IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
January 2019 Term
_______________
FILED
No. 18-0448 March 14, 2019
released at 3:00 p.m.
_______________ EDYTHE NASH GAISER, CLERK
SUPREME COURT OF APPEALS
OF WEST VIRGINIA
IN RE A.P.-1, A.P.-2, A.P.-3
____________________________________________________________
Appeal from the Circuit Court of Raleigh County
The Honorable Robert A. Burnside, Jr., Judge
Case Nos. 2017-JA-154-B, 2017-JA-155-B, 2017-JA-156-B
VACATED AND REMANDED WITH DIRECTIONS
____________________________________________________________
Submitted: January 15, 2019
Filed: March 14, 2019
Gavin Ward, Esq. Patrick Morrissey, Esq.
Beckley, West Virginia Attorney General
Counsel for Petitioner D.P. Brandolyn N. Felton-Ernest, Esq.
Assistant Attorney General
Stanley I. Selden, Esq. Charleston, West Virginia
Beckley, West Virginia Counsel for Respondent Department of
Guardian ad litem of A.P.-1, A.P.-2, Health and Human Resources
and A.P.-3
Sidney Bell, Esq.
Beckley, West Virginia
Counsel for Respondent J.B.
Sarah F. Smith, Esq.
Public Defender Corporation
Beckley, West Virginia
Counsel for Respondent T.W.
CHIEF JUSTICE WALKER delivered the Opinion of the Court.
JUSTICE WORKMAN concurs, in part, and dissents, in part, and reserves the right to file
a separate opinion.
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.” Syllabus Point 1, In Interest of Tiffany Marie S., 196 W. Va.
223, 470 S.E.2d 177 (1996).
2. “Interpreting a statute or an administrative rule or regulation presents
a purely legal question subject to de novo review.” Syllabus Point 1, Appalachian Power
Co. v. State Tax Dep’t of W. Virginia, 195 W. Va. 573, 466 S.E.2d 424 (1995).
3. “In a child abuse and neglect hearing, before a court can begin to make
any of the dispositional alternatives under W.Va.Code, 49–6–5, it must hold a hearing
under W.Va.Code, 49–6–2, and determine ‘whether such child is abused or neglected.’
i
Such a finding is a prerequisite to further continuation of the case.” Syllabus Point 1, State
v. T.C., 172 W. Va. 47, 303 S.E.2d 685 (1983).
4. “When no factors and circumstances other than incarceration are
raised at a disposition hearing in a child abuse and neglect proceeding with regard to a
parent’s ability to remedy the condition of abuse and neglect in the near future, the circuit
court shall evaluate whether the best interests of a child are served by terminating the rights
of the biological parent in light of the evidence before it. This would necessarily include
but not be limited to consideration of the nature of the offense for which the parent is
incarcerated, the terms of the confinement, and the length of the incarceration in light of
the abused or neglected child’s best interests and paramount need for permanency, security,
stability and continuity.” Syllabus Point 3, In re Cecil T., 228 W. Va. 89, 717 S.E.2d 873
(2011).
ii
WALKER, Chief Justice:
Petitioner D.P. is serving a lengthy prison sentence for first-degree murder
and is ineligible for parole until 2029. He is also father to three minor children: A.P.-1,
A.P.-2, and A.P.-3. In April 2018, the Circuit Court of Raleigh County terminated
Petitioner’s parental rights to the three children, despite concluding three months earlier
that Petitioner had not abused or neglected them. Petitioner now challenges the termination
of his parental rights. Because our law is clear that a circuit court may not terminate a
parent’s rights to his child without first finding that the parent abused or neglected his child,
we vacate the circuit court’s April 2018 order and remand this matter to the circuit court
for further proceedings.
