STATE OF WEST VIRGINIA

                          SUPREME COURT OF APPEALS
                           FILED
                                                                           April 21, 2016
                                                                              released at 3:00 p.m.
In re: A.H. and J.H.                                                        RORY L. PERRY, II CLERK
                                                                          SUPREME COURT OF APPEALS
                                                                               OF WEST VIRGINIA

Nos. 15-0828 & 15-0832 (Mingo County 13-JA-53 & 13-JA-65)


                               MEMORANDUM DECISION

        The petitioner T.W.,1 by counsel Diana Carter Wiedel, and the petitioner S.W., by
counsel Susan J. Van Zant, appeal from the Circuit Court of Mingo County’s “Order from
Preliminary Hearing as to the Amended Petition” entered on July 27, 2015.2 The petitioners
argue that the circuit court erred by not applying the procedures set forth in the West Virginia
Code pertaining to child abuse and neglect proceedings before the court permanently
removed two children from their home. The children’s guardian ad litem, Karen S. Hatfield,
reports that the immediate removal of the children from the petitioners’ home was necessary
for the children’s safety, but she asserts that an adjudicatory hearing should have thereafter
been afforded the petitioners. The West Virginia Department of Health and Human
Resources (“DHHR”), by counsel S.L. Evans, responds in support of the circuit court’s order.

       After a careful consideration of the parties’ written and oral arguments, as well as the
record on appeal, we conclude the circuit court committed procedural error necessitating that
the circuit court’s order be reversed, in part, and remanded to the circuit court for further
proceedings. This case satisfies the “limited circumstances” requirement of Rule 21(d) of
the Rules of Appellate Procedure and, therefore, is properly decided in a memorandum
decision.




       1
        Because this case involves children and sensitive matters, we follow our practice of
using initials to refer to the children and the parties. See W.Va. R. App. P. 40(e); State v.
Edward Charles L., 183 W.Va. 641, 645 n.1, 398 S.E.2d 123, 127 n.1 (1990). The children’s
biological mother has the same initials as another person, so she will be referred to herein as
the “mother.”
       2
        The “Amended Petition” referred to in the title of the order was the DHHR’s second
amended abuse and neglect petition. The petitioners filed separate appeals from that order;
their appeals have been consolidated for purposes of argument and decision.

                                               1

                              Factual and Procedural History

       J.H. was born in November of 2011.3 When he was approximately five months old,
he was placed in the care of his mother’s aunt, T.W., and T.W.’s husband, S.W., who are the
petitioners herein. By order of the Mingo County Family Court entered on July 18, 2012,
T.W. and S.W. obtained legal guardianship of J.H. pursuant to the provisions of West
Virginia Code § 44-10-3 (2014), the statute providing for appointment of a guardian for a
minor child.

       The mother had another child, A.H., who was born in June of 2013. When A.H. was
approximately three and one-half weeks old, the mother placed her in the care of T.W. and
S.W. Soon thereafter, on July 18, 2013, T.W. and S.W. filed a pro se petition in the family
court seeking to be appointed as A.H.’s legal guardians.4

        On July 22, 2013, the DHHR filed an abuse and neglect petition against the mother
and the children’s respective biological fathers. The fathers were absent from the children’s
lives. The DHHR alleged that the mother engaged in abusive and neglectful behavior toward
A.H. and failed to comply with a voluntary case plan established a few days after A.H.’s
birth. Although the July 22nd petition listed only the infant A.H. as a subject child in the case,
the petition was later amended to also include J.H. As the children’s guardians/custodians,
S.W. and T.W. were permitted to intervene and participate in the abuse and neglect case.
During the pendency of the proceedings against the biological parents, and until the events
discussed below, the children continued to reside in the home of S.W. and T.W.

       After further proceedings, the circuit court terminated all rights the mother had to both
children. Although the circuit court announced the termination ruling at a dispositional
hearing on January 7, 2014, the written order was not entered until July 27, 2015. In
addition, the circuit court terminated all rights of the children’s fathers at a hearing held on
November 22, 2013, as reflected in a separate written order also entered on July 27, 2015.




