M.H. v. C.H. and B.H. ( 2019 )

IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
September 2019 Term
_______________
No. 18-0972 FILED
_______________ November 20, 2019
released at 3:00 p.m.
EDYTHE NASH GAISER, CLERK
M.H., SUPREME COURT OF APPEALS
OF WEST VIRGINIA
Petitioner
v.
C.H. and B.H.,
Respondents
____________________________________________________________
Appeal from the Circuit Court of Kanawha County
The Honorable Daniel W. Greear, Judge
Civil Action No. 17-FIG-183
VACATED AND REMANDED
____________________________________________________________
Submitted: November 6, 2019
Filed: November 20, 2019
Clinton W. Smith, Esq. Tim C. Carrico, Esq.
Law Office of Clinton Smith Carrico Law Offices LC
Charleston, West Virginia Charleston, West Virginia
Counsel for the Petitioner Counsel for the Respondents
JUSTICE ARMSTEAD delivered the Opinion of the Court.
SYLLABUS BY THE COURT
1. “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. Pt., Carr v. Hancock, 216 W. Va. 474, 607 S.E.2d 803
(2004).
2. “Rule 48a(a) of the West Virginia Rules of Practice and Procedure for
Family Court requires that if a family court presiding over a petition for infant guardianship
brought pursuant to W. Va. Code § 44-10-3 learns that the basis for the petition, in whole
or in part, is an allegation of child abuse and neglect as defined by W. Va. Code [§ 49-1-
201], then the family court is required to remove the petition to circuit court[.]” Syl. Pt. 3,
in part, In re Guardianship of K.W., 240 W. Va. 501, 813 S.E.2d 154 (2018).
i
Armstead, Justice:
Respondents, C.H. and B.H.,1 (the “Great-Grandparents”) are the great-
grandparents of H.L. (the “Child”) and the grandparents of Petitioner, M.H., who is H.L.’s
mother (the “Mother”). The Great-Grandparents filed a minor guardianship petition
regarding the Child in the Family Court of Kanawha County, alleging that the Child was
abused and neglected. Rule 13 of the West Virginia Rules of Practice and Procedure for
Minor Guardianship Proceedings provides that when a family court receives a minor
guardianship petition that is based on an allegation of child abuse and neglect, the family
court shall remove the case to circuit court. Instead of promptly removing the case to
circuit court, the family court held an emergency hearing and appointed the Great-
Grandparents as temporary guardians of the Child. The family court later held an
evidentiary hearing on the petition and entered a final order appointing the Great-
Grandparents as guardians of the Child. The Mother appealed to circuit court, and the
circuit court affirmed the family court’s order. The Mother then filed this appeal.
Based on the record before us, the arguments of the parties, and the
applicable law, we find that the family court erred by failing to immediately remove the
Great-Grandparents’ minor guardianship petition to the circuit court and that the family
court was without subject matter jurisdiction to take any other action on the petition.
1
Due to the sensitive facts of this case, we protect the identities of the parties involved by
using their initials rather than full names. See W. Va. R. App. P. 40. See e.g., In re K.H.,
235 W. Va. 254, 773 S.E.2d 20 (2015); Melinda H. v. William R., 230 W. Va. 731, 742
S.E.2d 419 (2013).
1
Accordingly, we vacate the family court’s orders and the circuit court’s order affirming the
family court and remand this case to the circuit court for further proceedings in accordance
with the West Virginia Rules of Practice and Procedure for Minor Guardianship
Proceedings.
I. FACTUAL AND PROCEDURAL BACKGROUND
The Child was born in December 2011. His biological father is J.L. (the
“Father”).2 In or about August or September 2016, when the Child was not yet five, the
Mother began working at a new job. According to the Mother, her job required her to
report to work at 7:00 a.m., so she arranged with B.H. (the “Great-Grandmother”) to
drop the Child off at the Great-Grandparents’ house to catch the school bus. When school
was over, the Great-Grandmother would meet the Child at the bus and babysit him at her
house until the Mother got off work. The Mother would then pick up the Child and take
him home for the night.
