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In re C.S.

Supreme Court of West Virginia

November 22, 2017

In re: C.S.

         Jackson County 16-JA-29

          MEMORANDUM DECISION

         Petitioner Father R.C., by counsel Teresa C. Monk, appeals the Circuit Court of Jackson County's December 23, 2016, order terminating his parental rights to C.S.[1] The West Virginia Department of Health and Human Resources ("DHHR"), by counsel Lee Niezgoda, filed a response in support of petitioner's appeal. The guardian ad litem ("guardian"), Ryan M. Ruth, filed a response on behalf of the child also in support of petitioner's appeal. On appeal, petitioner argues that the circuit court erred in finding that he abused and neglected the child, in terminating his parental rights, and in refusing to allow him to be present at the adjudicatory and dispositional hearings.[2]

         The 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 our review, we believe that this case satisfies the "limited circumstances" requirement of Rule 21(d) of the Rules of Appellate Procedure and is appropriate for a memorandum decision vacating the circuit court's order. For the reasons expressed below, the circuit court's order is vacated and the case is remanded to the circuit court for the holding of an adjudicatory hearing in compliance with Chapter 49 of the West Virginia Code and the Rules of Procedure for Child Abuse and Neglect Proceedings.

         In April of 2016, the DHHR filed an abuse and neglect petition against petitioner and the child's mother alleging that the mother abused drugs, abandoned the child, and failed to provide the child with necessary food, clothing, and shelter. The only allegations against petitioner were that he was incarcerated on a parole violation revocation and that, due to his incarceration, he abandoned the child. According to the petition, the child was born while petitioner was incarcerated on the parole violation and remains incarcerated.

         In May of 2016, the circuit court held a preliminary hearing. Petitioner did not appear due to his incarceration. It was noted at the hearing that petitioner was unable to take custody of the child due to his incarceration. The circuit court proceeded in his absence but in the presence of petitioner's counsel. Following the preliminary hearing, petitioner's counsel filed a motion requesting that petitioner be transported to the adjudicatory hearing from the regional jail, or in the alternative, be permitted to appear by video conference.

         Beginning in June of 2016, the circuit court held a series of adjudicatory hearings. Petitioner's counsel renewed her previously filed motion requesting that petitioner be transported to the hearing or in the alternative, be permitted to appear by video conference. The circuit court denied petitioner's motions and proceeded in his absence. The court heard the proffers of the guardian, mostly concerning the child's mother and questioned the parties' counsel regarding petitioner's crime and possible parole date. Then, despite the fact that no evidence or testimony was presented in support of the allegations against petitioner, the circuit court adjudicated him as an abusing parent upon a finding that he abandoned the child and failed to protect the child from the mother's abuse and neglect.

         In October of 2016, the circuit court held a dispositional hearing. At the hearing, petitioner's counsel again renewed her previously filed motion requesting that petitioner be transported to the hearing or in the alternative, be permitted to appear by video conference. Petitioner's counsel also requested a continuance. The circuit court denied petitioner's motion and indicated that its decision would not be changed by petitioner's presence at the hearing. No evidence, other than the fact of petitioner's incarceration, was presented at the hearing, and there was no evidence on the record that the circuit court took judicial notice of any prior testimony. On December 23, 2016, the circuit court terminated his parental rights to the child. It is from this order petitioner appeals.

         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).

         On appeal, petitioner first assigns error to the circuit court's failure to conduct an adjudicatory hearing or gather evidence in support of its adjudicatory findings. We agree that the circuit court so erred. West Virginia Code § 49-4-601(h) provides that any "party or parties having custodial or other parental rights or responsibilities to the child shall be afforded a meaningful opportunity to be heard, including the opportunity to testify and to present and cross-examine witnesses . . . ." Further, in addressing the burden of proof at adjudication, we have held as follows:

W.Va.Code [§] 49-6-2(c) [now West Virginia Code § 49-4-601(i)], requires the [DHHR], in a child abuse or neglect case, to prove 'conditions existing at the time of the filing of the petition . . . by clear and convincing [evidence].' The statute, however, does not specify any particular manner or mode of testimony or evidence by which the [DHHR] is obligated to meet this burden.

Syl. Pt. 1, In Interest of S.C., 168 W.Va. 366, 284 S.E.2d 867 (1981).

         In this case, the DHHR proved only that petitioner was incarcerated. West Virginia Code § 49-4-201 provides that "'abandonment' means any conduct that demonstrates the settled purpose to forego the duties and parental responsibilities to the child." Petitioner's counsel proffered that petitioner believed that he would be paroled soon and would be able to participate in an improvement period. She also proffered that he wanted the opportunity to testify on his own behalf and requested that he be permitted to testify regarding his ability to fully participate in an improvement period and parent ...


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