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In re J.S.

Supreme Court of Appeals of West Virginia

September 13, 2019

In re J.S. and T.S.

          Fayette County 18-JA-59 and 18-JA-60

          MEMORANDUM DECISION

         Petitioner Father D.S., by counsel Jennifer M. Alvarez, appeals the Circuit Court of Fayette County's February 20, 2019, order terminating his parental rights to J.S. and T.S.[1] The West Virginia Department of Health and Human Resources ("DHHR"), by counsel Mindy M. Parlsey, filed a response in support of the circuit court's order. The guardian ad litem, Vickie L. Hylton, 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 explaining the applicable burden of proof at disposition and in denying his request to leave his parental rights intact.

         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 June of 2018, the DHHR filed an abuse and neglect petition that alleged petitioner engaged in domestic violence in the home. Child Protective Services ("CPS") arrived at the home subsequent to a law enforcement response and found B.T., the mother of J.S., "in the officer's car . . . being treated for multiple injuries," including "multiple bruises and cuts on her entire body." Ultimately, B.T. was admitted to the intensive care unit at CAMC General Hospital as a result of her injuries. After her release from the hospital, B.T. told CPS that, during the course of their four-year relationship, petitioner "has always been physically abusive." According to B.T., petitioner would interrogate her and "would use a blow torch to burn her arms if she . . . [gave] the wrong response." B.T. also indicated that petitioner used "electronic cables to choke her," and "a baseball bat, a knife, a wooden stick, and outdoor shears to hurt her until she would give him the desired response." Although B.T. initially indicated that her injuries were the result of an ATV accident, she admitted that she lied because petitioner said he "would kill her and the children" if she told law enforcement or CPS the truth.

         During the CPS investigation, petitioner "stood on the porch yelling at law enforcement and the CPS workers to leave his property" and appeared to be under the influence of alcohol. Petitioner refused to permit CPS into his home or to speak to the children privately. According to the petition, the children "were fearful of [petitioner] and were scared to speak to CPS in his presence." The day after the domestic violence incident, ten-year-old T.S. was interviewed at a child advocacy center. During the interview, the child disclosed an additional instance of domestic violence. The day prior to the incident referenced above, the child called emergency services because petitioner "was hitting" B.T. Law enforcement responded but ultimately left, after which petitioner grabbed T.S. by the throat, pushed her against a wall, and destroyed her cell phone. According to the child, petitioner resumed hitting B.T., including with a baseball bat, "for the entire night." The child obtained another cell phone, recorded petitioner hitting B.T., and again contacted law enforcement. Following the petition's filing, petitioner waived his preliminary hearing. Thereafter, petitioner was indicted for multiple crimes in relation to the incident giving rise to these proceedings, including kidnapping and malicious assault. As a result, petitioner remained incarcerated throughout the proceedings.

         In October of 2018, the circuit court held an adjudicatory hearing. The circuit court heard testimony from one of the officers who responded to the incident giving rise to the petition, a CPS worker, and B.T. The DHHR also introduced photographic evidence that demonstrated the severity of B.T.'s injuries and the weapons used to inflict them. The evidence showed that law enforcement recovered a blow torch, baseball bat, garden shears, and charging cables, which were the instruments that B.T. indicated petitioner used to injure her. Based on the evidence, the circuit court found that petitioner engaged in "an ongoing pattern of serious domestic abuse perpetrated . . . in the presence of the . . . children." The circuit court further found that the children witnessed much of the "brutal domestic violence" petitioner inflicted upon B.T. As such, the circuit court found petitioner to be an abusing parent.

         In December of 2018, the circuit court held a dispositional hearing. Petitioner initially attempted to voluntarily relinquish his parental rights to the children. However, after the circuit court informed petitioner of the rights that he would be waiving if it were to accept his voluntary relinquishment, petitioner withdrew his request. After moving to a contested dispositional hearing, the circuit court found that petitioner "has not taken any responsibility for his actions[] and does not think he did anything wrong," despite the fact that he "severely abused" B.T. in the children's presence. The circuit court further found that there was no reasonable likelihood petitioner "will ever be able to correct the abusive . . . circumstances" present in the case. Based on the children's welfare and best interests, the circuit court terminated petitioner's parental rights to the children.[2]It is from the dispositional order that 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, we find no error in the proceedings below.

         Petitioner first alleges that the circuit court erred in incorrectly explaining the burden of proof at disposition, which caused him to believe that the DHHR's burden of proof in regard to terminating his parental rights was higher than it truly was. As a result, petitioner argues that this erroneous information "had a [d]irect [i]mpact" on his decision to proceed to a contested hearing. Essentially, petitioner argues that "the [c]ourt talked [him] out of his voluntary relinquishment" and that the involuntary termination of his parental rights will have a negative impact beyond the specific circumstances of this case. Upon our review, however, we find that petitioner is entitled to no relief.

         First, it is important to note that petitioner did not have an absolute right to voluntarily relinquish his parental rights to the children. Indeed, this Court has held as follows:

"[a] circuit court has discretion in an abuse and neglect proceeding to accept a proffered voluntary termination of parental rights, or to reject it and proceed to a decision on involuntary termination. Such discretion must be exercised after an independent review of all relevant factors, and the court is not obliged to adopt any position advocated by the Department of Health and Human Resources." Syl. Pt. 4, In re James G., 211 W.Va. 339, 566 S.E.2d 226 (2002).

Syl. Pt. 6, In re T.W., 230 W.Va. 172, 737 S.E.2d 69 (2012). As this Court has explained, the circuit court had the ultimate discretion in determining whether to accept petitioner's request to voluntarily relinquish his parental rights. As such, petitioner cannot establish, even assuming that his arguments are taken as true, that the circuit court deprived him of any protected right. On the contrary, petitioner was entitled to a contested dispositional hearing wherein the DHHR was required to prove, by clear and convincing evidence, that termination of his parental rights was warranted. See W.Va. Code § 49-4-604(a) (requiring that, following adjudication and the filing of a case plan, "[t]he court shall forthwith proceed to disposition giving [the parent] an opportunity to be heard."); State v. C.N.S., 173 W.Va. 651, 656, 319 S.E.2d 775, 780 (1984) ("The State must produce clear and convincing evidence to support finding[s] [that there is no reasonable likelihood the conditions of abuse and neglect can be ...


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