654 S.E.2d 373
JUSTICES STARCHER AND ALBRIGHT concur in part, and dissent in part, and
reserve the right to file separate opinions.
JUSTICE BENJAMIN concurs and reserves the right to file a separate opinion.
Davis, Chief Justice:
The appellant herein and respondent below, Tameka L. M. L. (See footnote 1) [hereinafter
“Tameka” or “mother”], appeals from orders entered October 11, 2006, and December 14,
2006, by the Circuit Court of Berkeley County. By order entered October 11, 2006, the
circuit court determined that the mother does not have standing to request a modification
of the minor child's, Cesar L.'s [hereinafter “Cesar”], disposition in accordance with
W. Va. Code § 49-6-6 (1977) (Repl. Vol. 2004) (See footnote 2) because she had voluntarily relinquished
her parental rights and, thus, was no longer Cesar's parent. In response to this ruling,
Tameka then sought to withdraw her earlier relinquishment. By order entered December
14, 2006, the circuit court found that Tameka's relinquishment was voluntary and free of
fraud and duress and, accordingly, that it was a valid voluntary relinquishment pursuant
to W. Va. Code § 49-6-7 (1977) (Repl. Vol. 2004). (See footnote 3) On appeal to this Court, Tameka
claims that the circuit court erred by finding that she does not have standing to request a
modification in Cesar's disposition and by refusing to set aside her voluntary
relinquishment. Upon a review of the parties' arguments, the record of this matter, and
the pertinent authorities, we affirm the October 11, 2006, and December 14, 2006, orders
of the Berkeley County Circuit Court.
Following the adjudicatory hearing, Tameka planned to enter a drug
treatment program in Beckley, West Virginia. While she was checking into this facility,
a routine background check revealed an outstanding warrant for Tameka's arrest had been
issued by the State of Virginia. (See footnote 8) As a result, Tameka was arrested and incarcerated in
Virginia. The circuit court then continued to postpone Cesar's dispositional hearing until
such time as Tameka was released from incarceration. Ultimately, on September 29,
2005, Tameka, while she was still incarcerated, signed a voluntary relinquishment of
parental rights, which her counsel later filed with the circuit court. (See footnote 9) During a hearing held
on November 30, 2005, mother's counsel presented Tameka's voluntary relinquishment
to the circuit court, and the circuit court accepted it after counsel represented that the
relinquishment was voluntary. Counsel for mother also requested the court to permit
Tameka to have post-termination visitation with Cesar, which motion was granted subject
to Cesar's best interests and the discretion of Cesar's care giver, his aunt.
The circuit court conducted numerous other proceedings regarding Cesar,
his continued thriving in his aunt's care, and the rights of his father. On June 19, 2006,
Tameka, by new counsel, filed a motion pursuant to W. Va. Code § 49-6-6 requesting the
circuit court to modify Cesar's disposition vis-a-vis her parental rights. In support of her
request for relief, Tameka asserted that she had been released from incarceration and that
she wished to be reunited with her son. The circuit court conducted a hearing on
September 28, 2006, and issued its order with regard to mother's motion to modify
disposition on October 11, 2006. In summary, the circuit court determined that because
Tameka had voluntarily relinquished her parental rights to Cesar, she did not have
standing to request a modification of his disposition insofar as W. Va. Code § 49-6-6
plainly states that the only persons that may make such a motion are “a child, a child's
parent or custodian or the state department.” The circuit court did, however, suggest that
Tameka could file a motion, in accordance with W. Va. Code § 49-6-7, to withdraw her
voluntary relinquishment and that if her parental rights were reinstated, she could then
request a modification of Cesar's disposition.
Tameka then filed an affidavit, on October 11, 2006, alleging that her
relinquishment was not voluntary but had been obtained under duress during her
incarceration in Virginia. (See footnote 10) In further support of her affidavit, Tameka claimed that her
attorney had not explained the ramifications of the voluntary relinquishment to her and
that she had been led to believe that her parental rights would be terminated if she did not
sign the relinquishment form. Following a hearing on this motion, the circuit court, by
order entered December 14, 2006, concluded that Tameka was not subject to fraud or
duress when she signed her voluntary relinquishment and denied Tameka's motion to
withdraw her relinquishment. From the orders entered October 11, 2006, and December
14, 2006, Tameka now appeals (See footnote 11) to this Court.