Sometime later, the Child began spending nights at the Great-Grandmother’s
house so the child could wake up later to meet the bus. According to the Mother, she
picked up the Child after work and brought him to her home. There she fed him supper,
helped him with his school work, and gave him a bath. She then returned him to the Great-
Grandmother’s house to sleep. The Mother reports that this arrangement lasted
“approximately a month.”
2
The Father is not a party to this appeal, and we note that he appears to have been served
by publication when the Great-Grandparents filed the minor guardianship petition that led
to this appeal.
2
In or about December 2016, the Child appears to have said something at
school that, according to the family court, led to “some sort of investigation” by Child
Protective Services (“CPS”).3 According to the Great-Grandmother, a CPS worker named
Vivian Fury came to her home and advised her that CPS would seek to take the Child if
the Child left the Great-Grandmother’s care.
The Mother says that the CPS worker never contacted her. She says that she
learned about the alleged CPS investigation, and the alleged threat to take the Child, from
the Great-Grandmother, who suggested that the Mother transfer custody of the Child to the
Great-Grandmother.
On December 16, 2016, the Mother and the Great-Grandmother signed a one-
sentence, notarized document giving the Great-Grandmother “temporary custody of” the
Child “until further notice.” According to the Mother, she signed the document because
she was “[f]earful that CPS would take the Child from her[.]”
The Child remained with the Great-Grandparents. In or about February
2017, the Mother contacted CPS about the status of the alleged investigation. She says she
was told “that there had been a case but that it had been ‘dropped[.]’” The Mother states
that she then asked the Great-Grandmother to return the Child, but the “[Great-
]Grandmother stalled and put her off.” According to the Great-Grandmother, and as found
3
There is also some indication that the Great-Grandmother called CPS in November 2016
to report a burn on the Child’s stomach and blisters on his feet.
3
by the family court, the Mother did not ask to have the Child back until the end of June
2017.
The Mother claims that she spoke to CPS again at the CPS office on or about
June 25, 2017, “and learned there was not an open case.” Late that evening, the Mother
texted the Great-Grandmother and asked her for the name and phone number of the CPS
worker the Great-Grandmother had spoken to. The Great-Grandmother indicated that she
did not know, and challenged the Mother to name the person the Mother had spoken to at
CPS. The Mother replied that the person to whom she had spoken at CPS said the matter
“was there but has been dropped for awhile [and] that I could have my child[.]”
The Great-Grandmother responded that she would “pack all his stuff[,]” but
in the texts that followed she made clear that she was uncomfortable with the Child
returning home to be babysat by the Mother’s boyfriend, A.H., (the “Boyfriend”) during
the summer months when the Child would be off from school.
The Great-Grandmother did not return the Child. Instead, on June 26, 2017,
she filed a domestic violence petition against the Boyfriend on behalf of the Child. The
parties have not provided us with a copy of the domestic violence petition, but the Mother
reports that it accused the Boyfriend of “‘whipp[ing]’ the child until he ‘pooped his
pants[]’” and of “lock[ing] the child in a dark room for punishment[.]”
The family court held a final hearing on the domestic violence petition on
July 5, 2017, and dismissed the petition. Undeterred, the Great-Grandparents filed—that
same day—a petition for minor guardianship pursuant to W. Va. Code § 44-10-3 (2013)
4
(appointment and termination of minor guardianships). As grounds for their petition, they
made various allegations of abuse and neglect.4
4
The Great-Grandmother appears to be the narrator of the following handwritten statement
set forth in (and attached to) the petition:
I have had [the Child] since Sept 2016. – In Nov. 2016
– [the Mother] had got him for a visit and left him with . . . [the
Boyfriend]. – NOT THE CHILDS [sic] FATHER. [The
Child] was playing on the deck and somehow the sliding glass
door got locked. He knocked and knocked and could NOt [sic]
get [the Boyfriend] to hear him – He knocked LOUDER and
[the Boyfriend] pulled him inside and whipped him and he
pooped himself. Either from whipping or so scared.
Also if [the Child] cried or fretted over anything he was
locked in a dark room.
