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IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
 

January 2014 Term 

FILED 

February 21, 2014 No. 13-0383 released at 3:00 p.m. 

_______________ RORY L. PERRY II, CLERK 

SUPREME COURT OF APPEALS 

OF WEST VIRGINIA 

IN RE: B.C. 

Appeal from the Circuit Court of Ohio County
 

The Honorable David J. Sims, Judge
 

Civil Action No. 12-CJA-20
 

REVERSED AND REMANDED
 

Submitted: January 22, 2014
 

Filed: February 21, 2014
 

Teresa C. Toriseva, Esq. Patrick Morrisey 

Toriseva Law Attorney General 

Wheeling, West Virginia Lee A. Niezgoda 

Counsel for the Petitioner Assistant Attorney General 

White Hall, West Virginia 

Joseph J. Moses, Esq. Counsel for the W.Va. Dept. of Health and 

Wheeling, West Virginia Human Resources 

Guardian ad litem 

JUSTICE KETCHUM delivered the Opinion of the Court. 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

SYLLABUS BY THE COURT
 

1. “Before the prosecution of a lawsuit may be barred on the basis of 

res judicata, three elements must be satisfied. First, there must have been a final 

adjudication on the merits in the prior action by a court having jurisdiction of the 

proceedings. Second, the two actions must involve either the same parties or persons in 

privity with those same parties. Third, the cause of action identified for resolution in the 

subsequent proceeding either must be identical to the cause of action determined in the 

prior action or must be such that it could have been resolved, had it been presented, in the 

prior action.” Syllabus Point 4, Blake v. Charleston Area Med. Ctr., Inc., 201 W.Va. 469, 

498 S.E.2d 41 (1997). 

2. “Collateral estoppel will bar a claim if four conditions are met: (1) 

The issue previously decided is identical to the one presented in the action in question; 

(2) there is a final adjudication on the merits of the prior action; (3) the party against 

whom the doctrine is invoked was a party or in privity with a party to a prior action; and 

(4) the party against whom the doctrine is raised had a full and fair opportunity to litigate 

the issue in the prior action.” Syllabus Point 1, State v. Miller, 194 W.Va. 3, 459 S.E.2d 

114 (1995). 

3. “Though constitutionally protected, the right of the natural parent to 

the custody of minor children is not absolute and it may be limited or terminated by the 

State, as parens patriae, if the parent is proved unfit to be entrusted with child care.” 

Syllabus Point 5, In re Willis, 157 W.Va. 225, 207 S.E.2d 129 (1973). 

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4. Under W.Va. Code § 48-27-305 [2001], a petition for a domestic 

violence protective order may be pursued by three classes of people: (1) a person 

individually seeking relief from domestic violence; (2) an adult person seeking relief 

from domestic violence on behalf of a family or household member, such as a minor 

child; or (3) a person who is being abused, threatened or harassed because they witnessed 

or reported domestic violence. 

5. While a civil abuse and neglect action pursuant to W.Va. Code § 49­

6-1 [2005] may be initiated by either the West Virginia Department of Health and Human 

Resources or “a reputable person,” the action is pursued solely on behalf of the State of 

West Virginia in its role as parens patriae. 

6. A petition for a domestic violence protective order under W.Va. 

Code § 48-27-101, et seq., and a petition alleging abuse and/or neglect under W.Va. Code 

§ 49-6-1, et seq., may be filed upon the same facts without consequences under the 

doctrine of res judicata or the doctrine of collateral estoppel. 

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Justice Ketchum: 

In this appeal from the Circuit Court of Ohio County, the parties dispute a 

circuit court order dismissing a petition which alleged that a parent abused and/or 

neglected a child. We are asked to determine whether one parent may seek a domestic 

violence protective order against the other parent of the child, and then later file a petition 

to initiate an abuse and neglect proceeding for the child in circuit court regarding the 

same conduct. In its order dismissing the petition, the circuit court concluded that an 

abuse and neglect proceeding filed after the conclusion of a domestic violence proceeding 

would be barred by principles of res judicata and collateral estoppel. 

