IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA

January 1998 Term
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No. 24670
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WEST VIRGINIA DEPARTMENT OF HEALTH AND HUMAN RESOURCES
EX REL. SHARRON HISMAN, SOCIAL SERVICE WORKER,
Appellee

v.

ANGELA D., ZACHARY D., KRISTOPHER D., AND THE UNKNOWN
PUTATIVE FATHERS OF ZACHARY D. AND KRISTOPHER D.,
Respondents Below

DAVID W.,
Appellant

Appeal from the Circuit Court of Cabell County
Honorable L. D. Egnor, Judge
Civil Action No. 96-JA-8

AFFIRMED

Alvie E. Qualls, III, Esq.
Public Defender
Huntington, West Virginia
Attorney for Angela D.

David R. Dillon, Esq.
Bailes, Craig & Yon
Huntington, West Virginia
Attorney for David W.

Lisa Fredeking White
Huntington, West Virginia
Guardian ad Litem

The Opinion of the Court was delivered PER CURIAM.

        3.    "Before an out-of-state child custody decree can be enforced here, it must be demonstrated that the court making the decree had jurisdiction of the parties and of the subject matter of the dispute." Syl. Pt. 3, Arbogast v. Arbogast, 174 W.Va. 498, 327 S.E.2d 675 (1984).

        4.    " 'The Parental Kidnapping Prevention Act of 1980, 28 U.S.C. § 1738A (1982), extends full faith and credit principles to child custody decrees and requires every state to enforce sister state custody determinations that are consistent with the act.' Syllabus Point 1, Arbogast v. Arbogast, 174 W.Va. 498, 327 S.E.2d 675 (1984)." Syl. Pt. 1, Sheila L. v. Ronald P.M., 195 W.Va. 210, 465 S.E.2d 210 (1995).

        5.    "The Uniform Child Custody Jurisdiction Act, W.Va.Code §§ 48-10-1 to -26 (1986), is premised on the theory that the best interests of a child are served by limiting jurisdiction to modify a child custody decree to the court which has the maximum amount of evidence regarding the child's present and future welfare." Syl. Pt. 1, In re Brandon L.E., 183 W.Va. 113, 394 S.E.2d 515 (1990).

        6.    "Notwithstanding their intent to require states adopting the Uniform Child Custody Jurisdiction Act to recognize custody decrees entered by sister states, the Act's drafters in no uncertain terms provided jurisdiction to both the original 'custody court' and other courts to determine whether modification of the initial custody decree is in the best interest of the child." Syl. Pt. 2, In re Brandon L.E., 183 W.Va. 113, 394 S.E.2d 515 (1990).

Per Curiam:See footnote 1

        Mr. David W.See footnote 2 (hereinafter "Appellant") appeals the exercise of jurisdiction by the Circuit Court of Cabell County over Zachary D. in an abuse and neglect proceeding initiated in Cabell County, West Virginia. The Appellant contends that Lawrence County, Ohio, is the proper jurisdiction and that Ohio is the home state of the child pursuant to the Uniform Child Custody Jurisdiction Act (hereinafter "UCCJA"). We disagree with the Appellant's contentions and affirm the determination of the lower court that West Virginia properly maintained jurisdiction in this matter.

I. Facts

        Zachary D. was born on January 27, 1991. His mother, Angela D., was fifteen years old at the time of Zachary's birth, and Angela's mother, Barbara D.,See footnote 3 maintained temporary custody of Zachary prior to Angela's eighteenth birthday in July 1993.See footnote 4 Neither the putative father nor his family has ever had contact with Zachary. In November 1993, May 1994, and an additional six instances in 1995, the Cabell County Department of Health and Human Resources (hereinafter "DHHR") received referrals regarding Angela, Barbara, and Zachary, generally alleging that Angela was improperly caring for Zachary and had left him with various other individuals without providing for his care or well-being. The DHHR allegedly attempted to locate Angela subsequent to these referrals, but was unsuccessful.

