THURSDAY, OCTOBER 4, 2001

1. In the Matter of Johnathan W., No. 011682 (filed 8/1/01)

Mother appeals termination of her parental rights to Johnathan W., asserting that the circuit court erred in terminating her rights when she had substantially complied with portions of the requirements established by her improvement period. Issues are: 1) whether the circuit court erred in terminating the parental rights of the petitioner, as the evidence before the circuit court was insufficient to sustain such disposition; and 2) whether the circuit court erred in failing to order a disposition in this matter which was less severe that the termination of the parental rights of the petitioner, as the evidence before the circuit court demonstrated the appropriateness of other, less severe dispositional alternatives.

2. In the matter of James G., No. 011224 (filed 6/21/01)

Mother appeals circuit court’s order involuntarily terminating her parental rights to her two sons, James G., now 5, and Emmett L., now 2, asserting that the termination should be noted in the circuit court’s order as a voluntary termination based upon her signed relinquishment of parental rights.1. Issues include 1) whether the Circuit Court erred in holding that the West Virginia DHHR must consent to a voluntary relinquishment of parental rights; 2) whether the Circuit Court erred in holding the Circuit Court may refuse to accept a voluntary relinquishment of parental rights and 3) whether the Circuit Court erred in refusing to hold that the termination of the Petitioner mother’s rights was a voluntary termination, when the mother voluntarily relinquished her parental rights and did not contest termination.

Refuse as to issue of termination, grant solely on the issue of voluntariness of termination unless sooner mooted by entry of a corrected order reflecting that the termination was voluntary.

 

3. In the Matter of Johnny Dakota C., No. 011827 (filed 8/24/01)

Mother appeals the termination of her parental rights to twins Johnny Dakota C. and Jonathan James C., 7, arguing that 1) the State failed to establish clear and convincing proof that she abused or neglected her children and 2) that the State failed to prove that there is no reasonable likelihood that the conditions of abuse or neglect could not be substantially corrected in the near future. Mother had left the children in the care of her husband, who physically abused her. She did not see the children for several years based upon her incarceration in another state for drug charges. The circuit court found that she had not demonstrated the ability to care for the children once she was out of prison.

4. In the Matter of Joseph Edward H., No. 011889 (filed 9/5/01)

Mother appeals termination of her parental rights to Joseph, now 9 years old, asserting that the State failed to prove by clear and convincing evidence that no reasonable likelihood exists that the conditions of neglect or abuse could be substantially corrected in the near future and that the respondent mother demonstrated an inadequate capacity to solve the problems of abuse or neglect on her own or with help.

Refuse 5-0

5. In the matter of Travis B., No. 011832 (filed 8/28/01)

Mother appeals termination of her parental rights to her youngest child, Felicia B., now 9, asserting that the circuit court abused its discretion in terminating these rights based upon the mother’s failure to visit Felicia B. and the foster family’s desire to adopt Felicia B. The mother asserts that she and father relinquished custody of their children, including the youngest, Felicia B., to DHHR with the quid pro quo that they would retain visitation rights. The issue asserted is whether the desire of the foster parents to adopt and the lack of visitation by the parents are sufficient causes to terminate parental rights when the quid pro quo for the parents agreeing to relinquish custodial rights in an abuse and neglect case was the retention of visitation privileges.

6. State of West Virginia v. Jeffrey Proffitt, No. 002617 (filed 11/15/00)

Petitioner, defendant below, appeals the circuit court’s order denying petitioner’s motion for acquittal and motion for new trial, which sought to challenge his jury conviction of one felony count of burglary. Petitioner argues that the circuit court erred in denying the defendant’s motions as the evidence was insufficient to support the guilty verdict.

7. SER Timothy E. Miller v. Gilmer County Circuit Court, No. 011298 (filed 6/26/01)

Miller filed a Writ of Mandamus seeking to compel the Gilmer County Circuit Court to rule upon a Writ of Habeas Corpus, filed on 4/28/01.

8. Romie G. Long v. George Hill-Judge, No. 010842 (filed 5/8/01)

Petitioner seeks a writ of mandamus seeking to compel the Wood County Circuit Court to issue an Order compelling the Wood County Clerk’s Office and prior attorneys to turn over various court documents.

9. SER Timothy E. Miller v. Howard Painter, Warden, No. 010839 (filed 5/1/01)

Petitioner seeks a writ of habeas corpus asserting the following assignments of error: (1) Ineffective Assistance of Counsel because his trial counsel failed to inform him that the circuit court judge is not bound by the plea bargain agreement; (2) trial counsel and trial court failed to have conduct a psychiatric evaluation on petitioner to determine if he was competent to stand trial or competent to enter into a plea bargain agreement; (3) trial counsel failed to investigate the availability of the insanity defense; (4) the prosecutor and defense counsel conspired with each other to mislead petitioner of the material fact that if he accepted the plea agreement it would not be binding upon the trial court.

10. SER Jackie Galant v. William Bowman, Administrator, No. 010962 (filed 5/14/01)

Galant seeks a writ of habeas corpus asserting that (1) her conviction was obtained by an unconstitutional search and seizure; (2) her conviction was obtained by a violation of the privilege against self-incrimination; (3) her conviction was obtained by the unconstitutional failure of the prosecution to disclose to the defendant evidence favorable to the defendant; and (4) denial of effective assistance of counsel.

11. SER George W. Eplin v. Jay Hoke, Judge, No. 010831 (filed 5/4/01)

Eplin seeks a writ of mandamus seeking to compel Judge Hoke to rule upon a Rule 35(b) Motion for Reduction of Sentence pending since September of 1999.

