IN RE J.C.
No. 18-0355
IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
May 31, 2019
IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
JANUARY 2019 TERM
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No. 18-0355
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IN RE J.C.
____________________________________________________________________
Appeal from the Circuit Court of Mercer County
Case No. 17-JA-211
REVERSED AND REMANDED
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Submitted: May 14, 2019
Filed: May 31, 2019
Mercer County Public Defender Attorney General
Princeton, West Virginia Brandolyn N. Felton-Ernest, Esq.
Attorney for Petitioner A.B.-C. Assistant Attorney General
Attorneys for Respondent
Andrew T. Waight, Esq. Department of Health and Human
Childlaw Services, Inc. Resources
Princeton, West Virginia
Shannon L. Baldwin, Esq.
Baldwin Law Office PLLC
Bluefield, West Virginia
Guardians ad Litem for J.C.
JUSTICE HUTCHISON delivered the Opinion of the Court.
FILED
May 31, 2019
released at 3:00 p.m.
EDYTHE NASH GAISER, CLERK
SUPREME COURT OF APPEALS
OF WEST VIRGINIA
SYLLABUS BY THE COURT
- “Subject matter jurisdiction under the Uniform Child Custody Jurisdiction and Enforcement Act, West Virginia Code § 48–20–101, et seq., cannot be conferred by consent, waiver, or estoppel.” Syllabus point 5, Rosen v. Rosen, 222 W. Va. 402, 664 S.E.2d 743 (2008).
- “The Uniform Child Custody Jurisdiction and Enforcement Act, West Virginia Code § 48–20–101, et seq., is a jurisdictional statute, and the requirements of the statute must be met for a court to have the power to adjudicate child custody disputes.” Syllabus point 6, Id.
- “Pursuant to West Virginia Code § 48–20–102(g) (2001), ‘home state’ means the state in which the child lived with a parent or a person acting as a parent for at least six consecutive months immediately before the commencement of a child custody proceeding. In the case of a child less than six months of age, the term means the state in which the child lived from birth with any of the persons mentioned. A period of temporary absence of any of the mentioned persons is part of the period.” Syllabus point 3, Id.
4. One of the requirements under
Hutchison, Justice:
This appeal was brought by A.B.-C. (hereinafter “Petitioner”) from the May 31, 2018, order of the Circuit Court of Mercer County that terminated her parental rights to her infant son, J.C.1 The controlling issue on appeal is whether the circuit court had subject matter jurisdiction to terminate Petitiоner’s parental rights. Upon careful review of the briefs, the appendix record, the arguments of the parties, and the applicable legal authority, we reverse and remand.
I.
FACTUAL AND PROCEDURAL HISTORY
During the early evening hours of August 25, 2017, the Petitioner was observed walking around for about an hour, with her son J.C., near an Advanced Auto store in Princeton, West Virginia.2 An employee at the store contacted the local police to investigate Petitioner’s behavior. After the police arrived they contacted the Respondent, West Virginia Department of Health and Human Resources (hereinafter “DHHR”), and requested a child protective service worker be dispatched to investigate the child’s safety.
At around 8:30 p.m. a DHHR child protective service worker arrived at the store.3 During its investigation, DHHR learned that the Petitioner was from Richlands, Virginia. The Petitioner informed DHHR that she was hitchhiking her way to Taylorsville, North Carolina, where she hoped to live with a relative and find work.4 DHHR learned that the Petitioner was married to a man named O.C., an alleged illegal immigrant from Mexico, who resided in Richlands. It was also reported to DHHR that Petitioner left home because of a domestic dispute she had with O.C. and her mother.
At some point during the questioning by DHHR, Petitioner was taken to the Princeton police station to continue the investigation. DHHR was able to contact O.C. by phone. O.C. indicated that he did not have a vehicle, but that he would try to find a way to come to Prinсeton. O.C. was able to get the Petitioner’s uncle to drive him to the police station in Princeton. Upon his arrival, O.C. informed DHHR that Petitioner had mental health issues and needed to go to a hospital. DHHR was able to learn from O.C. that Virginia authorities had previously provided child protective services to O.C. and
Petitioner.5 DHHR contacted child protective services in Virginia, but was informed that information regarding Petitioner and O.C. could not be disclosed. DHHR was told by Virginia child protective services that any family incident occurring in West Virginia had to be handled in West Virginia by DHHR.
At the conclusion of the interview with Petitioner and O.C., DHHR decided not to
Mother stated that she was leaving Richlands to go to NC, but was found in Princeton, WV with no ride or place to stay with the baby. Mother told different stories, but one was that she left because of a domestic between the child’s father & her mother. No protective caregiver.
