Lena S. Hill, Esq.
Pineville, West Virginia
Attorney for the Appellant
G. Todd Houch, Esq.
Moler, Staton, Staton & Houck
Mullens, West Virginia
Attorney for the Appellee
The Opinion of the Court was delivered PER CURIAM.
SYLLABUS BY THE COURT
1. "To be considered fit, the primary caretaker parent
must: (1) feed and clothe the child appropriately; (2) adequately
supervise the child and protect him or her from harm; (3) provide
habitable housing; (4) avoid extreme discipline, child abuse, and
other similar vices; and (5) refrain from immoral behavior under
circumstances that would affect the child. In this last regard,
restrained normal sexual behavior does not make a parent unfit."
Syllabus Point 5, David M. v. Margaret M., 182 W. Va. 57, 385
S.E.2d 912 (1989).
2. "'The exercise of discretion by a trial court in awarding custody of a minor child will not be disturbed on appeal unless that discretion has been abused: however, where the trial court's ruling does not reflect a discretionary decision but is based upon an erroneous application of the law and is clearly wrong, the ruling will be reversed on appeal.' Syllabus Point 2, Funkhouser v. Funkhouser, 158 W.Va. 964, 216 S.E.2d 570 (1975)." Syllabus Point 1, David M. v. Margaret M., 182 W. Va. 57, 385 S.E.2d 912 (1989).
Terry Dancy appeals the decision of the Circuit Court of
Wyoming County denying him permanent custody of his eleven year old
daughter, Tara. Mr. Dancy, who obtained temporary custody of his
daughter after the Department of Health and Human Services
(hereinafter, the Department) filed a petition alleging that Betty
Dancy, his former wife and Tara's mother, was unable properly to
supervise the child, maintains that it would be in Tara's best
interests to remain in his custody. Mrs. Dancy, who complied with
the Department's service plan, maintains that because she
ameliorated the conditions that led to the Department's petition,
she should regain custody of her daughter. Because the circuit
court did not abuse his discretion in awarding custody of the child
to Mrs. Dancy, we affirm the circuit court.
In 1986, Mr. and Mrs. Dancy were divorced and Mrs. Dancy
was awarded custody of Tara. After her parents' divorce, Tara
lived with her mother and her half-sister in Wayne County and had
liberal visitation with her father. While in her mother's custody
Tara did well in school, but she was frequently absent-- 18 days
during kindergarten at Crum Elementary School, 28 days during first
grade at the Kenova Elementary School, and 12 days during second
grade at the Kenova Elementary School. Tara said that some of her
missed school days were caused by "not getting up." Mrs. Dancy frequently instructed the school to send Tara to the house of
Tara's friend. Mrs. Dancy said the visits allowed for additional
play time.See footnote 1
On July 9, 1991, Mrs. Dancy entered an alcoholism
treatment program. After successfully completing the treatment
program, Mrs. Dancy attended several Alcoholics Anonymous meetings
and several persons testified that Mrs. Dancy's parenting skills
were not affected. After treatment, Mrs. Dancy suffered a relapse
and on October 11, 1991, the Department filed a petition in the
Circuit Court of Wayne County seeking Tara's custody alleging that
Mrs. Dancy failed "to properly supervise the child and . . . [left]
the child with undesirable people; and, that the mother stays out
drinking." After a hearing, the Circuit Court of Wayne County
granted the Department temporary legal and physical custody of
After the Department's petition, Mr. Dancy petitioned for
Tara's custody simultaneously in Wayne County, where the Department
had been awarded temporary custody of his child, and in Wyoming
County, where he lives. The Wyoming County family law master found
a substantial change of circumstances and awarded Mr. Dancy temporary custody until the end of the 1991-92 school year. The
Circuit Court of Wyoming County affirmed the temporary change of
While in her father's custody, because of Mr. Dancy's
job, Tara's afternoon care is provided by her father's girlfriend.
Tara continued to do well in school and missed only three and a
half days-- two days for court appearances, one day for a doctor's
appointment and a half day for a funeral. According to an August
18, 1992 custody assessment report from Catherine Mueller-Bell,
M.A. and Heather Hagerman, Ph.D., Tara is a well-adjusted child who
"does not have a preference as to which parent she lives with."
