### FILED A pri l 11, 2 019 release d at

3:00 p. m. EDYTHE NA SH GAISER, CLERK SUPR EM E COURT OF APPEALS OF W EST VI RGI NI A IN THE SUPREME COURT OF APPEALS OF W EST VIRGINIA

January 2019 Term

No. 18-0708

In re T.S.

Appeal f rom the Circuit Court of

Preston County The Honorable Steven L. Shaf f er, Judge Civil Action No. 17-JA-6 REVERSED AND REMANDED W ITH DIRECTIONS
Subm itted: March 12, 2019 Filed: April 11, 2019 Justin Gregory , Esq. Patrick Morrisey , Esq. J. Gregory

Law Firm , L.C. Attorney General Oakland, Mary land Brandoly n N. Felton-Ernest, Esq. Counsel f or the Petitioner R.S. Assistant Attorney General Charleston, W est Virginia Richard Gutm ann, Esq. Counsel f or the Respondent Morgantown, W est Virginia Departm ent of Health and Hum an Guardian ad Litem Resources

JUSTICE W ORKMAN delivered the Opinion of the Court.SYLLABUS BY THE COURT

1. “Although conclusions of law reached by a circuit court are subject to d e n o v o review, when an action, such as an abuse and neglect case, is tried upon the f acts without a jury , the circuit court shall m ake a determ ination based upon the evidence and shall

m ake f indings of f

act and conclusions of law as to whether such child is abused or neglected. These f indings shall not be set aside by a reviewing court unless clearly erroneous. A f inding is clearly erroneous when, although there is evidence to support the f inding, the reviewing

cou rt on the entire evidence is lef t with the def

inite and f

irm conviction that a m istake has been com m itted. However, a reviewing court m ay not overturn a f inding sim

ply because it

w o u l d h ave decided the case dif f erently , and it m

ust af f irm a f inding 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 f rom the circuit court is clearly a question of law or involving an interpretation of a statu t e , 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. “W est Virginia Code, Chapter 49, Article [ 4], Section [ 601 (2015)], as

am ended, and the Due Process Clauses of the W est Virginia and United States Constitutions

iprohibit 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).

iiW ORKMAN, Justice:

This case is bef

ore the Court upon the appeal of the petitioner, R.S., the f ather 1 of son, T.S., and the stepf

ather of stepdaughter, V.A., f

rom the July 9, 2018, dispositional 2 order entered by the Circuit Court of Preston County , W est Virginia, granting the petitioner

a d i s position pursuant to W est Virginia Code § 49-4-604(b)(5) (Supp. 2018), in w h i c h 3 parental rights are not term inated, but the child is placed in the “care, custody , and control” of a guardian, af

ter determ ining that the petitioner was “unwilli n g o r u n ab l e to provide adequately ” f

or the needs of either child. Pursuant to this disposition, the circuit court placed the children, T.S. a n d V

. A

. , i n the “legal and phy sical custody ” of the guardians, J.H. and T

. H .,V.A.’s nonabusing, biological f ather and stepm other. The petitioner assigns sever a l

errors but we only address whether the circuit court erred when it determ ine d disposition regarding his chi l d w i t h o u t f irst allowing him a m eaningf ul opportunity to be heard at the

Because this case involves sensitive f acts, we protect the identities of those involved 1 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. V.A. is not at issue in this appeal. 2 W est Virginia Code § 49-4-604(b)(5) provides, in pertinent part: 3 5) Upon a f inding that the abu s ing parent or battered parent or parents are presently unwilling or unable to provide adequately f

or the child’s needs, commit the child tem porarily to the care, custo d y , and control of the state departm ent, a licensed private child welf are agency , or a suitable person who m ay be appointed guardian by the court. . . . 1dispositional hearing. Upon review of the part i e s ’ b r ief s and argum ents, the appendix 4 record, and all other m at t e r s s u bm itted bef ore the Court, we reverse the circuit court’s decision on this issue, and rem and the case to t h e c i r c u i t c ourt f or the lim ited purpose of providing the petitioner the opportunity to both testif y and present evidence at a dispositional hearing. 5