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 and 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 re Tiffany Marie S., 196 W. Va. 223, 470 S.E.2d 177 (1996). In the case sub
judice, the circuit court interpreted two different statutes, W. Va. Code §§ 49-6-6 and 49-
6-7, and applied those interpretations to the facts before it. We previously have held that
“[i]nterpreting a statute or an administrative rule or regulation presents a purely legal
question subject to de novo review.” Syl. pt. 1, Appalachian Power Co. v. State Tax Dep't
of West Virginia, 195 W. Va. 573, 466 S.E.2d 424 (1995). Accord Syl. pt. 1, Chrystal R.M.
v. Charlie A.L., 194 W. Va. 138, 459 S.E.2d 415 (1995) (“Where the issue on an appeal
from the circuit court is clearly a question of law or involving an interpretation of a
statute, we apply a de novo standard of review.”). Guided by these standards of review,
we proceed to consider the mother's assignments of error.
[u]pon motion of a child, a child's parent or custodian
or the state department[ (See footnote 13) ] alleging a change of circumstances
requiring a different disposition, the court shall conduct a
hearing pursuant to section two [§ 49-6-2] of this article and
may modify a dispositional order: Provided, That a
dispositional order pursuant to subdivision (6), subsection (a)
of section five [§ 49-6-5(a)(6)] shall not be modified after the
child has been adopted. . . .
(Footnote added). In order to assess the correctness of the circuit court's ruling regarding
this section, however, we first must consider the language of the statute, itself.
We previously have held that “[t]he primary object in construing a statute
is to ascertain and give effect to the intent of the Legislature.” Syl. pt. 1, Smith v. State
Workmen's Comp. Comm'r, 159 W. Va. 108, 219 S.E.2d 361 (1975). When examining the
text of a statutory provision, language that is plain need not be construed before it is
applied to the facts of the case. “A statutory provision which is clear and unambiguous
and plainly expresses the legislative intent will not be interpreted by the courts but will be
given full force and effect.” Syl. pt. 2, State v. Epperly, 135 W. Va. 877, 65 S.E.2d 488
(1951). But see Syl. pt. 1, Farley v. Buckalew, 186 W. Va. 693, 414 S.E.2d 454 (1992) (“A
statute that is ambiguous must be construed before it can be applied.”).
Nevertheless, where the Legislature has failed to provide a statutory
definition for a word used in one of its enactments, the common, ordinary meaning of the
word is relied upon to give meaning to the statute. “Generally the words of a statute are
to be given their ordinary and familiar significance and meaning, and regard is to be had
for their general and proper use.” Syl. pt. 4, State v. General Daniel Morgan Post No. 548,
V.F.W., 144 W. Va. 137, 107 S.E.2d 353 (1959). In other words, “[i]n the absence of any
definition of the intended meaning of words or terms used in a legislative enactment, they
will, in the interpretation of the act, be given their common, ordinary and accepted
meaning in the connection in which they are used.” Syl. pt. 1, Miners in Gen. Group v.
Hix, 123 W. Va. 637, 17 S.E.2d 810 (1941), overruled on other grounds by Lee-Norse Co.
v. Rutledge, 170 W. Va. 162, 291 S.E.2d 477 (1982).
Applying these tenets of statutory construction to the legislative enactment
at issue herein, W. Va. Code § 49-6-6, we find the language of this provision to be facially
plain. Therefore, we hold that the plain language of W. Va. Code § 49-6-6 (1977)
(Repl.
