                             STATE OF WEST VIRGINIA
                           SUPREME COURT OF APPEALS
In re: M.P., L.P., S.Y., & A.Y.,
                                                                                         FILED
                                                                                    November 23, 2015
                                                                                   RORY L. PERRY II, CLERK
No. 15-0118 (Fayette County 14-JA-85, 14-JA-86, 14-JA-87, & 14-JA-88)            SUPREME COURT OF APPEALS
                                                                                     OF WEST VIRGINIA

                              MEMORANDUM DECISION
        Petitioner Mother, by counsel Kelly C. Pritt, appeals the Circuit Court of Fayette
County’s January 13, 2015, order dismissing the underlying abuse and neglect action and
transferring custody of the children from petitioner to the children’s respective biological fathers.
The West Virginia Department of Health and Human Resources (“DHHR”), by counsel S.L.
Evans, filed its response in support of the circuit court’s order and a supplemental appendix, by
leave of this Court. The guardian ad litem (“guardian”), Jennifer M. Alvarez, filed a response on
behalf of the children in support of the circuit court’s order. On appeal, petitioner argues that the
circuit court erred in transferring custody of the children to their respective biological fathers in
this abuse and neglect proceeding when no finding of abuse or neglect was made and the matter
was dismissed.1

        After a careful review of the appendix record submitted on appeal, the written arguments
of counsel, and the applicable precedent, this Court determines that the circuit court erred by
transferring custody of the children to their respective fathers having dismissed this abuse and
neglect action with no finding of abuse or neglect. However, we affirm the circuit court’s
dismissal of the underlying action. Because our decision in this matter is dictated by well-settled
law, we conclude that this case satisfies the “limited circumstances” provision in Rule 21(d) of
the Rules of Appellate Procedure for reversal and remand in a memorandum decision. As such,
by this memorandum decision, we affirm, in part, and reverse and remand, in part, the circuit
court’s January 13, 2015, order.

        Petitioner has four children at issue in this appeal. The two older children, twelve-year­
old M.P. and ten-year-old L.P., are the children of petitioner and J.P. The two younger children,
six-year-old S.Y. and four-year-old A.Y., are the children of petitioner and M.Y. In 2008,
petitioner and J.P. divorced by order of the Family Court of Fayette County. By that divorce
order, the family court granted petitioner sole custody of M.P. and L.P. Moreover, J.P. was
granted no parenting time with those two children.

        Although the exact dates are unclear from the record on appeal, petitioner, sometime
thereafter, married M.Y. Prior to the filing of the underlying abuse and neglect action in June of
2014, petitioner and M.Y. also divorced. By that divorce order, the family court granted

       1
         We note that West Virginia Code §§ 49-1-1 through 49-11-10 were repealed and
recodified during the 2015 Regular Session of the West Virginia Legislature. The new
enactment, West Virginia Code §§ 49-1-101 through 49-7-304, has minor stylistic changes and
became effective ninety days after the February 19, 2015, approval date. In this memorandum
decision, we apply the statutes as they existed during the pendency of the proceedings below.
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petitioner primary custody of S.Y. and A.Y. While, M.Y. was permitted to exercise limited
parenting time.

         In April of 2014, the DHHR received a referral that M.Y., after exercising his parenting
time, returned his children, S.Y. and A.Y., to petitioner with bruises on the children’s arms and
legs. According to the referral, M.Y. failed to properly supervise his children and left them in the
care of an alcoholic individual. On the same date that the DHHR received the referral, petitioner
filed a petition for domestic violence protective order against M.Y. on behalf of S.Y. and A.Y.
alleging physical abuse, failure to provide proper supervision or necessities such as clothing, and
general acts of violence toward others. Based on the domestic violence petition, petitioner was
granted temporary sole custody of S.Y. and A.Y., but M.Y. was granted limited, supervised
visitation.

        In June of 2014, the family court held a hearing on the petition for domestic violence
order. At that hearing, petitioner requested that her petition be withdrawn. However, the family
court noted that petitioner appeared sluggish and “could not keep her eyes open.” Based on
petitioner’s condition at that hearing, the family court denied her request to withdraw the petition
on the ground that her decision to do so was not intelligently and knowingly made. The family
court further found that petitioner “made derogatory remarks and cursed the [family] court upon
leaving the courtroom, which further calls into question her sobriety.” Thereafter, petitioner
submitted herself to a drug screen, which resulted in a positive test for opiates, morphine, and
benzodiazepine. The family court concluded petitioner was “clearly not in any condition to have
any custodial responsibilities [for all four of her children] at this time” and placed temporary
custody of her children in the DHHR pending further court proceedings.

        Several days later, the DHHR filed the underlying abuse and neglect petition against
petitioner, alleging that she abused controlled substances, and against M.Y., alleging that he
physically and emotionally abused S.Y. and A.Y. The father of petitioner’s other children, J.P.,
was named as a respondent in that abuse and neglect petition but only as a statutory requirement;
no allegations were made against J.P. That abuse and neglect petition was later amended but,
with respect to petitioner, the only substantive change in the amended petition was the addition
of statements made by the children claiming she often slept and enlisted a babysitter who had a
substantiated history with Child Protective Services (“CPS”).

