STATE OF WEST VIRGINIA
SUPREME COURT OF APPEALS FILED
September 29, 2020
EDYTHE NASH GAISER, CLERK
SUPREME COURT OF APPEALS
In re N.R., A.R.-1, and A.W. OF WEST VIRGINIA
No. 20-0202 & 20-0204 (Ohio County 13-CJA-33, 14-CJA-76, 14-CJA-77, and 14-CJA-78)
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 January 27, 2020, order
terminating their parental rights to N.R., A.R.-1, and A.W. 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 Indian
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 that the circuit court erred in denying petitioners’ motions on the basis
that they did not have standing. This case satisfies the “limited circumstances” requirement of
Rule 21(d) of the West Virginia Rules of Appellate Procedure, and a memorandum decision is
appropriate to vacate and remand the matter.
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 terminated the parents’ custodial
rights after extensive child abuse and neglect proceedings. The parents appealed and argued that
the circuit court failed to comply with the Indian Child Welfare Act (“ICWA”), 25 U.S.C. §§
1
Consistent with our long-standing practice in cases with sensitive facts, we use initials
where necessary to protect the identities of those involved in this case. See In re K.H., 235 W.
Va. 254, 773 S.E.2d 20 (2015); Melinda H. v. William R. II, 230 W. Va. 731, 742 S.E.2d 419
(2013); State v. Brandon B., 218 W. Va. 324, 624 S.E.2d 761 (2005); State v. Edward Charles
L., 183 W. Va. 641, 398 S.E.2d 123 (1990). Further, because one of the children, the mother, and
the father share the same initials, we refer to them as A.R.-1, A.R.-2, and A.R.-3, respectively,
throughout this memorandum decision.
1
1901 to -1923, and sought to dismiss the case. Id. at --, 836 S.E.2d at 802. The DHHR and
guardian filed separate appeals, arguing that the circuit court erred in failing to terminate the
parents’ 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 [parents’] 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, both parents filed motions to transfer the proceedings from the
circuit court to the Indian Tribal Court of the Manchester-Point Arenas Band of Pomo Indians,
pursuant to 25 U.S.C. § 1911(b). Later in November of 2019, the circuit court denied both
motions on the basis that the parents lacked standing pursuant to this Court’s opinion. On
January 27, 2020, the circuit court modified its prior dispositional order and terminated the
parents’ parental rights. Petitioners now appeal. 2
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 Indian Tribal Court. Petitioners argue that the circuit court incorrectly
denied these motions on the basis of standing. Although this Court’s prior opinion in In re N.R.
directed the circuit court to terminate petitioners’ parental rights, petitioners aver that they
retained their parental rights until the circuit court entered an order terminating their parental
2
The parents’ parental rights were terminated below. According to the parties, the
permanency plan for the children is adoption in their respective foster placements.
2
rights. Therefore, at the time that the circuit court denied their motions, they had standing under
the ICWA to move for the transfer of the proceedings. We agree.
In the context of West Virginia abuse and neglect proceedings, we have recognized that
[a] final order terminating a person’s parental rights, as the result of either
an involuntary termination or a voluntary relinquishment of parental rights,
completely severs the parent-child relationship, and, as a consequence of such
order of termination, the law no longer recognizes such person as a “parent” with
regard to the child(ren) involved in the particular termination proceeding.
Syl. Pt. 4, In re Cesar L., 221 W. Va. 249, 654 S.E.2d 373 (2007). We have further held that,
following the severance of the parent-child relationship, the individual “does not have standing
as a ‘parent,’ pursuant to [West Virginia Code § 49-4-606], to move for a modification of
disposition of the child with respect to whom his/her parental rights have been terminated.” Id, at
251, 654 S.E.2d at 375, syl. pt. 6, in part. Accordingly, our prior holdings provide that an
individual retains standing to act as a parent while their parental rights to their respective
children remain intact.
