In re C.M.-1 and C.M.-2 ( 2023 )

FILED
No. 22-0045 – In re C.M.-1 and C.M.-2 March 27, 2023
released at 3:00 p.m.
EDYTHE NASH GAISER, CLERK
WOOTON, Justice, dissenting: SUPREME COURT OF APPEALS
OF WEST VIRGINIA
In this abuse and neglect proceeding, the circuit court dismissed the petition
against the respondent K.P. (“the father”) and determined that the Department of Health
and Humans Resources (“DHHR”) failed to meet its burden of proof in order to establish
that the father was abusing and neglectful due to his abandonment of the child, C.M.-2. 1
The majority reverses the circuit court’s factual determination that the father did not
abandon the child, and in so doing ignores this Court’s applicable standard of review and
the fact that the DHHR utterly failed to prove the father was an abusing and neglectful
parent to his child. Therefore, I respectfully dissent.
To begin, this Court’s well-established standard of review provides:
“[a]lthough 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
1
See W. Va. Code § 49-1-201 (Supp. 2022) (defining abandonment and discussed
infra in greater detail).
1
decided the case differently, and it must affirm a finding if a
circuit court’s finding is plausible in light of the record viewed
in its entirety.”
Syl. Pt. 1, In re Tiffany Marie S., 196 W. Va. 223, 470 S.E.2d 177 (1996) (some emphasis
added); accord Syl. Pt. 1, In re Cecil T., 228 W.Va. 89, 717 S.E.2d 873 (2011). Further,
we stated in In re Emily, 208 W. Va. 325, 540 S.E.2d 542 (2000), that
in the context of abuse and neglect proceedings, the circuit
court is the entity charged with weighing the credibility of
witnesses and rendering findings of fact. Syl. pt. 1, in part, In
re Travis W., 206 W.Va. 478, 525 S.E.2d 669 (“[W]hen 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. . . .”[)](internal citations and
quotations omitted)). This Court, therefore, cannot set aside a
circuit court’s factual determinations unless such findings are
clearly erroneous. Id.208 W. Va. at 339, 540 S.E.2d at 556.
Despite the foregoing, the majority, relying solely on a Tennessee case
involving adoption, 2 pronounces that “[w]hether a parent failed to visit or support a child
is a question of fact. Whether a parent’s failure to visit or support constitutes willful
abandonment, however, is a question of law.” 3 Critically, the concept of “willful
2
See In re Adoption of Angela E., 402 S.W.3d 636, 640 (Tenn. 2013).
3
Interestingly, no other jurisdiction relies on this Tennessee case for the proposition
relied upon by the majority.
2
abandonment” does not exist in West Virginia’s statutory schemes governing either abuse
and neglect or adoption proceedings. See supra note 1; W. Va. Code § 48-22-306 (2015).
Moreover, the majority’s holding in the instant case contradicts this Court’s recent holding
in In re Adoption of H.G., 246 W. Va. 105, 866 S.E.2d 170 (2021), wherein we held in
syllabus point four that “[w]hether a birth parent has abandoned his or her child under West
Virginia Code § 48-22-306 (2015) is a question of fact to be determined from the
evidence.” 246 W. Va. at 107, 866 S.E.2d at 172, Syl. Pt. 4. Our precedent is well
established that factual findings are reviewed by this Court under a “clearly erroneous”
standard of review. See In re Tiffany Marie S., 196 W. Va. at 225, 470 S.E.2d at 179, Syl.
Pt. 1.
The necessary factual findings in this case were based upon definitions found
in West Virginia Code section 49-1-201, which defines abandonment as “any conduct that
demonstrates the settled purpose to forego the duties and parental responsibilities to the
child[.]” However, this definition cannot be viewed in a vacuum; rather, it must be
considered in connection with the definition of a “neglected child,” or a child
[w]hose physical or mental health is harmed or threatened by
a present refusal, failure or inability of the child’s parent,
guardian, or custodian to supply the child with necessary food,
clothing, shelter, supervision, medical care, or education, when
that refusal, failure, or inability is not due primarily to a lack
of financial means on the part of the parent, guardian, or
custodian[.]
