In re T.S.

IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA

January 2019 Term

FILED
April 11, 2019
No. 18-0708 released at 3:00 p.m.
EDYTHE NASH GAISER, CLERK
SUPREME COURT OF APPEALS
OF WEST VIRGINIA

In re T.S.

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

REVERSED AND REMANDED
WITH DIRECTIONS

Submitted: March 12, 2019
Filed: April 11, 2019

Justin Gregory, Esq. Patrick Morrisey, Esq.
J. Gregory Law Firm, L.C. Attorney General
Oakland, Maryland Brandolyn N. Felton-Ernest, Esq.
Counsel for the Petitioner R.S. Assistant Attorney General
Charleston, West Virginia
Richard Gutmann, Esq. Counsel for the Respondent
Morgantown, West Virginia Department of Health and Human
Guardian ad Litem Resources

JUSTICE WORKMAN delivered the Opinion of the Court.
 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

i
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).

ii
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

1
Because this case involves sensitive facts, we protect the identities of those involved
by using only the parties’ initials. See State ex rel. W. Va. Dep’t of Human Servs. v. Cheryl
M., 177 W. Va. 688, 689 n.1, 356 S.E.2d 181, 182 n.1 (1987); see also W. Va. R. App. P. 40.
2
V.A. is not at issue in this appeal.
3
West Virginia Code § 49-4-604(b)(5) provides, in pertinent part:

5) Upon a finding that the abusing parent or battered
parent or parents are presently unwilling or unable to provide
adequately for the child’s needs, commit the child temporarily
to the care, custody, and control of the state department, a
licensed private child welfare agency, or a suitable person who
may be appointed guardian by the court. . . .

1
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

4
Only the Department of Health and Human Resources (“the DHHR”) complied with
Rule 11(j) of the West Virginia Rules of Appellate Procedure by submitting a status update
on the children within one week of oral argument. We caution that Rule 11(j) expressly
applies to “all parties” in an abuse and neglect appeal.
5
Because of our decision to reverse the case, we need not address the petitioner’s other
assigned errors, which included: 1) whether the circuit court erred in imposing disposition
pursuant to West Virginia Code § 49-4-604(b)(5) when the conditions of abuse and neglect
had been corrected prior to the dispositional hearing; 2) whether the circuit court failed to
take evidence to determine whether the petitioner had successfully completed his
improvement periods in this matter; 3) whether the circuit court erred in imposing disposition
pursuant to West Virginia Code § 49-4-604(b)(5) with regard to T.S. when the circuit court
never found that T.S. had been abused and neglected due to the actions of the petitioner; 4)
whether the circuit court erred when it placed T.S. in the legal and physical custody of
persons of no blood relationship to T.S., out of state, and without the benefit of a home study;
and, 5) whether the circuit court erred in denying the petitioner’s request for a dispositional
improvement period, as a meaningful attempt at family counseling is in the best interests of
the children. With regard to the petitioner’s last two assigned errors, he neither provided the
Court with any citation to the appendix record nor legal authority to support either of these
alleged errors. See W. Va. R. App. P. 10(c)(7).

2
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

6
This allegation in the petition is unclear as to when this observation occurred and
who observed T.S. in this condition.

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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

7
Counsel for both the mother and the petitioner filed a joint motion for family
counseling, which was granted by the circuit court. The parties agreed that Sharon
McMillen, who was the children’s licensed clinical psychologist, would direct the family
counseling ordered by the circuit court.

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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,
recognizing that his prior actions have
traumatized . . . [V.A.].
b. He admits that . . . [V.A.] has suffered
emotional harm due to his actions.

The petitioner also stated that the stipulated adjudication was in the best interest of his

children. The circuit court, based upon the petitioner’s stipulation, adjudicated him an

8
For instance, T.S. had been diagnosed as being autistic; however, it was determined
that he was not autistic, but delayed due to lack of sufficient stimulus.

5
“abusing and neglectful parent.” The petitioner was granted a post-adjudicatory improvement

period not to exceed six months.9

The case ultimately proceeded to a dispositional hearing.10 At the hearing,

which was held on March 21, 2018, the mother requested that the circuit court accept a

“Disposition 5,” pursuant to West Virginia Code § 49-4-604(b)(5).11 The DHHR, the Court-

Appointed Special Advocate (“CASA”) representative, and the GAL all agreed with the

disposition. During the remainder of the hearing, the DHHR called its witnesses, who

testified regarding the petitioner’s disposition, which included the testimony of Christine

Christy, an outreach coordinator with Home Base, Inc., who had supervised visits between

the children and the petitioner, and Sharon McMillen, the children’s licensed clinical

psychologist, who discussed the children’s progress during therapy, as well as her interaction

with the petitioner during a therapy session.