Vol. 2004) permits a child, a child's parent or custodian, or the West Virginia Department
of Health and Human Resources (See footnote 14) to move for a modification of the child's disposition
where a change of circumstances warrants such a modification. However, a child's
disposition may not be modified after he/she has been adopted. Although this statutory
language is plain, the parties dispute the precise meaning of the word “parent” employed
therein. Therefore, we must determine whether a person who has voluntarily relinquished
his/her parental rights retains his/her status as a “parent” for purposes of W. Va. Code
§ 49-6-6. (See footnote 15)
2. Definition of “parent.” While the Legislature has not defined the word
“parent” in the specific child welfare statutes encompassing W. Va. Code § 49-6-6, the
Legislature has provided a definition for the word “parent” in the statutes criminalizing
child abuse. In the criminal law context, “'[p]arent' means the biological father or mother
of a child, or the adoptive mother or father of a child.” W. Va. Code § 61-8D-1(7) (1988)
(Repl. Vol. 2000). (See footnote 16) This definition is particularly instructive insofar as it is part of the
general body of law concerning the abuse and neglect of minor children. See Syl. pt. 5,
in part, Fruehauf Corp. v. Huntington Moving & Storage Co., 159 W. Va. 14, 217 S.E.2d
907 (1975) (“Statutes which relate to the same persons or things, or to the same class of
persons or things, or statutes which have a common purpose will be regarded in pari
materia to assure recognition and implementation of the legislative intent.”). See also Syl.
pt. 3, Smith v. State Workmen's Comp. Comm'r, 159 W. Va. 108, 219 S.E.2d 361 (“Statutes
which relate to the same subject matter should be read and applied together so that the
Legislature's intention can be gathered from the whole of the enactments.”).
Similarly, this Court has defined the term “parent” in Rule 3(j) of the West
Virginia Rules of Procedure for Child Abuse and Neglect Proceedings: “'[p]arent' or
'parents' means the child's natural parent(s), custodian(s), or legal guardian(s).” This
definition also is instructive to our decision herein because the Rules of Procedure for
Child Abuse and Neglect Proceedings are intended to provide guidance in the absence of
other authority or in the presence of conflicting authority. See W. Va. R. Proc. for Child
Abuse & Neglect Proceed. 1 (“These rules set forth procedures for circuit courts in child
abuse and neglect proceedings instituted pursuant to W. Va. Code § 49-6-1, et seq. If
these rules conflict with other rules or statutes, these rules shall apply.”).
Reconciling the legislative definition of “parent” in W. Va. Code § 61-8D-
1(7) with the definition of “parent” contained in Rule 3(j) of the West Virginia Rules of
Procedure for Child Abuse and Neglect Proceedings, we find the discrete differences
between these two definitions to be distinctions without a difference. Accordingly, we
hold that, for purposes of W. Va. Code § 49-6-6 (1977) (Repl. Vol. 2004), “parent” means
the biological or natural father or mother of a child; the adoptive father or mother of a
child; or the legal guardian of a child. (See footnote 17)
3. Effect of voluntary relinquishment of parental rights. The question
remains, however, whether a parent who has voluntarily relinquished his/her parental
rights retains his/her status as a “parent” after such relinquishment. W. Va. Code § 49-6-7
(1977) (Repl. Vol. 2004) sets forth the procedure a parent must follow in order to
voluntarily relinquish his/her parental rights: “[a]n agreement of a natural parent in
termination of parental rights shall be valid if made by a duly acknowledged writing, and
entered into under circumstances free from duress and fraud.” Applying the tenets of
statutory construction discussed above, we find this statute also to be plain and in need of
no further construction to understand its terms. Therefore, we hold that W. Va. Code
§ 49-6-7 (1977) (Repl. Vol. 2004) permits a parent to voluntarily relinquish his/her
parental rights. Such voluntary relinquishment is valid pursuant to W. Va. Code § 49-6-7
if the relinquishment is made by “a duly acknowledged writing” and is “entered into under
circumstances free from duress and fraud.” What this statute does not address, though,
is whether, by virtue of a voluntary relinquishment of parental rights, the parent loses
his/her status as the child's parent. The resolution of this query is critical to determining
whether Tameka has standing to move for a modification of Cesar's disposition under