As set forth below, we reverse the circuit court’s order. We find that even 

if a civil domestic violence proceeding and a civil abuse and neglect proceeding involve 

the same underlying facts, the separate proceedings do not implicate the doctrines of res 

judicata or collateral estoppel. 

I.
 

FACTUAL AND PROCEDURAL BACKGROUND
 

This case presents issues involving the overlapping jurisdictions of the 

magistrate, family, and circuit courts of Ohio County, West Virginia. The underlying 

facts are simple. K.S. and K.C. are the biological parents of B.C., a minor child. K.S. 

(“the mother”) and K.C. (“the father”) divorced in 2004. The mother now alleges that the 

father has been neglectful and physically violent toward B.C. 

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In December 2011, the mother filed a domestic violence petition in 

magistrate court on behalf of B.C. She alleged several incidents of abuse and neglect by 

the father against B.C.1 Based upon the abuse allegations, a magistrate granted an 

emergency protective order for B.C., and then scheduled a final hearing on the petition 

before a family court judge. Following the hearing, the family court judge dismissed the 

mother’s domestic violence petition, in part because he did not find the testimony of B.C. 

to be credible. On March 9, 2012, the circuit court affirmed the family court’s dismissal. 

On March 12, 2012, the mother filed an abuse and neglect petition in the 

circuit court. The mother asked the circuit court to terminate the father’s parental rights 

1 In addition to citing several specific examples of violence by the father 

against the child, the December 2011 domestic violence petition vaguely alleged that the 

father had substance abuse problems that led him to neglect the child. We note that a 

court may not issue a domestic violence protective order based solely upon allegations of 

neglect, unless those allegations meet one of the five categories of “domestic violence” or 

“abuse” that are defined in W.Va. Code § 48-27-202 [2010]: 

(1) Attempting to cause or intentionally, knowingly or 

recklessly causing physical harm to another with or without 

dangerous or deadly weapons; 

(2) Placing another in reasonable apprehension of physical 

harm; 

(3) Creating fear of physical harm by harassment, stalking, 

psychological abuse or threatening acts; 

(4) Committing either sexual assault or sexual abuse as those 

terms are defined in articles eight-b and eight-d, chapter 

sixty-one of this code; and 

(5) Holding, confining, detaining or abducting another person 

against that person's will. 

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based upon allegations of abuse and neglect. The circuit court later noted that the 

allegations were “essentially the same allegations that were made” in the December 2011 

domestic violence petition. 

After filing the abuse and neglect petition, the mother alleges that an 

additional incident of domestic violence was committed by the father against B.C. That 

incident occurred on May 5, 2012, when the mother took B.C. to the Wheeling Police 

Department to exchange him with the father as required by the parties’ shared parenting 

agreement. Apparently, the father grabbed the child and forcefully tried to take him, and 

in so doing twisted and fractured the child’s wrist. This incident was recorded by video 

cameras. 

On May 7th, the mother filed a new domestic violence petition on B.C.’s 

behalf against the father. The family court granted the petition and entered an emergency 

protective order in favor of B.C. The family court found clear and convincing evidence 

that B.C. “sustained a fractured wrist at the hands of [the father] . . . The same would 

constitute an act of domestic violence[.]” 

On May 9th, the prosecutor filed a criminal complaint against the father 

charging him with misdemeanor domestic battery for the fracturing of B.C.’s wrist.2 

However, the prosecutor later agreed to a “pretrial diversion” with the father.3 The 

prosecutor indicated that he would stay prosecution of the complaint for six months, and 

2 See W.Va. Code § 61-2-28(a) [2011].
 

3 The prosecutor and K.C. reached this agreement on February 25, 2013.
 

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that if the father complied with certain court orders during that time, the prosecutor 

would dismiss the domestic battery charge. 

Several days later, on May 14th, the Department of Health and Human 

Resources (“DHHR”) made a motion to intervene in the abuse and neglect action still 

pending in circuit court. DHHR said it wanted to intervene “to provide supportive 

services to the infant” and “to remedy any circumstances which may be detrimental to the 

child[.]” 