       3
       The DHHR’s second amended petition and the circuit court’s order incorrectly
designate J.H.’s birth year as 2012.
       4
        It appears that the petition for legal guardianship of A.H. was not ruled upon. The
abuse and neglect case, which was initiated a few days later, would have deprived the family
court of jurisdiction.

                                                2

       The permanency plan for J.H. and A.H. was a private adoption by T.W. and S.W.
However, no adoption proceedings were initiated. T.W. testified that they had not begun the
adoption process due to the expense of hiring a lawyer. Moreover, the children could not be
adopted until the circuit court entered the dispositional orders terminating the biological
parents’ rights.

        Meanwhile, on December 8, 2014, the DHHR filed a second amended petition
alleging that S.W. and T.W. had also abused and neglected the children. The circuit court
modified the style of the abuse and neglect case to reflect that S.W. and T.W. had become
party respondents, appointed them separate counsel, and received testimony at a preliminary
hearing on December 15, 2014. The basis for the second amended petition was an episode
of violence in the home on October 29, 2014. The evidence presented during the preliminary
hearing revealed that S.W. had referred to his current wife, T.W., using his ex-wife’s name.
An argument ensued that escalated into physical violence, including S.W. punching T.W. in
the face and pushing her to the ground. Their daughter’s adult boyfriend then intervened in
the altercation and inflicted severe injuries upon S.W. The children were in the home at the
time: J.H. was in an adjacent room and A.H. was upstairs. As a result of these events, S.W.
was criminally charged with domestic assault and domestic battery, while their daughter’s
boyfriend was charged with unlawful assault. In addition, during the preliminary hearing a
DHHR child protective services worker testified that S.W. has a history of domestic violence.
T.W. testified that S.W.’s prior acts of domestic violence involved his ex-wife, and the
incident on October 29th was the first time he had ever hit her.

        The circuit court’s ruling was announced during the December 15, 2014, preliminary
hearing and was set forth in a written order on July 27, 2015. The court concluded that the
immediate removal of the children from T.W. and S.W.’s home was necessary to ensure the
children’s safety. The court found probable cause to believe that T.W. and S.W. have a
volatile relationship that escalated into physical violence wherein S.W. injured T.W.; they
live in an unstable environment; they allow an inappropriate adult–their minor daughter’s
boyfriend–to reside in the home; this environment placed the subject children in imminent
danger and at risk of further neglect; and remaining in the home would be contrary to the
children’s best interests. The circuit court also ruled that T.W. and S.W. had only a
“temporary placement” with no parental rights to the subject children, therefore it was not
necessary to proceed to an adjudicatory hearing on the allegations against them. T.W. and
S.W. appeal this ruling.5



       5
      Pursuant to the ongoing child abuse and neglect case, the children now reside in the
home of a different aunt and uncle who wish to adopt them.

                                             3

                                     Standard of Review

       This Court has a well-established standard of review for abuse and neglect cases:

               “Although conclusions of law reached by a circuit court are subject to
       de novo review, when an action, such as an abuse and neglect case, is tried
       upon the facts without a jury, the circuit court shall make a determination
       based upon the evidence and shall make findings of fact and conclusions of
       law as to whether such child is abused or neglected. These findings shall not
       be set aside by a reviewing court unless clearly erroneous. A finding is clearly
       erroneous when, although there is evidence to support the finding, the
       reviewing court on the entire evidence is left with the definite and firm
       conviction that a mistake has been committed. However, a reviewing court
       may not overturn a finding simply because it would have decided the case
       differently, and it must affirm a finding if the circuit court’s account of the
       evidence is plausible in light of the record viewed in its entirety.” Syl. Pt. 1,
       In Interest of Tiffany Marie S., 196 W.Va. 223, 470 S.E.2d 177 (1996).