        On March 7, 1994, Kristopher D. was born to Angela. According to the record, Kristopher resided with Ms. Kathy Merritt, a family friend in Huntington, West Virginia, on the weekends for the first three months of his life and began residing exclusively with Ms. Merritt in June 1994. Ms. Merritt did not receive monetary compensation for this care of Kristopher. Zachary also allegedly spent considerable time with Ms. Merritt in Huntington, West Virginia, in 1994, and both Kristopher and Zachary resided with Ms. Merritt in June and July 1995.

        Angela received AFDC support for Zachary during August and September 1995, and he was allegedly living primarily in her household in West Virginia during those months.See footnote 5 During portions of 1995, Zachary apparently stayed with Barbara and the Appellant in Ohio and was enrolled in Kindergarten in South Point, Ohio, near the Appellant's residence.

        On November 20, 1995, the Appellant filed a petition in Ohio seeking custody of Zachary and claiming that Zachary had been living with him in Ohio for over a year. On December 21, 1995, pursuant to the Appellant's request for custody, Angela signed an Ohio consent form to permit the Appellant to adopt Zachary.See footnote 6 On December 26, 1995, the Ohio court issued an order placing Zachary with the Appellant in anticipation of potential future adoption. This Ohio order found that Zachary was a resident of Ohio.See footnote 7

        On February 16, 1996, the DHHR in Cabell County, West Virginia, filed an abuse and neglect petition alleging that Zachary, then age five, and Kristopher, then almost two years of age, were neglected children.See footnote 8 The whereabouts of Zachary were unknown to DHHR, although the petition stated that DHHR believed that Zachary was living with Barbara, the maternal grandmother.See footnote 9 In response to the DHHR petition, the lower court granted emergency custody of Zachary and Kristopher to the DHHR on February 16, 1996. Zachary had not yet been located, and Kristopher thereafter remained in the care of Ms. Merritt in Huntington, West Virginia.    

        Based upon Angela's failure to appear at hearings scheduled in Cabell County on February 19, 1996, and March 4, 1996,See footnote 10 custody of the children remained with the DHHR. On March 14, 1996, in an attempt to find Zachary, the DHHR located Barbara at her Huntington, West Virginia, home. According to the testimony of Ms. Sharron Hisman, a child protective services worker, Barbara informed Ms. Hisman that Zachary was visiting the Appellant in Ohio. Ms. Hisman asked Barbara to transport Zachary to the DHHR later that day. The DHHR thus obtained physical custody of Zachary when he was brought to the DHHR office on March 14, 1996.

        From March 1996, both Zachary and Kristopher resided in the Merritt home in Huntington, West Virginia. On May 6, 1996, CASASee footnote 11 Shirley Lewis submitted a report detailing her visitation to the Merritt home. Ms. Lewis indicated that the children both related well to Ms. Merritt and her teenaged daughters. Ms. Lewis also reported that Ms. Merritt was interested in adopting both children. The May 6, 1996, report recommended termination of Angela's parental rights based upon her neglect of the children. That report also related Zachary's alleged statements concerning the Appellant and his living quarters in what Zachary described as a "dirty old bus." Ms. Lewis also noted that based upon the Appellant's failure to appear for two initially scheduled adoption hearings in Ohio, the adoption proceedings were dismissed on March 14, 1996, and the Appellant subsequently refiled for adoption. The Appellant's petition for adoption was reinstated on March 21, 1996, in Ohio. Ms. Lewis also observed that the Appellant and the maternal grandmother, Barbara, were not residing together at that time.

        In May 1996, the Appellant filed a motion to dismiss the abuse and neglect proceedings in Cabell County based on alleged lack of jurisdiction in West Virginia. The lower court denied the motion but included the Appellant as a party to the abuse and neglect proceedings in West Virginia. Guardian ad litem Lisa White, appointed on behalf of Zachary, informed the lower court that pursuant to her discussions with the Ohio judge and guardian ad litem, it was her understanding that adoption would not be recommended until a home study of the Appellant's home could be completed in Ohio.