25 U.S.C. § 1911(b) permits the parents of Indian children to petition state courts to
transfer certain proceedings to the children’s respective tribal courts:
[i]n any State court proceeding for the foster care placement of, or termination of
parental rights to, an Indian child not domiciled or residing within the reservation
of the Indian child’s tribe, the court, in the absence of good cause to the contrary,
shall transfer such proceeding to the jurisdiction of the tribe, absent objection by
either parent, upon the petition of either parent or the Indian custodian or the
Indian child’s tribe: Provided, That such transfer shall be subject to declination by
the tribal court of such tribe.
According to the relevant federal regulations, “[e]ither parent, the Indian custodian, or the Indian
child’s tribe may request, at any time, orally on the record or in writing, that the State court
transfer a foster-care or termination-of-parental-rights proceeding to the jurisdiction of the
child’s Tribe.” 25 C.F.R. § 23.115 (emphasis added). At the time the circuit court denied
petitioners’ motions, they were the biological parents of Indian children who were subject to a
West Virginia state court proceeding for the determination of their foster care placement. 3 As
3
Notably “foster care placement” is defined in 25 U.S.C. § 1903(1)(i) as
any action removing an Indian child from its parent or Indian custodian for
temporary placement in a foster home or institution or the home of a guardian or
conservator where the parent or Indian custodian cannot have the child returned
upon demand, but where parental rights have not been terminated.
(continued . . . )
3
parents with their parental rights intact to the Indian children at issue, petitioners had standing to
bring a motion to transfer the proceedings to the Indian tribal court.
For the foregoing reasons, we vacate the circuit court’s November 18, 2019, and
November 22, 2019, orders denying petitioners’ respective motions to transfer the proceedings to
the Indian tribal court and remand the matter to the circuit court for an adjudication of these
motions on the merits. 4 If a circuit court, or another party, asserts that good cause to deny the
transfer exists, then all parties must be granted an opportunity to provide their views on the
matter. 5 The circuit court is hereby ordered to hold the appropriate hearings and issue a final
order in this case within sixty days. The Clerk is hereby directed to issue the mandate
contemporaneously herewith.
Vacated and remanded.
(Emphasis added). Based upon the plain language of this statute, a parent loses standing to
transfer the proceedings if their parental rights are severed. See also 25 U.S.C. §1903 (1)(ii)
(“termination of parental rights” is defined as “any action resulting in the termination of the
parent-child relationship”). Following the termination of parental rights, the resulting
proceedings would be considered “preadoptive placement” or “adoptive placement” of the
children, which are not controlled by 25 U.S.C. §1911. See 25 U.S.C. § 1903(1).
4
Upon receipt of a petition for transfer, the “State court must transfer the child-custody
proceeding unless the court determines that transfer is not appropriate because one or more of the
following criteria are met: (a) Either parent objects to such transfer; (b) The Tribal court declines
the transfer; or (c) Good cause exists for denying the transfer.” 25 C.F.R. § 23.117. Critically,
“[i]f the State court believes, or any party asserts, that good cause to deny transfer exists, the
reasons for that belief or assertion must be stated orally on the record or provided in writing on
the record and to the parties to the child-custody proceeding” and “[a]ny party to the child-
custody proceeding must have the opportunity to provide the court with views regarding whether
good cause to deny transfer exists.” 25 C.F.R. §§ 23.118(a) & (b).
5
Consistent with their previous positions on appeal, the DHHR and the guardian represent
that the children do not wish to be moved to California to live on the Manchester-Point Arena
Band of Pomo Indian Tribe’s reservation and, now, refuse to move to any other foster home. See
In re N.R., 242 W. Va. at -- n.23, 836 S.E.2d at 814 n.23. These concerns are relevant when
determining whether good cause to deny the transfer exists. The circuit court may also consider
the timeliness of the petition to transfer, the children’s contact with the tribe, and whether
transfer would result in undue hardship to parties or witnesses. See People in Interest of J.J., 454
N.W.2d 317 (1990) (finding good cause existed not to transfer proceeding when the children
were over five years of age with little or no contact with tribe, evidence in case could not be
adequately presented to tribal court without undue hardship to parties and witnesses, and petition
to transfer was untimely). Finally, we remind the circuit court that “[t]his Court has repeatedly
stated that a child’s welfare acts as ‘the polar star by which the discretion of the court will be
guided.’” In re Timber M., 231 W. Va. 44, 59, 743 S.E.2d 352, 367 (2013).
