FILED
January 12, 2022
EDYTHE NASH GAISER, CLERK
STATE OF WEST VIRGINIA SUPREME COURT OF APPEALS
OF WEST VIRGINIA
SUPREME COURT OF APPEALS
In re B.D.
No. 21-0447 (Marion County 19-JA-67)
MEMORANDUM DECISION
Petitioner Mother C.W., by counsel Diane D. Michael, and her guardian ad litem, Heidi
Georgi Sturm, appeals the Circuit Court of Marion County’s April 30, 2021, order terminating her
parental rights to B.D.1 The West Virginia Department of Health and Human Resources
(“DHHR”), by counsel Patrick Morrisey and Lee Niezgoda, filed a response in support of the
circuit court’s order. The child’s guardian ad litem, Ashely Joseph Smith, filed a response on behalf
of the child also in support of the circuit court’s order. On appeal, petitioner argues that the circuit
court erred in refusing to allow petitioner’s parents to attend the dispositional hearing.2
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 2019, the DHHR filed a child abuse and neglect petition against petitioner
alleging that she failed to adequately provide for the then-six-month-old child’s medical and
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, 773 S.E.2d 20 (2015); Melinda H. v. William R. II, 230 W. Va. 731, 742 S.E.2d 419 (2013);
State v. Brandon B., 218 W. Va. 324, 624 S.E.2d 761 (2005); State v. Edward Charles L., 183 W.
Va. 641, 398 S.E.2d 123 (1990).
2
Petitioner’s counsel filed petitioner’ brief in accordance with Rule 10(c)(10)(b) of the
West Virginia Rules of Appellate Procedure. Petitioner’s counsel sought leave for petitioner to file
a supplemental brief as a self-represented litigant. We granted petitioner leave to file a pro se
supplemental brief on August 6, 2021; however, petitioner did not file such a brief.
1
nutritional needs.3 Specifically, the DHHR alleged that the child was not properly gaining weight
and had undergone testing to determine whether there was an organic cause for her low weight,
but none could be found. The DHHR alleged that the child had been admitted to the hospital on at
least three occasions due to failure to thrive and, each time, the child gained weight while in the
hospital. When the child was released, however, she ceased gaining weight. The DHHR alleged
that petitioner did not have the ability or motivation to properly feed the child, did not properly
make the child’s bottles, and failed to feed the child according to the schedule prepared by the
child’s pediatrician.
Petitioner waived her preliminary hearing and services were put in place. According to a
DHHR court summary, petitioner was inconsistent with services, which led to the suspension of
her visits with the child, around October of 2020, due to her failure to confirm that she would
attend visits with the provider. In January of 2020, petitioner underwent a psychological evaluation
in which she adamantly denied not knowing how to parent the child and claimed she did nothing
wrong. The evaluator noted that petitioner did not possess the skills to live independently or
appropriately care for the child, that her adaptive skills deficits were not something that could be
overcome with instruction or services, that she placed the father’s needs above those of the child’s,
and that she refused to accept her role in the child’s failure to thrive. The examiner also noted that
even if petitioner completed services, she did not believe any child would be safe in petitioner’s
care. Petitioner’s psychological evaluation report provided that her prognosis to attain minimally
adequate parenting was extremely poor.
Supervised visits were reinstated in January of 2020. Thereafter, the foster mother sent a
letter to the DHHR describing the efforts the foster family was taking to increase the child’s
weight. The foster mother also stated that, following supervised visits with the mother, the child
was overly tired, extremely hungry, and threw tantrums that frequently resulted in her vomiting.
In April of 2020, the circuit court issued a no contact order between petitioner and the father due
to their engagement in domestic violence. Despite this order, petitioner and the father continued
to remain in contact.
After many continuances attributable to the COVID-19 pandemic and the need for genetic
testing, the circuit court held an adjudicatory hearing in September of 2020. Petitioner stipulated
to the allegations contained in the petition and moved the circuit court for an improvement period.
Specifically, petitioner admitted that she failed to or was unable to provide for the child’s
nutritional needs while in her care, which led to the child’s failure to thrive. The circuit court
accepted petitioner’s stipulation, adjudicated her as an abusing parent, and granted her a post-
adjudicatory improvement period.
Despite having been granted an improvement period in which she was ordered to comply
with the circuit court’s no contact order, petitioner and the father continued be in contact. Further,
during visits, petitioner failed to engage with the child, did not speak to her, and simply permitted
her to watch videos on her phone. The child frequently cried and threw tantrums during the visits,
as well as afterwards when she was returned to the foster parents.