Finally, on June 7th, the mother filed an amended abuse and neglect petition 

in the circuit court. In this newest petition, the mother added the allegations of domestic 

violence that the father allegedly committed against B.C. at the police department on 

May 5, 2012. 

Counsel for the father filed a motion to dismiss the original and amended 

abuse and neglect petitions. The father asserted that the abuse and neglect allegations 

were the same as the allegations in the domestic violence petition filed in December 

2011. Because the family court and circuit court had issued final orders adjudicating the 

mother’s domestic violence allegations and denying the mother any relief, the father 

argued that the doctrines of res judicata and collateral estoppel supported dismissal of the 

abuse and neglect action. 

In an order dated March 18, 2013, the circuit court agreed and dismissed 

the mother’s abuse and neglect petitions. Finding that the allegations in both the original 

and amended abuse and neglect petitions were “essentially the same” as those made in 

the December 2011 domestic violence petition, the circuit court determined that the abuse 

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and neglect petitions were barred by the doctrine of res judicata. Further, the circuit 

court found the doctrine of collateral estoppel barred the abuse and neglect petitions 

because the issues of abuse dispensed with in the domestic violence petition and in the 

misdemeanor criminal complaint “are factually identical to the issues raised in this 

action.” The circuit court accepted the father’s assertion that his ex-wife (the mother) 

was simply attempting “to relitigate the domestic violence allegations that a Family Court 

has addressed and dismissed and the criminal charges that the State intends to dismiss.” 

Counsel for the mother now appeals the circuit court’s dismissal order. 

II.
 

STANDARD OF REVIEW
 

“Appellate review of a circuit court’s order granting a motion to dismiss a 

complaint is de novo.” Syllabus Point 2, State ex rel. McGraw v. Scott Runyan Pontiac– 

Buick, Inc., 194 W.Va. 770, 461 S.E.2d 516 (1995). 

III.
 

ANALYSIS
 

The circuit court dismissed the mother’s original and amended abuse and 

neglect petitions under the doctrine of res judicata and the doctrine of collateral estoppel. 

Both doctrines can be invoked to halt the prosecution of a lawsuit, or of a claim within a 

lawsuit, when the claim has been resolved on the merits in a prior proceeding. We find 

that the circuit court erred in applying these doctrines. 

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In Blake v. Charleston Area Med. Ctr., Inc., 201 W.Va. 469, 498 S.E.2d 41 

(1997), we set forth a three-part test for determining if a lawsuit was barred by res 

judicata. Syllabus Point 4 of Blake states: 

Before the prosecution of a lawsuit may be barred on 

the basis of res judicata, three elements must be satisfied. 

First, there must have been a final adjudication on the merits 

in the prior action by a court having jurisdiction of the 

proceedings. Second, the two actions must involve either the 

same parties or persons in privity with those same parties. 

Third, the cause of action identified for resolution in the 

subsequent proceeding either must be identical to the cause of 

action determined in the prior action or must be such that it 

could have been resolved, had it been presented, in the prior 

action. (Emphasis added). 

In State v. Miller, 194 W.Va. 3, 459 S.E.2d 114 (1995), we outlined a fourpart test to determine if a party was collaterally estopped from raising a previously 

resolved question in a new civil action. We stated in Syllabus Point 1 of Miller: 

Collateral estoppel will bar a claim if four conditions 

are met: (1) The issue previously decided is identical to the 

one presented in the action in question; (2) there is a final 

adjudication on the merits of the prior action; (3) the party 

against whom the doctrine is invoked was a party or in privity 

with a party to a prior action; and (4) the party against whom 

the doctrine is raised had a full and fair opportunity to litigate 

the issue in the prior action. 

As we discuss below, the circuit court misapplied both of these doctrines. 

Generally speaking, two of the key elements to invoking these doctrines are that (1) the 

party in the current lawsuit, against whom either doctrine is being invoked, must be same 

as the party in the prior proceeding, and (2) the claims in both suits must essentially be 

identical. Neither of these elements was satisfied in the instant appeal. As a matter of 

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law, petitions for domestic violence protective orders involve different parties from civil 

abuse and/or neglect actions. Further, in the instant case, the mother’s abuse and neglect 

petitions raised claims substantially different from those adjudicated in the December 

2011 domestic violence petition. 