Syl. Pt. 1, In re Cecil T., 228 W.Va. 89, 717 S.E.2d 873 (2011). With this standard in mind,
we consider the parties’ arguments.

                                          Discussion

        The circuit court ruled that the petitioners were not entitled to the procedures set forth
in the abuse and neglect statutes because they had no parental rights to these children. The
petitioners argue they were entitled to an adjudicatory hearing and, if adjudicated as abusive,
the other procedures set forth in state law because they were J.H.’s court-ordered legal
guardians, and A.H.’s custodians, before any abuse and neglect petition was filed. A review
of the abuse and neglect statutes, when applied to the specific facts of this case, supports this
argument.

       West Virginia Code § 49-6-2(c) (2012),6 setting forth the right to an adjudicatory
hearing, does not limit that right to only “parents.” Rather, it provides certain rights to “the
party or parties having custodial or other parental rights or responsibilities to the child”:


       6
        We apply the 2012 version of the abuse and neglect statutes to this appeal, as that was
the law controlling the circuit court’s rulings at the December 2014 hearing. In 2015, the
Legislature repealed West Virginia Code §§ 49-1-1 through 49-11-10 and recodified these
provisions, with minor changes, into West Virginia Code §§ 49-1-101 through 49-7-304.

                                                4

              In any proceeding pursuant to the provisions of this article, the party or
       parties having custodial or other parental rights or responsibilities to the child
       shall be afforded a meaningful opportunity to be heard, including the
       opportunity to testify and to present and cross-examine witnesses. The petition
       shall not be taken as confessed. A transcript or recording shall be made of all
       proceedings unless waived by all parties to the proceeding. The rules of
       evidence shall apply. Where relevant, the court shall consider the efforts of the
       state department [DHHR] to remedy the alleged circumstances. At the
       conclusion of the hearing, the court shall make a determination based upon the
       evidence and shall make findings of fact and conclusions of law as to whether
       such child is abused or neglected and, if applicable, whether the parent,
       guardian, or custodian is a battered parent, all of which shall be incorporated
       into the order of the court. The findings must be based upon conditions
       existing at the time of the filing of the petition and proven by clear and
       convincing proof.

Id. (emphasis added). Furthermore, for purposes of child abuse and neglect proceedings, the
statutory definitions of “abusing parent,” “abused child,” and “child abuse and neglect”
include guardians and custodians:

       (1) “Abused child” means a child whose health or welfare is harmed or
       threatened by:

              (A) A parent, guardian or custodian who knowingly or
              intentionally inflicts, attempts to inflict or knowingly allows
              another person to inflict, physical injury or mental or emotional
              injury, upon the child or another child in the home[.]
              ....

       (2) “Abusing parent” means a parent, guardian or other custodian, regardless
       of his or her age, whose conduct, as alleged in the petition charging child
       abuse or neglect, has been adjudged by the court to constitute child abuse or
       neglect.
              ....

       (4) “Child abuse and neglect” or “child abuse or neglect” means physical
       injury, mental or emotional injury, sexual abuse, sexual exploitation, sale or
       attempted sale or negligent treatment or maltreatment of a child by a parent,
       guardian or custodian who is responsible for the child’s welfare, under
       circumstances which harm or threaten the health and welfare of the child.

                                               5

W.Va. Code § 49-1-3(1), (2), (4) (2012) (emphasis added). The disposition statute also
references custodial and guardianship rights, for example:

       (a)(6) Upon a finding that there is no reasonable likelihood that the conditions
       of neglect or abuse can be substantially corrected in the near future and, when
       necessary for the welfare of the child, [the court shall] terminate the parental,
       custodial and guardianship rights and responsibilities of the abusing parent[.]
              ....
       (c) The court may, as an alternative disposition, allow the parents or custodians
       an improvement period[.]

W.Va. Code § 49-6-5(a)(6), (c) (2012).

