In re K.R.
229 W. Va. 733
| W. Va. | 2012Background
- Kelly R. appeals a circuit court order granting Linda J. permanent guardianship of Kelly’s two children, P.R. and K.R., after a West Virginia guardianship transfer; the petition arose from alleged abuse/neglect and unstable home conditions across Mississippi, Louisiana, and West Virginia.
- Historically, the children lived with Kelly and James R. in Mississippi; guardianship petitions were filed in Wayne County, WV, with Mississippi CPS initially finding no abuse/neglect and returning the children to Kelly.
- The children spent summers with Linda J. in Wayne County; in August 2010 they were moved to Louisiana at Kelly’s request, and Linda intermittently supervised them in WV.
- In October 2010, James and Kelly transferred temporary guardianship to Sally S. and returned the children to Wayne County; Kelly planned to move to West Virginia in 2011 for schooling and reunification.
- After James’ death in January 2011, Kelly returned to WV and allegedly revoked the mandate; Kelly attempted to take the children to Louisiana but was prevented by the R. family, leading Linda to file an emergency guardianship petition on Feb. 18, 2011.
- The family court transferred the matter to circuit court, which ultimately awarded Linda permanent guardianship, a ruling this Court reversed on jurisdictional and unfitness grounds and remanded for expedited jurisdictional determination and transitional custody planning.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether WV had proper jurisdiction under the UCCJEA for guardianship | Kelly contends home state/proper bases did not lie in WV | Linda asserts cumulative WV presence justifies jurisdiction | Jurisdiction improper; remand for proper analysis and possible transfer |
| Whether the circuit court erred by divesting Kelly of custody without unfitness finding | Guardianship cannot be transferred without clear unfitness evidence | Best interests and stability justify guardianship transfer | Error to grant guardianship without unfitness finding; remand with proper evidentiary process |
| Whether abuse/neglect evidence from out-of-state could be considered | Out-of-state abuse/neglect evidence must be heard and weighed | Court can proceed on best interests without out-of-state evidence | Remand directed to hear out-of-state abuse/neglect evidence and determine jurisdiction accordingly |
Key Cases Cited
- In re Abbigail Faye B., 222 W.Va. 466, 665 S.E.2d 300 (2008) (guardianship procedures; abuse/neglect considerations; best interests trump without unfitness)
- Antonio R.A., 228 W.Va. 380, 719 S.E.2d 850 (2011) (parental rights; guardianship transfer; unfitness standard; transition considerations)
- Rosen v. Celebrezze, 222 W.Va. 402, 664 S.E.2d 743 (2008) (home state and jurisdictional framework under UCCJEA)
- Hammack v. Wise, 158 W.Va. 343, 211 S.E.2d 118 (1975) (custody considerations; best interests not sole basis to deny parental rights)
- In re Willis, 157 W.Va. 225, 207 S.E.2d 129 (1973) (parental rights are fundamental; unfitness required to terminate custody)