A. Identical Parties 

The doctrines of res judicata and collateral estoppel prevent parties from 

relitigating in a new action a claim or issue that was definitively settled by a prior judicial 

decision. The doctrine of res judicata essentially requires that the prior and current 

actions must involve the same parties;4 the doctrine of collateral estoppel only requires 

the party against whom the doctrine is invoked to have been a party5 to the prior action. 

In this case, the circuit court presumed that B.C.’s mother was the same 

party who pursued both the December 2011 domestic violence petition and the March 

and June 2012 abuse and neglect petitions.6 The circuit court concluded that because the 

mother was the same party asserting “essentially the same” allegations in both these 

4 In the rare alternative, individuals in “privity” with the parties may be 

barred from pursuing an action based upon res judicata. 

5 In the rare alternative, an individual in “privity” with a party may be 

barred from pursuing a claim in a later action because of collateral estoppel. 

6 As we discuss later, the circuit court also seems – incorrectly – to have 

presumed that the same parties and allegations raised in the abuse and neglect petition 

were also involved in the criminal action against K.C., and that the resolution of the 

criminal action also resolved the allegations of abuse and neglect. 

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actions, she could not pursue her abuse and neglect petition. We reject this conclusion by 

the circuit court because the parties to a civil domestic violence proceeding are inherently 

different from those in a civil abuse and neglect proceeding. 

A domestic violence proceeding is brought “[t]o assure victims of domestic 

violence the maximum protection from abuse that the law can provide,” and to “create a 

speedy remedy to discourage violence against family or household members[.]” W.Va. 

Code § 48-27-101 (b)(1) and (2) [2001]. Our domestic violence prevention statutes 

identify three “persons” who may seek protection, for themselves or others, by filing a 

petition for a protective order. W.Va. Code § 48-27-305 [2001] states: 

A petition for a protective order may be filed by: 

(1) A person seeking relief under this 

article for herself or himself; 

(2) An adult family or household 

member for the protection of the victim or for 

any family or household member who is a 

minor child or physically or mentally 

incapacitated to the extent that he or she cannot 

file on his or her own behalf, or 

(3) A person who reported or was a 

witness to domestic violence and who, as a 

result, has been abused, threatened, harassed or 

who has been the subject of other actions 

intended to intimidate the person. 

Specifically, the Legislature has established that the party in interest who pursues a 

petition for a domestic violence protective order is a “person.” 

A civil abuse and neglect proceeding is substantially different from a 

proceeding for a domestic violence protective order. West Virginia’s abuse and neglect 

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statutes “establish a mechanism whereby the courts may adjudicate questions arising 

when the State or a citizen thereof believes there is necessity to change the custodial 

relationship of natural parent and child because of some dereliction on the part of the 

parent[.]” In re Willis, 157 W.Va. 225, 238, 207 S.E.2d 129, 137 (1973). West 

Virginia’s abuse and neglect statues indicate that a petition may be filed by two entities: 

either the West Virginia Department of Health and Human Resources (“DHHR”) or “a 

reputable person.” W.Va. Code § 49-6-1[2005] states, in part: 

(a) If the department or a reputable person believes 

that a child is neglected or abused, the department or the 

person may present a petition setting forth the facts to the 

circuit court. . . . The petition shall be verified by the oath of 

some credible person having knowledge of the facts. The 

petition shall allege specific conduct including time and 

place, how such conduct comes within the statutory definition 

of neglect or abuse with references thereto, any supportive 

services provided by the department to remedy the alleged 

circumstances and the relief sought. . . . 

(b) The petition and notice of the hearing shall be 

served upon both parents and any other custodian . . . Notice 

shall also be given to the department, any foster or 

preadoptive parent, and any relative providing care for the 

child. . . . 

(c) At the time of the institution of any proceeding 

under this article, the department shall provide supportive 

services in an effort to remedy circumstances detrimental to a 

child. 