4
ISSUED: September 29, 2020
CONCURRED IN BY:
Chief Justice Tim Armstead
Justice Elizabeth D. Walker
Justice Evan H. Jenkins
Justice John A. Hutchison
DISSENTING AND WRITING SEPARATELY:
Justice Margaret L. Workman
Workman, J., dissenting:
I dissent from the majority opinion because, figuratively speaking, it continues
after seven years to administer “death by due process“ to three young children who have suffered
not only long-term serious and aggravated physical abuse from their parents, but sustained abuse
by a legal system that seems to want to count how many angels can dance on the head of a pin6
rather than giving these kids the emotional safety of a forever family to which their entitlement is
long overdue.
These West Virginia abuse and neglect proceedings were initiated because
petitioner father admitted to causing N. R. to sustain two fractures: a classic metaphysical
fracture of the left distal tibia (also referred to as a bucket handle fracture) and a left clavicle
fracture. In re N.R., 242 W. Va. 581, 836 S.E.2d 799, 803 (2019), cert. denied sub nom. Rios v.
W. Virginia Dep’t of Health & Human Res., 140 S. Ct. 1550, 206 L. Ed. 2d 385 (2020) (“N. R.
I”). But even before that, there were abuse and neglect proceedings in Hawaii based on
aggravated physical abuse when the children were even younger. Enough is enough. These
children have rights, too.
None of this discussion is intended to denigrate the importance which the United
States Congress has accorded the preservation of the Native American culture through the Indian
Child Welfare Act (“ICWA”). 7 But examining the history of this case, Justice Hutchison,
writing for the Court in our earlier decision N. R. I, painstakingly went through every aspect of
the lower court’s compliance with the Act. The tribe had the effective right to intervene and
enjoyed the right to participate fully below. However, now that the parents’ rights have been
6
The phrase “how many angels can dance on a pin” became a symbol for the silly and
pointless sophistry of medieval scholastics. See philosophy.stackexchange.com.
7
However, A. W. is not an Indian child as defined by the ICWA. See N. R. I, 242 W. Va.
at ___, n.6, 836 S.E.2d at 803 n.6.
5
terminated, the parents file the instant appeal on behalf of the tribe. The tribe went along with
the state proceedings so long as they were satisfied with the results, and still do not appeal. Only
now that the case has been fully litigated below for a period of seven years is the request to
transfer to the Indian tribunal made. More death by due process.
I agree with the lower court that the two parents, who have been so consistently
abusive to these three children for most of their lives, do not have standing to carry the tribe’s
water in this appeal which is ostensibly based on their desire for the tribe to be heard, when in
fact both they and the tribe have been thoroughly heard. I would, however, characterize what the
circuit judge called “standing” more in this fashion: our Court held in Alonzo v. Jacqueline F.,
191 W. Va. 248, 445 S.E.2d 189 (1994) that, once a petition alleging abuse and neglect is filed,
the parents/custodians whose children are the subject of those proceedings have no right to
decide the proper placement and/or disposition. Now while the tribe did not appeal, they want to
ride on the coattails of the abusive parents, while the abusive parents have no case so they
attempt to ride on the coattails of the tribe. Again, enough is enough. The children deserve
security and finality.
Although the ICWA provides parents have the right at any point to seek transfer
of the proceedings to an Indian Tribal Court, they let all the proceedings go forth in West
Virginia courts and only sought to raise this issue when they didn’t get the result they sought to
obtain. For far too long courts generally have treated children’s rights only in the context of
competing sets of adults’ rights. 8 I daresay that Congress enacted the ICWA not to benefit
abusive parents nor to benefit the tribe leaders. Even its title suggests that its purpose is to
protect Indian children.
