January 11, 2005 Motion Docket, Supreme Court of Appeals of West Virginia

Supreme Court of Appeals of West Virginia

Motion Docket

Tuesday, January 11, 2005

1. State of W. Va. v. Ronnie Lynn Legg - 041127 - Petitioner files a direct appeal from her conviction of Wrongful Removal of Timber in an amount greater than $1000. Petitioner moved for a new trial, but the motion was denied. On appeal, the petitioner seeks a reversal and new trial. - Grant 3 - 2, Davis & Maynard.

2. Barbara J. Born, et al. v. PSC of West Virginia - 041747 - Summary will be posted here as soon as available. - Refuse 4 - 1, Starcher.

3. State of W. Va. v. David Michael May - 041126 - Defendant was convicted by a jury of three counts of delivery of a controlled substance. He seeks a reversal of his conviction alleging ineffective assistance of counsel and lack of an impartial judge at trial. - Refuse 3 - 2, Albright & Starcher.

4. In Re: The Marriage of: John Coleman v. Robin L. Coleman - 041235 - Petitioner appeals from the circuit court's order affirming the family court on a custody issue. The family court awarded primary care-taking responsibilities of a minor child to respondent, although he is the child's psychological parent while the petitioner is the child's biological parent. - Refuse 4 - 1, Starcher.

5. Gary E. Carroll v. Roger Pritt, Commissioner, Department of Motor Vehicles - 041205 - The DMV Commissioner appeals from the circuit court's order reversing an administrative suspension of a driver's license for DUI. The court held that the Commissioner may not proceed with the DMV administrative hearing if the arresting officer fails to complete the criminal DUI charging process. In this case, the officer failed to sign the criminal charges. - Grant 5 - 0.

6. SER Donald Corbin v. William S. Haines, Warden - 041201- Petitioner appeals from the denial of his omnibus petition for a writ of habeas corpus. He was previously convicted of first degree murder with a recommendation of mercy. - Grant 5 - 0.

7. State of W. Va. v. David L. Feamster - 041129 - Defendant appeals from the circuit court's order denying his motion to correct his sentence following the entry of an amended sentencing order extending defendant's original term of probation from five years to a term of 10 years. - Grant 4 - 1, Maynard.

8. SER WV Dept. of Health & Human Resources, Jessica Ball, Social Service Worker v. Angela Esque, John Harris*, John Edward Harris, II, and any unknown putative father of John Edward Harris, II;
In the Interest of John Edward Harris, II - 041252 - The circuit court certifies questions on the issue of proving abuse and neglect of an after-born child when there has been a previous involuntary termination of parental rights to a sibling. - Refuse 5 - 0.

CERTIFIED QUESTIONS

1. When an abuse and neglect petition is filed pursuant to W. Va. Code § 49-6-5b(a)(3), based solely upon a previous involuntary termination of a parent to a sibling on the basis of abandonment, does the Respondent parent have to put forth evidence regarding what actions, if any, have been taken to remedy the circumstances which led to the prior termination?

Circuit Court's answer: Yes. The parent would have to show the circumstances surrounding the prior involuntary termination for abandonment, and what has changed since that time to assure the court that the after-born child will be cared for.

2. When an abuse and neglect petition is filed based solely upon a previous involuntary termination of a parent to a sibling pursuant to W. Va. Code § 49-6-5b(a)(3), after evidence is developed regarding the prior involuntary termination and what actions, if any, have been taken to remedy the circumstances which led to the prior termination, does the Department still have the burden to prove that the subject child is currently abused or neglected pursuant to W. Va. Code § 49-6-2 before the court can adjudicate the parent as abuseful or neglectful?

Circuit Court's answer: No. The court will determine whether the parent has remedied the prior circumstances or not, and if not, then determine that the subject child is abused or neglected based solely on the failure to remedy the prior circumstance. If the parent has remedied the prior circumstance, the court can continue the matter and grant the parent an improvement period, without a finding of abuse or neglect, or dismiss the case.

3. If the Department does have the burden to prove current abuse and neglect pursuant to W. Va. Code § 49-6-2, can the parent's failure to remedy the circumstance which led to the previous termination, in and of itself, be considered present abuse and neglect, or does there have to be additional evidence of abuse and neglect in addition to the failure to remedy the prior circumstances?

Circuit Court's answer: The parent's failure to remedy the prior circumstances alone is sufficient to establish current abuse and neglect.

9. State of W. Va. v. Jason Eugene Horton - 041221 - Petitioner appeals his conviction based upon a conditional guilty plea to possession with intent to deliver a schedule I controlled substance, marijuana. He asserts that the circuit court erred by not suppressing illegally seized evidence. - Deferred.