                IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA


                                      September 2015 Term

                                       _________________                 FILED
                                                                     November 5, 2015
                                             No. 15-0333                released at 3:00 p.m.
                                                                        RORY L. PERRY II, CLERK

                                                                      SUPREME COURT OF APPEALS

                                                                          OF WEST VIRGINIA

                                        ________________

                                             IN RE S.W.


              _________________________________________________________

                         Appeal from the Circuit Court of Brooke County

                            The Honorable Martin Gaughan, Judge

                                   Civil Action No. 10-JA-11



                     REVERSED AND REMANDED WITH DIRECTIONS


             __________________________________________________________

                                  Submitted: October 14, 2015

                                    Filed: November 5, 2015



     James T. Carey, Esq.                                  Patrick Morrisey, Esq.

     Carey Law Office                                      Attorney General

     Weirton, West Virginia                                Michael Jackson, Esq.

     Counsel for Petitioners S.S. and H.S.                 Assistant Attorney General

                                                           Charleston, West Virginia
     Sara Hawthorne Bohn, Esq.                             Counsel for Respondent DHHR
     Weirton, West Virginia
     Guardian ad litem                                     Ann Marie Morelli, Esq.
                                                           Weirton, West Virginia
                                                           Counsel for K.M.



     CHIEF JUSTICE WORKMAN delivered the Opinion of the Court.


34
                               SYLLABUS BY THE COURT




              1. “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.” Syl.,

McCormick v. Allstate Ins. Co., 197 W.Va. 415, 475 S.E.2d 507 (1996).



              2. “‘“The 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.” Syllabus

point 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).”

Syl. Pt. 2, In re Antonio R.A., 228 W.Va. 380, 719 S.E.2d 850 (2011).



              3. “Although parents have substantial rights that must be protected, the

primary goal in cases involving abuse and neglect, as in all family law matters, must be the

health and welfare of the children.” Syl. Pt. 3, In re Katie S., 198 W.Va. 79, 479 S.E.2d 589

(1996).
Workman, Chief Justice:



              This is a joint appeal by the paternal grandparents1 and guardian ad litem of a

child (hereinafter jointly referenced as “the petitioners” or separately referenced as “the

grandparents” or “the GAL”). The petitioners appeal a circuit court order terminating the

grandparents’ legal guardianship of their grandchild, S.W. (hereinafter “the child”), and

returning the child to his mother.2 The Department of Health and Human Resources

(hereinafter “the DHHR”) also supports the petitioners’ contentions in this appeal.

Subsequent to thorough review of the pleadings and record designated for review, the briefs

and oral arguments of the parties, and for the reasons stated herein, we reverse the order of

the Circuit Court of Brooke County, West Virginia, terminating the grandparents’

guardianship of S.W. and remand this matter for entry of an order consistent with this

opinion.



                             I. Factual and Procedural History

              S.W. was born in 2009. An abuse and neglect petition was filed on June 30,

2010, alleging that the child’s mother, K.M., was under the influence of drugs while caring

       1
       Because this case involves sensitive facts, we protect the identities of those involved
by using only the parties’ initials. See State ex rel. W.Va. Dept. of Human Servs. v. Cheryl
M., 177 W.Va. 688, 689 n.1, 356 S.E.2d 181, 182 n.1 (1987); see also W.Va. R. App. P. 40.
       2
       Based upon this Court’s stay of the circuit court’s order returning the child to his
mother, the child currently resides with his paternal grandparents.

                                              1

for him. The DHHR placed the child in the care of his paternal grandparents, and a pre­

adjudicatory improvement period was granted to the mother on September 29, 2010. The

mother and the maternal grandparents were also granted visitation with the child.



              On March 16, 2011, the GAL filed a motion to terminate the mother’s pre­

adjudicatory improvement period because she had tested positive for oxycodone and

morphine on two separate occasions. The improvement period was terminated on March 24,

2011, and the mother admitted that she was abusing drugs.3



              On May 12, 2011, the mother admitted that she had been under the influence

of drugs in the presence of the child and had neglected to take reasonable care of the child

due to her drug addiction. The circuit court adjudicated her as a neglectful parent. During

a June 23, 2011, status hearing, the circuit court was advised that the mother had completed

a rehabilitation program and was participating in an outpatient program.



