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In re D.W.

Supreme Court of West Virginia

June 2, 2017

In re: D.W., G.D., and D.D.

         Webster County 16-JA-26, 16-JA-49, & 16-JA-50

          MEMORANDUM DECISION

         Petitioner Mother A.W., by counsel Dara A. Acord, appeals the Circuit Court of Webster County's August 24, 2016, order adjudicating her as an abusing parent.[1] The West Virginia Department of Health and Human Resources ("DHHR"), by counsel S.L. Evans, filed a response in support of the circuit court's order. The guardian ad litem, Mary Elizabeth Snead, filed a response on behalf of the children supporting the circuit court's order. On appeal, petitioner argues that the circuit court erred in allowing children G.D. and D.D. to be included in the amended petition, in concluding that she abandoned D.W., and in basing its adjudication, in part, upon her use of a controlled substance and other medications.

         This Court has considered the parties' briefs and the record on appeal. The facts and legal arguments are adequately presented, and the decisional process would not be significantly aided by oral argument. Upon consideration of the standard of review, the briefs, and the record presented, the Court finds that the circuit court below was an improper venue for the adjudication of petitioner as to children G.D. and D.D.; as to D.W., the Court finds no substantial issue of law or prejudicial error. For this reason, a memorandum decision affirming the circuit court's order, in part, and reversing and remanding, in part, is appropriate under Rule 21 of the Rules of Appellate Procedure.

         In March of 2016, the DHHR filed an abuse and neglect petition against petitioner that alleged abandonment of fourteen-year-old D.W. According to the petition, petitioner previously signed guardianship of the child over to P.M. and W.M. ("the guardians") and had not seen the child in nine years, despite the fact that she had permission to visit him. Moreover, the petition alleged that law enforcement had been dispatched to the guardians' home in March of 2016 over domestic issues therein. Following arguments in the home between the guardians, W.M. shot himself in the face in the child's presence. Because the child indicated to the DHHR that petitioner had not visited him in over nine years, the DHHR sought transfer of the child to its custody. Thereafter, the DHHR filed an amended petition to include children D.D. and G.D., who lived with their father after he was awarded custody of them following the parents' separation. The petition alleged that petitioner had weekend visitation with D.D. and G.D. The petition further alleged that petitioner was on disability as a result of a back injury and that she took multiple prescription drugs for several issues. Petitioner, thereafter, waived her right to a preliminary hearing.

         In August of 2016, the circuit court held an adjudicatory hearing, during which petitioner admitted to certain allegations in the amended petition. However, she reserved the right to argue that the facts as alleged did not constitute abuse or neglect. During the hearing, petitioner also admitted to an extended history of drug use, including opiates, albeit by prescription. The circuit court, however, found that petitioner's admissions constituted a factual basis for a finding of abuse or and/or neglect and adjudicated her as an abusing parent. Further, based on her admission to extended prescription drug use, the circuit court found that petitioner was addicted to controlled substances. It is from the adjudicatory order that petitioner appeals.[2]

         The Court has previously established 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).

Syl. Pt. 1, In re Cecil T., 228 W.Va. 89, 717 S.E.2d 873 (2011). Upon our review, although the Court finds no error with respect to D.W., it finds that under the unusual circumstances of this case, the circuit court lacked venue to adjudicate petitioner as to the additional children G.D. and D.D.

         Petitioner asserts that although venue for the original petition was proper in Webster County because that was the county in which the guardians resided, it was error to include children G.D. and D.D. in an amended petition in that county. We agree. W.Va. Code § 49-4-601(a) provides that an abuse and neglect petition may be filed in "the circuit court in the county in which the child resides, or if the petition is being brought by the department, in the county in which the custodial respondent or other named party abuser resides, or in which the abuse or neglect occurred[.]" (emphasis added). See also Rule 41 of the Rules of Procedure for Child Abuse and Neglect. Clearly, none of these criteria were met as to petitioner's alleged abuse and/or neglect of G.D. and D.D. such as to establish venue in Webster County. Neither G.D. nor D.D. resided in Webster County, petitioner did not reside in Webster County, and accordingly, no abuse and/or neglect as to G.D. or D.D. occurred there.

         The DHHR argues, however, that Rule 19 of the West Virginia Rules of Child Abuse and Neglect Proceedings, permits it to amend an abuse and neglect petition throughout the pendency of an abuse and neglect proceeding.[3] In support of its argument, the DHHR cites Rule 19(b), which specifically provides, in part, that the DHHR may file an amended petition upon newly discovered allegations and expressly states that "the allegations should be included in an amended petition rather than in a separate petition in a new civil action."

         We note first that Rule 19(b)-with its attendant prohibition on filing a new petition to assert new allegations-specifically applies to "[a]mendments after the adjudicatory hearing[.]" (emphasis added). In this case, the amendment occurred before final adjudication; therefore, subsection (b) is not applicable. However, with respect to the DHHR's more general argument that Rule 19(a) permits amendment prior to adjudication insofar as an adverse party has sufficient time to respond to the amendment, this Rule of Procedure does not supplant the statutorily-mandated venue requirements contained in West Virginia Code § 49-4-601(a). While the addition of new allegations is fully contemplated by Rule 19, the establishment of proceedings involving children and/or respondents for whom statutory venue does not lie is not.

         In a similar argument, the guardian argues that filing a new petition in another county as to G.D. and D.D. is in fact prohibited by both West Virginia Code § 49-4-601(a) and Rule 4a of the West Virginia Rules of Procedure for Child Abuse and Neglect Proceedings, which state that "[u]nder no circumstances may a party file a petition in more than one county based on the same set of facts." While petitions based on the "same set of facts" are prohibited and "new allegations" should be made by amendment to the existing petition, this unusual case involves two child parties and a respondent parent who, as to those two children, has no connection whatsoever to the venue first-established by way of petition in Webster County.

         With regard to venue of civil actions, the Court has stated:

To be clear, the West Virginia Legislature is the paramount authority for deciding and resolving policy issues pertaining to venue matters. Once the Legislature indicates its preference by the enactment of a statute, the Court's role is limited. Our duty is to interpret the statute, not to expand or enlarge upon it. More significantly, any subsequent policy changes must come from the Legislature itself and, in the absence of constitutional or ...

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