In Re: B.U. ( 2016 )

STATE OF WEST VIRGINIA
SUPREME COURT OF APPEALS
FILED
March 7, 2016
In re: B.U. RORY L. PERRY II, CLERK
SUPREME COURT OF APPEALS
No. 15-0911 (Raleigh County 13-JA-218-B) OF WEST VIRGINIA
MEMORANDUM DECISION
Petitioner Mother C.U., by counsel Amber R. Hinkle, appeals the Circuit Court of
Raleigh County’s May 11, 2015, order terminating her parental rights to two-year-old B.U. 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 and a supplemental appendix. The
guardian ad litem, Christopher D. Lefler, filed a response on behalf of the child in support of the
circuit court’s order. On appeal, petitioner alleges that the circuit court erred in allowing the
DHHR to reopen its case to present additional evidence.1
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 October of 2013, the DHHR filed an abuse and neglect petition alleging that petitioner
previously had her parental rights to an older child involuntarily terminated. According to the
petition, petitioner stipulated that she failed to protect her child from sexual abuse perpetrated by
her boyfriend, J.R., in the prior proceeding. Because petitioner continued to deny any knowledge
of the sexual abuse, the circuit court ultimately terminated her parental rights in the prior
proceeding. As to the subsequently born B.U., the DHHR alleged that he was in imminent
danger as a result of the continued aggravated circumstances, including the fact that J.R. was
listed as B.U.’s biological father.
In December of 2013, petitioner waived her right to a preliminary hearing and left the
issue of visitation to be determined by the multidisciplinary team. Beginning in June of 2014, the
circuit court held a series of adjudicatory hearings during which the parties presented evidence.
During the hearing on October 1, 2014, the circuit court heard arguments that the DHHR failed
1
We note that West Virginia Code §§ 49-1-1 through 49-11-10 were repealed and
recodified during the 2015 Regular Session of the West Virginia Legislature. The new
enactment, West Virginia Code §§ 49-1-101 through 49-7-304, has minor stylistic changes and
became effective ninety days after the February 19, 2015, approval date. In this memorandum
decision, we apply the statutes as they existed during the pendency of the proceedings below.
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to present sufficient evidence that petitioner failed to correct the prior conditions of abuse and
neglect. Therefore, the DHHR moved to reopen the “record” to present additional evidence that
the circumstances in petitioner’s home were the same as they existed in the prior proceeding.
Eventually, the circuit court granted the DHHR’s motion to present additional evidence in
accordance with this Court’s recent decision In Re: K.L., 233 W.Va. 547, 759 S.E.2d 778 (2014).
During the final adjudicatory hearing on December 19, 2014, the DHHR presented additional
evidence that petitioner failed to remedy the prior conditions of abuse and neglect. Petitioner
testified on her own behalf. Ultimately, the circuit court adjudicated petitioner finding that “the
circumstances as to [petitioner have] not changed from the prior case as to [her] association with
[J.R.] and . . . [petitioner’s] failure to protect still exist[s].”
In March of 2015, the circuit court held a dispositional hearing and found that petitioner
failed to remedy the conditions of abuse and neglect that led to the prior involuntary termination
of her parental rights to her older child. Ultimately, the circuit court terminated petitioner’s
parental rights. It is from this order that petitioner appeals.
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).
On appeal, petitioner argues that the circuit court erred in allowing the DHHR to present
additional evidence - after the DHHR rested - that she failed to remedy the conditions that led to
the prior involuntary termination of her parental rights. To begin, we note that petitioner failed to
cite to any legal authority that prohibits circuit courts from allowing a party to reopen its case to
present additional evidence.2 Nevertheless, we have explained that, even in cases arising from a
2
Rule 10(c)(7) of the Rules of Appellate Procedure clearly provides that a petitioner’s
brief to this Court
must contain an argument exhibiting clearly the points of fact and law presented,
the standard of review applicable, and citing the authorities relied on, under
(continued . . . )
2
prior termination pursuant to West Virginia Code § 49-6-5b(a)(3), the burden of proof to
establish abuse or neglect of a child does not shift from the DHHR to a child’s parent, guardian,
or custodian. See Syl. Pt. 5, in part, In re George Glen B., Jr., 207 W.Va. 346, 532 S.E.2d 64(2000) (stating that even in cases arising from a prior termination, “the Department of Health and
Human Resources continues to bear the burden of proving that the subject child is abused or
neglected.”); Syl. Pt. 4, In re: K.L., 233 W.Va. 547, 759 S.E.2d 778 (2014) (stating that “[t]he
burden of proof in a child neglect or abuse case does not shift from the State Department of
[Health and Human Resources] to the parent, guardian or custodian of the child. It remains upon
the State Department of [Health and Human Resources] throughout the proceedings.”).
Furthermore, this Court has held that
[i]t is within the sound discretion of the court in the furtherance of the
interests of justice to permit either party, after it has rested, to reopen the case for
the purpose of offering further evidence and unless that discretion is abused the
action of the court will not be disturbed.
Syl. Pt. 4, State v. Fischer, 158 W.Va. 72, 211 S.E.2d 666 (1974). Upon review of the scant
record on appeal, we find no error in the circuit court’s decision to allow the DHHR to present
additional evidence of abuse and/or neglect. Here, the DHHR appropriately moved to present
additional evidence that petitioner abused and/or neglected B.U. Upon granting the DHHR’s
motion, the circuit court continued the adjudicatory hearing to allow the parties additional time
to prepare their arguments. During the final adjudicatory hearing, the DHHR presented evidence
of petitioner’s failure to protect B.U. because she continued to maintain a relationship with J.R.
who sexually abused her older child in a prior abuse and neglect proceeding. Further, petitioner
testified on her own behalf. Based on the record before us, we find no abuse of discretion in the
circuit court’s ruling. As such, we find no merit to petitioner’s assignment of error.
For the foregoing reasons, we find no error in the decision of the circuit court and its May
11, 2015, order is hereby affirmed.
Affirmed.
ISSUED: March 7, 2016
headings that correspond with the assignments of error. The argument must
contain appropriate and specific citations to the record on appeal, including
citations that pinpoint when and how the issues in the assignments of error were
presented to the lower tribunal. The Court may disregard errors that are not
adequately supported by specific references to the record on appeal.
See also State v. Larry A.H., 230 W.Va. 709, 716, 742 S.E.2d 125, 132 (2013) (stating that “[a]n
appellant must carry the burden of showing error in the judgment of which he complains. This
Court will not reverse the judgment of a trial court unless error affirmatively appears from the
record. Error will not be presumed, all presumptions being in favor of the correctness of the
judgment.”).
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CONCURRED IN BY:
Chief Justice Menis E. Ketchum
Justice Robin Jean Davis
Justice Brent D. Benjamin
Justice Margaret L. Workman
Justice Allen H. Loughry II
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