        In a June 13, 1996, report, Ms. Lewis recommended continued custody in the Merritt home, appointment of attorneys for the putative fathers so that termination of their parental rights could move forward, and denial of visitation to the Appellant.See footnote 12 In a June 17, 1996, hearing, as part of the improvement period granted to Angela, the lower court approved the Merritt home for temporary foster care and granted Angela supervised visitation with the children. The Appellant was permitted two supervised visits, and River Valley Child Development Center was to provide counseling and developmental screenings on the boys. Counsel was also appointed for the putative fathers in anticipation of proceedings to terminate their parental rights.

         On June 21, 1996, the lower court entered an order continuing legal and physical custody of the children with the DHHR, and indicating that Angela had admitted neglecting the children. The court further ordered that no family member, including Angela, Barbara, or the Appellant, should have contact with the caregiver for the children.

        On July 11, 1996, the Ohio court entered an order appointing the Appellant as Zachary's guardian, but that order has been suspended pending a decision by this Court in the present jurisdictional matter.See footnote 13 In an August 20, 1996, CASA report, Ms. Lewis recommended termination of Angela's rights, placement of both boys with Ms. Merritt, and visitation rights for the Appellant and Barbara. On September 30, 1996, the lower court granted Angela a ninety-day improvement period, terminated the parental rights of the unknown putative fathers, and denied the Appellant's motion for weekend visitation, allowing him one supervised visit per month.

        On December 6, 1996, Zachary's guardian ad litem moved for termination of Angela's improvement period based upon her failure to cooperate and her failure to attend counseling at Prestera Mental Health Center. Angela had also failed to appear for scheduled visitation with the children. The guardian emphasized the necessity for attention to be focused upon a permanency plan for the children.

        In a December 13, 1996, CASA report, Ms. Lewis stated that Angela's improvement period had produced no positive results, that she was not in compliance with the treatment plan, and that she had failed to attend sessions at Prestera designed to address her substance abuse problems. Ms. Lewis again recommended termination of Angela's parental rights.

        On January 6, 1997, Angela entered a drug rehabilitation program and departed the program without permission on January 15, 1997. DHHR has had no further contact with Angela since that time. Hearings in the lower court regarding the jurisdictional issue were held on February 6, 1997, and March 5, 1997. Although Ohio had taken jurisdiction pursuant to the Appellant's recitation of the facts concerning Zachary's living arrangements, the DHHR submitted evidence indicating that child protective service workers investigating referrals of suspected child neglect had been advised that Angela and the children were residents of Cabell County, West Virginia, and the allegations which formed the basis for the petition for neglect had occurred in West Virginia. The DHHR contended that the Appellant's allegations that he had maintained physical custody of Zachary for years preceding the initiation of the neglect petition were not consistent with the prior investigations by the DHHR or with reports by Kathy Merritt that Zachary had lived with Ms. Merritt for weeks or months at a time during the period immediately preceding the Appellant's initiation of custody proceedings in Ohio. At the conclusion of the jurisdictional hearings, the lower court explained as follows:

On March 27, 1997, the lower court found that Ohio did not have jurisdiction, and that West Virginia had properly maintained jurisdiction over Zachary.See footnote 14 The Appellant now appeals that order.

        While this appeal was pending, continued reports of the CASA representatives have indicated that the children are thriving in the custody of Ms. Merritt and that Ms. Merritt has earned her BSN in nursing and her nurse's license. She is currently employed by Southwestern Community Action Council as an RN/Case Manager.