Our abuse and neglect statutes certainly permit “a reputable person” to 

initiate a petition for relief. “By permitting an individual who believes that abuse and/or 

neglect is occurring, or has occurred, to file a petition alleging such circumstances, and 

by requiring this person to also have sufficient knowledge of the facts underlying this 

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belief to verify the petition, the statutory framework attempts to protect parents, 

custodians, guardians, and care givers from unsubstantiated charges while permitting the 

filing of petitions seeking to protect the health, safety, and well-being of children.” State 

ex rel. Paul B. v. Hill, 201 W.Va. 248, 256, 496 S.E.2d 198, 206 (1997). 

However, while “a reputable person” may initiate an abuse and neglect 

action under W.Va. Code § 49-6-1, it does not mean that the reputable person has any 

stake in the action or that the action is being pursued on behalf of the reputable person as 

the party in interest. Instead, our cases make clear that an abuse and neglect action is 

prosecuted on behalf of one party, and only one party: the State of West Virginia, in its 

role as parens patriae. 

The doctrine of parens patriae allows the State “in its capacity as provider 

of protection to those unable to care for themselves” to prosecute a suit “on behalf of 

someone who is under a legal disability.” Black’s Law Dictionary 1221 (9th Ed. 2009). 

The State, in its role of parens patriae, “[s]tand[s] at the side of the natural parents with 

benign, but continuing, interest” in the care and custody of children. In re Willis, 157 

W.Va. at 238, 207 S.E.2d at 137. The Legislature first adopted our abuse, neglect and 

child welfare statutes in 1915 as a way to “afford special protection to persons of tender 

years,” and crafted those statutes as “an obvious expression of our lawmakers to join the 

then modern sociological trend by the codification of the doctrine of parens patriae.” 

State ex rel. Slatton v. Boles, 147 W.Va. 674, 679, 130 S.E.2d 192, 196 (1963). As 

Justice Miller observed: 

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While parents enjoy an inherent right to the care and 

custody of their own children, the State in its recognized role 

of parens patriae is the ultimate protector of the rights of 

minors. The State has a substantial interest in providing for 

their health, safety, and welfare, and may properly step in to 

do so when necessary. . . . . In cases of suspected abuse or 

neglect, the State has a clear interest in protecting the child 

and may, if necessary, separate abusive or neglectful parents 

from their children. 

In the Interest of Betty J.W., 179 W.Va. 605, 608, 371 S.E.2d 326, 329 (1988). Hence, as 

we said in Syllabus Point 5 of In re Willis, supra: 

Though constitutionally protected, the right of the 

natural parent to the custody of minor children is not absolute 

and it may be limited or terminated by the State, as parens 

patriae, if the parent is proved unfit to be entrusted with child 

care. 

While a civil abuse and neglect action is pursued solely under the State’s 

parens patriae authority, “the legislature has made DHHR the State’s representative.” 

Syllabus Point 4, in part, State ex rel. Diva P. v. Kaufman, 200 W.Va. 555, 490 S.E.2d 

642 (1997). “DHHR is the client of county prosecutors,” and “prosecutors must 

cooperate with DHHR’s efforts to pursue civil abuse and neglect actions.” Id. And it is 

the circuit court that has exclusive “jurisdiction to entertain an abuse and neglect petition 

and to conduct proceedings in accordance therewith[.]” Syllabus Point 3, State ex rel. 

Paul B. v. Hill, 201 W.Va. 248, 496 S.E.2d 198 (1997). 

To summarize, under W.Va. Code § 48-27-305, a petition for a domestic 

violence protective order may be prosecuted by three classes of people: (1) a person 

individually seeking relief from domestic violence; (2) an adult person seeking relief 

from domestic violence on behalf of a family or household member, such as a minor 

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child; or (3) a person who is being abused, threatened or harassed because they witnessed 

or reported domestic violence. However, while a civil abuse and neglect action pursuant 

to W.Va. Code § 49-6-1 may be initiated by either the West Virginia Department of 

Health and Human Resources or “a reputable person,” the action is prosecuted solely on 

behalf of the State of West Virginia in its role as parens patriae. 

