                             STATE OF WEST VIRGINIA

                           SUPREME COURT OF APPEALS


                                                                                    FILED
In Re: B.C., D.C., & B.C.
                                                                                 June 15, 2015
                                                                              RORY L. PERRY II, CLERK
No. 14-1174 (Braxton County 14-JA-13, 14-JA-14, & 14-JA-15)                 SUPREME COURT OF APPEALS
                                                                                OF WEST VIRGINIA



                              MEMORANDUM DECISION
        Petitioner J.C., by counsel David Karickhoff, appeals the Circuit Court of Braxton
County’s October 14, 2014, order denying her status as a psychological parent to B.C.-1, D.C.,
and B.C.-2 in the abuse and neglect proceedings below.1 The West Virginia Department of
Health and Human Resources (“DHHR”), by counsel Lee Niezgoda, filed its response in support
of the circuit court’s order. The guardian ad litem (“guardian”), Michael W. Asbury Jr., filed a
response on behalf of the children supporting the circuit court’s order. Petitioner filed a reply. On
appeal, petitioner alleges that the circuit court erred in denying her court-appointed counsel and
in finding she was not a psychological parent to the children.

        This Court has considered the parties’ briefs and the record on appeal. The facts and legal
arguments are adequately presented, and the decisional process would not be significantly aided
by oral argument. Upon consideration of the standard of review, the briefs, and the record
presented, the Court finds no substantial question of law and no prejudicial error. For these
reasons, a memorandum decision affirming the circuit court’s order is appropriate under Rule 21
of the Rules of Appellate Procedure.

        In May of 2014, the DHHR filed an abuse and neglect petition following an investigation
initiated by nine-year-old D.C.’s report to a teacher that his mother, P.C., grabbed him by the
neck and hit his head into a doorknob earlier that day. P.C. is the adoptive mother of B.C.-1 and
D.C. and is the legal guardian of B.C.-2 pursuant to an apparent voluntary transfer of custody by
B.C.-2’s father, who is an adult adoptive son of petitioner. J.C., petitioner herein, resided in
P.C.’s home and, therefore, was included in the petition as a custodian. During D.C.’s disclosure,
he was crying and upset and showed the teacher a knot on the back of his head that he said his
mother’s action caused. D.C. also produced a piece of the doorknob that dislodged during the
incident. In addition to this initial disclosure, both B.C.-1 and D.C. disclosed other acts of abuse
by their mother, including striking D.C. with belts, slapping B.C.-1 with the back of her hand and

       1
        Because two children share the same initials, the Court will refer to the children as B.C.­
1 and B.C.-2 throughout the memorandum decision. Further, 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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pulling that child’s hair, and forcing D.C. to shower with his clothes on in scalding hot water.
According to the children, the mother created a general atmosphere of fear in the home. The
children also disclosed acts of domestic violence by the mother toward petitioner, some of which
culminated in the mother striking walls with a baseball bat.

         The circuit court held a preliminary hearing in June of 2014. Petitioner appeared without
counsel and requested a continuance in order to submit an affidavit to request appointed counsel.
The circuit court granted this motion and rescheduled the preliminary hearing for June 12, 2014.
Ultimately, petitioner did not qualify for appointed counsel and remained unrepresented in the
proceedings below. That same month, the DHHR filed an amended petition which included
additional allegations that the mother used excessive and inappropriate forms of discipline on the
children, including using a baseball bat to intimidate the children, and placing D.C. in a tub of
cold water until he threw up cookies he had eaten without permission. The amended petition
further alleged that the mother hit the children with a spatula and a remote control, and exhibited
anger control issues by pulling down shelves and breaking things in the children’s room while
they were present. In addition, the petition alleged that the mother violated the circuit court’s
initial custody order by removing B.C.-2 from his foster home and, as a result, was charged with
felony child concealment and multiple misdemeanors.

         In July of 2014, the circuit court held an adjudicatory hearing, during which the mother
stipulated to certain allegations, including backhanding B.C.-1 and aggressively pulling B.C.-1’s
hair to the point the child had to pry herself away from the mother. The mother also stipulated to
using inappropriate discipline and demonstrating anger management issues by pulling down
shelves and breaking things in the children’s room. In regard to petitioner, the DHHR indicated
that, although there were no allegations of abuse or neglect against her, petitioner should remain
a party to the case in the event the family was reunified because she lived in the home. The
circuit court ordered petitioner to undergo a psychological evaluation prior to the dispositional
hearing. The evaluation was to be performed by psychologist Sandra Walls with the supervision
and assistance of Dr. Timothy Saar.