W. Va. Code § 49-6-6.
The revocation of a parent's parental rights, whether by voluntary
relinquishment or by involuntary termination, is a very serious matter. By definition,
“parental rights” encompasses “any and all rights and duties regarding a parent to a minor
child, including, but not limited to, custodial rights and visitational rights and rights to
participate in the decisions affecting a minor child.” W. Va. Code § 49-1-3(o) (1999)
(Repl. Vol. 2004) (emphasis added). (See footnote 18) As to the importance and sanctity of parental rights,
we frequently have observed that “[n]othing is more sacred or scrupulously safeguarded
as a parent's right to the custody of his/her child.” In re Clifford K., 217 W. Va. 625, 644,
619 S.E.2d 138, 157 (2005). Accord Syl. pt. 1, In re Willis, 157 W. Va. 225, 207 S.E.2d
129 (1973) (“In the law concerning custody of minor children, no rule is more firmly
established than that the right of a natural parent to the custody of his or her infant child
is paramount to that of any other person; it is a fundamental personal liberty protected and
guaranteed by the Due Process Clauses of the West Virginia and United States
Constitutions.”); Syl. pt. 1, Whiteman v. Robinson, 145 W. Va. 685, 116 S.E.2d 691 (1960)
(“A parent has the natural right to the custody of his or her infant child, unless the parent
is an unfit person because of misconduct, neglect, immorality, abandonment or other
dereliction of duty, or has waived such right, or by agreement or otherwise has transferred,
relinquished or surrendered such custody, the right of the parent to the custody of his or
her infant child will be recognized and enforced by the courts.”).
For this reason, the decision to end a parent's parental rights is not one that
is made lightly, and this process of ending a parent's parental rights is guided by many
stringent rules and regulations to protect the rights of both the parent and his/her child. See generally W. Va. Code § 49-6-1, et seq. (outlining procedure to be followed in child
abuse and neglect cases); W. Va. R. Proc. for Child Abuse & Neglect Proceed. 1, et seq. (providing further guidelines to be followed in abuse and neglect proceedings). See also Syl. pt. 7, In re Katie S., 198 W. Va. 79, 479 S.E.2d 589 (1996) (“'“Termination of
parental rights, the most drastic remedy under the statutory provision covering the
disposition of neglected children, W.Va.Code, 49-6-5 [1977] may be employed without the
use of intervening less restrictive alternative when it is found that there is no reasonable
likelihood under W.Va.Code, 49-6-5(b) [1977] that conditions of neglect or abuse can be
substantially corrected.” Syllabus Point 2, In re R.J.M., 164 W. Va. 496, 266 S.E.2d 114
(1980). Syllabus point 4, In re Jonathan P., 182 W. Va. 302, 387 S.E.2d 537 (1989).'
Syllabus Point 1, In re Jeffrey R.L., 190 W. Va. 24, 435 S.E.2d 162 (1993).”).
Be that as it may, once a determination, whether voluntary or involuntary,
has been made to revoke a parent's parental rights, we must accept the weighty
considerations accompanying that decision and may overturn that ruling only if
warranted. (See footnote 19) See W. Va. Code § 49-6-7 (permitting rescission of voluntary relinquishment
of parental rights where such relinquishment was obtained by fraud or duress); Syl. pt. 1, In re Tiffany Marie S., 196 W. Va. 223, 470 S.E.2d 177 (delineating standard of review of
circuit court orders in abuse and neglect proceedings).
Despite the importance of a parent's parental rights, in cases involving the
relinquishment or termination of parental rights, the paramount concern remains the best
interests of the children involved therein. “Although parents have substantial rights that
must be protected, the primary goal . . . must be the health and welfare of the children.”
Syl. pt. 3, in part, In re Katie S., 198 W. Va. 79, 479 S.E.2d 589. Accord State ex rel. Roy
Allen S. v. Stone, 196 W. Va. 624, 638, 474 S.E.2d 554, 568 (1996) (“Although a parent
has a protectable interest in a child, a parent's rights are not absolute: the welfare of the
child is the paramount consideration to which all of the factors, including common law
preferential rights of the parents, must be deferred or subordinated.” (internal quotations
and citations omitted)). Ensuring finality for these children is vital to safeguarding their
best interests so that they may have permanency and not be continually shuttled from
placement to placement. See Syl. pt. 1, in part, In re Carlita B., 185 W. Va. 613, 408
S.E.2d 365 (1991) (“Child abuse and neglect cases must be recognized as being among
the highest priority for the courts' attention. Unjustified procedural delays wreak havoc
on a child's development, stability and security.”).