After DHHR took custody of J.C., the Petitioner and O.C. left West Virginia.6
On August 28, 2017, DHHR filed a child abuse and neglect petition against the Petitioner and O.C. The basis for the petition was DHHR’s concerns about Petitioner’s
mental health and ability to care for J.C., a prior child protective service involvement in Virginia, and O.C.’s alleged alcohol use and his failure to protect J.C.
On September 11, 2017, the circuit court hеld a preliminary hearing to determine whether there was probable cause that J.C. was abused or neglected and in imminent danger. The Petitioner and O.C. were at the hearing but did not testify.7 DHHR informed the circuit court that a family member of the Petitioner, an aunt named T.C., was given temporary custody of J.C. by the state of Virginia, but that the custody order had expired.8 T.C. was also designated as the payee for social security benefits that Petitioner received. DHHR also informed the court that T.C. and other family members were trying to have the Petitioner committed to a group home because of her mental health issues. The court was further informed that when the Petitioner reached North Carolina, after J.C. was taken from her, she lived in а shelter for several days before she was permitted to stay at the home of one of her cousins. At the conclusion of the preliminary hearing, the circuit court found probable cause for the abuse and neglect petition to proceed to an adjudicatory hearing.
On October 2, 2017, an adjudicatory hearing was held. Neither the Petitioner nor O.C. appeared at the hearing.9 No witnesses were called at the hearing. Instead, the circuit court incorporated the evidence taken at the preliminary hearing. Based upon the preliminary hearing evidence, the circuit court found that the child was neglected. Further, the court held that because of the failure of Petitioner and O.C. to аttend the hearing, the child was deemed abandoned as an aggravating factor.10
A dispositional hearing was held on January 8, 2018. The Petitioner appeared at the hearing, but O.C. did not.11 No witness testimony was taken during the hearing. However, the circuit court was informed that arrangements had been made for Petitioner to have a psychological evaluation. It was also revealed that efforts were being made to place J.C. with a relative in North Carolina if parental rights were terminated. The court was also informed that Petitioner was pregnant. Petitioner’s counsel requested an improvement period. The circuit court held that it would only consider an improvement period for Petitioner if she “consеnt[ed] to jurisdiction for the child she’s carrying right
now.” At the request of counsel for O.C., the circuit court continued the dispositional hearing so that arrangements could be made for O.C. to be present.
The dispositional hearing reconvened again on April 23, 2018. Neither the Petitioner nor O.C. appeared at the hearing. Counsel for Petitioner informed the circuit court that an active child protective services case was pending in a court in North Carolina, regarding the child Petitioner gave birth to in that state.14 Petitioner’s counsel requested the circuit court contact the North Carolina court to discuss relinquishing jurisdiction of
the West Virginia case to the court in North Carolina. DHHR informed the circuit court that North Carolina’s child protective services believed that it should rеtain jurisdiction of the child born there, and that the circuit court should keep jurisdiction of J.C. The circuit court ruled that it would try to contact the North Carolina judge to determine whether that judge wanted to take jurisdiction over J.C. The hearing was continued until May 21, 2018.
On May 21, 2018, the dispositional hearing once again reconvened. The Petitioner and O.C. did not appear at the hearing.15 At the outset of the hearing the circuit court informed the attorneys in the case that he called the North Carolina judge on at least five occasions in May, in an attempt to discuss the case. However, the circuit court was never able to speak directly with the North Carolina judge. Petitioner’s counsel informed the circuit court that the аttorney representing Petitioner in the child custody proceeding in North Carolina, informed him that the North Carolina judge believed the case should be transferred to North Carolina.16 Petitioner’s counsel also informed the circuit court that the North Carolina judge needed to have an order that authorized the circuit court to speak with the North Carolina judge. The circuit court stated that it would not write such an
order.17 After hearing testimony from a witness called by DHHR, the circuit ruled that it was terminating the parental rights of Petitioner and O.C.18 A subsequent order was entered terminating parental rights on May 31, 2018. Petitioner thereafter filed this appeal.19
II.
STANDARD OF REVIEW
We apply the following standard of review to dispositional determinations made
Although conclusions of law reached by a circuit court are subject to de novo review, when an action, such as an abuse and neglect case, is tried upon the facts without a jury, the circuit court shall make a determination based upon the evidence and shall make findings of fact and conclusions of law as to whether such child is abused or neglected. These findings shall not be set aside by a reviewing court unless clearly erroneous. A finding is clearly erroneous when, although there is evidence to support the finding, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed. However, a reviewing court may not overturn a finding simply because it would have decidеd the case differently, and it must affirm a finding if the circuit court’s account of the evidence is plausible in light of the record viewed in its entirety.