[The Child] told this stuff to his school teachers + kids
+ CPS Got Involved. – Things were going thru – But I had a
worker from wood [sic] County “Vivian Fury” and she visited
my home + told me to try to get [the Mother] to give me
temporary custody of him till things were checked – She did
this and I tried and tried to get back with Vivian Fury to see
what else I needed to do. Paperwork was sent back to Kanawha
County – so just alot [sic] of confusion –
I have had [the Child] in my home since Sept – AND
After Dec 16 – steady. I have ALWAYS let his mother . . . see
him and do stuff with Him – Just caucious [sic] with [the
Boyfriend] –
[The Mother] said [the Boyfriend] has Anger issues, he
flies off easy when things happen.
She said He is NOW under a Doctors [sic] CARE For
This and on medication.
5
....
[The Child] told me he cannot make [the Boyfriend]
mad or hurt his feelings cause he gets Angry and Punches
things.
[The Child] said mommy told him Not to make [the
Boyfriend] mad cause he would leave. “[The Child’s] words”
Afer [sic] he cried over something once – “see what you did
you made [the Boyfriend] mad Now hE’s [sic] going to leave”
Stop it – see what you did”
[The Child] is petrified of a dark room with a door shut
– We are still working with him on that –
Also he had burns (one behind his ear + another on his
stomach.) I asked what caused them + he said he didn’t know
and he said mommy Doesnt know – But it had a bubble on it”
[The Mother] works M – F. And I am afraid For him to
be with [the Boyfriend] by himself.
[The Child] also showed Grandpa + I where [the
Boyfriend] + mommy Get their “weed.” . . .
I do not want to cause any trouble I just want [the Child]
in A safe place til these issues are settled and [the Boyfriend]
gets help for his Temper.
....
There have Not been anymore incedents [sic] since then
(Nov. 2016) Because he has been with me – at my house – and
I made sure [the Boyfriend] was NOT with him alone.
We understand that a worker from Wood County was assigned because Kanawha County
CPS was overwhelmed with work.
6
Also that same day, July 5, 2017, the family court held a hearing on the minor
guardianship petition. At 3:30 p.m., the family court judge signed an emergency order
appointing the Great-Grandparents as temporary guardians of the Child with “sole
decision-making authority.” The Mother was granted “supervised parenting time with [the
Child] as [sic] the discretion of the [Great-Grandparents].” The Boyfriend was to “have
no contact whatsoever with the minor child.”
The family court held a final hearing on the minor guardianship petition on
September 18, 2017, and entered a final order on October 10, 2017. The final order
summarized the parties’ testimony and determined, based on Overfield v. Collins, 199 W.
Va. 27, 483 S.E.2d 27 (1996),5 that the Mother bore the burden of proving “by . . . clear
and convincing evidence that she is fit and proper to have custody returned to her[.]”
According to the family court, she failed to carry her burden:
[The Mother] has not taken any interest or responsibility for
this child’s educational, medical or overall well-being for the
last year; has allowed . . . [the Boyfriend] to whip this child
until he used the bathroom on himself; continues to reside with
[the Boyfriend] even though he may have abused this child;
does not have a bedroom for this child and has only seen the
child 5 times since June 26, 2017 and for each of those times
for 1 hour or less.
5
See Syl. Pt. 2, in part, Overfield v. Collins, 199 W. Va. 27, 483 S.E.2d 27 (1996) (“When
a natural parent transfers temporary custody of their child to a third person and thereafter
seeks to regain custody of that child, the burden of proof shall be upon that parent to prove
by clear and convincing evidence that he or she is fit; thereafter the burden of proof shall
shift to the third party to prove by clear and convincing evidence that the child’s
environment should not be disturbed because to do so would constitute a significant
detriment to the child notwithstanding the natural parent’s assertion of a legal right to the
child.”)
7
The final order appointed the Great-Grandparents guardians of the Child’s
person with “sole decision-making authority[.]” The Mother was “granted regular
parenting time with [the Child,]” but the Boyfriend was not to be present.
The Mother appealed to circuit court. On appeal, she argued—among other
things—that W. Va. Code § 44-10-3 is unconstitutional because it (allegedly) allows a
guardian to be appointed without reference to the parent’s fitness. She found similar fault
with Overfield, contending that it “improperly and unconstitutionally saddled” her with the
burden of proving “her own fitness by clear and convincing evidence . . . regardless of
whether there was ever any prior finding” that she was unfit (emphasis removed). She did
not dispute the family court’s jurisdiction.
