In Re S.W, 779 S.E.2d 577

Background

S.W., born 2009, was removed from mother K.M.’s custody in 2010 for drug-related neglect and placed with paternal grandparents; grandparents had physical custody (except a 4-month return to mother in 2012) and were granted legal guardianship in a December 12, 2013 dispositional order.
Mother repeatedly struggled with substance abuse, incarceration, then completed rehabilitation and Drug Court, married in 2014, and petitioned in Nov. 2014 to terminate the guardianship claiming a material change in circumstances.
A January 15, 2015 hearing presented evidence of the mother’s sobriety, completion of programs, her bond with S.W., testimony from her supervising officer and probation officer, and recommendations from the GAL and school counselor favoring the grandparents’ continuity.
On April 1, 2015 the circuit court terminated the grandparents’ legal guardianship and ordered return of S.W. to his mother; the grandparents and the GAL appealed and this Court stayed the transfer.
The Supreme Court of Appeals reversed, holding the record lacked sufficient evidence that modifying the guardianship would serve the child’s best interests despite the mother’s material change in circumstances; remanded to establish visitation rights for mother and maternal grandparents.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether modification/termination of guardianship requires proof of material change and best interests	K.M.: her sustained sobriety and rehabilitation constitute a material change; as mother she should regain custody	Grandparents/DHHR/GAL: mother showed change but record lacks evidence modification is in S.W.’s best interests	Modification requires both elements; court found material change but insufficient evidence best interests were served, so reversal of termination
Applicable burden/evidentiary standard for modification	K.M.: relied on statutes permitting termination; argued mother met standard	Petitioners: noted statutory standards require clear and convincing (under child abuse statute) or preponderance (under guardianship statute) on best interests and movant bears burden	Court applied statutory standards and held evidence insufficient under either standard to show modification was in child’s best interests
Role of parental rights versus child’s welfare in modification	K.M.: emphasized parental bond and role as mother	Petitioners: emphasized child’s need for stability, permanency, and professional recommendations favoring grandparents	Court reaffirmed that parental rights are important but child’s health, welfare, and best interests are paramount; cannot base change solely on parental status
Remedy on remand if guardianship not terminated	K.M.: sought immediate restoration of custody	Petitioners: sought continued guardianship or gradual transition and continued association	Court reversed termination and remanded with directions to enter order establishing visitation schedules for mother and maternal grandparents, preserving child’s stability

Key Cases Cited

McCormick v. Allstate Ins. Co., 197 W.Va. 415, 475 S.E.2d 507 (W. Va. 1996) (articulates two-prong appellate review: abuse of discretion for disposition and clearly erroneous for factual findings)
Funkhouser v. Funkhouser, 158 W.Va. 964, 216 S.E.2d 570 (W. Va. 1975) (custody discretion will not be disturbed absent abuse; erroneous legal application warrants reversal)
In re Abbigail Faye B., 222 W.Va. 466, 665 S.E.2d 300 (W. Va. 2008) (custody review standard reaffirmed)
In re Antonio R.A., 228 W.Va. 380, 719 S.E.2d 850 (W. Va. 2011) (custody discretion and review standards)
In re Katie S., 198 W.Va. 79, 479 S.E.2d 589 (W. Va. 1996) (best interests and welfare of children are primary in abuse/neglect matters)
State ex rel. Cash v. Lively, 155 W.Va. 801, 187 S.E.2d 601 (W. Va. 1972) (welfare of the child is guiding principle in custody contests)
Carter v. Carter, 196 W.Va. 239, 470 S.E.2d 193 (W. Va. 1996) (best interests paramount in visitation and custody)
In re K.H., 235 W.Va. 254, 773 S.E.2d 20 (W. Va. 2015) (statutory requirement to consider both change in circumstances and best interests in guardianship modification)
In re Haylea G., 231 W.Va. 494, 745 S.E.2d 532 (W. Va. 2013) (grounds for termination of guardianship examined)
Honaker v. Burnside, 182 W.Va. 448, 388 S.E.2d 322 (W. Va. 1989) (visitation schedules should foster emotional adjustment and consider child’s routines)