Comparing these statutory schemes, it is clear that the party in interest in a 

domestic violence action is, as a matter of law, different from the party in interest in an 

abuse and neglect action. Accordingly, we hold that a petition for a domestic violence 

protective order under W.Va. Code § 48-27-101, et seq., and a petition alleging abuse 

and/or neglect under W.Va. Code § 49-6-1, et seq., may be filed upon the same facts 

without consequences under the doctrine of res judicata or the doctrine of collateral 

estoppel. 

Applied to the instant case, it is obvious that the circuit court erred in 

dismissing the mother’s petitions alleging abuse and neglect under the doctrines of res 

judicata and collateral estoppel. The mother unsuccessfully pursued her December 2011 

petition for a domestic violence protective order on behalf of her son, B.C. However, 

when she alleged these same acts of domestic violence in her March 2012 abuse and 

neglect petition, she did so only as “a reputable person.”7 Upon the filing of the abuse 

7 Before the circuit court, counsel for the father argued that the mother was 

not a “reputable person” under W.Va. Code § 49-6-1 “because she is, in part, forum 

shopping” and “is clearly showing a level of bias and animosity that the Legislature could 

not have meant” when enacting the abuse and neglect statutes. In its order, the circuit 

court declined to address this argument by the father. 

(continued . . .) 

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and neglect petition, it was the State of West Virginia who became the prosecuting party 

in interest. The DHHR, as the agent for the State, was then charged with investigating 

the allegations and pursuing the best course to assure the “care, safety and guidance,” and 

the “mental and physical welfare,” of the minor child. W.Va. Code § 49-1-1(a)(1) and 

(2). Put simply, the mother was neither the same party nor was she in privity with the 

parties in both the December 2011 domestic violence action and the March 2012 abuse 

and neglect action. The circuit court erred in holding otherwise. 

B. Identical question 

The doctrines of res judicata and collateral estoppel bar the relitigation of a 

claim or issue previously resolved in another suit. Res judicata (also called “claim 

preclusion”) generally applies if “the cause of action identified for resolution in the 

subsequent proceeding” is “identical to the cause of action determined in the prior 

action,” or could have been raised and determined in the prior action. Syllabus Point 4, 

Blake, supra. Collateral estoppel (also called “issue preclusion”) applies if the “issue 

previously decided is identical to the one presented in the action in question.” Syllabus 

A “reputable person” under W.Va. Code § 49-6-1 is simply a person who 

“believes that abuse and/or neglect is occurring, or has occurred,” and who has 

“sufficient knowledge of the facts underlying this belief to verify the petition.” State ex 

rel. Paul B. v. Hill, 201 W.Va. at 256, 496 S.E.2d at 206. In Paul B., we approved of an 

abuse and neglect petition filed by respite caregivers whose belief about the existence of 

abuse and/or neglect was based upon “personal familiarity with and observations of the 

children during their provision of respite care[.]” 201 W.Va. at 257, 496 S.E.2d at 207. 

On the appendix record presented to this Court, it appears that the mother meets these 

standards to qualify as a “reputable person.” 

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Point 1, Miller, supra. An “issue” is “any right, fact or legal matter which is put in 

issue[.]” Miller, 194 W.Va. at 9, 459 S.E.2d at 120. In the instant case, the circuit court 

ruled that the causes of action and issues in both the December 2011 domestic violence 

petition and the March and June 2012 abuse and neglect petitions were identical “because 

the same evidence supports each of these separate and various causes of action [and 

issues].” 

