STATE OF WEST VIRGINIA
 

SUPREME COURT OF APPEALS
 

FILED 

In Re: C.W., A.W., & K.W. April 13, 2015 

RORY L. PERRY II, CLERK 

No. 14-1164 SUPREME COURT OF APPEALS (Mingo County 13-JA-23 through 13-JA-25) OF WEST VIRGINIA 

MEMORANDUM DECISION 

Petitioner Mother M.M., by counsel Stacey Kohari, appeals the Circuit Court of Mingo 

County’s October 10, 2014, order denying her motion to reinstate her parental rights to C.W., 

A.W., and K.W. The West Virginia Department of Health and Human Resources (“DHHR”), by 

counsel S.L. Evans, filed its response in support of the circuit court’s order. The guardian ad 

litem, Diana Carter Wiedel, filed a response on behalf of the children supporting the circuit 

court’s order. Petitioner filed a reply. On appeal, petitioner alleges that the circuit court erred in 

denying her motion to reinstate her parental rights to the children because her voluntary 

relinquishment of parental rights was obtained by fraud and duress. 

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 March of 2013, the DHHR filed an abuse and neglect petition alleging that petitioner’s 

neglect threatened the children’s health and welfare. According to the petition, four days prior, 

Child Protective Services (“CPS”) visited the home. Petitioner’s oldest child, A.M., then an 

adult, stepped onto the porch and told CPS that the children were at church and that petitioner 

had been rushed to the hospital, although she was unable to say why. However, a CPS employee 

observed thirteen-year-old K.W. outside the home playing with a water hose in sub-freezing 

temperatures. Then another child, fifteen-year-old C.W., stepped outside and made excuses for 

why A.M. would not allow CPS into the home. While standing on the threshold, CPS observed 

the home to be in a state of complete neglect, with dog feces, garbage, spoiled food, and clothing 

scattered throughout. The family was further using the electric oven as a primary source of heat. 

Petitioner later told CPS that she worked long hours and that her daughter, A.M., cared for the 

children in her absence. 

The circuit court held a preliminary hearing the next month, which petitioner attended 

with appointed counsel. It was later determined that petitioner did not qualify for appointed 

counsel and her attorney, Joshua Ferrell, was permitted to withdraw. As such, petitioner 

proceeded pro se at the adjudicatory hearing held in April of 2013, at which the circuit court 

found petitioner to be an abusing parent. In May of 2013, the circuit court granted petitioner a 

post-adjudicatory improvement period. In September of 2013, the circuit court reappointed Mr. 

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Ferrell to represent petitioner because she had recently lost her job and, therefore, qualified for 

appointed counsel. Thereafter, in October of 2013, the circuit court held a dispositional hearing, 

at which time petitioner announced a desire to voluntarily relinquish her parental rights to the 

children. The circuit court called a two-hour recess so that the appropriate paperwork could be 

completed, after which the circuit court questioned petitioner regarding her desire to voluntarily 

relinquish her parental rights. Ultimately, the circuit court accepted petitioner’s voluntary 

relinquishment. 

In February of 2014, petitioner, by new counsel Stacey Kohari, filed a motion seeking to 

reinstate her parental rights, alleging her relinquishment was not valid because it was obtained 

through fraud and duress. The circuit court held a hearing the following day and continued the 

matter to allow time to review transcripts and subpoena witnesses. In April of 2014, the circuit 

court held a hearing on petitioner’s motion, during which her prior attorney testified. Ultimately, 

the circuit court entered an order denying petitioner’s motion. Petitioner now appeals from the 

order denying her motion to reinstate parental rights. 

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). Moreover, pursuant to West 

Virginia Code § 49-6-7, “[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.” In discussing this statute, we have previously stated that 

[w]hile W.Va.Code [§] 49–6–7 specifically permits a relinquishment of parental 

rights, it clearly suggests that such an agreement may be invalid if it is not entered 

into under circumstances that are free of duress and fraud. Whether there has been 

fraud or duress is a question of fact that must be determined by the circuit court 

judge. Accordingly, we hold that under the provisions of W.Va.Code [§] 49–6–7, 

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. 

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State ex rel. Rose L. v. Pancake, 209 W.Va. 188, 191, 544 S.E.2d 403, 406 (2001). Upon our 

review, we find no error in the circuit court denying petitioner’s motion for reinstatement of 

parental rights because she failed to show that she voluntarily relinquished her parental rights 

due to fraud or duress. 

On appeal, petitioner argues that she testified to several factors that evidenced fraud or 

duress below, including the following: (1) that she believed she may have been charged 

criminally if she proceeded to disposition; (2) that she did not understand she had a right to a 

dispositional hearing; (3) that she would not have voluntarily relinquished if she had not been 

under the impression that her parental rights were going to be terminated; (4) that she was 

hurried into signing the dispositional order without being allowed to read it; (5) and that Mr. 

Ferrell advised her she may not be granted visitation with the children if her parental rights were 

terminated. However, the Court does not agree that this testimony established fraud or duress in 

obtaining petitioner’s voluntary relinquishment because her argument on this issue wholly 

ignores the conflicting evidence introduced during testimony from her prior attorney. 

According to Mr. Ferrell’s testimony, petitioner approached him with the idea to 

voluntarily relinquish her parental rights. The record shows that petitioner contacted Mr. Ferrell 

on several occasions to discuss voluntarily relinquishing her parental rights to the children 

because she wished to continue her employment as a truck driver, which required her to be away 

from home for extended periods. In response, Mr. Ferrell indicated to petitioner that he did not 

believe the DHHR would seek termination of her parental rights and would provide her with 

services if she were available. However, according to Mr. Ferrell, petitioner would become “irate 

and scream” at him that she had to continue working as a truck driver to support her children. 

Further, Mr. Ferrell testified that he advised petitioner this was not a criminal proceeding and 

that petitioner never indicated to him that she feared jail time or criminal charges as a result of 

proceeding to disposition. Additionally, Mr. Ferrell advised petitioner as to what typically occurs 

at dispositional hearings, discussed the contents of the voluntary relinquishment of parent rights 

form with petitioner, and advised her about the form. 

Based upon this evidence, the circuit court found that petitioner’s voluntary 

relinquishment of parental rights “was free from duress and fraud.” Upon our review, the Court 

agrees. As noted above, the only evidence upon which petitioner relies is her own self-serving 

testimony that was contradicted by Mr. Ferrell’s testimony. We have previously held that “[a] 

reviewing court cannot assess witness credibility through a record. The trier of fact is uniquely 

situated to make such determinations and this Court is not in a position to, and will not, second 

guess such determinations.” Michael D.C. v. Wanda L.C., 201 W.Va. 381, 388, 497 S.E.2d 531, 

538 (1997). As such, the circuit court was free to make credibility determinations when 

presented with conflicting testimony from petitioner and her prior attorney, and the Court refuses 

to disturb these determinations. 

For the foregoing reasons, we find no error in the circuit court’s decision and its October 

10, 2014, order is hereby affirmed. 

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Affirmed. 

ISSUED: April 13, 2015 

CONCURRED IN BY: 

Chief Justice Margaret L. Workman 

Justice Robin Jean Davis 

Justice Brent D. Benjamin 

Justice Menis E. Ketchum 

Justice Allen H. Loughry II 

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