The assessment report notes that although Tara was not abused by
either parent, she "chooses to forget a lot of her mother's past
behavior." The report noted that Tara's feelings of loyalty and
protectiveness for both parents was an "appropriate dynamic" and
concluded by recommending additional evaluations.
Mrs. Dancy, who has been primarily a homemaker, testified
that she stopped drinking, started taking refresher classes and
plans to pursue a degree in cosmetology. Mrs. Dancy acknowledged
she talked to Tara about how the custody question might be
influenced by Tara's performing poorly in her new school.
On January 13, 1992, the Circuit Court of Wayne County
dismissed the Department's petition and ordered the Department to
develop a reunification plan. After determining that Mrs. Dancy
had complied with the Department's service plan, the Wyoming County
family law master recommended that Tara be returned to Mrs. Dancy's
custody. The family law master heard testimony from Sister Andrea
Donnelly, M.A., Mrs. Dancy's substance abuse therapist. Sister
Donnelly testified that in her opinion Mrs. Dancy "would do
absolutely well with her and I think it would help Betti to stay
sober, too, and to continue with her programs." When asked if Mrs.
Dancy's having custody of the child "would be in the child's best
interest," Sister Donnelly replied, "Yes, ma'am, I do."
Mr. Dancy appealed the family law master's decision to
the Circuit Court of Wyoming County, who remanded the case to the
family law master to determine if the return to her mother's
custody would promote Tara's best interests. The family law master
again recommended Tara be returned to Mrs. Dancy's custody. After
the circuit court adopted the family law master's recommended
decision, Mr. Dancy appealed to this Court. After the circuit
court's decision, Mrs. Dancy took immediate custody of Tara on a
weekend visit and refused to allow Tara to complete the remaining
school year in Wyoming County. Because of a stay pending Mr.
Dancy's appeal, Tara was returned to and remains in her father's
On appeal, Mr. Dancy maintains that: (1) the family law
master lacked jurisdiction to modify temporarily a final decree;
(2) the circuit court erred in finding Mrs. Dancy to be a fit
parent and in considering the testimony of Sister Donnelly, Mrs.
Dancy's substance abuse counselor; and (3) the circuit court failed
to consider the best interest of the child.
"The pole star in child custody cases is the welfare of
the child." David M. v. Margaret M., 182 W. Va. 57, 60, 385 S.E.2d
912, 916 (1989). This Court's focus on the child's welfare in a
custody matter is long standing and has been repeatedly
acknowledged. See David M., id.; J. B. v. A. B., 161 W. Va. 332,
335-36, 242 S.E.2d 248, 251 (1978); Funkhouser v. Funkhouser, 158
W. Va. 964, 969, 216 S.E.2d 570, 573 (1975); Boos v. Boos, 93 W.
Va. 727, 117 S.E. 616 (1923); Dawson v. Dawson, 57 W. Va. 520, 50
S.E. 613 (1905). Indeed, "all parental rights in child custody
matters are subordinate to the interests of the innocent child."
David M., supra, 182 W. Va. at 60, 385 S.E.2d at 916. See In re
Lacey P., 189 W. Va. 580, 584, 433 S.E.2d 518, 522 (1993).
Mr. Dancy argues that Mrs. Dancy is unfit because of her
drinking problems. Mrs. Dancy maintains that she is fit because
her drinking is under control. In Syl. pt. 2, Garska v. McCoy, 167 W. Va. 59, 278 S.E.2d 357 (1981), we stated that "the law presumes
that it is in the best interests of . . . [very young] children to
be placed in the custody of their primary caretaker, if he or she
is fit." In Syl. pt. 5, David M., supra, we adopted specific
objective criteria for determining parental fitness.
To be considered fit, the primary caretaker parent must: (1) feed and clothe the child appropriately; (2) adequately supervise the child and protect him or her from harm; (3) provide habitable housing; (4) avoid extreme discipline, child abuse, and other similar vices; and (5) refrain from immoral behavior under circumstances that would affect the child. In this last regard, restrained normal sexual behavior does not make a parent unfit.