        The circuit court held dispositional hearings in August and September of 2014, during
which Dr. Saar testified, among other witnesses. According to her psychological evaluation,
petitioner was defensive in her responses to the tests performed and she denied witnessing or
experiencing any abusive or neglectful behavior by the mother. During the examination,
petitioner described herself as a “nanny” to the children. Ultimately, the circuit court found that
petitioner failed to adduce any evidence that she had served as the children’s psychological
parent, and, instead found that her role was primarily as a nanny. Consequently, the circuit court
found that petitioner had no legal right to any of the children at issue. Petitioner appeals from the
dispositional order.

       The 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

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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).

        To begin, we find no error in the circuit court’s decision not to appoint petitioner counsel
for these proceedings. We have previously held that

                “[c]ircuit courts should appoint counsel for parents and custodians
       required to be named as respondents in abuse and neglect proceedings incident to
       the filing of each abuse and neglect petition. Upon the appearance of such persons
       before the court, evidence should be promptly taken, by affidavit and otherwise,
       to ascertain whether the parties for whom counsel has been appointed are or are
       not able to pay for counsel. In those cases in which the evidence rebuts the
       presumption of inability to pay as to one or more of the parents or custodians, the
       appointment of counsel for any such party should be promptly terminated upon
       the substitution of other counsel or the knowing, intelligent waiver of the right to
       counsel. Counsel appointed in these circumstances are entitled to compensation as
       permitted by law.” Syllabus point 8, In the Matter of Lindsey C., 196 W.Va. 395,
       473 S.E.2d 110 (1995) (emphasis in original).

Syl. Pt. 6, In re Emily G., 224 W.Va. 390, 686 S.E.2d 41 (2009). While it is true that the circuit
court did not immediately appoint counsel incident to the petition’s filing despite petitioner being
a named party custodian, we cannot find reversible error because petitioner did not qualify for
appointed counsel. Petitioner submitted a financial affidavit below in order to obtain appointed
counsel, but she specifically admitted that her income precluded appointed representation in her
psychological evaluation. As such, any appointed counsel for petitioner would have been
relieved once petitioner submitted her affidavit prior to the continued preliminary hearing.

       In discussing procedural errors in abuse and neglect matters, we have stated as follows:

               “[w]here it appears from the record that the process established by the
       Rules of Procedure for Child Abuse and Neglect Proceedings and related statutes
       for the disposition of cases involving children [alleged] to be abused or neglected
       has been substantially disregarded or frustrated, the resulting order . . . will be
       vacated and the case remanded for compliance with that process and entry of an
       appropriate . . . order.” Syllabus point 5, in part, In re Edward B., 210 W.Va. 621,
       558 S.E.2d 620 (2001).



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Syl. Pt. 3, In re Emily G., 224 W.Va. 390, 686 S.E.2d 41 (2009). Based on the specific facts of
this case, we cannot find reversible error in the circuit court’s failure to appoint counsel for
petitioner. As outlined above, any counsel appointed for petitioner incident to the petition’s filing
would have been relieved once petitioner submitted her financial affidavit establishing that she
was not entitled to appointed counsel. At that point, petitioner would have been faced with the
same choice she made below; either retain counsel herself or proceed pro se. As such, we cannot
find that the process established for abuse and neglect proceedings was substantially disregarded
or frustrated such that reversal of the circuit court’s order is warranted.

        Further, we find no error in the circuit court ruling that petitioner is not a psychological
parent to the children at issue. We have defined a psychological parent as follows:

               A psychological parent is a person who, on a continuing day-to-day basis,
       through interaction, companionship, interplay, and mutuality, fulfills a child’s
       psychological and physical needs for a parent and provides for the child’s
       emotional and financial support. The psychological parent may be a biological,
       adoptive, or foster parent, or any other person. The resulting relationship between
       the psychological parent and the child must be of substantial, not temporary,
       duration and must have begun with the consent and encouragement of the child’s
       legal parent or guardian. To the extent that this holding is inconsistent with our
       prior decision of In re Brandon L.E., 183 W.Va. 113, 394 S.E.2d 515 (1990), that
       case is expressly modified.

Syl. Pt. 3, In re Clifford K., 217 W.Va. 625, 619 S.E.2d 138 (2005). In the instant matter, the
circuit court found that petitioner failed to meet this burden in that she “failed to adduce any
evidence that she is . . . a psychological parent of the . . . children.” The record shows that the
only evidence presented below was that petitioner, while residing in the home, merely filled the
role of a nanny to the children. In fact, both petitioner and the mother specifically referred to
petitioner as the children’s nanny. As such, we find no error.

      For the foregoing reasons, we find no error in the decision of the circuit court and its
October 14, 2014, order is hereby affirmed.
                                                                                    Affirmed.

ISSUED: June 15, 2015

CONCURRED IN BY:

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

NOT PARTICIPATING:

Justice Robin Jean Davis

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