The circuit court’s ruling was clearly in error, because the court failed to 

consider that the claims and issues that can be raised before, and the relief that could be 

granted by, the circuit court in an abuse and neglect action are substantially different and 

broader than the claims, issues and relief that can be considered by the magistrate and 

family courts in a proceeding for a domestic violence protective order. A domestic 

violence action is intended solely as a short-term, temporary response to prevent 

domestic violence; an abuse and neglect action is designed to craft long-term solutions to 

both violence and neglect in the household. While the circuit courts have concurrent 

jurisdiction with the family and magistrate courts over domestic violence proceedings, 

only circuit courts have jurisdiction to preside over abuse and neglect actions. Compare 

W.Va. Code § 48-27-301(a) [2012] (“Circuit courts, family courts and magistrate courts, 

have concurrent jurisdiction over domestic violence proceedings”); W.Va. Code 49-6-1(a) 

(if a child is neglected or abused, “the department or the person may present a petition 

setting forth the facts to the circuit court”). 

To state it succinctly, many of the long-term, comprehensive remedies that 

a circuit court can order in an abuse and neglect case are simply not available in a 

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domestic violence action. We perceive that, in many instances, the same factual scenario 

of domestic abuse and/or neglect could support not only a civil abuse and/or neglect 

action and an action for a domestic violence protective order, but could also 

simultaneously support a criminal prosecution, a civil tort action for damages, and an 

action in family court for divorce or allocation of parental responsibility. Each of these 

actions involves different parties, different causes of action, different burdens of proof, 

and/or different forms of relief not available in one court or another. 

Additionally, the circuit court failed to make any reference to the mother’s 

amended abuse and neglect petition, which raised allegations of violence against the child 

that happened in May 2012. Counsel for the mother plainly expressed to the circuit court 

that new, unresolved, unadjudicated facts supported the petition. The new issues raised 

in the amended petition occurred five months after the events detailed in the December 

2011 domestic violence action, and therefore could not have been identical to the 

previously adjudicated questions. Yet the circuit court still went on find the issues raised 

by the amended petition were “essentially the same” as those in the domestic violence 

action, and dismissed the amended petition as barred by the doctrines of res judicata and 

collateral estoppel. 

Finally, we are troubled by one additional conclusion by the circuit court. 

The mother was not a party to the criminal action filed in magistrate court. The criminal 

case was initiated by the prosecutor, and it was the prosecutor who entered into a bargain 

with the father. Still, counsel for the father argued that the abuse and neglect petition was 

“simply another attempt” by the mother “to re-litigate the domestic violence . . . criminal 

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charges that the State intends to dismiss.” The circuit court accepted this argument, and 

found that the mother “had a full and fair opportunity to litigate all of the issues” in the 

criminal proceeding in magistrate court. The circuit court concluded that the mother’s 

abuse and neglect assertions were collaterally estopped, in part, because they were 

“issues of (domestic) abuse . . . dispensed with by the State in the criminal action[.]” 

This conclusion by the circuit court was in error. This Court has 

determined that civil abuse and neglect proceedings are to be treated as separate and apart 

from criminal proceedings arising from child abuse or neglect. As we stated in Syllabus 

Point 2 of Matter of Taylor B., 201 W.Va. 60, 491 S.E.2d 607 (1997), 

A civil child abuse and neglect petition instituted by 

the West Virginia Department of Health and Human 

Resources pursuant to Code, 49–6–1 et seq., is not subject to 

dismissal pursuant to the terms of a plea bargain between a 

county prosecutor and a criminal defendant in a related child 

abuse prosecution. 

This is because “civil abuse and neglect proceedings focus directly upon the safety and 

well-being of the child and are not simply ‘companion cases’ to criminal prosecutions.” 

201 W.Va. at 66, 491 S.E.2d at 613. The circuit court erred when it found that the 

allegations in the abuse and neglect petition were collaterally estopped by the 

prosecutor’s choice to dismiss the criminal charges against the father. 

In sum, because the claims and issues resolved in the December 2011 

domestic violence proceeding were different from those in the original and amended 

abuse and neglect petitions, the circuit court erred in finding the mother’s abuse and 

neglect action was precluded by the doctrines of res judicata and collateral estoppel. 

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IV.
 

CONCLUSION
 

The circuit court erred in finding that the original and amended abuse and 

neglect petitions were barred by the doctrines of res judicata and collateral estoppel. 

Accordingly, the circuit court’s March 18, 2013, order must be reversed. 

Reversed and remanded. 

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