3
Id. (emphasis added). 4 Only after first considering the evidence of whether a parent’s
conduct meets the statutory definition of abandonment and whether a child meets the
statutory definition for a “neglected child” can the circuit court then make the legal
determination of whether the parent should be adjudicated as abusing or neglectful. See
W. Va. Code. § 49-4-601(i) (Supp. 2022).
The majority’s attempt to turn what is clearly a question of fact into a
question of law is a means to justify its de novo review of the case – a complete re-
examination and reweighing of the facts – in order to come to a conclusion different from
that reached by the circuit court. Let there be no mistake; the majority’s review of the
circuit court’s order should have focused on whether the court’s factual determination that
the evidence failed to support a finding of abandonment was clearly erroneous, not on
whether the evidence demonstrated abandonment as a matter of law.
4
These statutory definitions of abandonment and neglect are part of the entire
statutory scheme designed to protect children. As such “[s]tatutes in pari materia must be
construed together and the legislative intention, as gathered from the whole of the
enactments, must be given effect.” Syl. Pt. 3, State ex rel. Graney v. Sims, 144 W.Va. 72,
105 S.E.2d 886 (1958); accord Syl. Pt. 2, in part, Beckley v. Kirk, 193 W.Va. 258, 455
S.E.2d 817 (1995) (same); Syl. Pt. 5, in part, Fruehauf Corp. v. Huntington Moving &
Storage Co., 159 W.Va. 14, 217 S.E.2d 907 (1975) (“Statutes which relate to the same
persons or things, or to the same class of persons or things, or statutes which have a
common purpose will be regarded in [p]ari materia to assure recognition and
implementation of the legislative intent.”).
4
The evidence presented by the DHHR to meet its burden of proof in regard
to the father’s abandonment of his child consisted of only one witness – the child’s mother. 5
The father testified on his own behalf. Because the DHHR’s case revolved around the
testimony of a single witness, the court’s credibility determinations were key to its
decision. Yet, the majority’s decision to disregard factual findings made by the circuit
court simply because the majority disagrees with those credibility determinations is exactly
what has transpired in this case. See In re Tiffany Marie S., 196 W. Va. at 225, 470 S.E.2d
at 179, Syl. Pt. 1.
At the adjudicatory hearing the mother testified that while child support had
been ordered and was being paid by the father, she was “only receiving it as a tax” and
seemingly did not understand the cause of that. She further testified that the father had not
seen his child since the family court hearing “during the time of finding out that [the child]
was biologically [the father’s] and “they were fixing up . . . child support.” Significantly,
she testified that it was the father who requested the paternity test. She also stated that the
father had not requested contact with his child and had not sent any cards or gifts to his
child since the child’s birth. She testified that the means of communication between her
and the father was Facebook messenger; however, she further stated that her current
husband read her Facebook messages and told her “it was pointless” for her to read the
5
Contrary to the circuit court’s order entered on December 17, 2021, the DHHR did
not present any evidence or testimony from the CPS worker, Marli Currey.
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messages so she had “no idea really what [the father] did say. . .” She also testified that
the father had done nothing to institute family court proceedings for the purpose of forcing
her to let him see and speak with his child.
In contrast, the father testified that he currently lived and worked in Flint,
Michigan. He has two other children, ages sixteen and fifteen, who reside with him. He
testified that he was incarcerated between May, 2015, and August, 2017, for distribution
of heroin. Since his release, he testified that he had maintained his sobriety and was
gainfully employed. Even though he had suspected the subject child was his, it was during
the period of his incarceration that he decided to find out for sure. He wrote to the DHHR
seeking to have his paternity established through testing, and the paternity test proved he
was the child’s father. The father testified that was ordered to pay, and was paying, child
support in the amount of $257 per month, which was taken out of checks weekly; he stated
that he was only $517 behind on his child support obligation and that the arrearage was
attributable to a period of unemployment. He also stated that he had wired money to the
mother on February 23, 2018. He did not ask the family court to set up scheduled visitation
because he thought he and his child’s mother could work it out. As the father stated: “I
didn’t need to involve the courts in my life to be a parent. I reached out and tried to do it
with her as a co-parent.” He did not want to fight the mother in court. He testified that
following his release from incarceration, he tried to contact the mother so that he could
establish a relationship with the child, and that he could show through text messages via
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Facebook that he reached out to mother to discuss what they would do beyond the paternity
test. He testified that he provided his attorney with “three years of conversations with me
and [mother] trying to determine [he] could see [his child], be in [his child’s life] and was
denied all three years.” He stated that at times it was the mother’s current husband who
responded to messages he sent to her and that he knew when mother was not the one
responding to his Facebook messages because the mother’s husband was rude and
disrespectful. He also testified that by July 2020, the mother had blocked him on Facebook.