I. FACTUAL AND PROCEDURAL BACKGROUND
On June 12, 2017, the West Virginia Department of Health and Human
Resources (DHHR) filed a “Petition for Finding of Abuse and/or Neglect and/or
Abandonment” with the Circuit Court of Raleigh County (the Petition) regarding
Petitioner’s three minor children: A.P.-1, A.P.-2, A.P.-3.1 In the Petition, DHHR alleged
that Petitioner was incarcerated at Mount Olive Correctional Facility, sentenced to life with
mercy, and ineligible for parole until 2029. DHHR asked the circuit court to find that
Petitioner had abandoned his children and, based upon that finding, terminate his parental
1
Consistent with our long-standing practice in cases with sensitive facts, we use
initials where necessary to protect the identities of those involved in this case. See In re
K.H., 235 W.Va. 254, 256 n.1, 773 S.E.2d 20, 22 n.1 (2015). Because the children share
the same initials, we will refer to them as A.P.-1, A.P.-2, and A.P.-3, respectively.
1
rights to A.P.-1, A.P.-2, and A.P.-3. DHHR did not allege that Petitioner had otherwise
neglected or abused the children.2
The circuit court held an adjudicatory hearing on October 3, 2017.3 There,
DHHR argued that Petitioner had abandoned his children due to his lengthy incarceration.
The circuit court was not convinced, and stated in its October 6, 2017 order that it “was of
the opinion that the Department’s interpretation of the definition of abandonment was not
correct.” The circuit court then ordered the guardian ad litem and Petitioner to provide
additional authority on that issue.4
The adjudication hearing continued on December 12, 2017. Petitioner
testified to his ongoing relationship with A.P.-1, A.P.-2, and A.P.-3, stating that he was
with them nearly every day before his incarceration in March 2014, and that he had
2
The Petition also contained allegations of abuse against T.W., the children’s
mother, and factual allegations regarding J.B., a non-offending father to another child of
T.W.’s; and E.P., D.P.’s sister, to whom T.W. had granted temporary custody of A.P.-1,
A.P.-2, A.P.-3 before the filing of the Petition. The circuit court dismissed E.P. from these
proceedings by order entered July 26, 2017. J.B. did not file a brief in Petitioner’s appeal.
In November 2018, this Court affirmed the circuit court’s termination of T.W.’s parental
rights to A.P.-1, A.P.-2, and A.P.-3, and another infant not at issue in this appeal. See In
re A.P.-1, No. 18-0444, 2018 WL 5258859, *5 (W. Va. Oct. 19, 2018).
3
The Court’s October 6, 2017 “Order with Respect to Adjudication of [T.W.] and
[D.P.].” refers to the October 3 hearing as a “preliminary hearing.”
4
The circuit court docket shows that the parties did provide additional authority on
this issue to the circuit court. Those filings were not made a part of the appendix record,
however, and have not been reviewed by this Court.
2
provided for their physical and emotional needs. Petitioner further testified that, since
entering prison, he talked to the children by telephone at least twice each week and sent his
prison wages to his sister E.P., with whom the children were placed, for their maintenance.
The circuit court again continued the adjudication hearing to January 30,
2018, when the children’s mother, T.W., testified and confirmed Petitioner’s earlier
statements: that he provided emotional and financial support to his children before his 2014
incarceration and that he remained involved in the children’s lives through telephone
conversations and cards, post-incarceration. Petitioner’s sister, E.P., also confirmed that
he maintained meaningful contact with A.P.-1, A.P.-2, and A.P.-3 from prison and
supported them financially, to the best of his ability. Following argument from the parties,
and the State’s concession that there was no “factual basis in good faith for the Court to
make any finding of abandonment,” the circuit court concluded that the facts did not
support a finding that Petitioner had abandoned A.P.-1, A.P.-2, and A.P.-3 and adjudication
was “not supported and [was] refused.”
The circuit court then held a disposition hearing on April 17, 2018.
