In re Grandparent Visitation of: Siddy W. v. Gary and Darlene T. ( 2018 )

STATE OF WEST VIRGINIA
SUPREME COURT OF APPEALS
In re Grandparent Visitation of: FILED
Siddy W., June 15, 2018
EDYTHE NASH GAISER, CLERK
Petitioner Below, Petitioner SUPREME COURT OF APPEALS
OF WEST VIRGINIA
vs.) No. 17-0858 (Wayne County 17-D-071)
Gary T. and Darlene T.,
Respondents Below, Respondents
MEMORANDUM DECISION
Pro se petitioner and paternal grandmother Siddy W. appeals the Circuit Court of Wayne
County’s September 5, 2017, order denying her appeal from the Family Court of Wayne
County’s order transferring her petition for grandparent visitation to the Family Court of Cabell
County.1 Pro se respondents and maternal grandparents Gary T. and Darlene T. filed a response
in support of the circuit court’s order. Petitioner filed a reply. On appeal, petitioner argues that
the family and circuit courts erred in applying the statutes governing grandparent visitation by
transferring the matter to the Family Court of Cabell County for consolidation with an ongoing
guardianship proceeding. She further alleges error in the family and circuit courts’ application of
several of the West Virginia Rules of Practice and Procedure for Family Court.
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.
As early as April of 2015, the Family Court of Cabell County exercised jurisdiction over
the subject children at issue in this appeal by virtue of a domestic violence petition filed by the
children’s mother against their father. In re Guardianship of K.W., -- W.Va. --, 813 S.E.2d 154,
1
Consistent with our long-standing practice in cases with sensitive facts, we use initials
where necessary to protect the identities of those involved in this case. See In re K.H., 235 W.Va.
254, 773 S.E.2d 20 (2015); Melinda H. v. William R. II, 230 W.Va. 731, 742 S.E.2d 419 (2013);
State v. Brandon B., 218 W.Va. 324, 624 S.E.2d 761 (2005); State v. Edward Charles L., 183
W.Va. 641, 398 S.E.2d 123 (1990).
1
156 (2018). Attendant to that petition, the Family Court of Cabell County entered a domestic
violence protective order in November of 2015, in which it set forth certain visitation terms
regarding the children and their father. Id. at --, 813 S.E.2d at 157. Upon appointment, the
guardian ad litem for the children in the Cabell County matter, Arik Paraschos, met with the
mother, who “provided a lengthy account, in writing, of the extensive and ongoing physical and
emotional abuse in their home.” Id. Eventually, additional proceedings in family court
commenced, including divorce proceedings between the parents and a petition for guardianship
by the maternal grandparents, respondents herein. Id. at --, 813 S.E.2d at 158. Throughout those
proceedings, Mr. Paraschos remained the children’s guardian. Id. As these proceedings relate to
the case before the Court, it is important to note that they continued, either in the Family Court of
Cabell County or on appeal, at the time petitioner herein filed her petition for grandparent
visitation with the subject children.2
In March of 2017, petitioner filed a petition for grandparent visitation with the children in
the Family Court of Wayne County. Thereafter, respondents filed a motion to dismiss the
petition and a motion to change venue of the matter in order to consolidate it with the ongoing
guardianship proceeding in the Family Court of Cabell County. In the following months, the
various parties filed motions related to dismissal and transfer of the grandparent visitation matter
at issue.3
In April of 2017, the family court held a hearing on the petition for grandparent
visitation. Ultimately, the family court found that the matter would more properly be heard in the
Family Court of Cabell County, due to the fact that the family court there had an extended
history with the children and respondents by virtue of the guardianship proceeding and related
matters that occurred there. Specifically, the family court found that proceeding in Cabell County
was in the children’s best interests, given the Family Court of Cabell County’s familiarity with
the issues. As such, the family court transferred the matter to the Family Court of Cabell County
and referred the matter with the civil action number pending in that court at the time. The family
court eventually instructed the guardian to prepare the final order, to which petitioner later filed
objections before it was entered on June 8, 2017.4
In June of 2017, petitioner filed an appeal of the family court’s order to the circuit court.
Ultimately, the circuit court denied the appeal, in part, upon finding that transfer to the Family
2
For a more full recitation of the facts as they relate to the various proceedings in the
Family Court of Cabell County concerning the subject children at issue in this appeal, see this
Court’s opinion in Guardianship of K.W., -- W.Va. --, 813 S.E.2d 154.