        In July of 2014, the circuit court held a preliminary hearing on the abuse and neglect
petition. The DHHR established that no allegations were made against J.P., but it was noted that
he was $8.62 in arrears for his child support obligation. A CPS worker testified as to the
allegations detailed in the amended abuse and neglect petition. In her defense, petitioner testified
that she filed a domestic violence petition against M.Y. for his physical abuse, but that she had
been hospitalized immediately prior to the hearing on that petition. She further claimed that
during her hospitalization she was prescribed pain medication, which resulted in her behavior
and condition at the June 17, 2014, hearing as well as the positive drug screen results. Based on
the evidence, the circuit court found probable cause for the removal of the children and set the
matter for an adjudicatory hearing.




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       In August of 2014, the circuit court held an adjudicatory hearing. Petitioner and M.Y.
moved for pre-adjudicatory improvement periods, and, without objection, the circuit court
granted the same. Petitioner’s pre-adjudicatory improvement period included terms and
conditions that she sign a release of all medical records; perform and cooperate with the
recommendations of a psychological evaluation; not consume any alcohol or controlled
substances without a valid prescription; immediately notify the DHHR of any newly prescribed
medications; and not get pregnant.

        Between August of 2014 and November of 2014, the circuit court held three
improvement period review hearings. During that time, the children’s respective fathers began
receiving unsupervised visitation with the children. Although petitioner’s psychological
evaluation found concerns with her ability to improve as a parent, evidence established that she
was following the psychologist’s recommendations. Further evidence revealed that one child
“missed a bunch of school” while in petitioner’s care and that petitioner’s medical records, such
as one doctor’s report that petitioner had likely fabricated back pain to secure medication,
indicated that she exhibited “drug-seeking” behavior. However, these concerns arose prior to
petitioner’s participation in her pre-adjudicatory improvement period, and the DHHR did not file
a new or amended abuse and neglect petition against petitioner alleging any additional concerns
with truancy or “drug-seeking” affecting her parenting.

         In December of 2014, the circuit court held a final hearing in this matter. The DHHR
informed the circuit court that petitioner and M.Y. had successfully completed their pre­
adjudicatory improvement periods. The evidence showed that petitioner had appropriate housing
and employment, and completed her services. The DHHR recommended that the abuse and
neglect action be dismissed as to all parties, including M.Y. and K.Y. However, the DHHR
further recommended that primary custody of the children be granted to the respective fathers—
J.P. and M.Y. The DHHR explained its continued concern with petitioner and pain medication.
The DHHR stated that she had undergone surgery during the first week of her unsupervised
visitation with the children and had received pain medication during her surgery and during her
subsequent hospitalization. Moreover, the DHHR claimed that, by the time of that hearing, L.P.
had been placed with J.P. for several months and had progressed physically while under his
care.2 Prior to the conclusion of the hearing, each of the parents requested primary custody of
their respective children. By order entered on January 13, 2015, the circuit court dismissed the
abuse and neglect action with no finding of abuse or neglect against petitioner, but, in that order,
it transferred custody of the children to their biological fathers with any visitation or change in
custody for petitioner to be determined by the family court. This appeal followed.

       This Court has previously established the following standard of review:

              “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

       2
        Although unclear from the record on appeal, it appears that L.P. had used a wheelchair
while in petitioner’s care but had progressed to walk on her own while living with J.P.
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       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).

        On appeal, petitioner’s sole assignment of error is that the circuit court erred in
transferring custody of the children from petitioner to their respective fathers when the abuse and
neglect action was dismissed with no finding of abuse or neglect. We addressed a similar
concern in the recent case of In re Kasey M., 228 W.Va. 221, 719 S.E.2d 389 (2011). In Kasey
M., we considered “whether the circuit court had authority to transfer custody of [a subject child]
to [a respondent parent], in an abuse and neglect proceeding, when the allegations of abuse and
neglect against him were dismissed.” Id. at 223, 719 S.E.2d at 391. In that case, the subject child
was in the custody of the respondent father prior to the filing of the abuse and neglect petition.
Id. While the circuit court dismissed that petition without a finding of abuse or neglect, it
nevertheless transferred custody of the subject child to the respondent mother. Id. We found that
the circuit court in abuse and neglect proceedings lacked the authority to modify child custody,
which was effectively a dispositional alternative, without having first found the presence of
abuse or neglect. Id. at 225, 719 S.E.2d at 393. In arriving at that conclusion in Kasey M., we
explained that

               [i]n a child abuse and neglect hearing, before a court can begin to make
       any of the dispositional alternatives under W.Va. Code [§] 49-6-5, it must hold a
       hearing under W.Va. Code [§] 49-6-2, and determine “whether such child is
       abused or neglected.” Such a finding is a prerequisite to further continuation of
       the case.

