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In re A.R.

Supreme Court of West Virginia

June 12, 2019

In re A.R.

          (Marshall County 06-JA-38)

          MEMORANDUM DECISION

         Petitioner Mother S.A., by counsel Casey Jo Wynn, appeals the Circuit Court of Marshall County's December 20, 2017, order denying her motion to revoke her voluntary relinquishment of parental rights and modify disposition of A.R.[1] The West Virginia Department of Health and Human Resources ("DHHR"), by counsel Mindy M. Parsley, filed a response in support of the circuit court's order and a supplemental appendix. The guardian ad litem ("guardian"), J.K. Chase, IV, filed a response on behalf of the child in support of the circuit court's order. Petitioner filed a reply. On appeal, petitioner argues that the circuit court erred in denying her motion to revoke her relinquishment and finding that the child's best interests would not be served in petitioner's custody.

         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 December of 2006, the DHHR filed a child abuse and neglect petition alleging that petitioner was "continually moving [the child] from one family member to another without providing . . . food or clothing." Further, the DHHR alleged that the child was "infected with scabies." The circuit court held an adjudicatory hearing in March of 2007, and petitioner admitted to the allegations contained in the petition. The circuit court adjudicated petitioner as an abusing parent. Petitioner moved for a post-adjudicatory improvement period, which the circuit court eventually granted.

          In July of 2007, the circuit court held a review hearing, and petitioner indicated that she had reviewed and executed a voluntary relinquishment of her parental rights form with assistance from her counsel. The form provided that petitioner "understood that the termination of parental rights and obligations is permanent whether or not any agreement for visitation or communication with the child is subsequently performed." Further, the executed form provided that petitioner had "not been induced or threatened into signing this Relinquishment and no promises have been made or rewards offered in consideration of my signing this form." The circuit court questioned petitioner regarding her intent to relinquish her parental rights. Petitioner testified that she understood the document and had no questions. Accordingly, the circuit court found that the relinquishment "was made freely, voluntarily and without any coercion or duress, [and] that the relinquishment is in the child's best interest." The circuit court accepted the voluntarily relinquishment of petitioner's parental rights. Ultimately, the child was placed in the legal guardianship of her relatives, A.S. and J.S., but was never adopted by them.

         In October of 2017, petitioner filed a "Petition to Re-Open Case and to Modify Custody" wherein she alleged that she had relinquished her parental rights "in the belief that she could revoke in [the] future and regain custody of her daughter when she had the means." Petitioner alleged that A.S. and J.S.'s home was not "a safe or wholesome environment for the [c]hild," and that A.S. was arrested following an attempted robbery. Finally, petitioner alleged that she had adequate means to provide for the child. The DHHR and guardian filed responses to the petition and motions to dismiss the petition due to a lack of standing. The parties argued that because petitioner relinquished her rights, she did not have standing to move to modify disposition pursuant to West Virginia Code § 49-4-606 and relevant case law. Petitioner filed a memorandum in opposition to the motions to dismiss. In December of 2017, the circuit court found that petitioner did not have standing to seek modification and dismissed her petition in its December 20, 2017, order. Petitioner now appeals that order.[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, this Court finds no error in the proceedings below.

         On appeal, petitioner argues that the circuit court erred in finding that she did not have standing to modify disposition pursuant to West Virginia Code § 49-4-606, a statute that permits modification of abuse and neglect dispositional orders in certain circumstances. In her brief on appeal, petitioner asserts that she had the right to revoke her relinquishment of parental rights to A.R. pursuant to West Virginia Code § 48-22-305, a statute pertaining to the relinquishment of parental rights or consent for adoption in non-abuse and neglect situations. Petitioner argues that if the circuit court permitted her to revoke the relinquishment of her parental rights to the child, then she would have been a legal parent of the child and permitted to modify disposition. We disagree and find no merit in petitioner's argument. Petitioner relinquished her parental rights during the course of a child abuse and neglect proceeding, which was governed by Chapter 49 of the West Virginia Code and the West Virginia Rules of Procedure for Child Abuse and Neglect Proceedings, rather than Chapter 48. Petitioner cites to no authority that provides her relief under Chapter 49 of the West Virginia Code.[3]

         Regarding the relinquishment of parental rights, West Virginia Code § 49-4-607 provides that "[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." We have held that a circuit court "may conduct a hearing to determine whether the signing by a parent of an agreement relinquishing parental rights was free from duress and fraud." [4] In re Cesar L., 221 W.Va. 249');">221 W.Va. 249, 261, 654 S.E.2d 373, 385 (2007) (quoting syl. pt. 3, State ex rel Rose v. Pancake, 209 W.Va. 188, 544 S.E.2d 403 (2001)).[5] "Whether there has been fraud or duress is a question of fact that must be determined by the circuit court judge." Rose, 209 W.Va. at 191, 544 S.E.2d at 406.

[T]he threshold for establishing duress and fraud in the context of the relinquishment of parental rights is extremely high. As to duress, this Court has held that, in the context of an adoption, duress "means a condition that exists when a natural parent is induced by the unlawful or unconscionable act of another to consent to the adoption of his or her child. Mere 'duress of circumstance' does not constitute duress[.]" Syl. pt. 2, in part, Wooten v. Wallace, 177 W.Va. 159, 351 S.E.2d 72 (1986). See also Baby Boy R. v. Velas, 182 W.Va. 182, 185, 386 S.E.2d 839, 842 (1989) ("[Duress] means a condition that exists when a natural parent is induced by the unlawful or unconscionable act of another to consent to the adoption of his or her child."). . . . The essential elements in an action for fraud are: (1) that the act claimed to be fraudulent was the act of the defendant or induced by him; (2) that it was material and false; that plaintiff relied on it and was justified under the circumstances in relying upon it; and (3) that he was damaged because he relied on it. Syl. pt. 1, Lengyel v. Lint, 167 W.Va. 272, 280 S.E.2d 66 (1981).

Cesar L., 221 W.Va. at 261-62, 654 S.E.2d at 385-86 (quoting Rose, 209 W.Va. at 192, 544 S.E.2d at 407).

         Here, we find that petitioner's relinquishment of her parental rights was valid and free from duress or fraud. Petitioner reviewed and executed a relinquishment form with the assistance of counsel. Petitioner testified that she understood the form and had no questions regarding its contents. In that form, petitioner asserted that she "had not been induced or threatened" into relinquishing her parental rights and that "no promises have been made or rewards offered in consideration" of her relinquishment. These statements constitute judicial admissions by petitioner. "A judicial admission is a statement of fact made by a party in the course of the litigation for the purpose of withdrawing the fact from the realm of dispute." Syl. Pt. 4, State v. McWilliams, 177 W.Va. 369, 352 S.E.2d 120 (1986). Further, even though petitioner attempted to dispute her admissions, she did not allege that her relinquishment was the product of fraud or duress in her recent petition to the circuit court. Rather, petitioner asserted before the circuit court that "she relinquished in the belief that she could revoke in [the] future and regain ...


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