I. Facts and Procedural History

On January 27, 2017, the DHHR f iled an “Imm inent Danger Petition” against the petitioner and the m other, J.S., alleging that the pair had exposed V.A., who is ten y ears old, and T.S., who is six y ears old, to d o me s t i c v i olence in the hom e. The allegations
Only the Departm ent of Health and Hum an Resources (“the DHHR”) com plied with 4 Rule 11(j) of the W est Virginia Rules of Appellate Procedure by subm itting a status update on the children within one week of oral argum ent. W e caution that R u l e 1 1 ( j ) expressly applies to “all parties” in an abuse and neglect appeal. Because of our decision to reverse the case, we need not address the petitioner’s other 5 assigned errors, which included: 1) whether the circuit court erred in im posing disposition pursuant to W est 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 f ailed to take evidence to determ ine whether the petitioner had successf ully com pleted his im provem ent periods in this m atter; 3) whether the circuit court erred in im posing disposition pursuant to W est Virginia Code § 49-4-604(b)(5) with regard to T.S. when the circuit court never f ound that T.S. had been abused and neglected due to the actions of the petitioner; 4) w h e t h er the circuit court erred when it placed T.S. in the legal and phy sical cust o d y o f persons of no blood relationship to T.S., out of state, and without the benef it of a hom e study ; and, 5) whether the circuit court erred in denying the petitioner’s request f or a dispositional im provem ent period, as a m eaningf ul attem pt at f am ily counseling is in the best interests of the children. W ith 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). 2stemm ed f

rom the petitioner and the m other being involved in a dom estic dispute during which th e mo t h e r told V.A. to call the police. V.A. reported that she saw the petitioner punch her m other in the f ace “causing bruises and m arks” and that T.S. was present during the altercation. V.A. also reported that the petitioner som etim es called both her m other and her nam es like “bitch” and “asshole” and that she only f elt saf e i n t h e h o me “som etim es.” V.A. reported that she was interviewed by Child Prote c t i v e S e r v ices (“C.P.S.”) the prior

m onth but was not truthf

ul about the dom estic violence in the hom e because her parents told h e r n o t t o say any

thing. Both parents denied dom estic violence in the hom e and la t e r reported that V.A. h a d me ntal health issues and should not be believed. As f or T.S., the DHHR alleged “upon inf

orm ation and belief

, . . . [ T.S.] was observed at the residence to be soiled with what was described to be coal dust; and very upset,
. . . scream ing and cry ing f or the Respondent Mother who lef t him inside the residence with the door closed, which was
em otionally harm f

ul to said Child.” The allegations ref lected that the DHHR tried to put a 6 “Tem porary Protection Plan” in place with the parents f or the childre n ’s saf

ety and the parents ref

used to cooperate. Further, the parents ref used to provide any nam es of relatives f or the tem

porary placem ent of

the children.

An adjudicatory hearing was held on February 22, 2017, and counsel f or both the petitioner and the m other each requested a pre-adjudicatory im provem ent period, which

This allegation in the petition is unclear as to w h e n t h is observation occurred and 6 who observed T.S. in this condition. 3the circuit court granted f or a three-m onth period. Af ter a hearing on May 30, 2017, at the 7 end of th e p r e - a d

j udicatory im

provem ent period, because the parties did not have any witnesses to call, the circui t c o u r t , af ter considering the argum ents of counsel, determ ined that there were disputed f

actual issues that needed to be resolved at an adjudicatory hearing. The petitioner then requested that the adjudicat o r y h e a r i ng be “repurposed” into an evidentiary hearing on wh e t h e r t h e p r e - a d j u d i c at o r y i m provem ent period conditions had been successf ully com pleted. The circuit court granted the petitioner’s request and set the m atter f or June 22, 2017.

