WV Dept of Health v. C., Brenda

January 1996 Term

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No. 23290

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WEST VIRGINIA DEPARTMENT OF

HEALTH AND HUMAN RESOURCES EX REL.

BRENDA WRIGHT,

SOCIAL SERVICES WORKER,

Petitioner Below, Appellee,

v.

IN THE MATTER OF BRENDA C., RODNEY C.,

CHRISTOPHER C. AND BRANDIE NICOLE C.

Respondents Below,

BRENDA C.,

Appellant

________________________________________________

Appeal from the Circuit Court of Cabell County

Honorable Dan O'Hanlon, Judge

Civil Action No. 94-J-293

REVERSED AND REMANDED

_________________________________

Submitted: June April 25, 1996

Filed: July 19, 1996

For Appellee:

F. Jane Hustead

Assistant Prosecuting Attorney

Huntington, West Virginia

Joanna Bowles and Barbara L. Baxter

Assistant Attorney General

Charleston, West Virginia

For Brenda C:

Jerry Blair

Huntington, West Virginia

For Rodney C:

Keith L. Newman

Huntington, West Virginia

For Christopher and Brandie C.:

Lisa Fredeking White

Guardian ad Litem

Huntington, West Virginia

The Opinion of the Court was delivered PER CURIAM.

JUSTICE ALBRIGHT and JUSTICE CLECKLEY concur and reserve the right to file concurring Opinions.

SYLLABUS BY THE COURT

1. "'"W. Va. Code, 49-6-2(c) [1980], requires the State Department of Welfare [now the Department of Human Services], in a child abuse or neglect case, to prove 'conditions existing at the time of the filing of the petition . . . by clear and convincing proof.' The statute, however, does not specify any particular manner or mode of testimony or evidence by which the State Department of Welfare is obligated to meet this burden." Syllabus Point 1, In Interest of S.C., 168 W. Va. 366, 284 S.E.2d 867 (1981).' Syllabus Point 1, West Virginia Department of Human Services v. Peggy F., 184 W. Va. 60, 399 S.E.2d 460 (1990)." Syllabus Point 1, In re Beth, 192 W. Va. 656, 453 S.E.2d 639 (1994). Syl. Pt. 3, In re Christina L., 194 W. Va. 446, 460 S.E.2d 692 (1995).

2. "In a child abuse and neglect hearing, before a court can begin to make any of the dispositional alternatives under W. Va. Code, 49-6-5, it must hold a hearing under W. Va. Code, 49-6-2, and determine 'whether such child is abused or neglected.' Such a finding is a prerequisite to further continuation of the case." Syl. Pt. 1, State v. T.C., 172 W. Va. 47, 303 S.E.2d 685 (1983),

Per Curiam:

Brenda C. appeals from an order of the Circuit Court of Cabell County terminating her parental rights to her two infant children, Christopher C. and Brandie Nicole C. After reviewing whether Appellant's parental rights were properly terminated, we reverse and remand.

Appellant gave birth to Brandie Nicole C. on May 31, 1994. Shortly after Brandie's birth, the West Virginia Department of Health and Human Resources ("DHHR") filed a petition on June 3, 1994, alleging that both Brandie and Christopher were "neglected and/or abused children." Through the petition, the DHHR requested both temporary and permanent custody of the children; termination of parental rights; and the right to provide medical and foster care to the children. As support for its petition, the DHHR averred that as a result of Brenda C.'s addiction to drugs, Brandie was born addicted and was suffering withdrawal symptoms. The children's father was also alleged to be drug addicted. Simultaneous with its filing of the petition, the DHHR sought emergency custody of the children pursuant to oral, ex parte motion. The circuit court granted the DHHR emergency custody and scheduled further hearing on the case for June 6, 1994.

Appellant appeared at the temporary custody hearing on June 6, 1994, without counsel. The DHHR represented to the court that Christopher was at risk based on the fact that he was three years old, was not toilet trained, and refused to eat to avoid having to soil himself. Following this hearing, the court awarded temporary custody of both children to the DHHR; approved temporary placement of the children; appointed counsel for the respondents; granted additional temporary relief; and scheduled an adjudicatory hearing for June 16, 1994.

