In re H.M., A.M., R.G., N.S.-1, and N.S.-2 ( 2023 )

FILED
April 25, 2023
STATE OF WEST VIRGINIA EDYTHE NASH GAISER, CLERK
SUPREME COURT OF APPEALS SUPREME COURT OF APPEALS
OF WEST VIRGINIA
In re H.M., A.M., R.G., N.S.-1, and N.S.-2
No. 22-0178 (Barbour County 21-JA-09, 21-JA-10, 21-JA-11, 21-JA-12, and 21-JA-114)
MEMORANDUM DECISION
Petitioner Mother M.P.1 appeals the Circuit Court of Barbour County’s January 31, 2022,
order terminating her parental rights to H.M., A.M., R.G., N.S.-1, and N.S.-2.2 Upon our review,
we determine that oral argument is unnecessary and that a memorandum decision affirming the
circuit court’s order is appropriate. See W. Va. R. App. P. 21.
Because petitioner challenges only the circuit court’s acceptance of her voluntary
relinquishment of parental rights to the children, it is unnecessary to recount the facts of the
underlying proceedings in great detail. Briefly, the proceedings below commenced in February of
2021, when the DHHR filed a petition alleging that at least two of the children were sexually
abused by a relative in the home, among other allegations.3 When one child informed petitioner
about the abuse, she failed to report it to law enforcement or take further action to protect the
children, other than to instruct the child victim to “stay away” from the perpetrator. In June of
2021, petitioner stipulated to the allegations against her and was adjudicated as an abusing and
neglecting parent.
In January of 2022, the court held a dispositional hearing, during which petitioner tendered
to the court a written voluntary relinquishment of her parental rights to all five children. The court
then engaged in a lengthy colloquy with petitioner to ensure that she understood the consequences
of a termination of her parental rights, was aware of possible less drastic alternatives, and was
informed that she had the right to a hearing and representation by counsel. Although petitioner
1
Petitioner appears by counsel Michael Safcsak. The West Virginia Department of Health
and Human Resources (“DHHR”) appears by counsel Attorney General Patrick Morrisey and
Assistant Attorney General Lee Niezgoda. Allison C. Iapalucci appears as the children’s guardian
ad litem.
2
We use initials where necessary to protect the identities of those involved in this case. See
W. Va. R. App. P. 40(e). Additionally, because two of the children share the same initials, we will
refer to them as N.S.-1 and N.S.-2, respectively.
3
In December of 2021, the DHHR filed an amended petition to include the infant N.S.-2.
1
explained that she was made aware of all of these issues, she expressed during the colloquy that
she did not believe that her voluntary relinquishment was in the children’s best interest because
she did not believe two of the children were “in a place that is safe for them.” She did not, however,
elaborate on this issue. The court then asked petitioner if she believed that it was in the children’s
best interest to resolve the proceedings, and petitioner responded that she believed that it was. As
such, the court accepted petitioner’s voluntary relinquishment of her parental rights to all five
children and terminated her parental rights.4 It is from the dispositional order that petitioner
appeals.5
On appeal from a final order in an abuse and neglect proceeding, this Court reviews the
circuit court’s findings of fact for clear error and its conclusions of law de novo. Syl. Pt. 1, In re
Cecil T., 228 W. Va. 89, 717 S.E.2d 873 (2011). Before this Court, petitioner argues that the circuit
court erred in accepting her voluntary relinquishment. We find, however, that the court complied
with Rule 35(a)(3) of the Rules of Procedure for Child Abuse and Neglect Proceedings governing
voluntary relinquishments, which requires that
the court shall make the following inquiry at the disposition hearing:
....
If the parent is present in court and voluntarily has signed a relinquishment of
parental rights, the court shall determine whether the parent fully understands the
consequences of a termination of parental rights, is aware of possible less drastic
alternatives than termination, and was informed of the right to a hearing and to
representation by counsel.
Here, the court made all of the relevant inquiries, with petitioner acknowledging that she was aware
of her rights.
Petitioner further argues that she was in duress when she voluntarily relinquished her
parental rights because she believed two of the children were unsafe but she “did not know what
else to do.” However, at no point does petitioner elaborate on why she believed any of the children
were unsafe or otherwise explain why she felt she had no choice but to accept the relinquishment,
given that she explained to the court that she fully understood that she could proceed to a contested
disposition. Simply put, petitioner has failed to establish duress, especially when considering that
“the threshold for establishing duress and fraud in the context of the relinquishment of parental
rights is extremely high.” In re Cesar L., 221 W. Va. 249, 261, 654 S.E.2d 373, 385 (2007) (citation
omitted).
4
Petitioner does not challenge the termination of her parental rights on appeal.
5
The father of N.S.-1 and N.S.-2 also voluntarily relinquished his parental rights to those
children. The permanency plan for N.S.-1 is adoption by H.M.’s father. The permanency plan for
N.S.-2 is adoption in the current placement. The permanency plan for the other children is to
remain with their nonabusing fathers.
2
We explained further:
As to duress, this Court has held that, in the context of an adoption, duress “means
a condition that exists when a natural parent is induced by the unlawful or
unconscionable act of another to consent to the adoption of his or her child. Mere
‘duress of circumstance’ does not constitute duress[.]”
Id. (citations omitted). Petitioner fails to argue that she was induced into voluntarily relinquishing
her parental rights by an unlawful or unconscionable act. She asserts that “she was led to believe
by the court that it was in the minor children’s interest for her to present a voluntary
relinquishment,” but she fails to recognize that circuit courts are routinely tasked with determining
what disposition is in the children’s best interest. Further, Rule 35(a) does not require a court to
inquire as to whether the parent believes the relinquishment is in the child’s best interest. More
importantly, petitioner’s view of what is in the children’s best interest carried little weight, given
that she failed to protect them from sexual abuse and “possess[ed] a complete lack of
understanding as to what her role as a parent is, in terms of defending her children from her own
family members[’] . . . predatory behaviors.” Essentially, petitioner is arguing duress of
circumstances, in that she “did not know what else to do” when confronted with the imminent
termination of her parental rights through a contested disposition. This is simply insufficient to
entitle her to relief.
For the foregoing reasons, we find no error in the decision of the circuit court, and its
January 31, 2022, order is hereby affirmed.
Affirmed.
ISSUED: April 25, 2023
CONCURRED IN BY:
Chief Justice Elizabeth D. Walker
Justice Tim Armstead
Justice John A. Hutchison
Justice William R. Wooton
Justice C. Haley Bunn
3