The circuit court heard argument on the appeal and later affirmed the family
court’s decision in an order entered on September 26, 2018. In affirming the family court,
the circuit court expressed concern that Overfield’s assignment of the burden of proof “runs
directly in contrast to the precedent supplied by our United States Supreme Court in Troxel
[v. Granville, 530 U.S. 57, 120 S. Ct. 2054, 147 L. Ed. 2d 49 (2000)].” However, the
circuit court felt compelled to follow Overfield, noting that it “has never been overruled[.]”
The Mother appeals from the circuit court’s September 26, 2018 order.
II. STANDARD OF REVIEW
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.
8
Syl. Pt., Carr v. Hancock, 216 W. Va. 474, 475, 607 S.E.2d 803 (2004).
III. ANALYSIS
On appeal, the Mother contends (a) that W. Va. Code § 44-10-3 is
unconstitutional; (b) that the family court, in applying Overfield, interfered with her
fundamental right to make custody decisions; (c) that the family court applied an incorrect
standard (and was clearly wrong) when it found that she had failed to prove her fitness;
and (d) that the family court granted the guardianship petition without making all of the
findings required by W. Va. Code § 44-10-3.
These are serious arguments which must be addressed,6 but an initial concern
before reaching this inquiry is the fundamental question of whether the family court had
jurisdiction to consider the minor guardianship petition. The Mother has not raised this
issue, but “[i]t is well established that the issue of subject matter jurisdiction can be raised
at any time, even sua sponte by this Court.” State ex rel. Universal Underwriters Ins. Co.
v. Wilson, 239 W. Va. 338, 345, 801 S.E.2d 216, 223 (2017).7 “Whether a court has subject
matter jurisdiction over an issue is a question of law[.]” Snider v. Snider, 209 W. Va. 771,
6
On remand, we urge the circuit court to give due consideration to the Mother’s
constitutional arguments about the balance between the holdings in Overfield and Troxel,
and to the standards set forth in W. Va. Code § 44-10-3.
7
See also Syl. Pt. 3, Lewis v. Municipality of Masontown, 241 W. Va. 166, 820 S.E.2d 612
(2018) (“‘Lack of jurisdiction may be raised for the first time in this court, when it appears
on the face of the bill and proceedings, and it may be taken notice of by this court on its
own motion.’ Syllabus Point 3, Charleston Apartments Corp. v. Appalachian Elec. Power
Co., 118 W. Va. 694, 192 S.E. 294 (1937).”)
9
777, 551 S.E.2d 693, 699 (2001). Because “jurisdictional issues are questions of law, our
review is de novo.” Wilson, 239 W. Va. at 343, 801 S.E.2d at 221 (citing Syl. Pt. 1, Chrystal
R.M. v. Charlie A.L., 194 W.Va. 138, 459 S.E.2d 415 (1995)).
A. Family Court Jurisdiction
The West Virginia Constitution provides that “[f]amily courts shall have
original jurisdiction in the areas of family law and related matters as may hereafter be
established by law.” W. Va. Const. art. VIII, § 16 (emphasis added). Pursuant to this
authority, the Legislature has established that “[t]he circuit court and family court have
concurrent jurisdiction to appoint a guardian for a minor.” W. Va. Code § 44-10-3(a).
Yet the West Virginia Constitution also provides that family courts “rule on
family law and related matters” “under the general supervisory control of the supreme court
of appeals[.]” W. Va. Const. art. VIII, § 16. Pursuant to this authority, this Court has
promulgated the West Virginia Rules of Practice and Procedure for Minor Guardianship
Proceedings, and the Legislature has commanded that “[a]ll proceedings [on a minor
guardianship petition] shall be conducted in accordance with” these rules. W. Va. Code §
44-10-3(c).
Rule 2 of the Rules of Practice and Procedure for Minor Guardianship
Proceedings establishes that “family court jurisdiction in minor guardianship proceedings
is subject to removal under the conditions set forth in Rule 13 of these rules[.]” W. Va. R.
Prac. & Pro. Min. Guard. 2(a)(2) (2015). See also In re Guardianship of K.W., 240 W. Va.