              On September 8, 2011, the circuit court granted the mother a post-adjudicatory

improvement period, requiring her to discontinue her abuse of controlled substances and

refrain from contact with felons. On November 10, 2011, the child was returned to the



       3
        On April 14, 2011, the GAL also informed the circuit court that the mother was living
with a registered sex offender.

                                             2

mother’s care, but legal custody remained with the DHHR. Approximately four months later,

on March 9, 2012, the GAL filed a motion to return physical custody of the child to the

DHHR because the mother had violated the terms of the post-adjudicatory improvement

period by refusing to answer the door to her home and submit to a drug test. The child was

thereafter removed from the mother’s care and placed back in the custody of the paternal

grandparents.



                On July 12, 2012, the circuit court granted supervised visitation to the mother,

contingent upon her cooperation with drug testing. The mother was unable to appear for a

September 2012 hearing due to her incarceration on a charge of possession of drugs with

intent to deliver. Subsequent to a June 21, 2013, dispositional hearing, the circuit court

entered an order on August 5, 2013, stating that the mother had been arrested in September

2012 for possession with intent to deliver, had refused to be drug tested, and had exhibited

erratic behavior. The court held that under West Virginia Code § 49-6-5(a)(5) (2012),4 the

child would remain in the physical custody of the paternal grandparents, with visitation

permitted with the mother and maternal grandparents.5



       4
       That section, now recodified as West Virginia Code § 49-4-604(b)(5) (2015),
provided that the circuit court may commit the child temporarily to the State Department or
a person who may be appointed guardian.
       5
        The circuit court also stated that an abuse and neglect action was pending against the
child’s father, J.W. The father’s parental rights to S.W. were ultimately terminated, and that
aspect of this matter is not before this Court.

                                                3

              On September 3, 2013, the mother was released from incarceration and placed

on probation for five years as a result of her guilty pleas to felony and misdemeanor drug

charges. On December 12, 2013, the circuit court held a permanency hearing and granted

legal guardianship to the paternal grandparents. The mother graduated from Drug Court on

September 11, 2014,6 and filed a “Petition to Overturn Legal Guardianship” on November

19, 2014. In that petition, she asserted that she had been in recovery for over one year, and

she argued that her recovery and continued sobriety constituted a material change in

circumstances justifying a modification of the custody of her son.



              A hearing on the mother’s petition was held on January 15, 2015. The mother

testified concerning her strong bond with the child and her maintenance of sobriety. She

indicated that the child calls her “Mommy,” comes to her for safety and comfort, and

sometimes throws tantrums in an effort to be permitted to stay with her. Ms. Gina Hicks, the

mother’s supervising officer and Mental Health Court Coordinator, testified that the mother

had completed the rehabilitation program successfully and noted distinct improvements in

the mother’s performance during her participation in the program the second time. The

mother’s probation officer, Terry Stuck, testified that the mother was compliant with all



       6
        The mother also married on June 6, 2014, and she now has another child, who is a
half-sibling to S.W.

                                             4

terms of her probation.



                The paternal grandmother also testified concerning her bond with the child, and

she explained that she has encouraged the mother’s role in the child’s life and had not tried

to assume the role of mother. The GAL testified that the child wished to remain living at his

grandparents’ home, with visits to his mother’s home.



                On April 1, 2015, the circuit court terminated the grandparents’ legal

guardianship and ordered the transfer of the child to the mother within ten days. The

grandparents and the GAL appeal that ruling, contending the lower court ruled in favor of

the mother based upon her right to parent her child, rather than in accordance with the

statutorily-required analysis of the child’s best interests. Specifically, the petitioners contend

that the circuit court (1) ignored the best interests of the child by modifying the dispositional

order and removing the child from the grandparents and (2) erred in modifying the

dispositional order two years after it was entered, depriving the child of permanency. The

petitioners further contend that if a transfer of custody to the mother is mandated, the circuit

court should provide a period of gradual transition, as well as continued association with the

grandparents.



