In re J.L.-1 and E.L. ( 2022 )

FILED
September 30, 2022
released at 3:00 p.m.
EDYTHE NASH GAISER, CLERK
SUPREME COURT OF APPEALS
STATE OF WEST VIRGINIA OF WEST VIRGINIA
SUPREME COURT OF APPEALS
In re J.L.-1 and E.L.
No. 21-0848 (Tucker County 19-JA-21 and 19-JA-22)
MEMORANDUM DECISION
This case is back before this Court after we remanded it to the Circuit Court of
Tucker County with directions to hold an adjudicatory hearing on the allegations that
Petitioner J.L.-2 abused and neglected his children, J.L.-1 and E.L.1 Following
adjudication, the circuit court terminated Petitioner’s parental rights on September 14,
2021. Petitioner now appeals that order and argues that the circuit court violated the
doctrine of res judicata by adjudicating him based on allegations of domestic violence that
it had previously heard, but had not relied upon, in the prior adjudication. The West
Virginia Department of Health and Human Resources and the children’s guardian ad litem
contend that res judicata does not apply and request that we affirm the circuit court’s order. 2
The main issue before this Court is whether the doctrine of res judicata, first raised
by Petitioner after we remanded the case, has the effect of barring adjudication on the issue
of domestic violence. As explained below, we find that it does not because Petitioner
waived this affirmative defense when he did not raise it earlier in this proceeding, and the
elements of res judicata were not met. This case presents no substantial question of law
and no prejudicial error. A memorandum decision affirming the circuit court’s order is
appropriate under Rule 21 of the West Virginia Rules of Appellate Procedure.
1
See In re J.L., No. 20-0168, 2020 WL 6482940 (W. Va. Nov. 4, 2020)
(memorandum decision). Consistent with our practice in cases with sensitive facts, we use
initials where necessary to protect the identities of those involved in this case. See In re
K.H., 235 W. Va. 254, 773 S.E.2d 20 (2015). Because one of the children and Petitioner
share the same initials, we will refer to them as J.L.-1 and J.L.-2, respectively, throughout
this decision.
2
Petitioner is represented by counsel Timothy V. Gentilozzi. The DHHR is
represented by counsel Lindsay S. See and Lee Niezgoda. The children’s guardian is
Heather M. Weese.
1
In our previous decision, we detailed the protracted procedural history of this case. 3
We noted that the DHHR filed a prior abuse and neglect petition in May 2019, where it
alleged that Petitioner and his girlfriend exposed the children to substance abuse and
domestic violence, and also failed to properly supervise them. The circuit court ordered
Petitioner to participate in drug screening, but he failed to fully comply; when he would
drug screen, he tested positive for methamphetamine. Even so, that case was ultimately
dismissed at the adjudicatory phase in July 2019. After hearing the testimony of
Petitioner’s girlfriend and the children’s mother, the court found that the DHHR had not
proven the allegations against Petitioner by clear and convincing evidence. The DHHR
and guardian objected to the court’s ruling, but the court returned the children to
Petitioner’s custody.
In August 2019, the DHHR filed a new petition alleging many of the same
conditions as in the first petition, including that Petitioner subjected the children to
domestic violence in the home, as well as mental and emotional abuse. It stated that
Petitioner tested positive for methamphetamine on at least four occasions during the prior
proceeding. In September 2019, the court adjudicated Petitioner as an abusing and
neglecting parent on the basis of his drug abuse. He was granted an improvement period.
The circuit court held a dispositional hearing in December 2019 and in January
2020, terminated Petitioner’s parental rights. Petitioner appealed, and this Court found that
the court erred when it adjudicated Petitioner based on drug abuse while the children were
not in his custody. We vacated the court’s dispositional order and remanded the matter for
the holding of an adjudicatory hearing on the allegations of abuse and neglect.4
In July 2021, the circuit court held an adjudicatory hearing as directed by this Court.
Petitioner objected to the court considering any evidence regarding the allegations of
domestic violence as the court had previously declined to adjudicate him on that basis. He
claimed that consideration of that evidence violated the doctrine of res judicata. The
DHHR responded that it was appropriate for the court to consider all allegations against
Petitioner because this Court did not specifically exclude the presentation of any evidence
on remand. The circuit court overruled Petitioner’s objection.
