In re B.J.

1

In re B.J. and M.B.

No. 22-0379

Supreme Court of Appeals of West Virginia

February 7, 2023

(Wood County 20-JA-146 and 20-JA-147)

MEMORANDUM DECISION

Petitioner Mother C.J.^[1] appeals the Circuit Court of Wood County's April 28, 2022, order terminating her parental rights to B.J. and M.B.^[2] Upon our review, we determine that oral argument is unnecessary and that a memorandum decision affirming the circuit court's order is appropriate. See W.Va. R. App. P. 21.

The proceedings giving rise to this appeal began in July of 2020 when the DHHR filed a petition alleging that petitioner was in possession of drugs and under the influence when she gave birth to B.J., who had to undergo nonpharmaceutical treatment for drug exposure. During the DHHR's investigation petitioner indicated that she received her mail at her father's home in Belpre, Ohio, although she "confirmed she resides . . . in Parkersburg," West Virginia, along with her older child, M.B. The DHHR inspected the home in Parkersburg and found many of M.B.'s belongings there. Additionally, petitioner indicated that she previously "signed guardianship [of M.B.] over to her best friend." According to petitioner, M.B.'s legal guardian cared for the child in West Virginia for approximately four years while petitioner was homeless although petitioner claimed to have reobtained custody of M.B. in September of 2019.

At the preliminary hearing in July of 2020, petitioner objected to jurisdiction in West Virginia under the Uniform Child Custody Jurisdiction and Enforcement Act ("UCCJEA") as set forth in West Virginia Code § 48-20-101 through § 48-20-404. At the time, petitioner argued that she lived with M.B. in Ohio for at least ten months prior to the filing of the petition. Petitioner did not, however, object to the West Virginia DHHR retaining temporary custody while the jurisdictional issue was addressed, so the court set the matter for adjudication in the interim.

During a hearing in August of 2020, the parties presented the court with an agreed order finding that Washington County, Ohio, had subject matter jurisdiction because Ohio was the home state of both children. According to the order, "[t]he [c]ourt heard evidence that the Ohio DHHR . . . declined to take this case at the time of the incident that led to the filing of the ratification," but the order stressed that no court had declined such jurisdiction. This order was then sent to the Washington County Court of Common Pleas for a ruling on jurisdiction. However, by order entered on September 1, 2020, the Ohio court declined to exercise jurisdiction, finding that "Wood County, West Virginia, would be a more convenient forum to hear the issues as one child has been in foster care in West Virginia for a considerable period of time and the other child who was born in Wood County, West Virginia[,] . . . has been in foster care in West Virginia since his birth."

In October of 2020, petitioner stipulated that her substance abuse prevented her from appropriately caring for the children. The court accepted the stipulation and adjudicated petitioner as an abusive and neglectful parent. The court then terminated her parental rights to both children by order entered on April 28, 2022, as a result of her continued substance abuse, missed drug screens, and other failures to remedy the conditions of abuse and neglect at issue.^[3]On appeal, petitioner is clear that she is not challenging her adjudication or the termination of her parental rights. However, she does challenge the circuit court's denial of her request for post-termination visitation in regard to M.B. only. In denying post-termination visitation, the court noted that petitioner did not "make her children her number one priority," as evidenced by the fact that she had recently "completely stopped drug screening." The court noted that there was "some bond" between petitioner and M.B., who was then nine years old, although the court further expressed that "at some point, [M.B.] will need to move on and achieve permanency." Initially, the court expressed a willingness to permit petitioner to visit M.B. in the short-term while "re-address[ing] that upon adoption of the child, because the child will need permanency and to have a new life and stable environment with a new family." However, upon being reminded that petitioner had not had visits with M.B. for approximately four months, the court ultimately denied post-termination visitation with petitioner. Specifically, the court found that "it would not be in the child's best interests to reintroduce [petitioner] into the child's life only to, if the child is adopted, . . . be taking her back out." It is from the dispositional order that petitioner appeals.

On appeal from a final order in an abuse and neglect proceeding, this Court reviews the circuit court's findings of fact for clear error and its conclusions of law de novo. Syl. Pt. 1, In re Cecil T., 228 W.Va. 89, 717 S.E.2d 873 (2011). On appeal, petitioner first argues that the circuit court erred in assuming jurisdiction over the children under the UCCJEA. However, the record shows that an Ohio court declined to exercise jurisdiction over the children, thereby granting West Virginia jurisdiction under West Virginia Code § 48-20-201(a)(3).

According to West Virginia Code § 48-20-201(a),

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.

Petitioner makes much of the fact that the Ohio court's order acknowledged that it "may have jurisdiction over the children," but this fact does nothing to bolster her position before this Court. Indeed, the plain language of West Virginia Code § 48-20-201(a)(3) contemplates a court having jurisdiction nonetheless declining to exercise that jurisdiction, which is exactly what happened below.

Petitioner also alleges that the Ohio court's determination that West Virginia was the more appropriate forum was based upon a material mistake of fact. Specifically, petitioner takes issue with the Ohio court's finding that M.B. had "been in foster care in West Virginia for a considerable period of time." According to petitioner, M.B. "was not and never had been in foster care in West Virginia." This argument, however, ignores the fact that at the time the Ohio court made this finding, M.B. had been in foster care in West Virginia for two months pursuant to this very proceeding.^[4] It is...