                On April 16, 2015, this Court granted a stay of the transfer of custody. In


                                                5

updates to this Court, the mother reports that she, her husband, and her newborn child are

residing in the basement of her parents’ home and are in the process of renovating separate

living quarters for their own family at that location. Although the mother has been married

since June 6, 2014, she and her current husband were briefly separated prior to the most

recent October 2015 update on the status of the child. S.W., currently in the first grade, has

remained in the custody of the paternal grandparents since 2010, with the exception of the

four-month period in which custody was transferred back to the mother in 2012.



                                  II. Standard of Review

              This Court’s standard of review in a child abuse and neglect case was

addressed in In re Beth Ann B., 204 W.Va. 424, 513 S.E.2d 472 (1998). This Court

explained that we employ the two-pronged standard of review enunciated in the syllabus of

McCormick v. Allstate Insurance Company, 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.

We have also held that the following standard of review is applicable in custody decisions:

                      “‘The 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

                                              6

              ruling will be reversed on appeal.’ Syllabus point 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).

Syl. Pt. 2, In re Antonio R.A., 228 W.Va. 380, 719 S.E.2d 850 (2011). With these standards

as guidance, we address the issues raised in this case.



                                       III. Discussion

              The petitioners contend that the circuit court erred in ignoring the best interests

of the child in modifying the dispositional order and terminating the legal guardianship of

the grandparents. The mother’s petition requesting modification of the guardianship order

was premised upon West Virginia Code § 49-6-6 (2014). That statute clearly provides two

prerequisites to modification of disposition. First, there must be a showing of material

change in circumstances, and second, the alteration must serve the best interests of the child.

As applicable to these proceedings,7 West Virginia Code § 49-6-6(a) provides, in pertinent

part:

                     Upon motion of a child, a child’s parent or custodian or
              the department alleging a change of circumstances requiring a
              different disposition, the court shall conduct a hearing . . . and
              may modify a dispositional order if the court finds by clear and
              convincing evidence a material change in circumstances and that


        7
        West Virginia Code § 49-6-6 was recodified, effective May 17, 2015, as West
Virginia Code § 49-4-606 (2015), with minor modifications that do not affect the issues
currently before this Court.

                                               7

              such modification is in the child’s best interests. . . .



              In her memorandum to the circuit court in support of her petition, the mother

also cited West Virginia Code § 44-10-3 (2014). That statute also distinctly provides that a

request for a termination of legal guardianship must be supported by evidence of a material

change in circumstances and must serve the best interests of the child. Further, West

Virginia Code § 44-10-3(j) specifies that the burden of proof is upon the movant, in this case,

the child’s mother. The relevant portion of that statute provides as follows:

              (i) The court, the guardian or the minor may revoke or terminate

              the guardianship appointment when:

              . . . .

                       (4) A petition is filed by the guardian, the minor,
                       a parent or an interested person or upon the
                       motion of the court stating that the minor is no
                       longer in need of the assistance or protection of a
                       guardian due to changed circumstances and the
                       termination of the guardianship would be in the
                       minor’s best interest.

              (j) For 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.

W.Va. Code § 44-10-3(i)(4) and 44-10-3(j) (emphasis added). Additionally, Rule 46 of the

West Virginia Rules for Child Abuse and Neglect is consistent with the statutory

requirements and states that modification of a court order is permissible upon a showing of

a material change in circumstances and clear and convincing evidence that modification is

                                               8

in the best interests of the child.



                 Based upon the rule and the statutory mandates outlined above, the December

12, 2013, disposition in this case, providing legal guardianship to the paternal grandparents,

may be modified only if a circuit court finds both a change in circumstances and that

modification is in the child’s best interests. The petitioners argue that the record in this case

reveals insufficient evidence to support a conclusion that returning the child to the mother

is in his best interests. In presenting evidence on the best interests issue, the mother relied

primarily on her status as the child’s mother and the bond they had established. She did not

identify any other significant evidence indicating that a modification of the custodial

arrangements would be in the child’s best interests. She argues on appeal that the GAL’s

recommendations should not be accorded significant weight because the GAL failed to view

the interactions between the mother and the child. The mother also argues that the opinions

of the child’s school counselor, Mr. Paul Weigel, should be disregarded because Mr. Weigel

was treating the child for unrelated issues at school and did not observe the mother/child

relationship.8

       8
         The school issues prompting the therapy with Mr. Weigel involved an incident
involving the child’s behavior issues on the school bus and his inability to concentrate in his
Kindergarten class. Mr. Weigel recommended that the child should remain with the
grandparents due to the potential traumatic effects of separating him from his current
caretakers. In her most recent October 2015 update to this Court, the GAL explained that the
child is still engaged in therapy with Paul Weigel. Mr. Weigel informed the GAL that the
child has responded well to the consistency of rules implemented by the grandparents in their
                                                                                   (continued...)