The dispositional hearing was continued to April 16, 2018. At that time, the

DHHR was allowed to proceed with its evidence with no time limitation being mentioned

9
The petitioner’s improvement period was later extended by the circuit court for an
additional three months.
10
The hearing was first scheduled for February 27, 2018, but was rescheduled at the
DHHR’s request.
11
See supra note 3 (setting forth statutory language).

6
by the circuit court. The DHHR called, Carrie Poier, a CPS worker for the DHHR and the

only witness to testify. Ms. Poier testified about the petitioner’s progress with services

offered by the DHHR, as well as the children’s progress.12

Significantly, at the close of the DHHR’s case, the circuit court asked the

petitioner’s counsel if he had any evidence to present to the court. The petitioner first wanted

to call the CASA representative as a witness. When the circuit court asked what the CASA

representative would testify to, the petitioner’s counsel responded: “I’m not sure, Your

Honor.” The circuit court inquired whether the CASA representative was on the petitioner’s

witness list, and counsel advised that she was not on either the petitioner’s or the DHHR’s

list. The circuit court denied the petitioner’s request to call the CASA representative as a

witness.

The petitioner’s counsel then asked to call the petitioner to testify. The circuit

court again asked the petitioner’s counsel what his client would testify to and the petitioner’s

counsel responded: “To his participation and services, what he’s learned, what he’s willing

to do and what he’s been willing to do this entire time.” The circuit court converted this

statement into a “proffer” as it proceeded to decision on disposition, stating: “I’ve also heard

12
The Court notes that neither the DHHR nor the GAL offered any evidence regarding
the allegations contained within the GAL’s amended petition concerning the parents taking
the children to doctors and obtaining diagnoses and medicines that another doctor
subsequently determined were unnecessary.

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proffer that . . . [the petitioner] would tell the Court all the things he’s willing to do, but I

have to go by what’s happened during the improvement period . . . .”13 The circuit court then

inquired of the petitioner’s counsel as to the relief that the petitioner was seeking. The

petitioner’s counsel responded that he was asking for the case to be dismissed and that T.S.

be returned to him as “[t]here has been nothing in her[e] where . . . [T.S.] suffered any

trauma, whatsoever.” The petitioner also sought a post-dispositional improvement period.

The circuit court never asked the petitioner if he had other evidence to present or witnesses

he would call to testify.

Instead, the circuit court proceeded to disposition, with the judge stating that

he was on a “limited clock,” that the hearing got started late, and that the court needed to get

the case resolved as “my tenure as Senior Status Judge is going to end this week.” The judge

stated that if the case was not resolved, it would go on for many more months. Despite both

the DHHR and the GAL seeking termination of the petitioner’s parental rights, the circuit

court refused to terminate the petitioner’s parental rights, and instead proceeded to impose

a disposition pursuant to West Virginia Code § 49-4-604(b)(5), finding that the petitioner

was “unwilling or unable to provide adequately for the needs of either child.” The circuit

court further stated that because of the petitioner’s lack of empathy and refusal to

13
From our review of the hearing transcript, it is clear that the petitioner’s counsel, in
responding to the circuit court’s question about what his client would testify about, did not
intend his response to be a proffer.

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acknowledge the trauma to V.A., there had been emotional harm to the children. It is the

circuit court’s dispositional order entered on July 9, 2018, that forms the basis for the instant

appeal.

II. Standard of Review

This Court applies the following standard of review to dispositional

determinations made by the circuit court in abuse and neglect cases:

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). Further, “[w]here

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). It is under these standards that the

Court addresses the issues before it.

9
 III. Discussion

The dispositive issue raised by the petitioner is whether the circuit court erred

when it divested him of his rights to parent his child without first allowing him a meaningful

opportunity to be heard. The petitioner, relying on In re Samantha M., 205 W. Va. 383, 518

S.E.2d 387 (1999), argues that

‘this Court held in the case of In re: Sutton, 132 W. Va. 875, 53
S.E.2d 839 (1949), a parent could not be divested of his parental
rights without notice and opportunity for a hearing when such
parent was subject to the jurisdiction of the court and available
for service of process; and any such hearing held divesting the
parent of his rights to his child resulting in a decree, was void
and of no effect. This is the undoubted law in this jurisdiction
and elsewhere, mandated by our own as well as the Federal
Constitution, and it operates to prevent the permanent
termination of parental rights without according the full range
of due process guarantees to the affected persons.’