The only time he had seen his child was after the family court hearing in which child
support was established. He stated that he desired a relationship with his child; however,
the mother had not allowed him to have any contact. He testified that he didn’t want to
take the child from the mother, just to be the child’s father. Finally, the father testified that
he paid for the mother’s drug rehabilitation when she was pregnant with his child and “[s]he
always tell [sic] me she was clean so, no, I didn’t think she was going to go down that path
. . . .”
Based on the foregoing evidence presented at the adjudicatory hearing, the
circuit court determined that the DHHR had not met its burden of proof to establish that
the father had abandoned his child. Specifically, the court found that the mother “had
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denied [the father] access to the child,” and the father had “paid significant support and
thought [the mother] to be sober.” 6
Ignoring or discounting most of the father’s testimony, the majority casts
aside the circuit court’s findings and engages in its own fact-finding, focusing on the
father’s child support payments and the father’s supposed “disregard” for the child’s well-
being. The majority also ignores the uncontestable fact that there was no evidence offered
by the DHHR that the father “disregarded his obligation to pay monthly” child support
payments. Although he had a small arrearage resulting from a period of unemployment,
he consistently paid child support from the time his paternity was established.
Moreover, I fundamentally disagree with the majority’s reliance on In re
M.M., No. 12-0491, 2012 WL 4069593 (W. Va. Sept. 7, 2012) (memorandum decision),
and In re Adoption of C.R., 233 W. Va. 385, 389-90, 758 S.E.2d 589, 593-94 (2014), to
support its determination that “child support payments alone do not prevent an
6
The majority takes issue with the circuit court’s finding that the father believed
that the mother was sober. Instead, the majority finds that it “contravenes Father’s
admission that he knew Mother used drugs” which the father “would have learned of . . .
with a basic inquiry into his child’s life.” The majority further finds that “the circuit court
should have given minimal consideration to Father’s self-serving, contradictory
statement.” In short, the majority is overturning the circuit court’s factual findings because
it weighed the evidence differently, which is in direct contravention of this Court’s standard
of review. See In re Tiffany Marie S., 196 W. Va. at 225, 470 S.E.2d at 179, Syl. Pt. 1.
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abandonment finding.” In In re M.M., the petitioner father did not assign error to the circuit
court’s finding of abandonment, which was based upon the father’s failure to pay child
support and his inability to care for the child, all due to his incarceration. Importantly,
there had been prior abuse and neglect proceedings involving the petitioner father which
established that he had virtually no contact with the child and failed to be a caregiver. Id.
at *3.
Likewise, in In re Adoption of C.R., 233 W. Va. 385, 758 S.E.2d 589 (2014)
(per curiam), the Court reversed and remanded a case in which the circuit court denied a
petition for adoption in which the biological father, a registered sex offender, refused to
consent to the child’s mother and stepfather adopting the child. Id. at 386, 758 S.E.2d at
591. In reversing the circuit court’s conclusion that the biological father’s involuntary
child support payments through wage withholding were sufficient to overcome the
statutory presumption of abandonment, this Court specifically noted that he had not had
contact with the child even when he was married to the mother. The biological father also
had failed to provide any support to his child during the marriage, for a period exceeding
four years. Id. at 389, 758 S.E.2d at 594. Significantly, this Court did not hold, in a
syllabus point or otherwise, that involuntary child support payments were dispositive of
the issue of abandonment; rather, we simply found such payments were not sufficient,
standing alone, to overcome the statutory presumption of abandonment in light of the other
facts and circumstances of the case.
9
Moreover, I have previously expressed my disagreement with the proposition
that involuntary child support payments are insufficient evidence of financial support:
[I]n Adoption of C.R., as well as other memorandum decisions
which rely upon that case for the proposition that a parent’s
involuntary wage withholding is insufficient evidence of
financial support, the Court completely failed to discuss,
acknowledge or reconcile how involuntary payment of child
support through wage withholding fails to constitute financial
support of a child “within the means of the birth parent.”
Rather, the Court simply focused on the proposition that a
parent has a duty to support his or her child. See id. at 389-90,
758 S.E.2d at 589-90 (citing various cases supportive of the
principle that a parent has an “irrefutable duty to support his
child”). Again, these cases are devoid of any discussion or
analysis regarding why involuntary support payments of child
support fail to meet this factor. The notion that a parent is
“failing” to financially support his or her child simply because
the support payments are being “involuntarily” withheld from
his or her wages is not supported by the statutory language
addressing such support. See W. Va. Code § 48-22-306(a)(1).