                                               9

                  To the contrary, the grandparents, GAL, and DHHR adamantly contend that

the circuit court erred in modifying the dispositional order based upon such extremely limited

evidence that a modification would serve the best interests of the child. The DHHR asserts

that while the mother unquestionably underwent a substantial and positive change in her own

circumstances, there is a glaring absence of evidence that a modification of the disposition

is in the child’s best interests. The petitioners contend that the circuit court essentially

ignored the key element of the best interests of the child and elevated the rights of the mother

over those of the child.



                  Although this Court has observed that a circuit court has statutory authority to

modify a guardianship, evidence regarding each of the two elements required by the statute

must be presented. As explained above, both West Virginia Code § 49-6-6 and West

Virginia Code § 44-10-3 clearly identify the two requirements for alteration of custody in this

case. The significance of the best interests of the child cannot be overstated; it is a statutory

requirement and has been repeatedly and strenuously emphasized by this Court. In syllabus

point three of In re Katie S., 198 W.Va. 79, 479 S.E.2d 589 (1996), for instance, this Court

explained: “Although parents have substantial rights that must be protected, the primary goal


       8
           (...continued)
home. He also indicated that the child seem “bothered” about the most recent changes in the
mother’s living arrangements.

                                                 10

in cases involving abuse and neglect, as in all family law matters, must be the health and

welfare of the children.” See also Syl. Pt. 1, State ex rel. Cash v. Lively, 155 W.Va. 801, 187

S.E.2d 601 (1972) (“In a contest involving the custody of an infant the welfare of the child

is the polar star by which the discretion of the court will be guided.”) (internal citation

omitted); Syl. Pt. 5, Carter v. Carter, 196 W.Va. 239, 470 S.E.2d 193 (1996) (“In visitation

as well as custody matters, we have traditionally held paramount the best interests of the

child.”).



              This Court also addressed these requirements in the specific context of a

termination of guardianship in In re K.H., 235 W.Va. 254, 773 S.E.2d 20 (2015). In that

case, this Court recognized that an analysis of the best interests of the child is imperative in

matters involving modification of custody. This Court’s evaluation of the guardianship

issues in K.H. specified that the statutory scheme requires consideration of the change in

circumstances, as well as the best interests of the child. Id. at 258, 773 S.E.2d at 24; see also

In re Haylea G., 231 W.Va. 494, 745 S.E.2d 532 (2013) (examining grounds for termination

of legal guardianship).     The statutes and rule prohibit modification of an existing

guardianship in the absence of evidence that the child’s best interests will be served by the

modification and that there has been a change in circumstances.



              Upon review of the present case, this Court finds the evidentiary record


                                               11

insufficient to support a conclusion that S.W.’s best interests would be served by modifying

the disposition and terminating the paternal grandparents’ legal guardianship.9 Were this

simply a question of the safety and welfare of this child, this Court would be compelled to

conclude that the evidence indicates that both the mother and the paternal grandparents

would be stable and venerable caretakers for this child. But, that is not the question before

this Court. The statutes and rule prohibit a modification of the disposition in this case in the

absence of a showing that the child’s best interests would be served by altering the status

quo. We commend the mother on her extremely substantial success in conquering her

addiction issues, and we encourage her meaningful and extensive involvement in the life of

her son. At this juncture, however, there is insufficient evidence to indicate that an alteration

in the custody arrangements would be in the best interests of the child. He is entitled to a

sense of stability and permanency in his life. This Court has consistently emphasized the

importance of achievement of permanency to the greatest degree possible. See In re: Isaiah

A., 228 W.Va. 176, 718 S.E.2d 775 (2010); In re: Jonathan G., 198 W.Va. 716, 482 S.E.2d

893 (1996); State ex rel. Amy M. v. Kaufman, 196 W.Va. 251, 470 S.E.2d 205 (1996); In re




       9
         This Court observes that the abuse and neglect statute at issue here, West Virginia
Code § 49-6-6, requires clear and convincing evidence that the best interests of the child will
be served by the modification. Rule 46 of the West Virginia Rules for Child Abuse and
Neglect also requires clear and convincing evidence. The statute addressing a termination
of legal guardianship, however, requires only a preponderance of the evidence on the issue
of best interests. See W.Va. Code § 44-10-3. We find that the evidence on that issue in this
case is insufficient to meet either of those evidentiary standards.