        Pursuant to the provisions of West Virginia Code § 44-10-3, the petitioners had the
court-ordered legal guardianship of J.H. for an entire year before the initial abuse and neglect
petition was filed. During that year, the petitioners were entirely responsible for J.H.’s
welfare, and they provided all of his care and support. Furthermore, although there was not
enough time for the petitioners to obtain a legal guardianship over the newborn A.H., they
already had a legal guardianship over her sibling and their physical custodianship of A.H.
was bestowed by the mother before the abuse and neglect petition was filed. Given these
facts, we conclude the petitioners had “custodial or other parental rights or responsibilities
to” the children pursuant to the provisions of the adjudication statute, West Virginia Code
§ 49-6-2(c). The circuit court was clearly wrong when finding the petitioners had only a
“temporary placement.”

        Our conclusion should not be interpreted to mean that any person with whom a child
is placed during the pendency of an abuse and neglect case is entitled to the adjudication and
disposition procedures if the child is removed from the placement. Indeed, it is irrelevant to
our decision today that the petitioners retained physical custody of the children during the
pendency of the abuse and neglect proceedings against the biological parents. The key
determinative fact is that the petitioners had a legal guardianship over J.H., which they
exercised, for a significant period of time before the abuse and neglect case was initiated.
Their custodial relationship with A.H. also pre-dated the filing of the initial petition.

       During the December 2014 preliminary hearing, the DHHR presented evidence of a
severe incident of domestic violence in the petitioners’ home, and the circuit court correctly
removed the children due to emergent safety concerns. However, the court should have then




                                               6

proceeded to accord the petitioners, as the children’s guardians/custodians,7 an adjudicatory
hearing. This case must be remanded for the circuit court to comply with the procedures set
forth in the abuse and neglect statutes.8

                                          Conclusion

       For the foregoing reasons, we affirm the portion of the circuit court’s July 27, 2015,
“Order from Preliminary Hearing as to the Amended Petition” insofar as the court ruled that
the immediate removal of the children from the petitioners’ home was necessary to ensure
the children’s safety. However, we reverse the order to the extent that the court ruled the
petitioners were not entitled to an adjudicatory hearing. This case is remanded to the circuit
court with instructions to expeditiously hold an adjudicatory hearing. If the circuit court
adjudicates one or both of the petitioners as abusing, the court should proceed with whatever
post-adjudicatory proceedings and disposition the circuit court finds appropriate.

       The Clerk of this Court is directed to issue the mandate order contemporaneously with
this memorandum decision.

                          Affirmed, in part; reversed, in part; and remanded with directions.

       7
         The petitioners also argue they should receive full procedural rights under the abuse
and neglect statutes because, as the only “parents” these children have ever known, they
qualify as psychological parents. See In re Clifford K., 217 W.Va. 625, 619 S.E.2d 138
(2005) (recognizing concept of “psychological parent”). Because we have already decided
this case by applying the aforementioned statutory language, we need not address the issue
of psychological parenting. However, we note that there is no indication in the three
appendix records submitted in this consolidated appeal that the petitioners ever asked the
circuit court to declare them to be psychological parents. Moreover, in the past we have
emphasized that being a psychological parent does not necessarily translate into being
awarded custody. In re N.A., 227 W.Va. 458, 469, 711 S.E.2d 280, 291 (2011).
       8
         T.W. asserts in a separate assignment of error that the circuit should have required
the DHHR to pursue the allegations against her via the filing of a “new and separate”
petition, rather than by filing an amended petition in the existing abuse and neglect case. Her
argument is undermined, however, because it relies entirely upon language that was removed
from a procedural rule when that rule was amended in 2012. The present version of Rule
19(b) of the West Virginia Rules of Procedure for Child Abuse and Neglect Proceedings
directs that if new allegations arise after the final adjudicatory hearing, the allegations should
be included in an amended petition and the adjudicatory hearing shall be re-opened.


                                                7

ISSUED: April 21, 2016

CONCURRED IN BY:

Chief Justice Menis E. Ketchum
Justice Robin Jean Davis
Justice Brent D. Benjamin
Justice Margaret L. Workman
Justice Allen H. Loughry II




                                 8