In re N.R.

In re N.R., A.R.-1, and A.W.

No. 20-1033

STATE OF WEST VIRGINIA SUPREME COURT OF APPEALS

June 3, 2021

(Ohio County 13-CJA-33, 13-CJA-34, and 13-CJA-35)

MEMORANDUM DECISION

Petitioners, Mother A.R.-2, by counsel David C. Fuellhart, and Father A.R.-3, by counsel Jeremy B. Cooper, appeal the Circuit Court of Ohio County's November 24, 2020, order denying their motions to transfer the matter to the Dry Creek Rancheria Tribal Court ("Tribal Court").¹ The West Virginia Department of Health and Human Resources ("DHHR"), by counsel Lee A. Niezgoda, filed a response in support of the circuit court's order. The guardian ad litem, Joseph J. Moses, filed a response on behalf of the children in support of the circuit court's order. On appeal, petitioners argue that the circuit court erred in denying their respective motions to transfer the proceedings to the Tribal Court.

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 affirming the circuit court's order is appropriate under Rule 21 of the Rules of Appellate Procedure.

Many of the pertinent facts of this case are set forth in our prior opinion, In re N.R., 242 W. Va. 581, 836 S.E.2d 799 (2019). Briefly, the circuit court "entered a final dispositional order . . . pursuant to West Virginia Code § 49-4-604(b)(5) (2016), placing the children . . . in the legal and physical custody of the [DHHR] upon finding that the abusing parents were presently unable to adequately care for their children." Id. at 584, 836 S.E.2d at 802. Petitioners appealed and argued that the circuit court failed to comply with the Indian Child Welfare Act ("ICWA"), 25 U.S.C. §§ 1901 to 1923, and sought to dismiss the case. Id. The DHHR and guardian filed separate appeals, arguing that the circuit court erred in failing to terminate petitioners' parental rights. This Court found "no violation of the ICWA" and further found that "the circuit court erred by not terminating the mother's and father's parental rights." Id. Accordingly, we reversed the circuit court's order "only insofar as it orders disposition under West Virginia Code § 49-4-604(b)(5)[(2019)]" and remanded "for entry of a final dispositional order terminating the [petitioners'] parental rights pursuant to West Virginia Code § 49-4-604(b)(6)[(2019)]." The above-mentioned opinion was filed on November 7, 2019, and the mandate was issued on January 9, 2020.

On November 13, 2019, petitioners filed motions to transfer the proceedings from the circuit court to the Tribal Court of the Manchester-Point Arenas Band of Pomo Indians (hereinafter "Tribe"), pursuant to 25 U.S.C. § 1911(b). Later in November of 2019, the circuit court denied both motions on the basis that petitioners lacked standing pursuant to this Court's opinion.

On January 27, 2020, the circuit court modified its prior dispositional order and terminated the petitioners' parental rights. Petitioners appealed that order. This Court found that, at the time petitioners filed their motions to transfer, their parental rights remained intact as the circuit court had not yet entered an order terminating their parental rights. As parents with their parental rights intact to the children at issue, petitioners had standing to bring a motion to transfer the proceedings to the Tribal Court. Accordingly, this Court vacated the circuit court's order denying petitioners' motions to transfer and remanded the matter with instructions to address the motions on the merits. See In re N.R., No. 20-0202, 2020 WL 5889363 (W. Va. Oct. 2, 2020)(memorandum decision).

Subsequently, the Tribe joined petitioners' motions to transfer and, on November 9, 2020, the Tribal Court entered an order accepting jurisdiction of this matter. Later in November of 2020, the circuit court held a hearing on the motion to transfer. After hearing arguments and considering the applicable law, the circuit court denied petitioners' motion to transfer. The circuit court found that petitioners filed the motion in response to this Court's opinion ordering that their parental rights be terminated, as the motion was filed just six days after that opinion issued. The circuit court also found that the father and Elizabeth DeRouen, the Executive Director of Indian Child and Family Preservation of the Tribe, had discussed filing a motion to transfer as early as 2014, but had declined to do so.² Indeed, until the motion to transfer was filed in November of 2019, the mother had objected to having this matter transferred to the Tribal Court, and the Tribe refrained from filing a motion to transfer due to her objection. The circuit court found that, although neither parent now objected and the Tribal Court had not declined jurisdiction, good cause existed to deny the motion to transfer based on the advanced stage of the proceedings and undue hardship due to the distance between the Tribal Court and the parties, witnesses, and evidence in the matter. The circuit court specifically noted that the Tribal Court was over 2,000 miles from West Virginia, which would render travel costly and difficult. Further, the DHHR caseworkers, the DHHR's counsel, the guardian, the grandparents and their counsel, the foster families, the children, the children's therapists and service providers, and all other witnesses and records pertaining to the matter were located in West Virginia. Given the large amount of persons involved, the number of witnesses to be called, and the voluminous exhibits generated over the years the matter had been proceeding, the circuit court felt that it would be "virtually impossible" to hold any hearings via videoconferencing. The circuit court found that the matter had been ongoing for over five years and at no time prior to November 13, 2019, did either petitioner file a motion seeking to have the matter transferred. As such, the circuit court opined that the motions were "a last-ditch attempt to salvage their parental rights" and denied the same. Petitioners appeal the November 24, 2020, order denying their motions to transfer.³

The Court has previously held:

"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 decided 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 Interest of Tiffany Marie S., 196 W.Va. 223, 470 S.E.2d 177 (1996).

Syl. Pt. 1, In re Cecil T., 228 W. Va. 89, 717 S.E.2d 873 (2011).

On appeal, petitioners argue that the circuit court erred in denying their motions to transfer the proceedings to the Tribal Court. Petitioners deny that their motions to transfer were a "last-ditch attempt to salvage their parental rights." Petitioners claim that this theory was erroneous as they had exhausted all avenues of avoiding the termination of their parental rights by the time the circuit court ruled on their motions. As such, "there was no longer a way to forestall the termination of their parental rights" and, in any event, "this Court's ruling regarding the question of parental rights was binding on the Circuit Court, and would have been binding on the Tribal Court."

At the outset, we note that petitioners filed their motions to transfer nearly immediately after this Court issued its opinion ordering the termination of their parental rights. In considering these proceedings as a whole, reviewing the motions to transfer, and hearing the testimony and arguments made at the hearing on petitioners' motions, the circuit court determined that petitioners were attempting to evade the certain termination of their parental rights in filing the motions. To this extent, we find no error as the circuit court was free to make a credibility determination in weighing that evidence. See Michael D.C. v. Wanda L.C., 201 W. Va. 381, 388, 497 S.E.2d 531, 538 (1997) ("A reviewing court cannot assess witness credibility through a record. The trier of fact is uniquely situated to make such determinations and this Court is not in a position to, and will not, second guess such determinations."). Indeed, given the nearly eight-year history of this case, it is evident to this Court that petitioners were attempting a "last-ditch" effort to retain their parental rights. Petitioners' arguments to the contrary are unsupported by anything other than their self- serving statements in support of this matter. In fact, a review of petitioners' motion to transfer reveals that they provided no qualifying statements as to why they were requesting the transfer. Petitioners likewise fail to cite to any authority demonstrating how they are in a position to argue for any particular placement for their children as their parental rights have been terminated.⁴

In fact, were we to accept petitioners' claims that they were merely seeking transfer of the matter to the Tribal Court...