Darrell V. McGraw, Jr., Esq.
Attorney General
Charleston, West Virginia
and
Angela A. Ash, Esq.
Assistant Attorney General
Beckley, West Virginia
Attorneys for WV DH&HR
Paul W. Roop, II, Esq.
Roop, Smith & Roop, PLLC
Beckley, West Virginia
Attorney for Alvin P.
David A. Kirkpatrick, Esq.
Kirkpatrick Law Office
Beckley, West Virginia
Attorney for Stacy P.
The Opinion of the Court was delivered PER CURIAM.
CHIEF JUSTICE STARCHER concurs
and reserves the right to file a concurring opinion.
“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 or 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.” Syllabus
Point 1, In the Interest of: Tiffany Marie S., 196 W.Va. 223, 470 S.E.2d 177 (1996).
Per Curiam:
This case is before this Court upon appeal of a final order of the Circuit Court
of Raleigh County entered on August 29, 2002. Pursuant to that order, the abuse and neglect
petition brought against the appellees, Alvin and Stacy P.,
(See footnote 1)
concerning their two children,
Kyiah and Joseph P., was dismissed.
(See footnote 2)
In this appeal, the appellants, the guardian ad litem on
behalf of the children and the Department of Health and Human Resources (“DHHR”),
contend that the circuit court erred by dismissing the petition.
This Court has before it the petition for appeal, the entire record, and briefs and
argument of counsel. For the reasons set forth below, the final order is reversed, and this
case is remanded for further proceedings consistent with this opinion.
On April 15, 2002, Alvin P. contacted the DHHR and requested diapers for his
son, Joseph. According to the DHHR, it was evident from the phone call that there was
stress in the home and, thus, a referral for services was made. On April 25, 2002, a DHHR
social worker met with the family which included Alvin P., his wife, Stacy P., and their two
children, Kyiah P., who was born on December 24, 2000, and Joseph P., who was born on
December 24, 2001. During the meeting, Stacy P. told the social worker that she had four
other children removed from her custody by child protective services in Virginia.
Thereafter, the DHHR contacted Amy Whitt of child protective services in
Campbell County, Virginia. The DHHR was advised by Ms. Whitt that eight children had
been removed from Stacy P. and her parental rights to those children terminated. Ms. Whitt
also said that Alvin P. had sexually abused his four-year-old daughter, Samantha P.
(See footnote 3)
Ms.
Whitt indicated that any children in the custody of Alvin and Stacy P. would be in imminent
danger.
Based on this information, the DHHR filed an application for emergency custody of Kyiah and Joseph P. on April 26, 2002. Consequently, the children were immediately removed from their parents' custody. A formal abuse and neglect petition filed by the DHHR on May 1, 2002, asserted that Kyiah and Joseph P. were at risk for abuse and neglect because of the involuntary termination of Stacy and Alvin P.'s parental rights to their other children in Virginia.
A preliminary hearing was held on May 15, 2002. Apparently, child protective
service workers from Virginia testified that the parental rights of Alvin and Stacy P. to their
other children were not involuntarily terminated.
(See footnote 4)
However, they did state that Stacy P.
voluntarily terminated her parental rights to two of her other children. Also, they indicated
that Alvin P. had sexually abused his daughter, Samantha P. Thereafter, the court ordered
that legal custody of the children remain with the DHHR, but afforded the DHHR discretion
with regard to the physical custody of the children.
Subsequently, the DHHR returned the children to the home of Stacy P.
However, Alvin P. was permanently restrained and enjoined from having contact with the
children except for supervised visitation.
(See footnote 5)
An adjudicatory hearing was scheduled for August
6, 2002. At that hearing, the DHHR sought and received a continuance in order to travel to
Virginia to investigate the allegations of sexual abuse against Alvin P.
The adjudicatory hearing was rescheduled for August 28, 2002. Although the
DHHR had subpoenaed case workers from Virginia to testify, they refused to appear
contending that they did not have sufficient notice. The DHHR sought another continuance,
but the circuit court denied the motion. The court then dismissed the abuse and neglect
petition by order entered on August 29, 2002. This appeal followed.
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 or 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.
Syllabus Point 1, In the Interest of: Tiffany Marie S., 196 W.Va. 223, 470 S.E.2d 177 (1996).
With these standards in mind, we proceed to determine whether the circuit court erred in this
case.
