In Re: O.C., F.C., C.C. and S.F. ( 2013 )

STATE OF WEST VIRGINIA
SUPREME COURT OF APPEALS
In Re: O.C., F.C., C.C., & S.F. FILED
January 14, 2013
RORY L. PERRY II, CLERK
No. 12-0917 (Berkeley County 10-JA-67, 68, 69 & 70) SUPREME COURT OF APPEALS
OF WEST VIRGINIA
MEMORANDUM DECISION
Petitioner Mother’s appeal, by counsel Robert Barrat, arises from the Circuit Court of
Berkeley County, wherein her motion to re-open the abuse and neglect proceedings against her
was denied by order entered on July 11, 2012.1 The West Virginia Department of Health and
Human Resources (“DHHR”), by counsel Lee A. Niezgoda, has filed its response. The guardian
ad litem, Anne B. Prentice, has filed a response on behalf of the children. Respondent Father S.C.
has also filed a response.
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 is appropriate under Rule 21 of the Revised Rules of Appellate
Procedure.
On August 20, 2010, the DHHR filed its initial abuse and neglect petition in which it
alleged that petitioner had abandoned the children by leaving them in the care of various persons
and moving to Florida. An amended petition was later filed alleging domestic violence in the
children’s presence. Petitioner admitted to the allegations of abandonment and domestic violence
in her verified answer. Eventually, her parental rights to the children were terminated. On June 7,
2012, petitioner filed a pro se motion to re-open the abuse and neglect proceedings against her,
though this motion was denied by order entered on July 11, 2012.
On appeal, petitioner alleges that the circuit court erred in denying her motion because her
counsel in the underlying proceedings was ineffective and because petitioner believes she should
have additional time to achieve reunification with her children. According to petitioner, she was
coerced into admitting the allegations in the petitions and she should have been granted an
extension to her post-adjudicatory improvement period.
The DHHR, the guardian ad litem, and Respondent Father S.C. all respond in support of
the circuit court’s decision and argue that petitioner was effectively represented by counsel and
made her admissions knowingly and intelligently. According to respondents, petitioner had no
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Petitioner’s counsel notes that this petition for appeal was filed pursuant to Anders v.
California, 386 U.S. 738, 87 S.Ct. 1396 (1967).
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standing to file her motion to modify disposition because her parental rights had already been
terminated. Respondents further argue that the circuit court was correct in terminating petitioner’s
parental rights because of her non-compliance throughout the proceedings below.
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).
Upon our review, the Court finds no error in the circuit court’s denial of petitioner’s
motion because petitioner lacked standing to file the same. In essence, petitioner’s motion sought
a modification of the circuit court’s disposition of the abuse and neglect matter. Rule 46 of the
West Virginia Rules of Procedure for Child Abuse and Neglect Proceedings lists the parties that
may move for modification of a dispositional order. That list specifically excludes parents whose
parental rights to the children at issue have been terminated. However, Rule 46 does state that “a
child’s parent (whose parental rights have not been terminated)” is permitted to file such motion.
Further, this Court has previously held that
[a] person whose parental rights have been terminated by a final order, as the result
of either an involuntary termination or a voluntary relinquishment of parental
rights, does not have standing as a “parent,” pursuant to W. Va.Code § 49–6–6
(1977) (Repl.Vol.2004), to move for a modification of disposition of the child with
respect to whom his/her parental rights have been terminated.
Syl. Pt. 6, In re Cesar L., 221 W.Va. 249, 654 S.E.2d 373 (2007). As such, it is clear that the
petitioner lacked standing to file the motion for modification of disposition.
For the foregoing reasons, we find no error in the decision of the circuit court, and the
denial of petitioner’s motion is hereby affirmed.
Affirmed.
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ISSUED: January 14, 2013
CONCURRED IN BY:
Chief Justice Brent D. Benjamin
Justice Robin Jean Davis
Justice Margaret L. Workman
Justice Menis E. Ketchum
Justice Allen H. Loughry II
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