In Re : W., Christine Tiara W.
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September 1996 Term
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No. 23339
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IN RE: CHRISTINE TIARA W.
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Appeal from the Circuit Court of Wood County
Honorable George W. Hill, Judge
Abuse and Neglect Case No. 95-J-91
REVERSED AND REMANDED
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Submitted: September 11, 1996
Filed: December 12, 1996
Barbara L. Baxter
Assistant Attorney General
Charleston, West Virginia
Attorney for the Appellant,
Department of Health & Human Resources
Bruce M. White
Harrisville, West Virginia
Attorney for the Appellee,
Donald W.
James M. Bradley, Jr.
Albright, Bradley & Ellison
Parkersburg, West Virginia
Guardian ad litem
The Opinion of the Court was delivered PER CURIAM.
JUSTICE ALBRIGHT, deeming himself disqualified, did not participate in this case.
JUDGE RECHT sitting by temporary assignment.
SYLLABUS BY THE COURT
"
When the Department of Health and Human Services finds a situation in
which apparently one parent has abused or neglected the children and the other has
abandoned the children, both allegations should be included in the abuse and neglect petition
filed under W.Va. Code 49-6-1(a) (1992). Every effort should be made to comply with the
notice requirements for both parents. To the extent that State ex rel. McCartney v. Nuzum,
161 W.Va. 740, 248 S.E.2d 318 (1978), holds that a non-custodial parent can be found not
to have abused and neglected his or her child it is expressly overruled.
" Syllabus point 1,
In re: Katie S. and David S., No. 23584 (W.Va. Nov. 14, 1996).
Per Curiam:
This is an appealSee footnote 1 from an order of the Circuit Court of Wood County in a
child neglect and abuse proceeding brought by the appellant, the West Virginia Department
of Health and Human Resources, under the provisions of W.Va. Code § 49-6-1, et seq. In
the petition, the Department of Health and Human Resources sought to terminate the parental
rights of Donald W. to Christine Tiara W. on the ground that Donald W. had abandoned the
child. Donald W. did not have custody of Christine Tiara W., and, on the basis of this
Court's holding in State ex rel. McCartney v. Nuzum, 161 W.Va. 740, 248 S.E.2d 318
(1978), that a child neglect and abuse case could not be brought against a non-custodial
parent, the circuit court concluded that it could not properly consider the termination issue
in the present child neglect and abuse case, since Donald W. did not have custody of
Christine Tiara W. On appeal, the Department of Health and Human Resources concedes
that State ex rel. McCartney v. Nuzum, Id., does indicate that the circuit court cannot
consider a child neglect and abuse case against a non-custodial parent, but it claims that
decision should be overruled on that point.
Since the circuit court rendered its ruling in the present case, and since the
filing of this appeal, this Court in In re: Katie S. and David S., No. 23584 (W.Va. Nov. 14,
1996), has reconsidered the issue raised by the Department of Health and Human Resources
and has overruled the holding in State ex rel. McCartney v. Nuzum, supra, which served as
the basis of the circuit court in the present case. In light of the new rule, as expressed in In
re: Katie S. and David S., the Court concludes that the dismissal order of the circuit court
must be reversed and that this case must be remanded for further development.
The record in this case shows that Christine Tiara W. was born on January 10,
1988, and shortly after Christine's birth, Donald W., who is believed to be her father, was
incarcerated in Orient, Ohio. At the time, Donald W. surrendered temporary custody of
Christine to the West Virginia Department of Health and Human Resources, which placed
actually custody of Christine with Donald W.'s sister, Kelly K. Christine has resided
constantly with Kelly K. and her husband from that time until the institution of the present
proceeding in June, 1995.
On June 2, 1995, the Department of Health and Human Resources instituted
the present proceeding by filing an abuse and neglect petition with the Circuit Court of Wood
County. In the petition, the Department of Health and Human Resources alleged that the
health, safety, and welfare of Christine were harmed, and threatened, by the refusal, failure,
or inability of Donald W. to provide her with adequate clothing, food, medical support, supervision, and education. The petition also alleged that Donald W. was in prison, serving
a one-to-three-year sentence for driving under the influence of alcohol, third offense, and that
Christine was in need of continuity of caretakers and stability. The petition sought the
termination of Donald W.'s parental rights.
A hearing was conducted on the petition on Thursday, July 20, 1995. At the
hearing, a social worker, Christine Layne, testified that the parental rights of Christine Tiara
W.'s mother had been previously terminated and that she had been placed in the care of the
K.'s, and that Christine Tiara W. had been properly cared for by the K.'s and that the K.'s
had expressed a desire to adopt her. She further testified that Christine Tiara W. wished to
stay with the K.'s and that she was suffering from some anxiety over the fact that her father,
Donald W., might attempt to remove her from the State. According to Christine Layne,
Donald W. had been incarcerated on numerous occasions after the birth of the child, and in
approximately seven years he had provided her with $20.00 in support and had never
attempted to obtain custody of her. On one occasion, while Donald W. was taking care of
Christine Tiara W., she suffered an injury which later required nine stitches, but he was too
intoxicated to get her to an emergency room. Other testimony indicated that Donald W. had
in the past visited with Christine Tiara W. on several occasions, had given her a number of
gifts, had provided her with little articles of clothing, and had expressed an interest in her.
