In re James G.

566 S.E.2d 226, 211 W. Va. 339, 2002 W. Va. LEXIS 73
CourtWest Virginia Supreme Court
DecidedJune 13, 2002
DocketNo. 30039
StatusPublished
Cited by15 cases

This text of 566 S.E.2d 226 (In re James G.) is published on Counsel Stack Legal Research, covering West Virginia Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re James G., 566 S.E.2d 226, 211 W. Va. 339, 2002 W. Va. LEXIS 73 (W. Va. 2002).

Opinion

McGRAW, Justice:

The West Virginia Department of Health and Human Services (the “Department”) filed a Petition for Finding of Abuse and/or Neglect and/or Abandonment against a mother, eventually seeking the involuntary termination of her parental rights with respect to her two children. As the termination proceedings neared them end, the mother offered to execute a voluntary relinquishment of her parental rights, to which the Department refused to agree. The lower court held that because the Department did not agree to the mother’s voluntary relinquishment, the court was obliged to rule on the petition and to terminate her rights involuntarily or not at all. The mother appeals, arguing that the Department’s consent was not required for the court to consider her voluntary relinquishment. She argues that the court should have approved her voluntary relinquishment, and not proceeded to an involuntary termination. We agree with the mother, in part, and therefore reverse the decision of the lower court.

[342]*342I.

BACKGROUND

Victoria M. is the biological mother of the two children who are the subject of this action, Emmett M.L. and James G. Child James is the older of the two children, bom in July 1996, and is the child of Victoria M. and James, Sr. Child Emmett was born later, in July of 1999, and is the biological child of Victoria M. and Emmett Sr.1 During most of the time periods at issue in this case, Victoria M. and the Children lived with her boyfriend, Emmett Sr.

The family has had frequent contact with the criminal justice and child welfare systems. The West Virginia Department of Health and Human Services (the “Department”) is the state agency with ultimate responsibility for child abuse and neglect cases. Within the Department, the Division of Child Protective Services (“GPS”) is responsible for investigating allegations of child abuse or neglect. W.Va.Code § 49-6A-9 (2001). During 1997, CPS received a referral that James, who had been born prematurely, was not being taken to his scheduled medical appointments by his mother. Later, in January 1999, CPS received a referral that James, then two, had cigarette burns on the palms of both hands, a cigarette burn on his chest, various bruises on his head and cheek, and burns on his genitalia. Apparently the Department attempted to provide the family with parenting and behavior management services, but these efforts failed, in part because James moved temporarily to his maternal grandmother’s house in Ohio, and Emmett Sr. was jailed for domestic battery of Victoria.

In July 1999, CPS received another referral, this one stating that Victoria had spanked James with a fly swatter, leaving a bruise on the child’s leg and buttocks. As a result, the Department filed a “Petition for Finding of Abuse and/or Neglect and/or Abandonment” (a “petition”) on behalf of both children on July 28, 1999, in the Circuit Court of Raleigh County. W. Va.Code § 49-1-1 et seq. provides for a preliminary hearing to be held shortly after the filing of a petition, followed later by an adjudicatory hearing, which in turn is followed by a disposition hearing. The court may allow improvement periods for the parents at various times during the proceedings.

In the instant case, the lower court held the preliminary hearing on August 19, 1999, at which time the parties informed the court of an agreed upon three-month improvement period during which the mother would attend parenting classes and behavior modification counseling to help control her anger, and would have weekly supervised visitation with the children.2

The court held an adjudicatory hearing on January 21, 2000. The court found that Victoria had not complied with the agreement, that the Department’s evidence that James had suffered abuse was uncontested, and that the allegations in the petition were supported by clear and convincing evidence. The court then terminated Victoria’s parental rights to both children, and left legal and physical custody of the children with the Department. The court left unresolved the question of the parental rights of the respective fathers, pending further investigation.

As the case proceeded, boyfriend Emmett Sr., asked for a paternity test, which established that he was the father of child Emmett, and the court ordered a home study of James Sr., father of child James. Also during this time, Victoria M. moved the court to reconsider its termination of her parental rights. In April 2000, the court reconsidered its January ruling and granted Victoria and her boyfriend Emmett an improvement period, during which they had the opportunity to demonstrate that conditions in the home had improved.

Apparently Victoria and Emmett were unable to comply with the improvement plan, [343]*343and the Department renewed its request for the permanent involuntary termination of Victoria’s and Emmett’s parental rights. The court held a final disposition hearing on February 1, 2001, some eighteen months after the Department first filed a petition. At this hearing, at which the court was prepared to order the involuntary termination of the parental rights of Emmett and Victoria, Victoria tendered a signed voluntary relinquishment of her parental rights.

N The court refused to accept and ratify the voluntary relinquishment, finding that this offer was in the nature of a settlement to which the Department did not agree, and finding further that the Court had no power to force the Department to agree to such a settlement. By order dated February 1 and filed April 27, 2001, the court involuntarily and permanently terminated Victoria’s parental rights as to both children and Emmett’s parental rights as to child Emmett. The order granted custody of both children to the Department, but required the Department to attempt to unify James with his natural father, James Sr. Finally, the order stated that “the Department shall not be required to accept the voluntary relinquishment of [Victoria] the respondent mother.”

Only Victoria appeals, and in her appeal she does not ask that her parental rights be reinstated, but claims only that the court erred in not accepting her offer of a voluntary relinquishment. She argues that there is no legal authority whereby during the pendency of an abuse and neglect ease, the Department of Health and Human Services, or the circuit court may reject a parent’s offer to voluntarily relinquish his or her parental rights. Because we partially agree with her on this limited point, we must reverse the decision of the lower court.

II.

STANDARD OF REVIEW

We have often explained the standard of review used by this Court in cases such as this: “For appeals resulting from abuse and neglect proceedings, such as the ease stib judice,,we employ a compound standard of review: conclusions of law are subject to a de novo review, while findings of fact are weighed against a clearly erroneous standard.” In re Emily, 208 W.Va. 325, 332, 540 S.E.2d 542, 549 (2000). Or, as we explained at greater length in another ease:

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.

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Cite This Page — Counsel Stack

Bluebook (online)
566 S.E.2d 226, 211 W. Va. 339, 2002 W. Va. LEXIS 73, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-james-g-wva-2002.