The DHHR presented the testimony of a Child Protective Service worker,
Petitioner’s girlfriend, and the Director of Tucker County Community Corrections. The
CPS worker testified regarding allegations of domestic violence between Petitioner and his
girlfriend. Specifically, around the filing of the initial petition, Petitioner’s girlfriend’s
3
Id. at *2-3.
4
Id. at *5.
2
daughter alleged that Petitioner choked her and hit her with a cup while she was trying to
protect her mother from Petitioner. According to the worker, Petitioner’s children were
present in the home during this altercation, although they were in their bedroom at the time.
Petitioner’s girlfriend testified that, during one incident of domestic violence, she
called the police, and Petitioner was charged with domestic violence and arrested. She
later dropped the charges. The DHHR introduced a police report, which indicated that
Petitioner put his arm on his girlfriend’s neck and pushed her down. Petitioner’s children
were present in the home during that incident. Petitioner’s girlfriend denied that she or
Petitioner had used methamphetamine before the children were removed as a result of the
second petition in August 2019, and further denied that she was addicted to
methamphetamine—despite her incarceration on a supervised release violation for the use
of methamphetamine.
The Director of Tucker County Community Corrections testified that Petitioner was
ordered to drug screen on the day of the initial removal of his children in May 2019, but he
refused to submit to testing. The Director stated that in June and July 2019, Petitioner
tested positive for methamphetamine and amphetamine, while the children were in the
DHHR’s custody. The Director also testified that he had monitored Petitioner’s girlfriend’s
supervised release for approximately a year and that, despite her claims that she was not
addicted to methamphetamine, she had failed multiple drug screens for that substance.
Petitioner testified and denied any methamphetamine use prior to his children’s
initial removal in May 2019. He admitted to abusing methamphetamine in June and July
2019 but denied any use while the children were in his custody. As to the allegations of
domestic violence, Petitioner testified that the charges against him were dismissed and that
he was never convicted. He also claimed that he could not remember exactly what
happened but accused his girlfriend’s child of being the aggressor in the situation and
claimed he was “defending” himself against the teenage girl.
Following Petitioner’s testimony, the circuit court took a recess and ordered
Petitioner to submit to a hair follicle test. The court was advised that Petitioner tested
positive for methamphetamine and amphetamine use within the previous ninety days.
Ultimately, the court determined that Petitioner’s testimony was not credible. The court
further found that domestic violence occurred in the home between Petitioner, his
girlfriend, and her child in the presence of Petitioner’s children. The court adjudicated
Petitioner as an abusing and neglecting parent.
In August 2021, the circuit court held a dispositional hearing and took judicial notice
of the testimony presented at the adjudicatory hearing. In support of its motion to terminate
Petitioner’s parental rights, the DHHR presented the testimony of a case manager with
Tucker County Community Corrections and a CPS worker. Petitioner testified on his own
behalf. The court denied Petitioner’s motion for a post-adjudicatory improvement period
3
and terminated his parental rights. The court incorporated its findings from the
adjudicatory hearing, and also found that Petitioner failed to cooperate with any services
during the prior proceedings. It noted that the children, now ages sixteen and twelve, have
expressed a strong desire to not return to Petitioner’s home. The court found that Petitioner
“has continuously lied to this [c]ourt, continues to deny that any domestic violence
occurred in his home, and to deny that his actions were in any way abusive or neglectful.”
It found that Petitioner “wholly avoided taking any responsibility for his actions in this
matter, making any further improvement period an exercise in futility at the children’s
expense.” It also found that there was no reasonable likelihood that Petitioner could correct
the conditions of abuse and neglect in the near future and that termination of his parental
rights was necessary for the children’s welfare. Petitioner appeals the September 14, 2021
dispositional order terminating his parental rights. 5
In his sole assignment of error, Petitioner argues that the circuit court violated the
doctrine of res judicata by considering evidence of domestic violence at the adjudicatory
hearing held on remand from this Court. This argument presents a question of law that we
review de novo. 6
The doctrine of res judicata bars relitigation of a claim or issue previously resolved
in another suit. 7 Res judicata “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.” 8
5
The permanency plan for the children is adoption by their grandmother.