3
The record shows that petitioner filed a motion for appointment of a guardian ad litem
for the children. It does not appear that this motion was ever ruled on. However, the record
further shows that Mr. Paraschos appeared in these proceedings to represent the children therein.
4
Following the entry of the family court’s final order, petitioner filed a motion to stay the
order. The record does not reflect a ruling on this motion.
2
Court of Cabell County was in the children’s best interests. It is from this order that petitioner
appeals.
We have previously held as follows:
“In reviewing a final order entered by a circuit court judge upon a review
of, or upon a refusal to review, a final order of a family court judge, we review the
findings of fact made by the family court judge under the clearly erroneous
standard, and the application of law to the facts under an abuse of discretion
standard. We review questions of law de novo.” Syl., Carr v. Hancock, 216
W.Va. 474, 607 S.E.2d 803 (2004).
Syl. Pt. 1, Zickefoose v. Zickefoose, 228 W.Va. 708, 724 S.E.2d 312 (2012). Further, we have
established the following:
A moot case generally cannot properly be considered on its merits. “Moot
questions or abstract propositions, the decision of which would avail nothing in
the determination of controverted rights of persons or of property, are not
properly cognizable by a court.” Syl. pt. 1, State ex rel. Lilly v. Carter, 63 W.Va.
684, 60 S.E. 873 (1908). Accord Syl. pt. 1, Tynes v. Shore, 117 W.Va. 355, 185
S.E. 845 (1936) (“Courts will not ordinarily decide a moot question.”).
State ex rel. Bluestone Coal Corp v. Mazzone, 226 W.Va. 148, 156, 697 S.E.2d 740, 748 (2010).
Upon our review, we find that all of petitioner’s assignments of error regarding the rulings of the
family court and circuit court in her petition for appeal are moot, in light of the fact that the
Circuit Court of Cabell County now has jurisdiction over the subject children.
On appeal, petitioner essentially seeks a reversal of the circuit court’s order denying her
appeal from the family court and a remand of the matter to the Family Court of Wayne County
for a ruling on the merits of her petition for visitation. However, such relief would be
inappropriate, given our recent opinion regarding the children. In Guardianship of K.W., --
W.Va. --, 813 S.E.2d 154, this Court found that prior to May of 2016, the Family Court of Cabell
County removed respondents’ guardianship matter to the Circuit Court of Cabell County upon
allegations of abuse and neglect in accordance with Rule 13 of the Rules of Practice and
Procedure for Minor Guardianship Proceedings5 and Rule 48a of the Rules of Practice and
5
Rule 13 states, in relevant part, as follows:
(a) Removal by Family Court to Circuit Court of Minor Guardianship Cases
Involving Child Abuse and Neglect. — If a family court learns that the basis,
in whole or part, of a petition for minor guardianship brought pursuant to W.
Va. Code § 44-10-3, is an allegation of child abuse and neglect as defined in
W. Va. Code § 49-1-201, then the family court before whom the guardianship
proceeding is pending shall remove the case to the circuit court for hearing.
(continued . . . )
3
Procedure for Family Court.6 Guardianship of K.W., -- W.Va. --, 813 S.E.2d at 158. Ultimately,
the circuit court remanded the matter to the family court. Id. at --, 813 S.E.2d at 159. On appeal,
this Court determined that remand to the family court was improper. Id. at --, 813 S.E.2d at 163.
Should the family court learn of such allegations of child abuse and neglect
during the hearing, then the family court shall continue the hearing, subject to
an appropriate temporary guardianship order, and remove the case to the
circuit court for hearing to be conducted within 10 days, for determination of
all issues. Once removed, the case (or any portion) shall not be remanded to
family court. At the circuit court hearing, allegations of child abuse and
neglect must be proven by clear and convincing evidence. Immediately upon
removal, the circuit clerk shall forthwith send the removal notice to the circuit
court. Upon receipt of the removal notice, the circuit court shall forthwith
cause notice to be served in accordance with W. Va. Code § 44-10-3 and to
the Department of Health and Human Resources who shall be served with
notice of the petition, including a copy of the petition, and of the final hearing
to be conducted before the circuit court. Such notice to the Department of
Health and Human Resources shall constitute a report by the family and
circuit courts pursuant to W. Va. Code § 49-2-803.
