In re T.W.

737 S.E.2d 69, 230 W. Va. 172, 2012 WL 5834591, 2012 W. Va. LEXIS 822
CourtWest Virginia Supreme Court
DecidedNovember 14, 2012
DocketNo. 11-1628
StatusPublished
Cited by19 cases

This text of 737 S.E.2d 69 (In re T.W.) 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 T.W., 737 S.E.2d 69, 230 W. Va. 172, 2012 WL 5834591, 2012 W. Va. LEXIS 822 (W. Va. 2012).

Opinion

McHUGH, Justice:

This is an appeal by Stephanie D.1 (hereinafter “Petitioner”) from an order of the Cir[177]*177cuit Court of Berkeley County accepting the voluntary relinquishment of parental rights by John W. (hereinafter “John W.” or “father”) to his two eldest children and dismissing his two youngest children from the ease. Upon thorough review of the briefs, arguments, applicable precedent, and the record, this Court reverses the lower court’s order and remands this matter for further proceedings consistent with this opinion.

I. Factual and Procedural History

This matter involves abuse and neglect allegations affecting the four children of John W. His eldest two children, T.W. and C.W. were born on March 8, 1995, and March 25, 1996, respectively. The mother of these two children, Wendy P., has not had substantial contact with T.W. or C.W., has relinquished her parental rights to these children, and is not a party to this action. John W.’s two youngest children, S.W. and J.W., were born on April 4, 1997, and April 10, 2006, respectively. The mother of these two children is Petitioner Stephanie D., and these two children have resided with her in the State of Maryland since the divorce of John W. and Stephanie D. and the award of primary custody to Stephanie D. on March 3, 2010. Visitation was granted to the father, John W., every other weekend.

On June 12, 2010, a boyfriend of one of the older daughters allegedly raped S.W. while she was visiting her father in West Virginia.2 That was the final visit between the father and the younger two children residing in Maryland. On June 22, 2010, Stephanie D. obtained a ninety-day temporary order suspending visitation between John W. and S.W. and J.W., based upon that allegation of sexual misconduct by the older daughter’s boyfriend. That temporary order had expired by the time the underlying abuse and neglect proceedings were initiated.

On October 25, 2010, the West Virginia Department of Health and Human Resources (hereinafter “DHHR”) received a referral indicating that the father, John W., had abandoned his two older children, T.W. and C.W., in West Virginia and that the living conditions in their home were deplorable. The DHHR investigated the allegations and filed an October 29,2010, Abuse and Neglect Petition alleging that the father had abandoned the two older children. The DHHR cited deplorable home conditions, including the lack of running water; sanitation issues involving toilets and soiled clothing; lack of supervision for the children; physical abuse; and sexual misconduct.3 Notably, although the petition named all four children, it did not include the allegations of rape of S.W. by her older sister’s boyfriend while S.W. was visiting the father’s home in West Virginia. On December 10, 2010, the DHHR filed an amended petition based upon T.W.’s malnourishment; a bruise on the hip of T.W., allegedly caused by physical violence; and sexual abuse of C.W. Even in the amended petition, there was no reference to the rape which allegedly occurred while S.W. was visiting in West Virginia.

On December 21, 2010, the Maryland court handling the divorce between John W. and Stephanie D. stayed further proceedings pending the outcome of the abuse and neglect proceedings in the Circuit Court of Berkeley County, West Virginia. On June 28, 2011, a hearing on the abuse and neglect proceedings was held in the Circuit Court of Berkeley County. At that hearing, counsel for John W. indicated that John W. wished to relinquish his parental rights to T.W. and C.W., but John W. maintained that he had not abused or neglected any of his children. Counsel for John W. further indicated that John W. did not want findings to be made on the abuse and neglect petition and apparently made his relinquishment of parental rights [178]*178contingent upon the absence of further proceedings against him on the abuse and neglect petition. The DHHR moved to dismiss the case concerning S.W. and J.W., the two children residing in Maryland, and the lower court dismissed those two children from the case. Further, the lower court refused to consider an in camera hearing to consult with the older two children regarding the allegations of abuse and neglect and also accepted John W.’s voluntary relinquishment of parental rights for T.W. and C.W. without further inquiry.

Subsequent to the lower court’s ruling, Stephanie D., as the non-offending parent, appealed that ruling to this Court. In her assignments of error on appeal, Petitioner contends that the lower court erred in (1) accepting John W.’s voluntary relinquishment of parental rights to T.W. and C.W. without conducting an evidentiary hearing to make factual findings on the allegations of abuse and neglect and to consider the best interests of S.W. and J.W.; (2) failing to appoint a separate guardian ad litem for S.W. and J.W., the two younger children residing in Maryland, as requested by the guardian ad litem who had been appointed for all four children; (3) failing to conduct an in camera hearing on the issue of potential testimony by the older children, T.W. and C.W., regarding allegations of abuse; and (4) dismissing the matter with regard to the children residing in Maryland, S.W. and J.W.

II. Standard of Review

This Court has consistently utilized a compound standard of review in matters of this nature. In In re Emily, 208 W.Va. 325, 540 S.E.2d 542 (2000), this Court stated that abuse and neglect proceedings will be evaluated under 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.” 208 W.Va. at 332, 540 S.E.2d at 549. The following standard of review, also applicable to this case, is enunciated in syllabus point one of In the Interest of Tiffany Marie S., 196 W.Va. 223, 470 S.E.2d 177 (1996):

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.

This Court also remains mindful of the primary objective in cases of allegations of abuse and neglect. As this Court stated in syllabus point three of In re Katie S., 198 W.Va. 79, 479 S.E.2d 589

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Cite This Page — Counsel Stack

Bluebook (online)
737 S.E.2d 69, 230 W. Va. 172, 2012 WL 5834591, 2012 W. Va. LEXIS 822, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-tw-wva-2012.