The Guardians counter that Father has not demonstrated a "material change of circumstances" as required by West Virginia Code section 44-10-3(j) to terminate or revoke their guardianship. To determine which custodial arrangement serves the child's best...