The guardian ad litem (“GAL”) f iled an “Am ended Imm inent Danger P e t i t i o n”

on June 9, 2017. The allegations in the am en d e d p e t i t i o n were that the petitioner and the

m other had subjected the children to m edical abuse and neglect and to phy sical abuse. The GAL alleged that prior to the abuse and neglect proceedings being instituted, the parents took the children to several phy sicians where the children were diagnosed with serious m ental and phy sical m aladies and that the diag n o s es were based upon histories f rom the parents concerning behaviors claim ed to have been exhibited by both V.A. and T.S. These diagnoses

r e s ulted in the children being prescribed m edications. Af ter the children were pla c e d i n t o

Counsel f

or both the m other and the petitioner f iled a joint m otion f

or f am ily 7 counseling, which was granted by t h e c i r c u i t court. The parties agreed that Sharon McMillen, who was the children’s licensed clinical psy chologist, w o uld direct the f am ily counseling ordered by

the circuit court.

4f

oster care, the children were seen by a phy sician at the request of DHHR and the phy sician determ ined that m ost of the children’s m edicines should be dras tically reduced or discontinued. The doctor f ound that the children did not suf f er f rom m ost of the diseases with which they had been diagnosed. The am ended petition also contained an allegation that 8 af ter the case began, V.A. reported during a Child Advocacy Center interview that there was additional dom estic violence com m itted by the petitioner on both the m other and children, which included hair pulling and hitting. Both parents continued to deny dom estic violence.

At the adjudicatory hea r i n g , t h e petitioner and the m other both signed stipulated adjudications in open court. The petitioner stipulated that

t h e inf ant respondents have been exposed to neglect and / o r abuse due to the f

ollowing def

iciencies:

a. He [ the petitioner] adm its that the DHHR, th e Guardian ad Litem , and

. . . [ V.A.’s] ther a pist all have addressed concerns regarding the need f

o r the Respondent Father to m ake therapeutic adm issions d u r i n g f

a m i l y c o u n s e l i n g s e s s i o n s , recognizing tha t his prior actions have traum atized . . . [ V.A.]. b. He adm its that

. . . [ V.A.] has s uf f ered em otional harm

due to his actions. The petitioner also stated that the stipulated adjudication was in t h e best interest of his

c h i l d r e n . The circuit court, based upon the petitioner’s stipulation, adjudicated him a n

For instance, T.S. had been diagnosed as being autistic; however, it was determ ined 8 that he was not autistic, but delay ed due to lack of suf f icient stim

ulus. 5“ a

b u s i n g a n d n e g l e c t f

ul parent.” The petitioner was granted a post-adjudicatory im p r o v e m e nt period not to exceed six m onths. 9

The case ultim ately proceeded to a dispositional hearing. At the hearing, 10 which was held on March 21, 2018, the m other requeste d t h a t the circuit court accept a “Disposition 5,” pursuant to W est Virginia Code § 49-4-604(b)(5). The DHHR, the Court- 11 Appointed Special Advocate (“CASA”) representative, and the GA L a l l a greed with the d i sposition. During the rem ainder of the hearing, the DHHR called its witnesses, w h o testif ied regarding the petitioner’s d i s p osition, which included the testim ony of Christine Christy , an outreach coordinator with Hom e Base, Inc., who had supervised visits between the children and the petitioner, and Sharon McMillen, the children’s licensed clinical psy chologist, 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 tim e, the DHHR w a s a l l o w e d to proceed with its evidence with no tim e lim itation being m entioned

The petitioner’s im

provem ent period w a s l a t er extended by the circuit court f or an 9 additional three m onths. The hearing was f

irst scheduled f

or February 27, 2018, but was rescheduled at the 10 DHHR’s request. See supra note 3 (setting f orth statutory

language). 11 6by

the circuit court. The DHHR called, Carrie Poier, a CPS worker f or the DHHR and the only witness to testif

y . Ms. Poier testif

ied about the petitione r ’s progress with services of f ered by the DHHR, as well as the children’s progress. 12

Signif icantly , 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 f irst wanted
to call the CASA representative as a witness. When the circuit court asked what the CASA representative would testif y 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 c i r c u i t c o u r t denied the petitioner’s request to call the CASA representative as a witness.