Petitioner’s counsel “object[ed] to any type of termination on the record considering that
there’s been no finding of abuse and neglect,” and directed the circuit court to this Court’s
decision in State v. T.C.5 The guardian ad litem for A.P.-1, A.P.-2, and A.P.-3 presented
5
172 W. Va. 47, 303 S.E.2d 685 (1983).
3
the opposite view, stating, “[t]he law does not say that because there was no finding of
abuse, neglect, or abandonment at the adjudicatory phase that [Petitioner’s] parental rights
can’t be terminated at a dispositional phase. It’s exactly the opposite of that.” Then, the
guardian ad litem drew upon this Court’s decision in In re Cecil T.6 to assure the circuit
court that it could “terminate [Petitioner’s] parental rights at a dispositional hearing solely
on the basis of him being incarcerated[.]”
Ultimately, the circuit court adopted the guardian ad litem’s view,
concluding that, although it explicitly found that Petitioner had not abandoned his children
at the earlier adjudicatory hearing, it was not precluded from “considering the
circumstances of the parties and devising a—or coming to a resolution of the question of
disposition in the best interests of the child, or the children.” Relying on In re Cecil T., the
court found that “the lengthy incarceration of [D.P.] does support the finding of termination
to allow the Department the options to take care of [A.P.-1, A.P.-2, and A.P.-3].” The
court’s written order, entered on April 24, 2018, reflected that termination ruling:
[T]hat [D.P.] has a lengthy prison sentence which includes his
ineligibility for parole until March 16, 2029; that the
opportunity for contact with his children is clearly limited; that
the children’s interests control at disposition; that while the
Court recognizes [D.P.’s] interests the same are outweighed by
the children’s interests; In Re: Cecil T[.], . . . controls this
matter; and that the children’s best interests require termination
of [D.P.’s] parental rights.
6
228 W. Va. 89, 717 S.E.2d 873 (2011).
4
Petitioner now appeals the circuit court’s April 24, 2018 order terminating
his parental rights.7
II. STANDARD OF REVIEW
In abuse and neglect appeals, this Court reviews a circuit court’s conclusions
of law de novo.8 “Interpreting a statute or an administrative rule or regulation presents a
purely legal question subject to de novo review.”9 This Court only sets aside a circuit
court’s factual findings in an abuse and neglect case when those findings are clearly
erroneous and not because this Court would have decided the case differently:
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.[10]
7
After D.P. filed this appeal, questions arose regarding the paternity of A.P.-3.
According to the guardian ad litem, D.P. is A.P.-3’s psychological father and not her
biological father. That issue was not presented to the circuit court and falls outside the
scope of Petitioner’s appeal to this Court.
8
See Syl. Pt. 1, in part, In Interest of: Tiffany Marie S., 196 W. Va. 223, 470 S.E.2d
177 (1996).
9
Syl. Pt. 1, Appalachian Power Co. v. State Tax Dep’t of W. Va., 195 W. Va. 573,
466 S.E.2d 424 (1995).
10
See Syl. Pt. 1, in part, In Interest of: Tiffany Marie S., 196 W. Va. at 223, 470
S.E.2d at 177.
5
III. DISCUSSION
Petitioner raises three assignments of error. We consolidate the first two
because they are duplicative. They are also dispositive of this appeal; thus, we need not
address the third. Petitioner contends that the circuit court erroneously terminated his
parental rights at the April 17, 2018 disposition hearing because it did not find, at the earlier
adjudicatory hearing, that he had abused, neglected, or abandoned A.P.-1, A.P.-2, or A.P.-
3. Stated differently, Petitioner argues that the circuit court improperly moved forward to
the disposition phase of the abuse and neglect proceeding without first making the
prerequisite finding that he had, in fact, abused, neglected, or abandoned his children.
DHHR argues that a finding of abuse, neglect, or abandonment at an
adjudicatory hearing is not a prerequisite to disposition. Alternatively, DHHR argues that,
although the circuit court did not adjudicate Petitioner as an abusive or neglectful parent,
or one who had abandoned his children, it did find that Petitioner had abandoned his
children at the disposition hearing and that the children’s interest in permanency
outweighed Petitioner’s interest in retaining his parental rights. The guardian ad litem
adopts the position of DHHR on appeal. He also renews his argument that our decision,
In Re Cecil T.,11 justifies the termination of Petitioner’s parental rights at the April 17, 2018
11
228 W. Va. at 89, 717 S.E.2d at 873.
6
disposition hearing and that the circuit court properly weighed A.P.-1, A.P.-2, and A.P.-
3’s interests in permanency. We address these arguments in turn, below.
