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In re R.M.

Supreme Court of West Virginia

May 31, 2017

In re: R.M.,

         Tucker County 16-JA-16

          MEMORANDUM DECISION

         Petitioner Father, Jeffrey M., and Petitioner Mother, Tammie M., parents to R.M., by respective counsel Christopher M. Wilson and David B. DeMoss, appeal an August 30, 2016, order following an adjudication and dispositional hearing by which the Circuit Court of Tucker County disposed of a child abuse and neglect proceeding.[1] In its order, the circuit court accepted Jeffrey and Tammie M.'s voluntary relinquishment of custodial rights to R.M., and, as consented to by Jeffrey and Tammie M., transferred permanent guardianship of R.M. to his paternal grandparents. They argue the circuit court erred by: (1) adjudicating that they abused and neglected R.M.; and (2) placing restrictions on their visitation with him. The West Virginia Department of Human Resources (DHHR), by counsel Lee Niezgoda, filed a response in support of the circuit court's order. The guardian ad litem, Allison C. Iapalucci, also filed a response on behalf of the child in support of the circuit court's order. Jeffrey and Tammie M. filed a reply to the DHHR's and the guardian ad litem's responses.

         This Court has considered the parties' briefs, oral arguments, and the record on appeal. Upon consideration of the standard of review, the briefs, oral arguments, and the record presented, we find no substantial question of law and no prejudicial error. For this reason, a memorandum decision affirming the circuit court's order is appropriate under Rule 21 of the Rules of Appellate Procedure.

         This case arises from a petition filed by the DHHR alleging that Jeffrey and Tammie M. abused and neglected their twelve-year-old son, R.M. In its petition, the DHHR claimed that Jeffrey M. regularly subjected Tammie M. to severe physical abuse in front of R.M. and that Tammie M. habitually abused drugs and alcohol in R.M.'s presence. The petition further alleges that Jeffrey and Tammie M.'s home has been the site of multiple 911 calls for domestic violence, substance abuse, and threatened suicide. Despite Jeffrey and Tammie M.'s purportedly turbulent relationship, they had not followed through on a divorce by the time the DHHR filed its petition, and R.M. remained in their family home.

         The circuit court scheduled an adjudicatory hearing to determine whether R.M. had been abused and neglected as alleged in the DHHR's petition. On the day of the adjudicatory hearing, counsel for the parties met to discuss a voluntary disposition of the child abuse and neglect proceeding. At this meeting, it was agreed that Jeffrey and Tammie M. would voluntarily relinquish their custodial rights to R.M. and consent to the permanent guardianship of R.M. by his paternal grandparents. The circuit court was informally notified of the proposed voluntary dispositional plan before the adjudicatory hearing.

         At the hearing, the circuit court directed inquiries to Jeffrey and Tammie M. as to whether their proposed voluntary relinquishment of custodial rights to R.M. was freely, knowledgeably, and voluntarily given. It also inquired of R.M.'s paternal grandparents, who were present at the hearing, about their fitness to be R.M.'s permanent guardians. The circuit court then accepted Jeffrey and Tammie M.'s dispositional plan to voluntarily relinquish their custodial rights to R.M. and to transfer permanent guardianship of R.M. to his paternal grandparents. The circuit court also made the following two findings at the hearing: (1) Jeffrey and Tammie M.'s voluntary relinquishment of custodial rights would serve as a basis for an abuse and neglect adjudication; and (2) any visitation Jeffrey and Tammie M. may have with R.M. must occur at his guardians' home, and Jeffrey and Tammie M. may not visit R.M. at the same time. Jeffrey and Tammie M. did not object to either of these findings during the hearing.

         Following the hearing, the circuit court entered an order accepting Jeffrey and Tammie M.'s voluntary relinquishment of custodial rights to R.M., transferring permanent guardianship of R.M. to his grandparents, and containing its two findings regarding the abuse and neglect adjudication and visitation. It is from that order that Jeffrey and Tammie M. appeal.

         In evaluating a circuit court's resolution of a child abuse and neglect proceeding, we apply the following standard of review:

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.

Syl. Pt. 1, In Interest of Tiffany Marie S., 196 W.Va. 223, 470 S.E.2d 177 (1996).

         Jeffrey and Tammie M. first argue that the circuit court erred by adjudicating them to have abused and neglected R.M. They assert that, instead, the circuit court should have accepted their voluntary dispositional plan without addressing the issue of abuse and neglect.

         Jeffrey and Tammie M.'s argument directly contradicts our holding in Syllabus Point 2 of State v. T.C., 172 W.Va. 47, 303 S.E.2d 685 (1983), in which we held:

W.Va. Code, 49-6-1, et seq., [2] does not foreclose the ability of the parties, properly counseled, in a child abuse or neglect proceeding, to make some voluntary dispositional plan. However, such arrangements are not without restrictions. First, the plan is subject to the approval of the court. Second, and of greater importance, the parties cannot circumvent the threshold question which is the issue of abuse or neglect.

(Footnote added). Therefore, the circuit court was required to address whether Jeffrey and Tammie M. abused or neglected R.M. Had the circuit court failed to do so, as Jeffrey and Tammie M. suggest it should have done, it would ...


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