6
“Where the issue on an appeal from the circuit court is clearly a question 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).
7
See Syl. Pt. 4, Blake v. Charleston Area Med. Ctr., Inc., 201 W. Va. 469, 498
S.E.2d 41 (1997) (“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.”).
8
In re B.C., 233 W. Va. 130, 138, 755 S.E.2d 664, 672 (2014) (quotation marks and
citation omitted).
4
Petitioner argues that the circuit court violated the doctrine of res judicata by holding
a third adjudicatory hearing and reversing its previous two findings that no clear and
convincing evidence of domestic violence existed. The DHHR and the guardian respond
that on remand the circuit court heard additional evidence regarding both domestic violence
and drug abuse, and the effects of those conditions on the children. They claim that the
two proceedings were not identical because at the adjudicatory hearing held on the first
petition, the court did not permit a full presentation of evidence when it abruptly concluded
the hearing and dismissed the case. The DHHR also contends that Petitioner waived the
issue of res judicata when he did not raise it earlier.
We find that Petitioner is not entitled to relief. First, Petitioner clearly waived the
issue of res judicata when he did not raise it at the second adjudicatory hearing in
September 2019 or in his first appeal to this Court. Res judicata does not apply
automatically; it is an affirmative defense which must be raised early in the life of a case
or it is waived. 9 Otherwise, the point of the doctrine—namely shielding parties from
vexatious litigation and freeing judicial resources—is not achieved. 10 Second, even though
Petitioner’s brief does not include citations to the record to support a finding of res
judicata, 11 we can discern from our previous decision that the causes of action were not
identical and the elements of res judicata were not met. 12 New allegations were raised in
the amended petition—including conduct that occurred up to and including the second
adjudicatory hearing.
We take this opportunity to emphasize that the doctrine of res judicata “must give
way when [its] mechanical application would frustrate other social policies based on values
equally or more important than the convenience afforded by finality in legal
9
See Dan Ryan Builders, Inc. v. Crystal Ridge Dev., Inc., 239 W. Va. 549, 557 n.23,
803 S.E.2d 519, 527 n.23 (2017).
10
See Mitchell v. Gales, 61 A.3d 678, 687 (D.C. Ct. App. 2013).
11
Petitioner’s brief does not comply with Rule 10(c)(7) of the West Virginia Rules
of Appellate Procedure, as he has failed to provide a single citation to the appendix record.
This Rule requires, in relevant part, that “[t]he 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.” And the
appendix record fails to support Petitioner’s claims of res judicata.
12
See note 7 above.
5
controversies.” 13 This Court will “not rigidly enforce [this doctrine] where to do so would
plainly defeat the ends of Justice.” 14
When this Court remanded the matter with instructions for the circuit court to hold
an adjudicatory hearing regarding the allegations of abuse and neglect against Petitioner,
it was bound by that mandate, both in letter and in spirit. 15 Because we instructed the court
to consider the allegations of abuse and neglect against Petitioner, which included evidence
of domestic violence, it was bound to comply with our instruction. For these reasons, we
affirm the court’s dispositional order.
Affirmed.
ISSUED: September 30, 2022
CONCURRED IN BY:
Chief Justice John A. Hutchison
Justice Elizabeth D. Walker
Justice Tim Armstead
Justice William R. Wooton
Justice C. Haley Bunn
13
Wheeler v. Beachcroft, LLC, 129 A.3d 677, 686 (Conn. 2016) (quotation marks
and citation omitted).
14
Blake, 201 W. Va. at 478, 498 S.E.2d at 50 (quoting Gentry v. Farruggia, 132 W.
Va. 809, 811, 53 S.E.2d 741, 742 (1949)).
15
See Syl. Pt. 3, State ex rel. Frazier & Oxley, L.C. v. Cummings, 214 W. Va. 802,
591 S.E.2d 728 (2003) (“Upon remand of a case for further proceedings after a decision by
this Court, the circuit court must proceed in accordance with the mandate and the law of
the case as established on appeal. The trial court must implement both the letter and the
spirit of the mandate, taking into account the appellate court’s opinion and the
circumstances it embraces.”).
6