205 W. Va. at 387, 518 S.E.2d at 391 (quoting In re Willis, 157 W. Va. 225, 239-40, 207

S.E.2d 129, 138 (1973)). The petitioner contends that he was prevented from putting on his

own case at the dispositional hearing as he was not permitted to call the CASA

representative, was not allowed to testify on his own behalf, and was not permitted to present

any other witnesses.14 Conversely, both the DHHR and the GAL argue that the petitioner

was represented by counsel at every hearing, and the DHHR also contends that his “counsel

articulated arguments in his interest.” These parties also argue that the circuit court

14
The petitioner now claims that in addition to the CASA representative and his own
testimony, he would have called Wesley Thorne, who was an outpatient therapist that
provided counseling to the petitioner, the children’s mother, and the children’s guardian.

10
determined that there was no need for the petitioner to present witnesses in order for it to

make its dispositional decision. As the DHHR contended, “[t]he court determined that there

was not a need to call the additional witnesses based upon the proffer provided by Counsel

for the Petitioner regarding the information that would be elicited through the testimony.”

This Court held in Willis that

West Virginia Code, Chapter 49, Article [4], Section
[601 (2015)],15 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.

157 W. Va. at 225, 207 S.E.2d at 130, Syl. Pt. 2 (footnote added). Further, West Virginia

Code § 49-4-601(h) expressly provides:

In any proceeding pursuant to this article, the 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. Foster parents,
preadoptive parents, and relative caregivers shall also have a
meaningful opportunity to be heard.

(Emphasis added).

In State ex rel. H.S. v. Beane, 240 W. Va. 643, 814 S.E.2d 660 (2018), this

Court stated that “[p]arties having ‘custodial or other parental rights or responsibilities’ are

15
Formerly W. Va. Code § 49-6-2 (2014).

11
entitled to both ‘a meaningful opportunity to be heard’ and ‘the opportunity to testify and to

present and cross-examine witnesses.’ See W. Va. Code § 49-4-601(h).” 240 W. Va. at 647,

814 S.E.2d at 664; see also State ex rel. C.H. v. Faircloth, 240 W. Va. 729, 739, 815 S.E.2d

540, 550 (2018) (“In view of the fact that Jonathan G. pre-dates our current statutory right

of foster parents to be heard, it is necessary to clarify the continued vitality and scope of its

holding. As indicated, when Jonathan G. was authored, the counterpart to our current ‘right

to be heard’ statute provided that seemingly full participation was afforded to those with

‘custodial or other parental rights or responsibilities[.]’ W. Va. Code § 49-6-2.”) (emphasis

added); In re Jonathon G., 198 W. Va. 716, 727, 482 S.E.2d 893, 904 (1996) (stating that

statutory right of party or parties having custody of child to meaningful opportunity to be

heard in abuse and neglect proceeding, including opportunity to testify and present and cross-

examine witnesses).

Both our statutory and case law unequivocally require that parents, or any party

having custodial or other parental rights and responsibilities, be afforded a meaningful

opportunity to be heard. This necessarily includes the right to testify and to present

witnesses, as well as to cross-examine witnesses in any abuse and neglect proceeding. State

ex rel. H.S., 240 W. Va. at 647, 814 S.E.2d at 664; W. Va. Code § 49-4-601(h). In this case,

even though the petitioner was represented by counsel, the circuit court denied him the

opportunity to testify and to present witnesses at the dispositional hearing in clear

contradiction of our law.

12
 We, therefore, reverse and remand the case to the circuit court for the limited

purpose of affording the petitioner an opportunity to be heard at the dispositional hearing,

which he had previously been denied by the circuit court. Because the DHHR was given the

opportunity to present its entire case concerning the petitioner’s disposition and because the

petitioner was allowed a full and complete opportunity to cross-examine those witnesses, the

circuit court, upon remand, need not require the DHHR to again present its witnesses as it

may rely upon the complete transcripts of the earlier dispositional hearings. The petitioner,

however, must be afforded a full and complete opportunity to present witnesses and to testify

on his own behalf. If there is a need that arises from the petitioner’s presentation of evidence

that calls for rebuttal evidence to be presented by the DHHR or the GAL, the circuit court

should allow that to occur before deciding disposition for the petitioner.

IV. Conclusion

Accordingly, we reverse the circuit court’s July 9, 2018, order, and we remand

the case to the circuit court for a dispositional hearing that comports with this opinion.

Reversed and remanded
with directions.

13