Syl. pt. 1, In re Tiffany Marie S., 196 W. Va. 223, 470 S.E.2d 177 (1996). Further, “[w]here the issue on an appeal from the circuit court is clearly a question of law or involving an interpretation of a statute, we apply a de novo standard of review.” Syl. pt. 1, Chrystal R.M. v. Charlie A.L., 194 W. Va. 138, 459 S.E.2d 415 (1995). In view of these standards we address the issues presented.
III.
DISCUSSION
The Petitioner contends that the circuit court lacked subject matter jurisdiction over the abuse and neglect proceeding, and therefore could not terminate her parental rights.20 In support of this argument, the Petitioner points out that she and J.C. are from Virginia and that they did not live in West Virginia for the time period required under the Uniform Child Custody Jurisdiction and Enforcement Act, codified at
regarding child custody.” Rosen v. Rosen, 222 W. Va. 402, 406–07, 664 S.E.2d 743, 747–48 (2008).
We note at the outset that, for purposes of the UCCJEA, an abuse and neglect proceeding comes under its definition of a “child custody proceeding.”22 We have previously recognized that “[s]ubject matter jurisdiction under the Uniform Child Custody Jurisdiction and Enforcement Act, West Virginia Code § 48–20–101, et seq., cannot be conferred by consent, waiver, or estoppel.” Syllabus point 5, Rosen. The decision in Rosen also held that “[t]he Uniform Child Custody Jurisdiction and Enforcement Act, West Virginia Code § 48–20–101, et seq., is a jurisdictional statute, and the requirements of the statute must be met for a court to have the power to adjudicate child custody disputes.” Syllabus point 6, Rosen.
The requirements for subject matter jurisdiction under the UCCJEA are set out under
(a) Except as otherwise provided in section 20-204, a court of this state has jurisdiction
to make an initial child custody determination only if:
(1) This state is the home state of the child on the date of the commencement of the proceeding, or was the home state of the child within six months before the commencement of the proceeding, and the child is absent from this state but a parent or person acting as a parent continues to live in this state;
(2) A court of another state does not have jurisdiction under subdivision (1) of this subsection, or a court of the home state of the child has declined to exercise jurisdiction on the ground that this state is the more appropriate forum under section 20-207 or 20-208, and:
(A) The child and the child’s parents, or the child and at least one parent or a person acting as a parent, have a significant connection with this state other than mere physical presence; and
(B) Substantial evidence is available in this state concerning the child‘s care, protection, training and personal relationships;
(3) All courts having jurisdiction under subdivision (1) or (2) of this subdivision have declined to exercise jurisdiction on the ground that a court of this state is the more appropriate forum to determine the custody of the child under section 20-207 or 20-208; or
(4) No court of any other state would have jurisdiction under the criteria specified in subdivision (1), (2) or (3) of this subsection.
In the case In re K.R., 229 W. Va. 733, 735 S.E.2d 882 (2012) we summarized the requirements of
to exercise jurisdiction to determine child custody, a court of this state must satisfy one of the four bases of jurisdiction set forth in Section 201(a). These four bases have been aptly summarized as 1) “home state” jurisdiction; 2) “significant connection” jurisdiction; 3) “jurisdiction because of declination of jurisdiction”; and 4) “default” jurisdiction. These jurisdictional bases do not operate alternatively to each other, but rather, in order of priority—reaching the next basis of jurisdiction only if the preceding basis does not resolve the jurisdictional issue.
In re K.R., 229 W. Va. at 740, 735 S.E.2d at 889 (internal citation omitted). We will examine each of the factors set out under the statute.
1. Home State Jurisdiction
Pursuant to
Pursuant to
West Virginia Code § 48–20–102(g) (2001), “home state” means the state in which the child lived with a parent or a person acting as a parent for at least six consecutive months immediately before the commencement of a child custody proceeding. In the case of a child less than six months of age, the term means the state in which the child lived from birth with any of the persons mentioned. A period of temporary absence of any of the mentioned persons is part of the period. (Emphasis added.)