435, 518 S.E.2d 863 (1999) (“George I”). In Syllabus Point 2 of George I, this Court held
that:
Where there has been a prior involuntary termination of
parental rights to a sibling, the issue of whether the parent has
remedied the problems which led to the prior involuntary
termination sufficient to parent a subsequently-born child must,
at minimum, be reviewed by a court, and such review should be
initiated on a petition pursuant to the provisions governing the
procedure in cases of child neglect or abuse set forth in West
Virginia Code §§ 49-6-1 to -12 (1998). Although the
requirement that such a petition be filed does not mandate
termination in all circumstances, the legislature has reduced the
minimum threshold of evidence necessary for termination where
one of the factors outlined in West Virginia Code § 49-6-5b(a)
(1998) is present.
Also, in Syllabus Point 4 of George I, this Court stated that:
When an abuse and neglect petition is brought based
solely upon a previous involuntary termination of parental rights
to a sibling pursuant to West Virginia Code § 49-6-5b(a)(3)
(1998), prior to the lower court's making any disposition
regarding the petition, it must allow the development of
evidence surrounding the prior involuntary termination(s) and
what actions, if any, the parent(s) have taken to remedy the
circumstances which led to the prior termination(s).
The appellants acknowledge that through further investigation, they learned
that the appellees' parental rights to their other children were never involuntarily terminated.
However, they contend that the holdings of George I should nevertheless be applied in this
case because child protective services in Virginia had sufficient evidence to terminate the
appellees' parental rights to their other children. Stacy P.'s parental rights were not
terminated only because she agreed to voluntarily relinquish her rights. Similarly, Alvin P.'s
parental rights to Samantha P. were not terminated, but he was denied visitation with her
after Virginia child protective services determined that he sexually abused her. Based on
these facts, the appellants argue that the circuit court should have held an adjudicatory
hearing and allowed them to present evidence concerning the abuse and neglect proceedings
that were conducted in Virginia. The appellants maintain that there was good cause for a
continuance of the adjudicatory hearing based on the failure of the Virginia social workers
to appear to testify.
In response, the appellees argue that the abuse and neglect petition was properly dismissed because the appellants were unable to produce any evidence of a prior involuntary termination of their parental rights. The appellees contend that W.Va. Code § 49-6-5b (1998) only applies where a parent's parental rights have been involuntarily terminated. They further assert that the appellants did not have good cause for a continuance of the adjudicatory hearing. In that regard, the appellees note that the circuit court granted one continuance before dismissing the petition. The appellees say that even with an additional three weeks to secure their witnesses, the appellants were not able to do so. Thus, the appellees conclude that the circuit court's dismissal of the petition should be affirmed.
It is well established that W.Va. Code § 49-6-5b requires the DHHR to join efforts to terminate parental rights where “the parental rights of the parent to a sibling have been terminated involuntarily.” In George I, we explained that,
Quite clearly, the statute contemplates that a prior termination
of parental rights to a sibling is, at least, some evidence of a
child being threatened with abuse and neglect. The legislature
has clearly determined that where there has been a prior
involuntary termination of parental rights to a sibling, the issue
of whether the parent has remedied the problems which led to
the prior involuntary termination sufficient to parent a
subsequently-born child must, at minimum, be reviewed by a
court, and such review should be initiated on a petition pursuant
to the provisions governing the procedure in cases of child
neglect or abuse set forth in West Virginia Code §§ 49-6-1 to
-12 (1998).
205 W.Va. at 442, 518 S.E.2d at 870. In addition, in Syllabus Point 1 of In re George Glen
B., Jr., 207 W.Va. 346, 532 S.E.2d 64 (2000) (“George II”), this Court held that:
When the parental rights of a parent to a child have been involuntarily terminated, W.Va.Code, 49-6-5b(a)(3) [1998] requires the Department of Health and Human Resources to file a petition, to join in a petition, or to otherwise seek a ruling in any pending proceeding, to terminate parental rights as to any sibling(s) of that child.
