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In re C.M.

Supreme Court of West Virginia

June 9, 2017

In re: C.M. and S.H.

         (Marion County 14-JA-40 & 14-JA-41)


         Petitioner Mother C.H., by counsel Holly Wolfe Hinerman, appeals the Circuit Court of Marion County's November 18, 2016, order denying her "motion for reconsideration" of a March 11, 2016, order accepting her voluntary relinquishment of parental rights to then four-year-old C.M. and then one-year-old S.H.[1] The West Virginia Department of Health and Human Resources ("DHHR"), by counsel Lee Niezgoda, filed a response in support of the circuit court's order. The guardian ad litem ("guardian"), Terri L. Tichenor, filed a response on behalf of the children in support of the circuit court's order. On appeal, petitioner argues that the circuit court erred in finding that the relinquishment of her parental rights was voluntary and free from duress and/or fraud.[2]

         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 no substantial question of law and no prejudicial error. For these reasons, a memorandum decision affirming the circuit court's order is appropriate under Rule 21 of the Rules of Appellate Procedure.

         In July of 2014, the DHHR filed an abuse and neglect petition against petitioner and her boyfriend, J.H., alleging substance abuse and repeated incidents of domestic violence in the home that negatively affected her parenting.

         In September of 2014, at an adjudicatory hearing, petitioner stipulated to the allegations in the petition and agreed that she had neglected her children. Thereafter, the circuit court granted petitioner a six-month post-adjudicatory improvement period. The circuit court granted petitioner a three-month extension of her improvement period in March of 2015, but based on petitioner's failure to comply with court-ordered drug screening, therapy, and treatment, the matter was scheduled for disposition.

         In September and October of 2015, the circuit court held three dispositional hearings. Petitioner was not present in person for the first two dispositional hearings, but she was represented by counsel. In October of 2015, at the third dispositional hearing, petitioner appeared and moved for an alternative disposition pursuant to West Virginia Code 49-4-604(b)(5) (permitting the appointment of a guardianship as disposition) ("Disposition 5"). Without objection by the parties, the circuit court granted petitioner's motion for a Disposition 5.

         Less than one month after granting petitioner a Disposition 5, the DHHR and guardian filed a joint motion to modify that disposition. In their joint motion, the DHHR and guardian alleged that petitioner was arrested on an outstanding shoplifting warrant on October 15, 2015, and was found to possess heroin. They further alleged that petitioner was "staying" with J.H. at the time of her arrest.

         The matter was scheduled for a final hearing in January of 2016. Having discussed the case with her counsel prior to the hearing, petitioner was sworn in and voluntarily relinquished her parental rights to the children. Petitioner was informed that she had no further right to the care, custody, and control of the children. Petitioner was asked whether she was threatened or promised anything in exchange for her relinquishment, and she stated that she was not. During the hearing, petitioner was specifically asked whether she understood that she had no right to visit the children and if "for any reason whatsoever you do not visit or contact [the children], that [the relinquishment] stands." Petitioner answered "[y]es." Petitioner was also informed that she had no control over who ultimately adopted the children. By order entered on March 11, 2016, the circuit court accepted petitioner's voluntary relinquishment of her parental rights. Petitioner did not directly appeal that order.

         Pending an order of the circuit court on permanent placement, S.H. was placed with his maternal grandmother, and C.M. was placed with his non-offending father. Following the relinquishment hearing, the DHHR observed S.H. in the custody of petitioner and J.H. The DHHR informed the maternal grandmother that if she continued to allow petitioner or J.H. to have custody of S.H., then S.H. would be placed with another caretaker.[3] Around the same time, C.M.'s non-offending father refused to allow petitioner to visit with C.M. Thereafter, petitioner contacted the circuit court and requested a new attorney. The circuit court granted the request and appointed petitioner a new attorney.

         In August of 2016, petitioner filed a "motion for reconsideration" of the March 11, 2016, order accepting her relinquishment.[4] In October of 2016, the circuit court held a hearing on that motion, and, following the hearing, the circuit court denied petitioner's motion.[5] This appeal followed.[6]

         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). Moreover, pursuant to West Virginia Code § 49-4-607, "[a]n agreement of a natural parent in termination of parental rights is valid if made by a duly acknowledged writing, and entered into under circumstances free from duress and fraud." In discussing this statute, we have previously stated that

[w]hile W.Va. Code [§] 49-6-7 [now 49-4-607] 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. Accordingly, we hold that under the provisions of W.Va. Code [§] 49-6-7 [now 49-4-607], a circuit court may conduct a hearing to ...

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