II. Analysis

        The Appellant raises three allegations of error: (1) DHHR failed to comply with the UCCJA in exercising jurisdiction over Zachary; (2) the lower court erred in failing to recognize and enforce the Ohio custody decree which placed Zachary with the Appellant in anticipation of adoption; and (3) DHHR improperly removed Zachary from the Appellant's custody in Ohio. In syllabus point one of Chrystal R.M. v. Charlie A.L., 194 W.Va. 138, 459 S.E.2d 415 (1995), we explained that "[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."

        Upon review of the record and briefs in this matter, we find that the DHHR properly asserted jurisdiction in February 1996 by filing a petition alleging the neglect of Zachary after receiving referrals alleging neglect of the child while residing in Cabell County, West Virginia. Zachary was thus brought within the jurisdiction of the lower court by virtue of the reports of neglect occurring in Cabell County, the county in which DHHR had evidence indicating that he, his mother, and his maternal grandmother resided.See footnote 15

A. Applicability of the UCCJA and PKPA
to Abuse and Neglect Proceedings

        Once the lower court learned of the Ohio custody and adoption proceedings, the jurisdictional issue was raised and a determination of proper jurisdiction for this custody matter was necessitated. The UCCJA, West Virginia Code § 48-10-1, et seq. (1995), and the Parental Kidnapping Prevention Act, 28 U.S.C. § 1738A (1994), (hereinafter "PKPA") govern interstate child custody disputes. Within the definition of "custody proceeding," the UCCJA expressly includes abuse and neglect proceedings. West Virginia Code § 48-10-2(3) provides: "'Custody proceeding' includes proceedings in which a custody determination is one of several issues, such as an action for divorce or separation, and includes child neglect and dependency proceedings[.]" Thus, based upon the UCCJA's explicit inclusion of abuse and neglect proceedings within the definition of custody proceedings, we address the UCCJA in the context of this abuse and neglect matter. Application of the UCCJA to juvenile neglect proceedings has also been recognized in other jurisdictions. See, e.g., L. G. v. People, 890 P.2d 647 (Colo.1995); In Interest of L. C. , 857 P.2d 1375 (Kan.App.2d 1993); In re C. O., 856 P.2d 290 (Okl.Ct.App. 1993); In re E. H., 612 N.E.2d 174 (Ind. Ct. App.1993).

        The Fourth Circuit Court of Appeals recognized in Meade v. Meade, 812 F.2d 1473 (4th Cir. 1987), that the PKPA was designed to remedy inconsistent UCCJA interpretations by various state courts and to create a uniform application of child custody jurisdictional standards. 812 F.2d at 1476. Addressing the applicability of the PKPA to abuse and neglect actions, the Court of Appeals of North Carolina explained as follows:

In re Van Kooten, 126 N.C.App. 764, 769, 487 S.E.2d 160, 163.

        The PKPA requires every state to recognize and enforce custody determinations of sister states if such determinations were consistent with the Act, providing as follows at 28 U.S.C. § 1738A(a):

        The UCCJA contains a similar arrangement, providing "that foreign states' custody decrees are to be recognized and enforced by West Virginia courts if they accord with statutory provisions substantially similar to those of the UCCJA or meet UCCJA jurisdictional standards." Arbogast v. Arbogast, 174 W.Va. 498, 502, 327 S.E.2d 675, 679 (1984). In syllabus point two of Arbogast, we explained:

Syllabus point three of Arbogast emphasized that "[b]efore an out-of-state child custody decree can be enforced here, it must be demonstrated that the court making the decree had jurisdiction of the parties and of the subject matter of the dispute."      In Arbogast, we acknowledged that both the PKPA and UCCJASee footnote 17 attempt "to eliminate judicial competition and conflicting decrees in interstate child custody dispute by establishing clear and definite rules about which state has jurisdiction of a custody dispute and enforcing orders of that state." Id.

