C.V v. B.V. and W.V. (Memorandum Decision)
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STATE OF WEST VIRGINIA SUPREME COURT OF APPEALS FILED C.V., Respondent Below, Petitioner November 19, 2012 RORY L. PERRY II, CLERK SUPREME COURT OF APPEALS OF WEST VIRGINIA vs) No. 11-1250 (Mingo County 11-CIGR-3) B.V. and W.V. Petitioners Below, Respondents MEMORANDUM DECISION Petitioner C.V. s1 appeal, filed by counsel Mark Hobbs, arises from the Circuit Court of Mingo County, wherein the circuit court awarded guardianship of C.V. s children, J.V. and D.V., to respondents by order entered on July 28, 2011. Respondents B.V. and W.V., by counsel C. Christopher Younger, filed a response in support of the circuit court s order. This Court has considered the parties briefs and the record on appeal. The facts and legal arguments are adequately presented, and the decisional process would not be significantly aided by oral argument. Upon consideration of the standard of review, the briefs, and the record presented, the Court finds no substantial question of law and no prejudicial error. For these reasons, a memorandum decision is appropriate under Rule 21 of the Revised Rules of Appellate Procedure. Petitioner is the mother of J.V. and D.V. J.V. s father, R.V., and petitioner married in 2006. In April of 2010, R.V. filed a domestic violence petition against petitioner and the family court awarded custody of J.V. and D.V. to R.V. and granted supervised parenting to C.V. Throughout the duration of 2010, R.V. s health deteriorated and he executed a consent to guardianship, naming respondents B.V. and W.V. as guardians of the infant children in the event that he would be unable to care for them. B.V. is the adult half-sibling to the infant children and W.V. is B.V. s wife. In February of 2011, respondents filed a petition for guardianship in circuit court that addressed petitioner s failure to use her parenting time awarded in April of 2010, her indiscretions and criminal record, and her inability to provide a stable environment and properly care for her children. Respondents further discussed that their assistance in caring for the children since April of 2010 included having custody of the children for nearly every weekend since April of 2010 and for the last six full weeks before they filed the petition. The family court awarded guardianship to respondents and petitioner filed a motion for reconsideration. Upon receiving the motion for reconsideration, the family court transferred the case over to the circuit 1 Because this matter concerns infant children, we follow our traditional practice in cases involving sensitive facts and use only the parties initials. See State v. Edward Charles L., 183 W.Va. 641, 645 n.1, 398 S.E.2d 123, 127 n.1 (1990). 1 court for a full evidentiary hearing. Subsequently, the circuit court entered its final order that maintained the children s physical and legal custody with respondents. Petitioner appeals. We use the following standard of review: [t]he exercise of discretion by a trial court in awarding custody of a minor child will not be disturbed on appeal unless that discretion has been abused; however, where the trial court's ruling does not reflect a discretionary decision but is based upon an erroneous application of the law and is clearly wrong, the ruling will be reversed on appeal. Syl. pt. 2, Funkhouser v. Funkhouser, 158 W.Va. 964, 216 S.E.2d 570 (1975), superseded by statute on other grounds as stated in David M. v. Margaret M., 182 W.Va. 57, 385 S.E.2d 912 (1989). In re Abbigail Faye B., 222 W.Va. 466, 472, 665 S.E.2d 300, 306 (2008). Further, to the extent that the circuit court's decision involved the interpretation and application of the guardianship statute, W. Va.Code § 44 10 3, to the facts of this case, our review is plenary. Id. Where 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). Id. (internal citations omitted). Petitioner argues that the circuit court abused its discretion when it failed to take into consideration the holding and rationale of Dancy v. Dancy, 191 W.Va. 682, 447 S.E.2d 883 (1994). In particular, petitioner argues that she has made great strides in correcting the deficiencies which led to losing her children. Respondents contend that petitioner fails to cite the basis upon which a circuit court hears and determines infant guardianship petition cases transferred from family court. Dancy, a per curiam decision, cited Syllabus Point 5 of David M. v. Margaret M., 182 W.Va. 57, 385 S.E.2d 912 (1989), which states: To be considered fit, the primary caretaker parent must: (1) feed and clothe the child appropriately; (2) adequately supervise the child and protect him or her from harm; (3) provide habitable housing; (4) avoid extreme discipline, child abuse, and other similar vices; and (5) refrain from immoral behavior under circumstances that would affect the child. In this last regard, restrained normal sexual behavior does not make a parent unfit. Respondents reference to the circuit court s findings of fact and conclusions of law finding petitioner as unfit to care for the infant children. Petitioner also argues that the respondents lacked standing to institute any petition involving custodial rights under West Virginia Code § 48-9-103. She argues that their attempt to circumvent the Code by filing a petition for guardianship under West Virginia Code § 44-10-3 fails because said Chapter 44, Article 10 was created primarily to manage estates and trusts for minors. In response, respondents contend that they correctly filed under the provisions of West Virginia Code § 44-10-3, citing footnote 11 of In re Abbigail Faye B., which discusses the interchangeability of custodial and guardianship terminology in making custodial determinations. 2 Respondents further point out that the circuit court s order allows for petitioner to move for modification if she completes classes on parenting, anger management, and substance abuse. Our review of the record reflects no error or abuse of discretion by the circuit court. Having reviewed the circuit court s thirty-two-page Final Order Granting Petition for Guardianship entered on July 28, 2011, we hereby adopt and incorporate the circuit court s well-reasoned findings and conclusions as to the assignments of error raised in this appeal. The Clerk is directed to attach a copy of the circuit court s order to this memorandum decision.2 For the foregoing reasons, we affirm the circuit court s order. Affirmed. ISSUED: November 19, 2012 CONCURRED IN BY: Chief Justice Menis E. Ketchum Justice Robin Jean Davis Justice Brent D. Benjamin Justice Margaret L. Workman Justice Thomas E. McHugh 2 Consistent with our explanation in the first footnote of this memorandum decision, names in the circuit court order have been redacted to leave only their initials. 3
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