In the course of the hearing, a question arose as to whether the circuit court had
jurisdiction to consider the case, since, according to Donald W., the evidence did not show
that Donald W. had actual custody of the child.
The circuit court requested that the parties brief the legal question, and, after
briefs were submitted, the court dismissed the action because Donald W. did not have
custody of the child. In his opinion and letter, the trial judge stated:
This is an abuse and neglect proceeding wherein the
parent whose parental rights are sought to be affected does not
have custody, and has not had custody for most of the child's
seven years of life.
The seminal case on the subject, which has never been
overruled, distinguished, modified or in any way criticized,
clearly holds that W.Va.Code § 49-1-3, defining an abused and
neglected child, is premised on the concept that the parent who
has actual custody of a child abuses or neglects the child, and
that the statute does not apply where the parent has not had such
custody. State ex rel. McCartney v. Nuzum, 161 W.Va. 740,
248 S.E.2d 318 (1978).
* * *
It is clear in the subject proceeding that the natural father
has abandoned the child, but that does not invoke the
jurisdiction of the court in an abuse and neglect proceeding . .
. .
The circuit court was correct in stating that in State ex rel. McCartney v.
Nuzum, supra, this Court held that W.Va. Code § 49-1-3, the statute underlying an abuse and neglect proceeding, contemplates that the proceeding be brought against a party who has
actual custody of a child and who either abuses or neglects the child. The circuit court also
correctly noted that State ex rel. McCartney v. Nuzum, supra, held that a child neglect and
abuse proceeding is not appropriate where a natural parent, who has not had actual custody
of the child, is a party respondent and where the only act of abuse or neglect charged is an
act of psychological abuse occasioned by the natural parent's attempt to obtain lawful
custody of the child under court order.
As previously indicated, in In re: Katie S. and David S., supra, this Court
recently specifically overruled that portion of State ex rel. McCartney v. Nuzum, supra,
which holds that an abandonment question cannot be tried in an abuse and neglect case
against a non-custodial parent.See footnote 2 Specifically, the Court stated in syllabus point 1 of In re:
Katie S. and David S., supra:
When the Department of Health and Human Services
finds a situation in which apparently one parent has abused or
neglected the children and the other has abandoned the children,
both allegations should be included in the abuse and neglect
petition filed under W.Va. Code 49-6-1(a) (1992). Every effort
should be made to comply with the notice requirements for both
parents. To the extent that State ex rel. McCartney v. Nuzum,
161 W.Va. 740, 248 S.E.2d 318 (1978), holds that a non-custodial parent can be found not to have abused and neglected
his or her child it is expressly overruled.
In light of the holding in In re: Katie S. and David S., supra, and its reversal
of State ex rel. McCartney v. Nuzum, supra, the West Virginia Department of Health and
Human Resources is correct in asserting that the trial court erred in dismissing the present
case for the ground stated.
The Court notes that Donald W., in his brief in this case, argues that the
petition filed with the circuit court fails to allege that he has abandoned Christine.See footnote 3 This
Court, after carefully examining the petition, finds that, even though it does not use the
words "abandon" or "abandonment", the petition does allege sufficient facts which, if
proven, would support a finding of abandonment. Additionally, the Court believes that the
allegations of fact, if proven, would support a finding that the facts show neglect within the
meaning of W.Va. Code § 49-1-3.
For the reasons stated, the judgment of the Circuit Court of Wood County is
reversed, and this case is remanded for further development.
Reversed and remanded.
Footnote: 1 The Honorable Arthur M. Recht resigned as Justice of the West Virginia Supreme Court of Appeals effective October 15, 1996. The Honorable Gaston Caperton, Governor of the State of West Virginia, appointed him Judge of the First Judicial Circuit on that same date. Pursuant to an administrative order entered by this Court on October 15, 1996, Judge Recht was assigned to sit as a member of the West Virginia Supreme Court of Appeals commencing October 15, 1996, and continuing until further order of this Court. Footnote: 2 Without specifically overruling Nuzum, we had previously urged that allegations of abandonment against an absent parent should be brought in the initial petition for abuse and neglect when facts supported such allegation. In re Christina L., 194 W.Va. 446, 460 S.E.2d 692 (1995). Footnote: 3 Donald W. has not made a cross-assignment of error on this point or on any other point.
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