501, 508, 813 S.E.2d 154, 161 (2018) (“[T]he family court and circuit court have
10
concurrent jurisdiction in guardianship matters pursuant to Rule 2 of the Minor
Guardianship Rules, but, as explained in that rule, the family court’s jurisdiction is subject
to the removal provisions in Rule 13.”). Rule 13 provides that,
[i]f 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. 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.
W. Va. R. Prac. & Pro. Min. Guard. 13(a) (2015) (emphasis added). Pursuant to its
constitutional authority, this Court has also promulgated the West Virginia Rules of
Practice and Procedure for Family Court. Rule 48a of the Rules of Practice and Procedure
for Family Court provides for removal under the same circumstances and is virtually
identical to Rule 13.8
8
W. Va. R. Prac. & Pro. Fam. Ct. 48a(a) (2007):
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
11
Rules 13 and 48a describe occasions when removal is mandatory: “[T]he
family court . . . shall remove the case to the circuit court” and “the family court shall
continue the hearing . . . and remove the case to the circuit court[.]” Ids. (emphasis added).
“It is well established that the word ‘shall,’ in the absence of language . . . showing a
contrary intent . . . , should be afforded a mandatory connotation.” Syl. Pt. 1, Nelson v. W.
Va. Pub. Emps. Ins. Bd., 171 W. Va. 445, 300 S.E.2d 86 (1982). Accordingly, we have
held that
“Rule 48a(a) of the West Virginia Rules of Practice and
Procedure for Family Court requires that if a family court
presiding over a petition for infant guardianship brought
pursuant to W. Va. Code § 44-10-3 learns that the basis for the
petition, in whole or in part, is an allegation of child abuse and
neglect as defined by W. Va. Code [§ 49-1-201], then the
family court is required to remove the petition to circuit
court[.]”
Syl. Pt. 3, in part, In re Guardianship of K.W., 240 W. Va. 501, 813 S.E.2d 154 (alteration
in original) (emphasis added) (quoting Syl. Pt. 7, In re Abbigail Faye B., 222 W. Va. 466,
665 S.E.2d 300 (2008)).
remove the case to the circuit court for hearing to be conducted
within 10 days, for determination of all issues.
We note that Rule 48a’s reference to “W. Va. Code § 49-1-3” is now incorrect. W. Va.
Code § 49-1-3 was recodified in 2015 as W. Va. Code § 49-1-201. 2015 W. Va. Acts 506.
With this correction, Rule 13 and Rule 48a are, in all relevant respects, mirror images of
one other.
12
B. Child Abuse and Neglect
The question then becomes whether the family court was confronted with a
minor guardianship petition based “in whole or part” on “an allegation of child abuse and
neglect as defined in W. Va. Code § 49-1-201[.]” W. Va. R. Prac. & Pro. Min. Guard.
13(a). We find that it was.
Section 201 says that “‘Child abuse and neglect’ . . . means any act or
omission that creates an abused child or a neglected child as those terms are defined in this
section.” W. Va. Code § 49-1-201 (2018).9 According to Section 201, an “abused child”
is
[a] child whose health or welfare is being harmed or threatened
by . . . [a] parent . . . who . . . knowingly allows another person
to inflict . . . physical injury or mental or emotional injury, upon
the child . . . . Physical injury may include an injury to the
child as a result of excessive corporal punishment[.]
W. Va. Code § 49-1-201 (2017).10
The Great-Grandparents’ minor guardianship petition contains numerous
allegations (a) that the Mother allowed the Boyfriend “to inflict . . . physical injury or
9
We note that this language was added after the family court received the Great-
Grandparents’ minor guardianship petition. 2018 W. Va. Acts 390. This addition to
Section 201 (among other things) clarified that a child need not be the victim of both abuse
and neglect in order to qualify for protection under the law and does not change our
analysis. As noted below, the definition of “abused child” was the same (in all respects
relevant to this case) before and after the 2018 amendments.
10
This portion of Section 201 was amended in 2018, but the amendments were stylistic
and do not affect our analysis. 2018 W. Va. Acts 390.
13
mental or emotional injury” on the Child and (b) that the Child was threatened with more
abuse if he returned to his mother’s home.11 Accordingly, the family court had no
jurisdiction to act on the minor guardianship petition.