A.
In November 2018, during the pendency of this appeal, this Court decided In
re K.H.12 There, the petitioner-father raised the same issue on appeal that Petitioner now
raises: that the “circuit court erroneously terminated his parental rights at a disposition
hearing after previously declining to adjudicate him as an abusive or neglectful parent on
the same grounds.”13 Because the primary issues in the two cases are identical, we
expressly adopt and elaborate upon the reasoning employed in In re K.H. to resolve
Petitioner’s appeal.
As we did in In re K.H., we begin our analysis with West Virginia Code §§
49-4-601 and 49-4-604 (2015). Section 49-4-601 controls adjudicatory hearings, which
are hearings “to determine whether a child has been abused and/or neglected as alleged in
[DHHR’s] petition[.]”14 Section 49-4-604 controls disposition hearings, which are
hearings
held after a child has been adjudged to be abused and/or
neglected, at which the court reviews the child and family case
12
No. 18-0282, 2018 WL 6016722 (W. Va. Nov. 16, 2018).
13
Id. at *4 (emphasis in original).
14
W. Va. R. of Pro. for Child Abuse and Neglect 3(a).
7
plan filed by [DHHR] and determines the appropriate
disposition of the case and permanency plan for the family.[15]
The adjudicatory hearing required by § 49-4-601 and the disposition hearing
required by § 49-4-604 create a “two-stage process [that] is well-recognized in our case
law.”16 As we have explained, each stage has a separate purpose:
The first phase culminates in an adjudication of abuse and/or
neglect. [See section 49-4-601]. The second phase is a
dispositional one, undertaken to achieve the appropriate
permanent placement of a child adjudged to be abused and/or
neglected. [See section 49-4-604].[17]
The adjectives “first” and “second” are not to be glossed over. As this Court stated in 1983,
[i]n a child abuse and neglect hearing, before a court can
begin to make any of the dispositional alternatives under [§ 49-
4-604], it must hold a hearing under [§ 49-4-601], and
determine “whether such child is abused or neglected.” Such a
finding is a prerequisite to further continuation of the case.[18]
So, if a circuit court answers the initial, adjudicatory question in the negative,
“then the petition is dismissed under W.Va.Code, 49–6–5(a)(1) [recodified at W. Va. Code
15
Id. at R. 3(i).
16
In re K.H., 2018 WL 6016722, at *4.
17
Id. at *5–6 (quoting In Re Beth Ann B., 204 W.Va. 424, 427, 513 S.E.3d 472, 475
(1998)) (emphasis added).
18
Syl. Pt. 1, State v. T.C. at 47, 172 W. Va. at 47, 303 S.E.2d at 685 (emphasis
added).
8
§ 49-4-604(b)(1)]”19 and the court may not proceed to consider the disposition options laid
out in § 49-4-604(b)(2)–(6). Stated even more plainly, our statutes, cases, and rules instruct
that a circuit court may not terminate parental rights at a § 49-4-604 disposition hearing
without first finding that the parent abused or neglected the child in question at a § 49-4-
601 adjudicatory hearing.20
As we recognized in State v. T.C. and restated more recently in In Re K.H.,
jurisdictional and constitutional concerns mandate this two-phase approach:
[T]he primary purpose of making an initial finding of abuse or
neglect is to protect the interest of all parties and to justify the
continued jurisdiction of the court. The two-stage process
supports the constitutional protections afforded to parents in
permanent child removal cases—constitutional rights
guaranteed by the Due Process Clause of the Fourteenth
Amendment. Indeed, with regard to minor children, no rule is
more firmly established than that the right of a natural parent
to the custody of his or her infant child is paramount to that of
any other person; it is a fundamental personal liberty protected
and guaranteed by the Due Process Clauses of the West
Virginia and United States Constitutions.[21]
Just as in In re K.H., the circuit court in this matter held an adjudicatory
hearing on DHHR’s allegation that Petitioner had abandoned A.P.-1, A.P.-2, and A.P.-3.22
19
Id. at 50, 303 S.E.2d at 688.