In re Adoption of H.G., 246 W. Va. 105, 120, 866 S.E.2d 170, 185 (2021) (Wooton, J.,
dissenting).
Further, there was absolutely no evidence offered by the DHHR to support
the majority’s finding – a finding unmoored from any legal foundation – that the father
evinced a “manifest disregard for” the child’s well-being. To the contrary, the evidence
before the circuit court was that the father had been denied access to his child by the mother
and her new husband. He had been provided no information that his child was in any
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harm’s way or any sort of danger by remaining in the mother’s care and custody. Again,
the DHHR offered no evidence to refute the father’s testimony in this regard.
Succinctly stated, the majority’s decision lacks any basis from which one can
arrive at a “firm conviction” that the circuit court clearly erred in its findings of fact and
conclusions of law. In re Tiffany Marie S., 196 W. Va. at 225, 470 S.E.2d at 179, Syl. Pt.
1. The circuit court did not err in finding that the DHHR failed to present sufficient
evidence to refute the father’s testimony that that he sought to have paternity established;
that after finding that he was the child’s father he repeatedly tried to establish contact and
a relationship with his child; that he paid child support consistently when he was working
and was only $517 in arrears; that he was blocked from communicating with the mother in
his efforts to establish a relationship with his child, and that the mother’s current husband
responded disrespectfully to messages the father attempted to send to her; and that the
mother told him she was sober and he believed her.
Even more concerning than the majority’s complete disregard of the
DHHR’s failure to carry its burden of proof to establish that the father abandoned his child
and that the child was a “neglected child,” is the majority’s creation of a brand-new burden
of proof: with no new syllabus point, and in the absence of any supporting law, the majority
holds that a parent risks termination of his or her parental rights based on abandonment
unless, in addition to paying child support, he or she undertakes to investigate a child’s
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living environment, presumably to ascertain whether the child is at risk of being neglected
and/or abused. Specifically, the majority states that “[a] parent with a genuine interest
would have investigated his child’s life circumstances, [should have] sought court
intervention to assert his parental rights, and certainly would not rely solely on Facebook
messages to the child’s mother as a feeble attempt to assert his parental rights.”
Placing such a burden on a parent in the context of an abuse and neglect
proceeding completely ignores the duties and responsibility that are statutorily placed on
the DHHR. Further, the creation of such a duty will have a discriminatory impact on those
parents who do not have the financial means to pursue civil actions in order to be allowed
access into their children’s lives in order to undertake some sort of “investigation.”
Moreover, it forces unwanted and unnecessary litigation on parents who seek to work out
decisions such as visitation outside the judicial process – which is something to be
encouraged, not discouraged by mandating that a parent see court intervention at the risk
of having his or her rights terminated.
This Court has previously held:
“In the law concerning custody of minor children, no
rule is more firmly established than that the right of a natural
parent to the custody of his or her infant child is paramount to
that of any other person; it is a fundamental personal liberty
protected and guaranteed by the Due Process Clauses of the
West Virginia and United States Constitutions.”
12
Syl. Pt. 1, In re Willis, 157 W.Va. 225, 207 S.E.2d 129 (1973). Sadly, the majority has
deemed it fitting to adjudicate this father as having abandoned his child, even though he
wanted – and sought – to have a relationship with the child. He affirmatively sought to
have his paternity established, he has been paying child support, and he tried to establish a
relationship with the mother (to whom he was not married), only to have her deny him
access to the child. He tried to work things out through contact with the mother, as he did
not want to interfere with her relationship with the child. In a case where there is a
complete lack of any evidence that this child was ever placed in harm’s way by the father’s
conduct, the logic of adjudicating this parent as abusing or neglectful escapes me. It
certainly begs the question of how this could be in the child’s best interest. Upon remand,
I would encourage the father through his counsel to file a written motion seeking a post-
adjudicatory improvement period whereby the court can order that he have contact with
the child, in hopes that this child can be reunified with the father. See W. Va. Code § 49-
4-610 (2015); Syl. Pt. 4, State ex rel. P.G.-1 v. Wilson, 247 W. Va. 235, 878 S.E.2d 730(2021) (“A circuit court may not grant a post-adjudicatory improvement period under W.
Va. Code § 49-4-610(2) (eff. 2015) unless the respondent to the abuse and neglect petition
files a written motion requesting the improvement period.”).
For all these reasons, I respectfully dissent.
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