Indeed, under the circumstances of this case, the family court had no
jurisdiction to even appoint a temporary guardian for the child. The basis for the minor
guardianship petition was apparent on its face and was not something the family court
discovered during the July 5, 2017 hearing. Cf. W. Va. R. Prac. & Pro. Min. Guard. 13(a)
(“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[.]” (emphasis
added)). When the family court received the minor guardianship petition, the only thing
the family court could lawfully do was to “remove the case to the circuit court for hearing.”
Id.
C. On Remand
Because the family court had no jurisdiction to appoint the Great-
Grandparents as temporary or permanent guardians of the child, the family court’s July 6,
201712 emergency order and its October 10, 2017 final order are void and should have been
11
We note that the Great-Grandparents’ allegations are just that—allegations. Rules 13
and 48a do not authorize a family court to weigh the truthfulness of an allegation of child
abuse and neglect. Making the allegation is what triggers removal to circuit court.
12
Though the temporary order was signed on July 5, 2017, the docket sheet indicates that
the temporary order was filed on July 6, 2017. See W. Va. R. Civ. P. 58.
14
vacated by the circuit court. As we have said before, “[t]he urgency of addressing problems
regarding subject-matter jurisdiction cannot be understated because any decree made by a
court lacking jurisdiction is void.” Wilson, 239 W. Va. at 346, 801 S.E.2d at 224 (alteration
in original) (quoting State ex rel. TermNet Merch. Servs., Inc. v. Jordan, 217 W.Va. 696,
700, 619 S.E.2d 209, 213 (2005)). Therefore, we vacate (a) the family court’s July 6, 2017
emergency order, (b) the family court’s October 10, 2017 final order, and (c) the circuit
court’s September 26, 2018 order, and we remand this case to the circuit court for
immediate action on the Great-Grandparents’ minor guardianship petition in accordance
with Rule 13.
The Great-Grandparents’ allegations are serious, however, and we note that
the child has been in the Great-Grandparents’ care for approximately three years. We have
held that,
[i]n cases involving the abuse and neglect of children,
when it appears from this Court’s review of the record on
appeal that the health and welfare of a child may be at risk as a
result of the child’s custodial placement, regardless of whether
that placement is an issue raised in the appeal, this Court will
take such action as it deems appropriate and necessary to
protect that child.
Syl. Pt. 6, In re Timber M., 231 W. Va. 44, 743 S.E.2d 352 (2013). Accordingly, and
without prejudice to the Mother’s rights (as will be determined by the circuit court), we
direct that the Child remain in the Great-Grandparents’ care until the circuit court can
conduct a hearing on the minor guardianship petition, and we direct that this hearing be
convened within ten days of the entry of this opinion. See W. Va. Code § 44-10-3(e); W.
15
Va. R. Prac. & Pro. Min. Guard. 4 (2015); W. Va. R. Prac. & Pro. Min. Guard. 13. We
further direct that the circuit court, within ten days of the entry of this opinion, afford the
Mother substantial visitation with the Child unless (or until) the circuit court determines
that such visitation is not in the Child’s best interest.
IV. CONCLUSION
For the foregoing reasons, we conclude that the Family Court of Kanawha
County had no jurisdiction to act on the Great-Grandparents’ minor guardianship petition
and should have removed the petition to the Circuit Court of Kanawha County immediately
upon filing. Accordingly, we vacate (a) the family court’s July 6, 2017 emergency order,
(b) the family court’s October 10, 2017 final order, and (c) the circuit court’s September
26, 2018 order, and we remand this case to the circuit court for immediate action on the
Great-Grandparents’ minor guardianship petition in accordance with Rule 13. We further
direct that the Child remain in the Great-Grandparents’ care until the circuit court can
conduct a hearing on the minor guardianship petition, and we direct that this hearing be
convened within ten days of the entry of this opinion. Finally, we direct that the circuit
court, within ten days of the entry of this opinion, afford the Mother substantial visitation
with the Child unless (or until) the circuit court determines that such visitation is not in the
Child’s best interest. The Clerk is ordered to issue the mandate in this case forthwith.
Vacated and remanded.
16