See Simmons v. Comer, 190 W. Va. 350, ___ n. 2., 438 S.E.2d 530, 534 n. 2 (1993); John D. K. v. Polly A. S., 190 W. Va. 254, ___, 438 S.E.2d 46, 52 (1993).
In this case, the record shows that Mrs. Dancy's
alcoholism did interfere with her ability to supervise her child as
shown by Tara's excessive absences from school and by leaving Tara
without proper supervision while Mrs. Dancy was out drinking.
Although Mrs. Dancy acknowledges these problems, she maintains her
alcoholism is under control. To show her fitness, Mrs. Dancy
offered testimony from her substance abuse counselor and several
Based on the evidence, we find proper the circuit court's
award of temporary custody to Mr. DancySee footnote 2 and we agree with the
circuit court that Mrs. Dancy has shown that with her alcoholism
under control she is a fit parent.
In Rozas v. Rozas, 176 W. Va. 235, 239, 342 S.E.2d 201,
205 (1986), we noted the process a court should follow to decide a
custody issue: first, the court should consider the fitness of each
parent and award custody to the fit parent; second, if both parents
are fit, then custody should be determined under the "primary
caretaker parent" rule of Garska, supra; and, finally, if neither
parent is the "primary caretaker," then custody should be
determined by examining the best interests of the child.
Although we have acknowledged that "courts cannot use the
best interest of the child doctrine to strip a fit natural parent
of his child," Rozas, supra, 176 W. Va. at 238, 342 S.E.2d at 205 (quoting Syl. Pt. 3, Hammack, supra note 4.), Mrs. Dancy lost
custody temporarily of her child because she was unfit.
In this case Mrs. Dancy has shown that she regained her
fitness, and according to her substance abuse counselor it would be
in the child's best interest to be returned to Mrs. Dancy. Both
the family law master and the circuit court found that it would be
in Tara's best interest to be returned to Mrs. Dancy's custody.
We have consistently held that a custody decision by a
circuit court will not be set aside unless the court abuses its
discretion or makes a clearly erroneous application of the law.
Syl. pt. 2, Funkhouser, supra stated:
The exercise of discretion by a trial court in awarding custody of a minor child will not be disturbed on appeal unless that discretion has been abused: however, where the trial court's ruling does not reflect a discretionary decision but is based upon an erroneous application of the law and is clearly wrong, the ruling will be reversed on appeal.
In accord Syl. pt. 3, John D. K. v. Polly A. S., supra; Syl. pt. 4, Judith R. v. Hey, supra; Syl. pt. 1, David M., supra.
In this case, we conclude that the circuit court did not
abuse his discretion by adopting the family law master's recommendation that Tara be returned to Mrs. Dancy's custody, given
that the modification of custody was specifically enunciated as
temporary and that Mrs. Dancy lived up to the conditions for
restoration of custody, namely, rehabilitation from an alcohol
problem. However, upon the return of Tara to her mother, should
Mrs. Dancy be unable to abstain from alcohol, that inability would
be a sufficient change of circumstance to constitute proper grounds
for permanent modification of custody and return of custody to the
For the above stated reasons, the judgment of the Circuit
Court of Wyoming County is affirmed.
Footnote: 1 Mrs. Dancy asserts that the Department's report failed to note that she was waiting at the friend's house for the afternoon visits and that she and Tara would return to their home together.
Footnote: 2 Mr. Dancy argues that the family law master lacked jurisdiction to modify temporarily the custody order and should have awarded him permanent custody. However, the temporary custody order was affirmed by the circuit court. In J. A. S. v. D. A. S., 170 W. Va. 189, 292 S.E.2d 48 (1982)(per curiam), we upheld a temporary transfer of custody because of a deterioration of the mother's ability to care for her child caused by the mother's drinking problem. We noted that "the trial court recognized that if the appellant could overcome her drinking problem, it would be possible for her to regain her child." J. A. S., 170 W. Va. at 191, 292 S.E.2d at 50.