        In Sheila L. v. Ronald P. M., 195 W. Va. 210, 465 S.E.2d 210 (1995), we recognized that the full faith and credit doctrine will not be applied where a foreign court lacked jurisdiction under the UCCJA and the PKPA. Id. at 217, 465 S.E.2d at 217. In syllabus point one of Sheila L., we stated:

In Sheila L., the mother lived in West Virginia with the child, and the father resided in Ohio. 195 W.Va. at 213, 465 S.E.2d at 213. The father obtained an ex parte order from the Ohio Court of Common Pleas granting him temporary custody of the child based upon allegations that the mother's stepfather abused the child while the child resided with the mother in West Virginia. Id. Ohio then retained jurisdiction, and West Virginia accorded full faith and credit to the Ohio determination of custody to the father. Id. at 215, 465 S.E.2d at 215. The mother appealed, and this Court held that although Ohio properly maintained jurisdiction for the purpose of emergency custody under the allegations of abuse, Ohio lacked jurisdiction for determination of the ultimate custody resolution and West Virginia, as the home state, was deemed the most appropriate forum for deciding the custody issue. Id. at 223, 465 S.E.2d at 223.     

        As we observed in syllabus point one of In re Brandon L.E., 183 W.Va. 113, 394 S.E.2d 515 (1990):

Syllabus point two of Brandon explained:

    
        In Brandon, we concluded that the best interests of the child dictated that West Virginia, the court with the most substantial evidence regarding the child's present and future well-being, should have jurisdiction. 183 W.Va. at 119, 394 S.E.2d at 521. Significantly, we explained in Brandon that the UCCJA permits a sister state with contacts to the child to determine whether modification of the initial decree is in the best interests of the child and requires that West Virginia, if serving as a modifying court, " 'give due consideration to the transcript of the record and other documents of all previous proceedings submitted to it in accordance with section twenty-two [Sec. 48-10-22] of this article.' W.Va.Code § 48-10-15(b)." 183 W.Va. at 120, 394 S.E.2d at 522. Under section twenty-two of the Act, a foreign court would be required to forward to the West Virginia court a certified copy of all documents pertaining to the custody determination upon appropriate request. W.Va.Code § 48-10-22 (1986).

        We also found in Brandon that West Virginia had jurisdiction because of the "substantial evidence concerning the child's present or future care, protection, training and personal relationships." 183 W.Va. at 118, 394 S.E.2d at 520 (quoting W.Va.Code, 48-10-3(a)(2)(ii)). We found that Florida, the state making the initial determination, no longer had jurisdiction and recognized that the residence of a child within a community for six months can generate significant data. Id.

         While a matter arising in the abuse and neglect arena obviously entails issues differing from a standard custody proceeding, the practice encouraged in the UCCJA regarding courts of the two states conferring and agreeing upon the appropriate forum for jurisdiction would still be prudent. If, for instance, a prior custody proceeding was made (or pending) in one state in accordance with the UCCJA jurisdictional prerequisites and subsequent abuse and neglect occurred in a second state, the evidence surrounding the abuse allegation would exist in that second state. In such instance, the better practice would be for the judges to confer and agree which court should hear the abuse and neglect matter.
        

III. Conclusion

         In the case sub judice, we conclude that Ohio failed to satisfy the prerequisites for properly assuming jurisdiction over Zachary and that West Virginia was therefore not required to extend full faith and credit to the Ohio custody and adoption proceedings. Ohio would properly have obtained jurisdiction under the UCCJA if it satisfied any of the four criteria outlined in the statute, as quoted above. However, based upon the extensive record before this Court, it does not appear that Ohio could qualify as Zachary's home state at the time of the initiation of the Ohio proceedings, since he had not resided in Ohio for a period of six months prior to the initiation of the Ohio proceedings in November 1995. According to the evidence, Zachary had spent considerable time with Ms. Merritt in June and July 1995 in Huntington, West Virginia, and had lived with his mother in West Virginia in August and September 1995.