Consequently, we typically have considered a termination or relinquishment
of parental rights as achieving such finality through the cessation of that particular parent-
child relationship, which then facilitates the child's permanent placement and/or adoption.
In this regard, we previously have stated that “[w]hen an individual's parental rights have
been terminated the law no longer recognizes such individual as a 'parent' with regard to
the child or children involved in the particular termination proceeding.” Elmer Jimmy S.
v. Kenneth B., 199 W. Va. 263, 268, 483 S.E.2d 846, 851 (1997). In light of our prior
recognition of the effect of the revocation of a person's parental rights, we now hold 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.
Thus, barring some egregious circumstances that would justify reinstating
the person's parental rights, an involuntary termination or a voluntary relinquishment of
parental rights permanently severs the parent-child relationship and relieves such person
of all the rights and privileges, as well as duties and obligations, considered to be “parental
rights,” W. Va. Code § 49-1-3(o) (1999). See W. Va. Code § 49-6-7 (invalidating
voluntary relinquishment of parental rights obtained by fraud or duress); Syl. pt. 1, In re
Tiffany Marie S., 196 W. Va. 223, 470 S.E.2d 177 (limiting reversal of abuse and neglect
rulings by a lower court to those decisions that are “clearly erroneous”). As a result, the
person who formerly possessed such parental rights loses his/her status as the child's
parent. Accordingly, we hold that a valid voluntary relinquishment of parental rights,
effectuated in accordance with W. Va. Code § 49-6-7 (1977) (Repl. Vol. 2004), includes
a relinquishment of “rights to participate in the decisions affecting a minor child,” W. Va.
Code § 49-1-3(o) (1999) (Repl. Vol. 2004), and causes the person relinquishing his/her
parental rights to lose his/her status as a parent of that child. We hold further that a person
whose parental rights have been terminated by a final order, as the result of either an
involuntary termination or a voluntary relinquishment of parental rights, does not have
standing as a “parent,” pursuant to W. Va. Code § 49-6-6 (1977) (Repl. Vol. 2004), to
move for a modification of disposition of the child with respect to whom his/her parental
rights have been terminated. (See footnote 20) Applying these holdings to the facts presently before us,
we conclude that the circuit court did not err by ruling that Tameka does not have standing
as a parent to request a modification of Cesar's disposition in accordance with W. Va.
Code § 49-6-6 because, by virtue of her voluntary relinquishment of her parental rights
to Cesar, Tameka is no longer considered to be his parent. (See footnote 21) Thus, the October 11, 2006,
order of the Circuit Court of Berkeley County is affirmed.
Tameka also assigns error to the circuit court's ruling finding her voluntary
relinquishment of parental rights (See footnote 22) to be valid. In its order of October 11, 2006, denying
Tameka standing to move for a modification of Cesar's disposition because she earlier had
relinquished her parental rights to this child, the circuit court indicated that if Tameka
sought relief from her voluntary relinquishment, her parental rights potentially could be
restored at which time she then would have standing to request that Cesar's disposition be
modified. Pursuant to this order, Tameka filed an affidavit (See footnote 23) seeking to withdraw her
voluntary relinquishment of parental rights. Thereafter, the circuit court, by order entered
December 14, 2006, found that Tameka had not presented evidence sufficient to warrant
an evidentiary hearing on her motion and denied the same, determining that Tameka's
relinquishment was valid and had not been obtained by fraud or duress.
On appeal to this Court, Tameka complains that the circuit court erred by not
affording her an evidentiary hearing and by refusing to set aside her relinquishment. In
this regard, Tameka asserts that the circuit court should have permitted her to present
evidence in a hearing before the court to prove that her relinquishment had been obtained
under duress. As to her claim of duress, Tameka states that she was incarcerated at the
time of her relinquishment and claims that although she was represented by an attorney
at that time, she did not receive the advice of counsel prior to executing the
relinquishment. The DHHR and the Guardian respond by urging this Court to affirm the
circuit court's ruling insofar as Tameka failed to prove that her voluntary relinquishment
of her parental rights had been obtained by fraud or duress as required by W. Va. Code
§ 49-6-7 to invalidate an otherwise valid relinquishment.