20
The circuit court must also observe the additional procedural requirements and
safeguards contained in West Virginia Code Chapter 49, Article 4.
21
In re K.H., 2018 WL 6016722, at *5 (cleaned up).
22
Id.
9
And, as in In re K.H., the circuit court considered the evidence presented and found that
Petitioner had not. As a result, the circuit court lacked the continued jurisdiction to then
terminate Petitioner’s parental rights at the April 17, 2018 disposition hearing. So, we
vacate that portion of the circuit court’s order of April 24, 2018 purporting to terminate
Petitioner’s parental rights to A.P.-1, A.P.-2, and A.P.-3.
B.
DHHR’s position—that a finding of abuse and neglect at an adjudicatory
hearing is not a prerequisite to disposition—is untenable under the plain language of West
Virginia Code §§ 49-4-601 and 49-4-604, as well as Syllabus Point 1 of our decision in
State v. T.C., decided more than thirty-five years ago.23 Similarly, the department’s
position that the circuit court somehow “carried over” the evidence offered at the
adjudicatory hearing to the disposition hearing, and then lawfully adjudged Petitioner to
have abandoned A.P.-1, A.P.-2, and A.P.-3. before terminating his parental rights is
similarly unavailing.
The circuit court and guardian ad litem’s reliance upon In re Cecil T. in
support of the termination of Petitioner’s parental rights requires more consideration. In
In re Cecil T., this Court considered the termination of parental rights when incarceration
was the only factor or circumstance raised in support of termination at the disposition
23
172 W. Va. at 47, 303 S.E.2d at 685.
10
hearing.24 We made clear that the circuit court adjudged Cecil T. to be a neglected child25
before denying DHHR’s motion to terminate his father’s parental rights.26 DHHR then
appealed the circuit court’s disposition decision, not its adjudicatory one, to this Court.27
That distinction is vital, and it is reflected in Syllabus Point 3 of In re Cecil T.:
When no factors and circumstances other than
incarceration are raised at a disposition hearing in a child abuse
and neglect proceeding with regard to a parent’s ability to
remedy the condition of abuse and neglect in the near future,
the circuit court shall evaluate whether the best interests of a
child are served by terminating the rights of the biological
parent in light of the evidence before it. This would necessarily
include but not be limited to consideration of the nature of the
offense for which the parent is incarcerated, the terms of the
confinement, and the length of the incarceration in light of the
abused or neglected child’s best interests and paramount need
for permanency, security, stability and continuity.[28]
On its face, Syllabus Point 3 of In re Cecil T. applies only in the context of a
lawful disposition hearing held after a circuit court makes a finding of abuse or neglect at
the adjudicatory hearing. Here, the circuit court lacked the continued jurisdiction to
24
See Syl. Pt. 3, In re Cecil T., 228 W. Va. at 89, 717 S.E.2d at 873.
25
See id. at 93, 717 S.E.2d at 877.
26
Id. at 94, 717 S.E.2d at 878.
27
Id. (“Appellants maintain that the lower court erred by not terminating the
parental rights of Appellee pursuant to West Virginia Code § 49–6–5(a)(6) [now §49-4-
604] because the failure to terminate does not provide a meaningful permanency plan for
Cecil T., and wrongly places the father’s parental rights above that of the best interests of
the child.”).
28
Id. at 89, 717 S.E.2d at 875.