        Additionally, Ohio would not properly have assumed jurisdiction under 48-10- 3(2) since Zachary had no significant connection with Ohio. Only the maternal grandmother's boyfriend permanently resided in Ohio, with Zachary and the grandmother residing in that home on an irregular basis. He had not been abandoned; nor was it necessary in an emergency to protect him, under section 48-10-3(3). Likewise, Ohio could not premise jurisdiction upon 48-10-3(4) regarding the absence of any other state that would have jurisdiction under the UCCJA. An examination of the child's history of various living arrangements would indicate that his substantial connections were in West Virginia.

        We conclude that West Virginia is properly vested with jurisdiction over this matter, and we therefore affirm the decision of the lower court.

Affirmed.

Footnotes

Footnote: 1      We point out that a per curiam opinion is not legal precedent. See Lieving v. Hadley, 188 W. Va. 197, 201 n.4, 423 S.E.2d 600, 604 n.4. (1992).

Footnote: 2      We follow our past practice in domestic and juvenile cases involving sensitive facts and do not use the last names of the parties. See, e.g., State ex rel. Amy M. v. Kaufman, 196 W. Va. 251, 254 n. 1, 470 S.E.2d 205, 208 n. 1 (1996).

Footnote: 3      Barbara D. has a history of mental illness and had her own children removed from her custody. Although Barbara maintained an apartment in Huntington, West Virginia, she has also lived intermittently with the Appellant at his home in South Point, Ohio.

Footnote: 4      Zachary apparently resided at the Appellant's home in South Point, Ohio, with Barbara and the Appellant during portions of 1992 and 1993, Barbara received AFDC assistance for Zachary, and Angela kept Zachary during the day while the Appellant worked. According to the record, Angela was living at various locations in Cabell County, West Virginia, during this time.

Footnote: 5      In August 1995, Angela left Kristopher, then seventeen months old, with Ms. Kisha White who allegedly attempted to sell Kristopher for cocaine. The record is unclear as to the location of the residence of Kisha White. In October 1995, Kristopher once again began living exclusively with Ms. Merritt and her family in Huntington, West Virginia.

Footnote: 6      Pursuant to West Virginia Code § 49-6-5(a)(6) (1996), a parent against whom abuse and neglect proceedings have been filed may not confer any rights on a third party by executing a consent to adopt during the pendency of the proceeding. See Alonzo v. Jacqueline F., 191 W.Va. 248, 445 S.E.2d 189 (1994). In the present case, however, Angela signed the adoption consent prior to the filing of the petition of abuse and neglect.

Footnote: 8      The petition was based upon the referrals of November 1993, May 1994, and six referrals in 1995, alleging generally that Angela was improperly caring for Zachary and Kristopher and had left them with various individuals without properly providing for their care. Kristopher is not a subject of this appeal.

Footnote: 9      DHHR apparently had no knowledge of the adoption proceedings for Zachary in Ohio.

Footnote: 10      The record does not reveal whether Angela had been given proper notice of these hearings.

Footnote: 11      On April 16, 1996, the lower court had appointed a CASA (Court Appointed Special Advocate) for Zachary and Kristopher.

Footnote: 12      With regard to the denial of the Appellant's motion for visitation, Ms. Lewis reasoned that the Appellant had never served as the primary caretaker for the boys and had "hidden Zachary from DHHR and other agencies in the past. He has no job to support the child."

Footnote: 13      In the July 11, 1996, order, the Ohio Court of Common Pleas, Probate Juvenile Court, found "that at the time of the placement of the child that the Court had jurisdiction over the child. . . ." The court further found that prior to the abuse and neglect petition in West Virginia, the Ohio court "had exercised jurisdiction over Zachary Davis and that this Court was the appropriate form (sic) to exercise the jurisdiction of said minor."

Footnote: 18      The phrase "home state" is defined identically in the PKPA and the UCCJA as the State in which, immediately preceding the time involved, the child lived with his parents, a parent, or a person acting as parent, for at least six consecutive months.