In Re NA
711 S.E.2d 280
W. Va.2011Background
- Consolidated appeals from May 21, 2010 final disposition denying J.G. custody of M.P. and granting custody of four children to the maternal grandparents.
- DNA testing determined J.G. is M.P.'s biological father; DHHR and guardian ad litem supported awarding custody to the father on remand.
- Prior orders: grandmother and grandfather repeatedly violated visitation orders and had not completed a DHHR home study.
- Evidence showed the death of an infant in the grandparents' home and concerns about domestic violence and neglect by the grandparents.
- Circuit court found the maternal grandparents to be the children's psychological parents but granted a 90-day post-adjudicatory improvement period rather than immediate custody transfer.
- Record included drug history, domestic violence in presence of children, and a failed home study; the court did not address these issues in its May 21, 2010 order.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether father’s custody rights were properly denied | J.G. has a fundamental right to custody as the biological father with no abuse/neglect against him. | Appellee Grandparents argue father failed to support and care, but no such findings were proven. | Reversed: father entitled to custody; remand for custody determination. |
| Whether post-adjudicatory improvement period was appropriate for grandparents | Improvement period supported by psychological parenting status; best interests favor stability with siblings. | Grandparents should be granted continuity given emotional bonds and status as psychological parents. | Reversed: post-adjudicatory improvement period improper; remand for proper permanency planning. |
| Best interests and sibling visitation | Maintain continued sibling contact; frequent contact with siblings is in MP’s best interests. | Grandparents should have discretion to supervise child visitation; cohesion with siblings should be preserved. | Remand: circuit court must address sibling association and develop a plan consistent with best interests. |
Key Cases Cited
- In re Willis, 157 W. Va. 225 (1973) (natural parent's custodial right is fundamental unless unfitness shown)
- Honaker v. Burnside, 182 W. Va. 448 (1989) (parent's right not absolute when unfitness proven)
- In re Tiffany Marie S., 196 W. Va. 223 (1996) (clear erroneous standard for abuse/neglect findings)
- In re Brandon L.E., 183 W. Va. 113 (1990) (equitable considerations when non-parents as psychological parents)
- James M. v. Maynard, 185 W. Va. 648 (1991) (consideration of continued sibling contact in custody decisions)
- In re Clifford K., 217 W. Va. 625 (2005) (psychological parent status allows intervention but not automatic custody)
- State ex rel. West Virginia Dept. of Health and Human Resources v. Pancake, 224 W. Va. 39 (2009) (permanency planning and stability for children)
- In re Elizabeth F., 225 W. Va. 780 (2010) (grandparent preference not dispositive; best interests control)
- Kristopher O. v. Mazzone, 227 W. Va. 184 (2011) (grandparent preference evaluated within best-interests framework)