6
Rule 48a states, in relevant part, as follows:
(a) Removal by family court to circuit court of infant guardianship cases
involving child abuse and neglect. — If a family court learns that the basis, in
whole or part, of a petition for infant guardianship brought pursuant to W.Va.
Code §§ 44-10-3, is an allegation of child abuse and neglect as defined in
W.Va. Code §§ 49-1-3, then the family court before whom the guardianship
proceeding is pending shall remove the case to the circuit court for hearing.
Should the family court learn of such allegations of child abuse and neglect
during the hearing, then the family court shall continue the hearing, subject to
an appropriate temporary guardianship order, and remove the case to the
circuit court for hearing to be conducted within 10 days, for determination of
all issues. Once removed, the case (or any portion) shall not be remanded to
family court. At the circuit court hearing, allegations of child abuse and
neglect must be proven by clear and convincing evidence. Immediately upon
removal, the circuit clerk shall forthwith send the removal notice to the circuit
court. Upon receipt of the removal notice, the circuit court shall forthwith
cause notice to be served in accordance with W. Va. Code §§ 44-10-3 and to
the Department of Health and Human Resources who shall be served with
notice of the petition, including a copy of the petition, and of the final hearing
to be conducted before the circuit court. Such notice to the Department of
Health and Human Resources shall constitute a report by the family and
circuit courts pursuant to W. Va. Code §§ 49-6A-2.
4
In remanding the matter back to the Circuit Court of Cabell County, we specifically directed that
“the circuit court is instructed to provide DHHR leave to file an abuse and neglect petition
against the parents, if still judged appropriate, and to proceed according to Chapter 49 of the
West Virginia Code so as to allow for [Child Protective Services] involvement and development
of a permanency plan for these children.” Id. at --, 813 S.E.2d at 164.
As petitioner correctly notes, “[t]he Grandparent Visitation Act, W.Va.Code § 48-10-101
et seq. [2001], is the exclusive means through which a grandparent may seek visitation with a
grandchild.” Syl. Pt. 1, In re Hunter H., 231 W.Va. 118, 744 S.E.2d 228 (2013). Under that Act,
“[a] grandparent of a child residing in this state may, by motion or petition, make application to
the circuit court or family court of the county in which that child resides for an order granting
visitation with his or her grandchild.” W.Va. Code § 48-10-301. However, we find under the
limited circumstances of this case that Rule 6 of the Rules of Procedure for Child Abuse and
Neglect Proceedings (“Rule 6”) controls in this instance, given the Family Court of Cabell
County’s transfer of the matter to the circuit court upon allegations of abuse and neglect and our
recent remand to that court for the purpose of granting leave to file an abuse and neglect petition,
if warranted.
Rule 6 states, in relevant part, as follows:
Each child abuse and neglect proceeding shall be maintained on the circuit court’s
docket until permanent placement of the child has been achieved. The court
retains exclusive jurisdiction over placement of the child while the case is
pending, as well as over any subsequent requests for modification, including, but
not limited to, changes in permanent placement or visitation. . . .7
Because this Court previously found that the Circuit Court of Cabell County had jurisdiction to
proceed on the matters related to the children herein, and because our remand to the circuit court
contemplated further proceedings under Chapter 49 of the West Virginia Code, if warranted, we
find that Rule 6 grants the Circuit Court of Cabell County continuing jurisdiction over the
children. Accordingly, the question of whether the courts of Wayne County erred in transferring
the petition seeking visitation with the children is moot. We further note that consolidating any
matters involving issues of visitation with, or custody of, the subject children not only serves the
interests of judicial economy, but also furthers the children’s best interests by having all such
decisions made by the court that is most familiar with all the attendant circumstances. See
Kristopher O. v. Mazzone, 227 W.Va. 184, 192, 706 S.E.2d 381, 389 (2011) (“[T]he best
interests of the child is the polar star by which decisions must be made which affect children.”).
For the foregoing reasons, we affirm.
7
Rule 6 goes on to list two scenarios in which the circuit court would not retain
jurisdiction over children that were the subject of abuse and neglect proceedings, neither of
which are applicable herein.
5
Affirmed.
ISSUED: June 15, 2018
CONCURRED IN BY:
Chief Justice Margaret L. Workman
Justice Robin Jean Davis
Justice Menis E. Ketchum
Justice Elizabeth D. Walker
Justice Allen H. Loughry II, suspended and therefore not participating.
6