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In re T.S.

Supreme Court of West Virginia

April 11, 2019

In re T.S.

          Submitted: March 12, 2019

          Appeal from the Circuit Court of Preston County The Honorable Steven L. Shaffer, Judge Civil Action No. 17-JA-6

          Justin Gregory, Esq. J. Gregory Law Firm, L.C.Oakland, Maryland Counsel for the Petitioner R.S.

          Richard Gutmann, Esq. Morgantown, West Virginia Guardian ad Litem

          Patrick Morrisey, Esq. Attorney General Brandolyn N. Felton-Ernest, Esq. Assistant Attorney General Charleston, West Virginia Counsel for the Respondent Department of Health and Human Resources

         SYLLABUS BY THE COURT

         1. "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 re Tiffany Marie S., 196 W.Va. 223, 470 S.E.2d 177 (1996).

         2. "Where the issue on an appeal from the circuit court is clearly a question of law or involving an interpretation of a statute, we apply a de novo standard of review." Syl. Pt. 1, Chrystal R.M. v. Charlie A.L., 194 W.Va. 138, 459 S.E.2d 415 (1995).

         3. "West Virginia Code, Chapter 49, Article [4], Section [601 (2015)], as amended, and the Due Process Clauses of the West Virginia and United States Constitutions prohibit a court or other arm of the State from terminating the parental rights of a natural parent having legal custody of his child, without notice and the opportunity for a meaningful hearing." Syl. Pt. 2, In re Willis, 157 W.Va. 225, 207 S.E.2d 129 (1973).

          WORKMAN, JUSTICE:

         This case is before the Court upon the appeal of the petitioner, R.S., [1] the father of son, T.S., and the stepfather of stepdaughter, V.A., [2] from the July 9, 2018, dispositional order entered by the Circuit Court of Preston County, West Virginia, granting the petitioner a disposition pursuant to West Virginia Code § 49-4-604(b)(5) (Supp. 2018), [3] in which parental rights are not terminated, but the child is placed in the "care, custody, and control" of a guardian, after determining that the petitioner was "unwilling or unable to provide adequately" for the needs of either child. Pursuant to this disposition, the circuit court placed the children, T.S. and V.A., in the "legal and physical custody" of the guardians, J.H. and T.H., V.A.'s nonabusing, biological father and stepmother. The petitioner assigns several errors but we only address whether the circuit court erred when it determined disposition regarding his child without first allowing him a meaningful opportunity to be heard at the dispositional hearing. Upon review of the parties' briefs and arguments, [4] the appendix record, and all other matters submitted before the Court, we reverse the circuit court's decision on this issue, and remand the case to the circuit court for the limited purpose of providing the petitioner the opportunity to both testify and present evidence at a dispositional hearing.[5]

         I. Facts and Procedural History

         On January 27, 2017, the DHHR filed an "Imminent Danger Petition" against the petitioner and the mother, J.S., alleging that the pair had exposed V.A., who is ten years old, and T.S., who is six years old, to domestic violence in the home. The allegations stemmed from the petitioner and the mother being involved in a domestic dispute during which the mother told V.A. to call the police. V.A. reported that she saw the petitioner punch her mother in the face "causing bruises and marks" and that T.S. was present during the altercation. V.A. also reported that the petitioner sometimes called both her mother and her names like "bitch" and "asshole" and that she only felt safe in the home "sometimes." V.A. reported that she was interviewed by Child Protective Services ("C.P.S.") the prior month but was not truthful about the domestic violence in the home because her parents told her not to say anything. Both parents denied domestic violence in the home and later reported that V.A. had mental health issues and should not be believed. As for T.S., the DHHR alleged "upon information and belief, . . . [T.S.] was observed at the residence to be soiled with what was described to be coal dust; and very upset, . . . screaming and crying for the Respondent Mother who left him inside the residence with the door closed, which was emotionally harmful to said Child."[6] The allegations reflected that the DHHR tried to put a "Temporary Protection Plan" in place with the parents for the children's safety and the parents refused to cooperate. Further, the parents refused to provide any names of relatives for the temporary placement of the children.

         An adjudicatory hearing was held on February 22, 2017, and counsel for both the petitioner and the mother each requested a pre-adjudicatory improvement period, which the circuit court granted for a three-month period.[7] After a hearing on May 30, 2017, at the end of the pre-adjudicatory improvement period, because the parties did not have any witnesses to call, the circuit court, after considering the arguments of counsel, determined that there were disputed factual issues that needed to be resolved at an adjudicatory hearing. The petitioner then requested that the adjudicatory hearing be "repurposed" into an evidentiary hearing on whether the pre-adjudicatory improvement period conditions had been successfully completed. The circuit court granted the petitioner's request and set the matter for June 22, 2017.

         The guardian ad litem ("GAL") filed an "Amended Imminent Danger Petition" on June 9, 2017. The allegations in the amended petition were that the petitioner and the mother had subjected the children to medical abuse and neglect and to physical abuse. The GAL alleged that prior to the abuse and neglect proceedings being instituted, the parents took the children to several physicians where the children were diagnosed with serious mental and physical maladies and that the diagnoses were based upon histories from the parents concerning behaviors claimed to have been exhibited by both V.A. and T.S. These diagnoses resulted in the children being prescribed medications. After the children were placed into foster care, the children were seen by a physician at the request of DHHR and the physician determined that most of the children's medicines should be drastically reduced or discontinued. The doctor found that the children did not suffer from most of the diseases with which they had been diagnosed.[8] The amended petition also contained an allegation that after the case began, V.A. reported during a Child Advocacy Center interview that there was additional domestic violence committed by the petitioner on both the mother and children, which included hair pulling and hitting. Both parents continued to deny domestic violence.

         At the adjudicatory hearing, the petitioner and the mother both signed stipulated adjudications in open court. The petitioner stipulated that

         the infant respondents have been exposed to neglect and/or abuse due to the following deficiencies:

a. He [the petitioner] admits that the DHHR, the Guardian ad Litem, and . . . [V.A.'s] therapist all have addressed concerns regarding the need for the Respondent Father to make therapeutic admissions during family counseling sessions, ...

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