Relevant to the issue in this case is the observation in Rosen that, if a child custody proceeding commences when a child is less than six months old,
or a person
J.C. was born in Virginia on March 17, 2017. The record shows that J.C. lived in Virginia from the date of his birth until on or about August 25, when Petitioner brought him to West Virginia while en route to North Carolina.24 Therefore, when J.C. was brought to West Virginia he was less than six months old. At the time the abuse and neglect petition was filed on August 28, 2017, J.C. had been in West Virginia for only three days. It is clear from these undisputed facts that Virginia was the home state of J.C. when the abuse and neglect petition was filed.25 See Ex parte M.M.T., 148 So. 3d 728, 733 (Ala.
Civ. App. 2014) (“It is undisputed that immediately before the commencement of the child-custody proceeding …, the child was less than six months old and Colorado was the state in which the child had lived from birth with the mother and the father. The child’s presence in Alabama for less than one week before the father initiated the underlying action merely constituted a ‘period of temporary absence’ from Colorado. Colorado is clearly the child’s home state.”).
In view of our conclusion that Virginia was J.C.’s home state when the abuse and neglect petition was filed, it is clear that the circuit court could not rely upon
2. Significant Connection Jurisdiction
Even though West Virginia was not J.C.’s home state at the time the abuse and neglect proceeding was commenced, the circuit court could nevertheless have subject matter jurisdiction if the requirements of
As previously noted, this provision states the following:
A court of another state does not have jurisdiction under subdivision (1) of this subsection, or a court of the home state of the child has declined to exercise jurisdiction on the ground that this state is the more appropriate forum under section 20-207 or 20-208 and:
(A) The child and the child’s parents, or the child and at least one parent or a person acting as a parent, have a significant connection with this state other than mere physical presence; and
(B) Substantial evidence is available in this state concerning the child‘s care, protection, training and personal relationships.
Under this provision of the statute subject matter jurisdiction may be obtained in one of two ways. First, jurisdiction may be obtained if no other state has jurisdiction. We have already determined that Virginia was the home state under
The second way in which
that Virginia declined jurisdiction through its child protective services agency. The problem with this argument is that the statute expressly required a “court” of Virginia decline jurisdiction, not a Virginia child protective services agency. DHHR and the Guardian ad Litem are asking this Court to add language to the statute that does not exist. However, we have held that “[i]t is not for this Court arbitrarily to read into a statute that which it does not say.” Syl. pt. 11, in part, Brooke B. v. Ray, 230 W. Va. 355, 738 S.E.2d 21, 24 (2013). Our law is clear in holding that “[w]here the language of a statute is free from ambiguity, its plain meaning is to be accepted and applied without resort to interpretation.” Syl. pt. 2, Crockett v. Andrews, 153 W. Va. 714, 172 S.E.2d 384 (1970). The relevant language in
Our holding on this issue is consistent with the ruling in In re Joseph B., 2014 WL 5409006 (Cal. Ct. App. Oct. 24, 2014) (unpublished). The decision in Joseph B. addrеssed the issue of contacting a court of the home state of a child as required under California’s UCCJEA.27 In that case the mother, J.M., gave birth to a son, J.B., in February of 2012 in Las Vegas, Nevada. In late December of 2012, J.M. moved to California with J.B. to live with a cousin. In January of 2013, California’s child protective services removed J.B. from J.M.’s custody because she was experiencing mental health issues—including having thoughts of harming J.B. During the initial hearing in the case, the trial court was informed that California’s UCCJEA was triggered because the child had only been in the state for a few weeks. At some point the court contacted a law clerk of a court in Nevada and was informed that there was no active case involving the child in Nevada. Based uрon contact with the law clerk in Nevada, the California trial court found that it had subject matter jurisdiction under the UCCJEA. The court ultimately determined that J.B. would be placed with his father in Texas. J.M. appealed the dispositional order, and alleged on appeal that the trial court did not have subject matter jurisdiction because no court in Nevada declined to exercise jurisdiction. The appellate court agreed as follows:
In California, the UCCJEA is the exclusive means of determining subject matter jurisdiction in a custody dispute involving another jurisdiction.
***
In our view, however, the record unquestionably establishes Nevada as the home state. [J.B.] lived there from his birth in
February 2012 until late December 2012….
. . . .
We conclude the court violated the UCCJEA by making orders of a permanent nature without contacting Nevada authorities to inquire whether that state wished to assert its home state jurisdiction and commence a proceeding to protect [J.B.’s] interests. The court’s contact with a law clerk at a court in Nevada was insufficient to satisfy its duty.