If the “Enough is Enough” principle as applied to the child misery index isn’t
sufficient and the majority just wants to keep providing death by due process for another number
of years, here is additional reasoning that the true legal scholar might prefer as an analytical
framework. The majority has mistakenly interpreted this case as one of “standing,” when it is
more correctly characterized as one of jurisdiction. 9 In N. R. I, this Court reversed the circuit
court’s termination of petitioners’ custodial rights and remanded solely for termination of their
parental rights:
For the foregoing reasons, the August 31, 2018, order of the
Circuit Court of Ohio County is reversed only insofar as it orders
disposition under West Virginia Code § 49-4-604(b)(5), and this
8
See Syl. Pt. 7, Matter of Brian D., 194 W. Va. 623, 461 S.E.2d 129 (1995) (“Cases
involving children must be decided not just in the context of competing sets of adults’ rights, but
also with a regard for the rights of the child(ren).”)
9
In fairness, the circuit court likewise characterized its refusal of petitioners’ motion as
one of “standing.” In reality, however, it was clearly attempting to properly effectuate the
mandate rule, as more fully described herein.
6
case is remanded for entry of a final dispositional order terminating
the mother’s and father’s parental rights pursuant to West Virginia
Code § 49-4-604(b)(6).
242 W. Va. at ___, 836 S.E.2d at 817.
Further, under Rule 26 of the West Virginia Rules of Appellate Procedure, only
the issuance of the mandate terminates this Court’s jurisdiction. “Once this Court takes
jurisdiction of a matter pending before a circuit court, the circuit court is without jurisdiction.”
Syl. Pt. 3, Fenton v. Miller, 182 W. Va. 731, 391 S.E.2d 744 (1990). Therefore, at the time of
the filing of petitioners’ motion to transfer, this Court continued to have jurisdiction over the
matter; that jurisdiction did not terminate until January 9, 2020 when the mandate was issued. 10
Upon issuance of the mandate, the circuit court may then act only according to the
mandate. The “mandate rule” provides:
A circuit court has no power, in a cause decided by the Appellate
Court, to re-hear it as to any matter so decided, and, though it must
interpret the decree or mandate of the Appellate Court, in entering
orders and decrees to carry it into effect, any decree it may enter
that is inconsistent with the mandate is erroneous and will be
reversed. Syl. Pt. 1, Johnson v. Gould, 62 W.Va. 599, 59 S.E. 611
(1907).
State ex rel. Frazier & Oxley, L.C. v. Cummings, 214 W. Va. 802, 808, 591 S.E.2d 728, 734
(2003). With respect to limited remands, such as the one issued in N. R. I, the Court has held:
When this Court remands a case to the circuit court, the
remand can be either general or limited in scope. Limited remands
explicitly outline the issues to be addressed by the circuit court and
create a narrow framework within which the circuit court must
operate. General remands, in contrast, give circuit courts authority
to address all matters as long as remaining consistent with the
remand.
Syl. Pt. 2, State ex rel. Frazier & Oxley, L.C. v. Cummings, 214 W. Va. 802, 805, 591 S.E.2d
728, 731 (2003) (emphasis added). As we acknowledged in Frazier, “[u]nder a limited remand,
‘the court on remand is precluded from considering other issues, or new matters, affecting the
10
Rule 50 of the West Virginia Rules of Procedure for Child Abuse and Neglect provides
that an automatic stay does not occur in abuse and neglect cases. However, clearly this Rule
simply allows for the lower court to take actions necessary to continue to protect the children; it
does not suggest that the lower court has jurisdiction and authority to effectuate a transfer of the
case to another tribunal while an appeal is pending.
7
cause.’” Id. at 809, 591 S.E.2d at 735 (quoting 5 Am.Jur.2d Appellate Review § 787 at 455
(1995)).
Therefore, despite the fact that petitioners filed an extra-jurisdictional motion
below, the circuit court on remand was obligated to apply this Court’s mandate as written and
had only authority to terminate petitioners’ rights as determined and directed in N. R. I.
Accordingly, I respectfully dissent.
8