Curtis C. v. Casey V.

IN THE INTERMEDIATE COURT OF APPEALS OF WEST VIRGINIA
FILED
CURTIS C., September 26, 2023
Petitioner Below, Petitioner EDYTHE NASH GAISER, CLERK
INTERMEDIATE COURT OF APPEALS
OF WEST VIRGINIA
vs.) No. 23-ICA-145 (Fam. Ct. Raleigh Cnty. No. FC-41-2023-D-106)

CASEY V.,
Respondent Below, Respondent

MEMORANDUM DECISION

Petitioner Curtis C. 1 appeals the Family Court of Raleigh County’s March 20, 2023,
order that dismissed his petition for the establishment of paternity and/or visitation. The
family court held that it would not order children to visit parents who are incarcerated, and
that Curtis C. could refile his petition upon his release. Respondent Casey V. did not file a
response. 2

This Court has jurisdiction over this appeal pursuant to West Virginia Code § 51-
11-4 (2022). After considering the parties’ arguments, the record on appeal, and the
applicable law, this Court finds that there is error in the lower tribunal’s decision but no
substantial question of law. This case satisfies the “limited circumstances” requirement of
Rule 21 of the Rules of Appellate Procedure for resolution in a memorandum decision. For
the reasons set forth below, the family court’s decision is vacated, and this case is remanded
for further proceedings consistent with this decision.

At all relevant times, Curtis C. has been incarcerated. On March 13, 2023, he filed
a petition to establish paternity. As part of his petition, Curtis C. filed a proposed parenting
plan, requesting that the family court implement video and telephonic contact, with
eventual supervised visitation between himself and the child. By order entered on March
20, 2023, the family court dismissed Curtis C.’s petition and stated, “[t]his judge does not
order children to visit parents who are incarcerated.” It is from this order that Curtis C. now
appeals.

1
To protect the confidentiality of the juvenile involved in this case, we refer to the
parties’ last name by the first initial. See, e.g., W. Va. R. App. P. 40(e); State v. Edward
Charles L., 183 W. Va. 641, 645 n.1, 398 S.E.2d 123, 127 n.1 (1990).
2
Curtis C. is self-represented.

1
Our standard of review is as follows:

“In reviewing . . . a final order of a family court judge, we review the
findings of fact made by the family court judge under the clearly erroneous
standard, and the application of law to the facts under an abuse of discretion
standard. We review questions of law de novo.” Syl. Pt., [in part,] Carr v.
Hancock, 216 W. Va. 474, 607 S.E.2d 803 (2004).

Amanda C. v. Christopher P., __ W. Va. __, __, 887 S.E.2d 255, 258 (Ct. App. Nov. 18,
2022); accord W. Va. Code § 51-2A-14(c) (2005) (specifying standards for appellate court
review of family court order).

On appeal, Curtis C. raises two assignments of error, which we will address in turn.
In his first assignment of error, Curtis C. contends that the family court erred when it
dismissed his petition for the establishment of paternity due to his incarceration. We agree.
Regarding the establishment of paternity, West Virginia Code §§ 48-24-101(e)(8) (2002)
provides that a paternity proceeding may be brought by “[a] man who believes he is the
father of a child born out of wedlock when there has been no prior judicial determination
of paternity.” Further, West Virginia Code § 48-24-103(a) (2002) goes on to state, “[i]f the
request is made by a party alleging paternity, the statement shall set forth facts establishing
a reasonable possibility or requisite sexual contact between the parties.”

These statutes provide that Curtis C. is permitted to bring a paternity action as long
as his petition meets the requirements of West Virginia Code § 48-24-103(a). However, in
the case at bar, the family court failed to make findings of fact as to why Curtis C.’s
paternity test was dismissed, other than merely stating, “[t]his judge does not order children
to visit parents who are incarcerated.” Simply implementing the preferences of a judge is
not a correct procedural application of the law, nor does it address the actual petition before
the family court.

Regarding the proper application of the law, West Virginia Code § 48-24-101(c)
states as follows:

The sufficiency of the statement of the material allegations in the complaint
set forth as grounds for relief and the grant or denial of the relief prayed for
in a particular case shall rest in the sound discretion of the court, to be
exercised by the court according to the circumstances and exigencies of the
case, having due regard for precedent and the provisions of the statutory law
of this state.

While the statute provides the family court with discretion to grant or deny the
requested relief, it must first review the grounds set forth in the petition to ensure its
sufficiency under § 48-24-103(a).

2
Further, paternity testing is not tantamount to visitation. The two proceedings are
separate. The family court must first determine whether a paternity test is warranted. If
warranted, and if testing determines Curtis C. is the child’s father, then the family court
should proceed to give the parties notice and opportunity to be heard prior to determining
whether visitation would be in the child’s best interest.

As his second assignment of error, Curtis C. contends that he should have been
appointed counsel in this matter. We disagree. West Virginia Code § 48-24-105 (2002)
states that “no parent in any proceeding brought pursuant to this article may have counsel
appointed for them.” It further states that the Bureau for Child Support Enforcement “shall
solely represent the State of West Virginia and does not provide any representation to any
party.” Therefore, we conclude that Curtis C. is not entitled to appointed legal
representation in this matter.

Accordingly, we vacate the family court’s March 20, 2023, order and remand the
matter to the family court with directions to weigh the factors outlined in West Virginia
Code §§ 48-24-101 through 48-24-103 and to issue a new order consistent with this
decision.

Vacated and Remanded with Directions.

ISSUED: September 26, 2023

CONCURRED IN BY:

Chief Judge Daniel W. Greear
Judge Thomas E. Scarr
Judge Charles O. Lorensen

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