11
conduct a disposition hearing once it declined to adjudge Petitioner as having abandoned
A.P.-1, A.P.-2, and A.P.-3. For that reason, In re Cecil T. could not have applied to
Petitioner’s case, below, nor could it have justified the termination of Petitioner’s parental
rights.29
We acknowledge the desire of the circuit court, guardian ad litem, and DHHR
to achieve permanency for A.P.-1, A.P.-2, and A.P.-3. However, as we explained in In re
K.H., that desire may not be fulfilled “by terminating the parental rights of a person who
was never adjudicated as abusive or neglectful” and thereby ignoring “well-settled law.”30
Certainly, the parties could have traveled an alternate, procedural route. DHHR could have
amended its original abuse and neglect petition to include new allegations that arose
following the initial adjudication hearing, if warranted, and the circuit court could have
then held another adjudicatory hearing.31 Had the circuit court then found, for example,
A.P.-1, A.P.-2, and A.P.-3 to be neglected children, as that term is defined by West Virginia
29
Circuit courts should be mindful that In re Cecil T. does not foreclose a finding at
the adjudicatory stage that a parent’s absence due to incarceration that harms or threatens
the physical or mental health of the child is neglect. West Virginia Code § 49-1-201 (2015)
(defining “neglect”). Of course, in order for the circuit court to make the appropriate
adjudication, it is incumbent upon DHHR to draft a petition that includes all the necessary
allegations and that does not unduly restrict the circuit court’s ability to make the requisite
finding.
30
In re K.H., 2018 WL 6016722, at *6.
31
See W. Va. R. of Proc. Child Abuse and Neglect Proceedings 19(b) (“[i]f new
allegations arise after the final adjudicatory hearing, the allegations should be included in
an amended petition . . . and the final adjudicatory hearing shall be re-opened for the
purpose of hearing evidence on the new allegations in the amended petition.”).
12
Code § 49-1-201 (2015), it then would have had the jurisdiction to entertain the disposition
of Petitioner’s parental rights under § 49-4-604. Our insistence on procedural integrity in
abuse and neglect cases is not hollow formality. Our statutes, cases, and rules mandate a
two-phase approach in abuse and neglect proceedings to “support[] the constitutional
protections afforded to parents in permanent child removal cases.”32 Petitioner, although
incarcerated, is entitled to no less.
Conclusion
The circuit court erred by terminating Petitioner’s parental rights to A.P.-1,
A.P.-2, and A.P.-3 without first adjudicating him as an abusive or neglectful parent.
Accordingly, the circuit court lacked the jurisdiction to enter those portions of its April 24,
2018 order purporting to terminate Petitioner’s parental rights. For that reason, we hereby
vacate the portion of the circuit court’s April 24, 2018 order purporting to terminate
Petitioner’s parental rights to A.P.-1, A.P.-2, and A.P.-3.
We remand the case to the circuit court with instructions to permit DHHR to
file an amended abuse and neglect petition, if warranted, alleging any and all claims that it
may have against the Petitioner. Then, if necessary, the circuit court shall expeditiously
hold an adjudicatory hearing on the newly amended petition and, if the Petitioner is
adjudicated as an abusive or neglectful parent, shall hold a disposition hearing. Unless the
32
In re K.H., 2018 WL 6016722 at *5 (internal quotations and citations omitted).
13
circuit court finds reasons indicating that a change in custody is appropriate, A.P.-1 and
A.P.-2 should remain in E.P.’s care pending the outcome of the case. If DHHR does file
an amended petition, we then instruct the circuit court to make E.P. a party to the newly
amended petition and to appoint her counsel.33
Finally, we direct the circuit court to require DHHR to attempt to identify
A.P-3’s biological father and to take appropriate action given the outcome of those
inquiries. Unless the circuit court finds reasons indicating that a change in custody is
appropriate, A.P.-3 should remain in E.P.’s care pending the outcome of the DHHR’s
inquiries.
Vacated and remanded with directions.
33
See W. Va. Code § 49-4-601(f) and (h); State ex rel. H.S. v. Beane, 240 W. Va.
643, 647–48, 814 S.E.2d 660, 664–65 (2018) (“custodian” in § 49-4-601(h) is one who
“held custodial rights to the children prior to the initiation of the abuse and neglect
petition”).
14