The petitioner’s counsel then asked to call the petitioner to testif y . The circuit
court again asked the petitioner’s counsel what his client would testif y 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 tim e.” The circuit court converted this
statem ent into a “prof

f er” as it proceeded to decision on disposition, stating: “I’ve also heard

The Court notes that neither the DHHR nor the GAL of f ered any evidence regarding 12 the allegations contained within the GAL’s am ended petition concerning the parents taking the children to doctors and o b t a i n i ng diagnoses and m edicines that another doctor subsequently

determ ined were unnecessary

. 7prof

f e r t h a t
. . . [ 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 im provem ent period

. . . .” The circuit court then 13 inquired of the petitioner’s counsel as to the r e l i ef that the petitioner was seeking. The petitioner’s counsel responded that he was asking f or the case to be dism issed and that T.S. be returned to him as “[ t]here has been nothing in her[ e] where

. . . [ T.S.] suf f ered any traum a, whatsoever.” The petitioner also sought a post-dispositional improvem ent period. The circuit court never asked the petitioner if he had other evidence to present or witnesses he would call to testif

y .
Instead, the circuit court proceeded to disposition, with the judge stating that he was on a “lim ited 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 f or m any m ore m onths. Despite both the DHHR and the GAL seeking term ination of the petiti o n e r’s parental rights, the circuit
court ref used to term inate the petitioner’s parental rights, and instead proceeded to im pose

a disposition pursuant to W est Virginia Code § 49-4-604(b)(5), f i n d ing that the petitioner

was “unwilling or unable to provide adequately f or the needs of either child.” The circuit
court f urther stated that because of the petitioner’s lack of em pathy and r e f

u s a l to

From our review of the hearing transcript, it is clear that the petitioner’s counsel, in 13 responding to the circuit court’s question about what his client would testif y about, did not intend his response to be a prof f er. 8acknowledge the tra u ma to V.A., there had been em otional harm to the children. It is the

circuit court’s dispositional order entered on July 9, 2018, that f orm s the basis f

or the instant appeal.

II. Standard of Review

This Court applies the f oll o w i ng standard of review to dispositional determ inations m ade 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 neg l e c t case, is tried upon the f acts without a jury , the circuit c o u

rt shall m ake a determ ination based upon the evidence and shall m ake f

indings of f

a c t and conclusions of law as to whether such child is abused or neglected. These f indings shall not be set as i d e b y a reviewing court unless clearly erroneous. A f inding is clearly erroneous when, although there is evidence to sup p o r t t he f

inding, the reviewing court on the entire evidence is lef

t with the def

inite and f

irm convi c t i o n that a m istake has been comm itted. However, a reviewing court m ay not overturn a f

inding sim

ply because it would have decided the case dif f erently , and it m

ust af f irm a f inding 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 f

rom the circuit court is c l e a r l y a q uestion 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 bef ore it.

9III. 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 f irst allowing him a m eaningf ul 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 f or a h earing when such parent was subject to the jurisdiction of the court and available f or 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 ef

f ect. This is the undoubted law in this jurisdiction a nd elsewhere, m andated by our own as well as the F e d e r a l Constitut ion, and it operates to prevent the perm anent term ination o f p a rental rights without according the f ull range of due process guarantees to the af f ected persons.’ 205 W

. Va. at 387, 518 S.E.2d at 391 (quoting In re W illis , 157 W

. Va. 225, 2 3 9

- 4 0 , 2 07 S.E.2d 129, 138 (1973)). The petitioner contends that he was prevented f rom putting on his

own case at the dispositional hearing as he was not perm itted to ca l l the CASA representative, was not allowed to testif y on his own behalf