12. SER Steve Testerman, et al. v. WV Regional Jail & Correctional Authority, et. al.,No. 010835 (filed 5/2/01)

Petitioners style their action as a Writ of Mandamus and request that this Court issue an Order correcting various problems at the Southern Regional Jail and Correctional Facility. However, this petition should be classified as a writ of habeas corpus.

13. Darrell Guthrie v. WV Department of Corrections, Howard Painter, and Judge E. Lee Schlaegel, Jr., No. 010827 (filed 5/1/01)

Guthrie, pro se, seeks a writ of mandamus seeking to compel Judge E. Lee Schlaegel to transfer him to a Federal Penitentiary to serve out his concurrent state and federal sentences.

Refuse 5-0
 

14. Michael A. Williams and Gregory Mitchell v. William S. Haines, Warden, et al.,No. 010967 (filed 5/16/01)

Petitioners seeks a writ of habeas corpus asserting that Huttonsville Correctional Center is in direct violation of the West Virginia Fire Code 29-3-5.

15. SER Samuel R. Anstey v. Charles Vickers-Judge, No. 002555 (filed 11/1/00)

Petitioner seeks a writ of mandamus seeking to compel the Circuit Court to return the $403.55 seized from his inmate account and to prohibit the Respondent from seizing any further money.

16. SER Larry S. Patrick, et al. v. James Huppenthal-Administ., No. 010963 (filed 5/11/01)

Petitioners filed a Writ of Mandamus seeking to compel James Huppenthal, Administrator of the Southern Regional Jail to provide them with the following (1) outdoor recreation; (2) self-improvement courses; (3) more frequent access to the law library and access to certain legal books.

17. State of West Virginia v. James Smith, II., No. 010684 (filed 4/16/01)

James Smith, II was charged with two counts of domestic battery in the Magistrate Court of Ohio County. The Magistrate Court convicted Smith of one count and acquitted Smith of the other count by bench trial in Magistrate Court.

Smith appealed his conviction to the Ohio County Circuit Court, where the circuit court convicted him of domestic battery. This is an appeal of the conviction and sentence imposed upon Smith by the Ohio County Circuit Court. Smith asserts that the trial court erred by increasing the terms and conditions of his probation on a conviction after an appeal. Smith further alleges that the record in the Magistrate Court did not reflect a sentence of six month’s incarceration and that the trial court erred in imposing a six month incarceration sentence. The matter was not raised by trial counsel, and as a result, the trial court did not rule on the issue.

Refuse 5-0

 

18. SER Roger Jenkins v. Todd J. Kaufman, No. 002632 (filed 11/15/00)

Jenkins, pro se, seeks a writ of mandamus seeking to compel the W.Va. Board of Medicine to provide petitioner with the findings of fact and conclusions of law to justify the dismissal of petitioner’s complaint against physician, Daniel Thistlewaite. Petitioner filed a malpractice complaint against two physicians. The Board of Medicine rejected the complaint as lacking probable cause, but failed to provide any findings of fact on which the rejection was based.

19. In the Matter of Edward R., Clarence S, Jr., and Anastasis S., No. 011801(filed 8/21/01)

Mother, Tammy S., seeks reversal of the circuit court’s order terminating her parental rights to her three children.

20. SER Douglas J. Williams v. Haines-Warden, No. 011885 (filed 7/25/01)

Petitioner filed a Writ of Habeas Corpus in which Williams asserts that the West Virginia Division of Corrections and William S. Haines, Warden at Huttonsville Correctional Center, failed to credit him with 6 months and 16 days of good time credit.

21. State of West Virginia v. Robert J. Stringer, II, No. 010564 (filed 3/19/01)

Stringer appeals the circuit court order sentencing him to two consecutive terms of ten to twenty years in the penitentiary for his conviction on a plea to two counts of Sexual Abuse by a Guardian. Stringer claims the circuit court abused its discretion by imposing two consecutive sentences of ten to twenty years, and that the circuit court abused its discretion by failing to sentence Stringer as a youthful offender on one of his convictions.

22. State of West Virginia v. Gary J. Johnston, No. 011147 (filed 6/12/01)

Johnston appeals his conviction on one count of driving while suspended DUI and one count of Fleeing an officer, claiming that the court below erred in failing to excuse a juror for cause, in not dismissing all charges against Johnston due to the unlawful stop of his vehicle, in failing to direct a judgment of acquittal on the charge of fleeing an officer due to insufficient evidence, and in giving the State’s instruction number two.

Grant 3-2(Jury issue only)

23. Chopsticks Inc, v. Secure Us, Inc., No. 010867 (filed 5/9/01)

Chopsticks appeals the circuit court order denying Chopstick’s motion for a new trial as to damages in the underlying civil trial, claiming that the court erred in that the verdict was inadequate.

24. Lisa E. Cunningham, et al. v. BHI, Inc., No. 011132 (filed 6/8/01)

Cunningham appeals the January 29, 2001 circuit court order denying the petitioner’s motion to amend or alter the circuit court order entered August 14, 2000, granting summary judgment to respondent BHI, Inc. in Cunningham’s civil action seeking damages from an elevator accident. Cunningham claims that the circuit court erred in failing to admit and consider new evidence, in misapplying the borrowed servant doctrine, and in granting summary judgment when there was a genuine issue of material fact, that is whether Ms. Cunningham was an employee of BHI under the borrowed servant doctrine.