                                               12

Brian D., 194 W.Va. 623, 461 S.E.2d 129 (1995).10



              As revealed in the record, the home provided for this young boy by his paternal

grandparents has been the only stable home he has known. The circuit court order did not

identify any factors indicating that termination of the guardianship would be in the child’s

best interests, basing the conclusion primarily upon the mother’s change in circumstances.

The petitioners emphasize the fact that the mother was asked to address the issue of how

removing the child from his grandparents would serve the child’s best interests. She

responded by saying that a child should be with his mother, but she did not offer evidence

on issues which might impact the best interests analysis. For instance, she was unaware of

issues such as whether the child would have to change schools if custody were to be

transferred. The record is devoid of sufficient evidence indicating that alteration of custody

would serve the child’s best interests at this time.



              Based upon the foregoing, we reverse the April 1, 2015, order of the circuit

court.11 On remand to the circuit court, the rights of the mother and maternal grandparents

       10
        See also Syl. Pt. 6, Holstein v. Holstein, 152 W.Va. 119, 160 S.E.2d 177 (1968) (“A
change of custody should not be based only upon speculation that such change will be
beneficial to the children.”).
       11
         The Petitioners presented two arguments regarding gradual transition and the right
to continued association, applicable only if this Court had affirmed the holding of the circuit
court. Based upon this Court’s reversal of the circuit court, we do not address those
                                                                                 (continued...)

                                              13

to visitation with the child should be specifically established. As in other child custody

matters, the visitation schedule will be subject to modification as circumstances warrant and

as the child advances in age.12



                  The visitation schedule should provide extensive contact between the child and

his mother and “should give due consideration to . . . work and home schedules and to the

parameters of the child’s daily school and home life, and should be developed in a manner

intended to foster the emotional adjustment” of the child “while not unduly disrupting the

lives of the parties or the [child].” Honaker v. Burnside, 182 W.Va. 448, 452, 388 S.E.2d

322, 325 (1989). This Court also explained in Honaker:

                  [u]ndoubtedly, ... [the child’s] best interests must be the primary
                  standard by which we determine [the child’s] rights to continued
                  contact with other significant figures in [the child’s] life.
                  Clearly, “these interests are interests of the child and not of the
                  parent. Visitation is, to be sure, a benefit to the adult who is
                  granted visitation rights with a child. But it is not the adult’s
                  benefit about which the courts are concerned. It is the benefit of
                  the child that is vital.”

Id. (footnotes and internal citations omitted).

                  No matter how artfully or deliberately the trial court judge draws

       11
            (...continued)
alternative arguments.
       12
         The mother’s continued recovery efforts will obviously have an impact on her rights
to visitation and the potential expansion of those rights. If she suffers a relapse into drug
abuse, the visitation schedule should be modified, within the discretion of the circuit court.


                                                  14

              the plan for these coming months, however, its success and
              indeed the chances for [the child’s] future happiness and
              emotional security will rely heavily on the efforts of these . . .
              [caretakers]. The work that lies ahead for . . . them is not
              without inconvenience and sacrifice on both sides. Their
              energies should not be directed even partially at any continued
              rancor at one another, but must be fully directed at developing
              compassion and understanding for one another, as well as
              showing love and sensitivity to the [child’s] feelings at a
              difficult time in all their lives.

Id. at 453, 388 S.E.2d at 326-27. Fortunately, this appears to be a situation in which all

parties are cooperating remarkably well to provide emotional security for the child, and we

encourage the continuation of this unity of effort for the benefit of the child.



                                       IV. Conclusion

              The April 1, 2015, order of the Circuit Court of Brooke County is reversed, and

this matter is remanded with directions for the entry of an order establishing visitation rights

for the mother and maternal grandparents.


                                                      Reversed and remanded with directions.




                                              15