3
At some point during the proceedings, petitioner was appointed a guardian ad litem due
to her intellectual disabilities.
2
The circuit court held a dispositional hearing in April of 2021, during which petitioner
advised the circuit court that she desired to voluntarily relinquish her parental rights. The circuit
court placed petitioner under oath and questioned her regarding the relinquishment of her parental
rights. Ultimately, the circuit court found that petitioner knowingly, intelligently, freely,
voluntarily, and with the advice of competent counsel and guardian, waived her right to a
dispositional hearing and entered into a voluntarily relinquishment of her parental rights. The
circuit court further found that no promises were made to petitioner, nor was she under fraud or
duress in entering the relinquishment. The circuit court found that petitioner understood the
consequences of voluntarily relinquishing her parental rights and the finality of that decision. The
circuit court accepted petitioner’s relinquishment and found that the termination of her parental
rights was in the child’s best interest. Petitioner appeals the April 30, 2021, dispositional order.4
The Court has previously established the following standard of review in cases such as this:
“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, petitioner argues that the circuit court erred in accepting the voluntarily
relinquishment of her parental rights. Petitioner states that she was not permitted to have her
parents present in the courtroom during the dispositional hearing, which she found “disturbing.”
She claims that if the DHHR had considered her parents as a placement for the child, she would
not have felt obligated to voluntarily relinquish her parental rights to the child. While petitioner
acknowledges the need for confidentiality, she asserts that her parents were not random strangers
who were “just gratuitously participating in the suffering of others.” Petitioner argues she would
have been more prepared to address the issues related to disposition if her parents had been present.
Pursuant to West Virginia Code § 49-4-607, “[a]n agreement of a natural parent in
termination of parental rights shall be valid if made by a duly acknowledged writing, and entered
into under circumstances free from duress and fraud.” Further, this Court has acknowledged that
“[West Virginia Code § 49-4-607] permits a parent to voluntarily relinquish his/her parental rights.
4
The father also voluntarily relinquished his parental rights to the child. The permanency
plan for the child is adoption by her foster family.
3
Such voluntary relinquishment is valid pursuant to [West Virginia Code § 49-4-607] if the
relinquishment is made by ‘a duly acknowledged writing’ and is ‘entered into under circumstances
free from duress and fraud.’” Syl. Pt. 3, In re Cesar L., 221 W. Va. 249, 654 S.E.2d 373 (2007).
At the outset, we note that petitioner does not cite to any portion of the record
demonstrating that she requested that her parents be permitted to attend the dispositional hearing
or that the circuit court denied any such request. In any event, even if the circuit court did, in fact,
prohibit petitioner’s parents from attending the hearing, we find no error. Rule 6a of the West
Virginia Rules of Procedure for Child Abuse and Neglect Proceedings provides that
[a]ttendance at all proceedings brought pursuant to W. Va. Code § 49-4-601, et seq.
shall be limited to the parties, counsel, persons entitled to notice and the right to be
heard, witnesses while testifying, multidisciplinary treatment team members, and
other persons whom the circuit court determines have a legitimate interest in the
proceedings.
Petitioner’s parents do not fit into any of the above-mentioned categories. In fact, the record reveals
that petitioner’s parents were considered as a placement for the child but refused to comply with
the home study process. Moreover, petitioner did not call them as witnesses. Accordingly, there
was simply no reason for them to be present at the dispositional hearing.
Moreover, petitioner fails to establish, or even allege, that she did not knowingly,
intentionally, and voluntarily enter into the relinquishment or that she was under duress or fraud
at the time. As for her claim that she was “disturbed” by her parents’ absence, it alone is simply
insufficient to establish that petitioner was unaware of the finality of her decision or that she was
forced into relinquishing her parental rights. The record reveals that petitioner filed a written
relinquishment, was placed under oath, and was questioned by the circuit court, who concluded
that petitioner’s voluntary relinquishment was valid and in the best interest of the child. Further,
both petitioner’s counsel and her guardian ad litem agreed to petitioner’s voluntary relinquishment.
Accordingly, we find no error in the circuit court’s decision to deny petitioner’s parents access to
the dispositional hearing or in its acceptance of petitioner’s voluntary relinquishment of her
parental rights.
For the foregoing reasons, we find no error in the decision of the circuit court, and its April
30, 2021, order is hereby affirmed.
Affirmed.
ISSUED: January 12, 2022
CONCURRED IN BY:
Chief Justice John A. Hutchison
Justice Elizabeth D. Walker
Justice Tim Armstead
Justice Evan H. Jenkins
Justice William R. Wooton
4