The statute which permits a parent to voluntarily relinquish his/her parental
rights and provides guidance as to when such a relinquishment should be invalidated is
W. Va. Code § 49-6-7 (1977) (Repl. Vol. 2004). As we observed in the preceding section
of this opinion, this statute provides that “[a]n agreement of a natural parent in termination
of parental rights shall be valid if made by a duly acknowledged writing, and entered into
under circumstances free from duress and fraud.” Id. Having determined the language
of this provision to be plain, we need only apply it to the facts presently before us.
1. Hearing on motion to withdraw voluntary relinquishment. Tameka first
argues that the circuit court was required to permit her to present evidence, at a hearing
before the court, to prove that she was improperly induced by fraud or duress to relinquish
her parental rights to Cesar. We previously have addressed this issue and concluded that
the decision to hold an evidentiary hearing rests within the court's sound discretion:
“Under the provisions of W.Va.Code, 49-6-7, a circuit court may conduct a hearing to
determine whether the signing by a parent of an agreement relinquishing parental rights
was free from duress and fraud.” Syl. pt. 3, State ex rel. Rose v. Pancake, 209 W. Va. 188,
544 S.E.2d 403 (2001) (emphasis added). Moreover, the word “may” generally is
afforded a permissive connotation, which renders the referenced act discretionary, rather
than mandatory, in nature. See State v. Hedrick, 204 W. Va. 547, 552, 514 S.E.2d 397, 402
(1999) (“The word 'may' generally signifies permission and connotes discretion.”
(citations omitted)); Gebr. Eickhoff Maschinenfabrik und Eisengieberei mbH v. Starcher,
174 W. Va. 618, 626 n.12, 328 S.E.2d 492, 500 n.12 (1985) (“An elementary principle of
statutory construction is that the word 'may' is inherently permissive in nature and
connotes discretion.” (citations omitted)). Thus, the circuit court had discretion to permit
Tameka an opportunity to present evidence at a hearing for that purpose or to consider,
without a hearing, Tameka's motion to withdraw her relinquishment. Under the facts of
this case, we find that the circuit court did not abuse its discretion by denying Tameka the
evidentiary hearing she requested. As will be discussed more fully below, Tameka did not
present any new evidence in her affidavit that would tend to indicate that her
relinquishment had been obtained by fraud or duress to warrant further development
during an evidentiary hearing.
2. Proof of fraud or duress. Tameka also challenges the circuit court's
ruling upholding her relinquishment as valid because she had failed to prove that it had
been obtained by fraud or duress as required by W. Va. Code § 49-6-7. We previously
have observed that,
[w]hile W.Va. Code, 49-6-7 specifically permits a relinquishment of parental rights, it clearly suggests that such an agreement may be invalid if it is not entered into under circumstances that are free of duress and fraud. Whether there has been fraud or duress is a question of fact that must be determined by the circuit court judge.
Rose, 209 W. Va. at 191, 544 S.E.2d at 406.
To guide lower courts in making a determination as to whether or not a
relinquishment should be invalidated, the elements needed to prove fraud or duress, as
well as the requisite burden of proof therefor, were explained at length in the concurrence
to Rose:
[A] relinquishment agreement that is made in writing and
entered into under circumstances free from duress and fraud is valid. A parent attempting to show otherwise is faced with
a challenging task. Indeed, the threshold for establishing
duress and fraud in the context of the relinquishment of
parental rights is extremely high. As to duress, this Court has
held that, in the context of an adoption, duress “means a
condition that exists when a natural parent is induced by the
unlawful or unconscionable act of another to consent to the
adoption of his or her child. Mere 'duress of circumstance'
does not constitute duress[.]” Syl. pt. 2, in part, Wooten v.
Wallace, 177 W. Va. 159, 351 S.E.2d 72 (1986). See also Baby Boy R. v. Velas, 182 W. Va. 182, 185, 386 S.E.2d 839,
842 (1989) (“[Duress] means a condition that exists when a
natural parent is induced by the unlawful or unconscionable
act of another to consent to the adoption of his or her child.”).
With respect to fraud, we have held:
The essential elements in an action for
fraud are: (1) that the act claimed to be
fraudulent was the act of the defendant or
induced by him; (2) that it was material and
false; that plaintiff relied on it and was justified
under the circumstances in relying upon it; and
(3) that he was damaged because he relied on it.