, and was not perm itted to present any other witnesses. Conversely , both the DHHR and the G A L a r gue that the petitioner 14

was represented by counsel at every hearing, and the DHHR also contends that his “counsel articulated argum ents in his interest.” These p a r t ies also argue that the circuit court

The petitioner now claim s that in addition to the CASA representative and his own 14 testim ony , he would have called W esley Th o r n e , w ho was an outpatient therapist that provided counseling to the petitioner, the children’s mother, and the children’s guardian. 10determ ined that there was no need f or the petitioner to present witne s s e s i n o r der f or it to

m ake its dispositional decision. As the DHHR contended, “[ t]he court determ ined that there

was not a need to call the additional witnesses based upon the prof f er provided by Counsel f or the Petitioner regarding the inf orm ation that would be elicited through the testim ony .”

This Court held in W

illis that W est Virginia Code, Chapter 49, Article [ 4], Section [ 601 (2015)], as am ended, and the Due Process Clauses of the

15 W est Virginia and United States Constitutions pr ohibit a court or other arm of the State f rom term inating the parental rights of a natural parent having legal custody of his child, without notice and the opportunity

f or a m eaningf

ul hearing. 157 W

. V a . a t 2 2 5 , 2 07 S.E.2d at 130, Syl. Pt. 2 (f ootnote added). Further, W est Virginia Code § 49-4-601(h) expressly provides: In any pr o c eeding pursuant to this article, the party or p arties having custodial or other parental rights o r responsibilities to the c h i l d shall be afforded a meaningful opportunity to be heard, including the opportunity to testify and t o p r e sent and cross-examine witnesses
. Foster parents, preadoptive parents, and relative caregivers shall also have a m eaningf ul opportunity

to be heard. (Em phasis added).

In State ex rel. H.S. v. Beane , 240 W

. Va. 64 3 , 8 1 4 S

. E

. 2 d 660 (2018), this Court stated that “[ p]arties having ‘custodial or other parental rights or responsibilities’ are

Form erly W . Va. Code § 49-6-2 (2014). 15 11entitled to both ‘a m eaningf ul opportunity to be heard’ and ‘the opportunity to testif y and to present and cross-exami ne 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 f act that Jonathan G

. pre-dates our current statutory right of f oster parents to be heard, it is necessary to clarif y 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.”) (em phasis added); In re Jonathon G. , 198 W

. Va. 716, 727, 482 S.E.2 d 893, 904 (1996) (stating that statutory right of p a rty or parties having custody of child to m eaningf ul opportunity to be heard in abuse and neglect proceeding, including opportunity to testif y and present and crossexam ine witnesses).

Both our statutory and case law unequivocally require that parents, or any party having cu stodial or other parental rights and responsibilities, be af f orded a m eaningf

ul opportunity to be heard. This necessarily includes the rig h t t o testif y and to present witnesses, as well as to cross-exami ne 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 b y c o u n s e l , the circuit court denied him the opportuni t y t o testif

y and to present witnesses at the dispositional hearing in clear contradiction of

our law. 12W e, theref ore, reverse and rem and the case to the circuit court f or the lim ited purpose of af

f ording the petitioner an opportunit y t o b e h e ard 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 f ull and com

plete opportunity to cross-exami ne those witnesses, the circuit court, upon rem an d , n e e d not require the DHHR to again present its witnesses as it

m ay rely upon the com

plete transcripts of the earlier dispositional hearings. The petitioner, however, m

ust be af f orded a f ull and com

plete opportunity to present witnesses and to testif y
on his own behalf

. If there is a need that arises f rom the petitioner’s presentation of evidence that calls f

or rebuttal evidence to be presented by the DHH R o r t he GAL, the circuit court should allow that to occur bef ore deciding disposition f or the petitioner.

IV. Conclusion Accordingly , we reverse the circuit court’s July 9, 2018, order, and we rem and the case to the circuit court f or a dispositional hearing that com ports with this opinion.

Reversed and remanded with directions.

13