In re Joseph B., at *4-6. See Rust v. Rust, 2018 WL 4760157, at *5 (Tex. App. Oct. 3, 2018) (“The only other basis upon which the trial court could acquire jurisdiction over the custody suit is if the North Carolina court declined jurisdiction on the ground that Texas is a more appropriate forum. However, the record contains no pleadings or proof to support such a conclusion.”); G.S. v. R.L., 259 So. 3d 677, 681 (Ala. Civ. App. 2018) (“The record in these cases does not contain any order from any Tennessee court declining to exercise its home-statе jurisdiction over the children[.]”); In re E.R., 28 Cal. App. 5th 74, 80, 238 Cal. Rptr. 3d 871, 876 (2018) (“California court obtained jurisdiction on July 19, 2017, the date the Nevada court declined to exercise jurisdiction.”); In Interest of A.R., 902 N.W.2d 593 (Iowa Ct. App. 2017) (“The Nebraska court … declined jurisdiction on the ground it determined Iowa is a more appropriate forum in accordance with the UCCJEA.”); Sergeant v. DeRung, 213 So. 3d 423, 7–427 (La. App. 2016) (“given that there is no indication that the Minnesota court has declined jurisdiction over the issue of the child’s …, it is clear that the district court here does not have subject matter jurisdiction[.]”); S.C. Dep‘t of Soc. Servs. v. Johnnie B., 2014 WL 2579937, at *2 (S.C. Ct. App. Feb. 21, 2014) (“Because the Georgia superior court did not decline jurisdiction, South Carolina did not have jurisdiction to issue an initial child custody determination.”).
Insofar as the record in the instant case clearly shows that no court in Virginia declined to exercise jurisdiction in this matter, we need not address the remaining two requirements of
3. Declination of Jurisdiction and Default Jurisdiction
Pursuant to
The default jurisdiction provision contained in
In sum, there was no evidence in the record to show that any of the subject matter requirements of
IV.
CONCLUSION
In view of the foregoing, we conclude that the circuit court did not have subject matter jurisdiction in this proceeding. Therefore its May 31, 2018, order terminating the parental rights of Petitioner is void and unenforceable.30 See Jackson v. Pszczolkowski, 2018 WL 5099642, at *2 (W. Va. Oct. 19, 2018) (Memorandum Decision) (“Without subject matter jurisdiction, any ruling issued by the circuit court would have been void.”); State ex rel. TermNet Merch. Servs., Inc. v. Jordan, 217 W. Va. 696, 700, 619 S.E.2d 209, 213 (2005) (“The urgency of addressing problems regarding subject-matter jurisdiction cannot be understated because any decree made by a court lacking jurisdiction is void.”); Syl. pt. 5, in part, State ex rel. Hammond v. Worrell, 144 W.Va. 83, 106 S.E.2d 521 (1958), overruled on other grounds by Patterson v. Patterson, 167 W.Va. 1, 277 S.E.2d 709 (1981) (“A decree entered in a pending suit in which the court lacks jurisdiction of the subject-matter is to that extent void[.]”).
the evidence indicated that petitioner likely abandoned that child, the circuit court correctly allowed the DHHR to amend the petition a second time to include allegations of petitioner’s abandonment. The circuit court also appropriately reopened the adjudicatory hearing in January of 2015 to allow the DHHR to prove the allegations and afford petitioner an opportunity to defend against the same.”).
Our conclusion that the circuit court did not have subject matter jurisdiction to resolve the abuse and neglect petition does not end the matter. The record in this case is sufficient for this Court to conclude that it is not in the best interest of J.C. to simply return him tо the Petitioner without any supervision, due to Petitioner’s mental health issues.31 Therefore, on remand the circuit court is instructed to contact the appropriate court in Virginia to ascertain whether that court is willing to exercise jurisdiction over J.C. If the Virginia court is willing to take jurisdiction, then J.C. should be transferred to Virginia as provided by law.
If Virginia declines jurisdiction, then we summarily find that under the facts of this case the circuit court would have subject matter jurisdiction under
The Petitioner also informed this Court that if J.C. is not returned to her, the North Carolinа foster family would be interested in adopting him. We believe that it is in the best interest of J.C. to be united with his sibling in North Carolina.33 Consequently, if Virginia declines jurisdiction the circuit court is authorized by this opinion to contact the appropriate court in North Carolina and attempt to have that court take custody of J.C. for a disposition that is consistent with that of his sibling.34
Finally, if the court in North Carolina declines to take jurisdiction over J.C., the circuit court must hold a de novo adjudicatory and dispositional hearing to determine whether J.C. was abused or neglected at the time the petition was filed.
Reversed and Remanded.