Syl. pt. 1, Lengyel v. Lint, 167 W. Va. 272, 280 S.E.2d 66
(1981). . . .
Finally, I wish to emphasize that a parent challenging
a relinquishment of his or her parental rights on the grounds of
duress and fraud has the difficult responsibility of establishing
the elements outlined above by clear and convincing evidence. See, e.g., [W. Va. Code §] 48-4-5(a)(2) (1997) (Repl. Vol.
1999) (allowing revocation of adoption due to fraud or duress
only where “[t]he person who executed the consent or
relinquishment proves by clear and convincing evidence . . .
that the consent or relinquishment was obtained by fraud or
duress” (emphasis added)) . . . .
[I]t is clear that a parent has a heavy burden to establish duress
or fraud once he or she has relinquished parental rights. . . .
Rose, 209 W. Va. at 192-93, 544 S.E.2d at 407-08 (Davis, J., concurring) (emphasis in
original) (additional citations omitted).
Reviewing the contents of the affidavit by which Tameka sought to withdraw
her relinquishment, (See footnote 24) we agree with the circuit court's conclusion that she did not prove
that she had been subject to fraud or duress at the time she relinquished her parental rights.
Although we appreciate that, at the time she signed her voluntary relinquishment of her
parental rights to Cesar, Tameka was incarcerated and thus not then able to care for her
child, this simple fact, alone, is not sufficient to constitute duress. In this regard, we
previously held that “[m]ere 'duress of circumstance' does not constitute duress.” Syl. pt.
2, in part, Wooten v. Wallace, 177 W. Va. 159, 351 S.E.2d 72.
Neither are we convinced that Tameka's former counsel coerced her into
relinquishing her parental rights. Of particular relevance to this assertion in her
subsequent affidavit are Tameka's own representations in the relinquishment document, (See footnote 25) which sharply contradict her current assertions of duress, that she “fully understand[s] the
consequences of this decision;” she has “read and discussed thoroughly with [her] attorney
all the above-mentioned rights;” she “fully understand[s] the meaning and consequences
of executing this document;” she has “not been induced, coerced or threatened into signing
this document;” and she “freely, knowingly, intelligently and voluntarily relinquish[es]
all [her] parental rights to Cesar A[.] L[.]”
The above-quoted statements contained in Tameka's relinquishment
constitute judicial admissions by which she is bound and which she cannot now deny. See Syl. pt. 4, State v. McWilliams, 177 W. Va. 369, 352 S.E.2d 120 (1986) (“A judicial
admission is a statement of fact made by a party in the course of the litigation for the
purpose of withdrawing the fact from the realm of dispute.”). “The significance of such
an admission is that it 'will stop the one who made it from subsequently asserting any
claim inconsistent therewith.'” Wheeling-Pittsburgh Steel Corp. v. Rowing, 205 W. Va.
286, 302, 517 S.E.2d 763, 779 (1999) (quoting Clark v. Clark, 70 W. Va. 428, 433, 74 S.E.
234, 236 (1912) (additional citations and quotations omitted)). Accord Keller v. United
States, 58 F.3d 1194, 1198 n.8 (7th Cir. 1995) (“Judicial admissions are formal
concessions . . . or stipulations by a party or its counsel . . . that are binding upon the party
making them. They may not be controverted at trial or on appeal.”). Because Tameka is
bound by the admissions contained in her relinquishment, we cannot condone her present
attempts to recant these statements absent clear and convincing evidence of the duress to
which she claims to have been subject at the time thereof.
Furthermore, because Cesar is the fourth child who the DHHR has removed
from Tameka's custody as the result of an abuse and neglect proceeding, it may be
presumed that Tameka is familiar with the abuse and neglect process. The fact that
Tameka's parental rights to three of these children have been involuntarily terminated
makes her present assertions that she did not appreciate the full import of her
relinquishment even less convincing. In deciding this case, the circuit court determined
that Tameka had failed to sustain her burden of proof, and, having reviewed the record in
this case, we agree with the circuit court's ruling. Accordingly, the December 14, 2006,
order of the Circuit Court of Berkeley County is affirmed.