It is clear from the record that the DHHR filed the abuse and neglect petition
in this case based upon the belief that the appellees had their parental rights to as many as
eight other children terminated. However, upon further investigation, the DHHR learned that
the appellees' parental rights to their other children were never involuntarily terminated. Yet,
the DHHR did confirm that abuse and neglect proceedings had been instituted by child
protective services in Virginia against the appellees. Furthermore, the DHHR discovered that
Stacy P. agreed to voluntary relinquish her parental rights to two of her other children once
she learned that child protective services had instituted termination proceedings. Also, the
DHHR discovered that child protective services in Virginia had determined that Alvin P.
sexually abused his daughter, Samantha P. Instead of contesting that finding, Alvin P. agreed
to no longer visit Samantha P. (See footnote 6)
Based on these facts, the DHHR sought a continuance of the adjudicatory hearing to gather more evidence including the testimony of the Virginia child protective service workers. The circuit court granted the DHHR's motion, but when a second continuance was requested, the motion was denied. Thereafter, the circuit court dismissed the petition because the DHHR was unable to produce any additional evidence of abuse and neglect of the children. Having reviewed the entire record, we agree with the appellants that the circuit court abused its discretion by dismissing the abuse and neglect petition at this juncture.
While the appellees' parental rights to their other children have not been involuntarily terminated, it is clear from the record that substantial allegations of abuse of neglect by these parents were made in the state of Virginia with respect to their other children. (See footnote 7) As we stated previously, these allegations resulted in the voluntary termination of Stacy P.'s parental rights to two of her other children. Also, Alvin P. was denied further visitation with his daughter, Samantha P. because he sexually abused her.
The appellees maintain that the abuse and neglect petition should have been
dismissed once it was established that their parental rights to their other children were never
involuntarily terminated. We disagree. Recently, in In re James G., 211 W.Va. 339, 566
S.E.2d 226 (2002), we considered the effect of a voluntary versus involuntary termination
of parental rights on later-born children. In that case, the appellant mother argued that the
circuit court had erred by refusing to accept her voluntarily relinquishment of parental rights.
The DHHR would not agree to the voluntary termination suggesting that the mother only
offered to relinquish her parental rights because she knew they were going to be terminated,
and she wanted to limit the DHHR's ability to take action against her should she later have
another child. Ultimately, this Court determined that “[a] circuit court has discretion in an
abuse and neglect proceeding to accept a proffered voluntary termination of parental rights,
or to reject it and proceed to a decision on involuntary termination.” Syllabus Point 4, in
part, id. However,
[w]e note[d] that while W.Va.Code § 49-6-5b (1998) does not
include the voluntary termination of parental rights as one of the
factors triggering a new petition against a parent with additional
children, the absence of one of these factors does not in any way
prevent the Department from filing such a petition should
conditions warrant. Nothing prevents the Department from
conducting an investigation if it believes that a parent who has
voluntarily terminated parental rights with respect to one child
might be mistreating another child, or from providing such a
parent with assistance or counseling where available.
Id., 211 W.Va. at 346, 566 S.E.2d at 233.
In the case sub judice, we find that the conditions warranted the filing of the
abuse and neglect petition. Furthermore, based upon the preliminary hearing testimony, there
was probable cause for the emergency removal of the children from their home. While the
appellees' parental rights to their other children were never involuntarily terminated, there
was reason to believe that the appellees might be mistreating Kyiah and Joseph P. Given that
possibility, an adjudicatory hearing was required. As this Court has stated on many
occasions,
The guiding principle in any child abuse or neglect proceeding
is to do what is best for the child: “First and foremost in a
contest involving the custody of a child is the consideration of
that child's welfare. It has been held repeatedly by this Court
that the welfare of the child is the polar star by which the
discretion of the court will be guided.” State ex rel. Cash v.
Lively, 155 W.Va. 801, 804, 187 S.E.2d 601, 604 (1972);
accord, Michael K.T. v. Tina L.T., 182 W.Va. 399, 405, 387
S.E.2d 866, 872 (1989); State ex rel. Rose L. v. Pancake, 209
W.Va. 188, 192, 544 S.E.2d 403, 407 (2001) (Davis, J.
concurring).
Id., 211 W.Va. at 345, 566 S.E.2d at 232.
Consequently, we find that the circuit court erred when it dismissed the abuse
and neglect petition without conducting the adjudicatory hearing. While we recognize that
the DHHR had a significant amount of time during which to secure its witnesses for the
adjudicatory hearing, we, nonetheless, believe it established good cause for a second
continuance. In summary, based on all of the above, especially the need to protect the
welfare of these children, the circuit court should have rescheduled the adjudicatory hearing
and allowed the DHHR and guardian ad litem to present the testimony of the child protective
service workers from Virginia.