228 W.Va. at 225, 719 S.E.2d at 393 (citing Syl. Pt. 1, State v. T.C., 172 W.Va. 47, 303 S.E.2d
685 (1983)); see also State v. C.N.S., 173 W.Va. 651, 656, 319 S.E.2d 775, 780 (1984) (stating
that “[o]nce there has been a proper finding of abuse or neglect, the proceedings move into the
dispositional phase, which is governed by W.Va. Code § 49-6-5.”).

        In this matter, while we appreciate the circuit court’s motivations and the arguments of
the DHHR and guardian that the children’s current placements have proven beneficial to them,
our law is clear that a finding of abuse or neglect is a prerequisite to a final change in custody or
other such disposition in abuse and neglect proceedings. See also Syl. Pt. 8, In re Antonio R.A.,
228 W.Va. 380, 719 S.E.2d 850 (2011) (holding that “[w]hile courts always look to the best
interests of the child in controversies concerning his or her custody, such custody should not be
denied to a parent merely because some other person might possibly furnish the child a better
home or better care.” (citations omitted)). As noted in Kasey M.:

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       To the extent that the circuit court believed that [the subject child] should be
       removed from the custody of [the respondent father], it could have rejected
       DHHR’s decision to drop all allegations against [the respondent father] and
       forced the case to be litigated on the merits to determine whether [the subject
       child] was an abused or neglected child. This was not done, and, consequently,
       the circuit court’s authority was limited to ordering [the subject child] to be
       returned to [the respondent father].

228 W.Va. at 225, 719 S.E.2d at 393; see also In re F.S., 233 W.Va. 538, 759 S.E.2d 769 (2014)
(stating that “[i]f a court does not make that initial finding of abuse [or neglect], no further action
is permitted in the abuse and neglect realm.”). Here, as in Kasey M., because the matter was
dismissed with no finding of abuse or neglect, the circuit court’s authority was limited to
ordering the children returned to petitioner, who undisputedly had custody of all four children
prior to the filing of the underlying abuse and neglect petition.

        For the foregoing reasons, the circuit court’s January 13, 2015, order transferring custody
of the children from petitioner to their respective fathers absent a finding of abuse or neglect is
hereby reversed and remanded to the circuit court for entry of an order transitioning the children
into petitioner’s custody. However, as no assignments of error are raised as to the dismissal of
the underlying abuse and neglect petition, we hereby affirm the order to the extent it dismissed
the underlying abuse and neglect petition.

       We remind the circuit court of the need, when possible, to gradually transition children
from one placement to another. As we held in Syllabus Point 5 of In re C.M., 235 W.Va. 16, 770
S.E.2d 516 (2015):

                “It is a traumatic experience for children to undergo sudden and dramatic
       changes in their permanent custodians. Lower courts in cases such as these should
       provide, whenever possible, for a gradual transition period, especially where
       young children are involved. Further, such gradual transition periods should be
       developed in a manner intended to foster the emotional adjustment of the children
       to this change and to maintain as much stability as possible in their lives.” Syl. Pt.
       3, James M. v. Maynard, 185 W.Va. 648, 408 S.E.2d 400 (1991).

Upon remand, we direct the circuit court to expeditiously set this matter for a hearing to establish
a clear, gradual transition plan for reunification of the children with petitioner. The Clerk of this
Court is hereby ordered to issue this Court’s mandate contemporaneously herewith.

                                         Affirmed, in part, and reversed and remanded, in part.

ISSUED: November 23, 2015




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CONCURRED IN BY:

Chief Justice Margaret L. Workman
Justice Robin Jean Davis
Justice Brent D. Benjamin
Justice Menis E. Ketchum

CONCURRING AND WRITING SEPARATELY: Justice Allen H. Loughry II

Loughry, Justice, concurring:

        I concur in the majority’s conclusion that the circuit court lacked authority in this
proceeding to transfer child custody absent a finding of abuse or neglect. Nonetheless, while the
circuit court employed the wrong legal mechanism to transfer custody, it is clear that the circuit
court’s goal was to ensure the children’s best interests. The record before this Court indicates
that the fathers have demonstrated improved parenting and that the children have benefited from
residing in their fathers’ care. I write separately to note that our decision today does not foreclose
the fathers from filing, in family court, a petition for modification of custody based on the
current circumstances of these children and their parents. As Chief Justice Workman pointed out
in her concurrence to In re Kasey M., “[t]he proper means of seeking the change of custody
would be a petition for modification.” 228 W.Va. 221, 226, 719 S.E.2d 389, 394 (2011); see
W.Va. Code § 48-9-401(a) (2014) (providing that “a court shall modify a parenting plan order if
it finds . . . that a substantial change has occurred in the circumstances of the child or if one or
both parents and a modification is necessary to serve the best interests of the child.”).

       Accordingly, I respectfully concur.




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