Appellant was represented by counsel at the June 16, 1994, hearing. During this hearing, the assistant prosecuting attorney appearing on behalf of the DHHR, represented to the court:

Prior to coming on the record, we have agreed through counsel to certain findings of fact, including the fact that there is eminent danger to the well-being--physical well-being of the children, that there is no reasonable alternative available to the removal of the children, and continuation in the home is not in their best interest. Because the child, Brandie, was born opiate addicted, and Mrs. C. . . .--I believe both Mr. and Mrs. C. . . . have admitted to substance abuse problems, and based upon those findings, we have agreed that the children will remain in the temporary legal custody of the Department because there is no less drastic alternative to their removal.

After making these statements, the assistant prosecutor advised the court that "we need an adjudicatory hearing set." Appellant's attorney did not object to the above representations nor did he find fault with the request for an adjudicatory hearing. The hearing transcript contains no indication that any sworn testimony was taken or even that a proffer of evidence was made--only counsel's statements.

During the course of this hearing, the circuit court asked Appellant and her husband: "Mr. and Mrs. C. . . ., do you understand everything that was said here today?" After they both indicated their assent, the court inquired further, "And you-all are in agreement with this?" Again, Appellant and her husband stated "yes." The court then said, "I'll accept the agreed order and find that it is in everyone's best interest." No findings of fact or conclusions of law were made orally on the record at that time. The court did continue the matter to August 11, 1994, to permit the presentation of a "service plan" and to allow the parents to get substance abuse assistance. The assistant prosecutor requested that an adjudicatory hearing be set.

By order dated July 11, 1994, the circuit court stated its findings with regard to the June 16, 1994, hearing:

Whereupon the parties represented to the Court that they had, subject to the Court's approval, entered into an agreement with regard to the conditions as they existed at the time of the filing of this petition and asked the Court to approve that agreement, which motion the Court, after due consideration of the representations of counsel, as well as the record and verified petition herein, did sustain.

Based upon the stipulation of the parties the Court does hereby FIND as follows;

1. That the infant children were abused and/or neglected at the time of the filing of the petition in this matter.

2. That the infant child, Brandie Nicole C. . . . was born opiate addicted due to her mother's addiction to drugs.

3. That the mother and father in this matter have admitted to substance abuse.

This order was signed by the assistant prosecuting attorney, but not by Appellant, her husband, or their respective counsel. The order reflects that the matter is continued to August 11, 1994, but fails to mention the scheduling of an adjudicatory hearing.

At the August 11, 1994, hearing the court granted a thirty-day improvement period to Appellant to permit enrollment in a residential drug treatment program and continued the matter to September 9, 1994, as reflected by a nunc pro tunc order entered on May 3, 1995. As a result of the September 9, 1994, hearing, the court continued temporary legal custody with the DHHR of the minor children; granted Appellant continued physical custody of Christopher for a four-month improvement period; and continued the matter to December 15, 1994, for a dispositional hearing.

The issue of termination or other disposition was apparently never addressed at the December 15, 1994, hearing. Instead, the court continued legal custody with the DHHR, but granted Appellant physical custody of Brandie and enlarged the previously granted four-month improvement period to twelve months. The case was continued to April 20, 1995, and a lengthy letter that Appellant apparently wrote to the trial judge was filed as a part of the record.

Appellant's original counsel was relieved by order of the court and new counsel appointed on March 7, 1995. From letters submitted by Appellant to the court, the record indicates that Appellant was in the Ohio Reformatory for Women at Marysville, Ohio, at this time with an expected release date of October 9, 1995. At the April 20, 1995, hearing Appellant was unable to attend due to her incarceration, but was represented by counsel. The court continued custody of the children with the DHHR at this hearing.

Prior to the final hearing scheduled for May 2, 1995, Appellant's counsel filed a motion to continue the hearing.(1) The court denied the motion at the May 2, 1995, hearing. Appellant's counsel raised as additional grounds for his motion seeking a continuance that he wished to conduct cross-examination on certain matters. Notwithstanding this objection, the court proceeded with the hearing and terminated Appellant's parental rights.

The transcript of the May 2, 1995, hearing indicates the following comment by the circuit court:

My understanding from her letters is that she will be possibly getting out into a halfway house of some kind or some kind of a halfway measure, but that that would also be in the state of Ohio, and certainly she could not regain custody of her children even under that most propitious of situations in her mind, which again, I'm not certainly guaranteed. So, I do believe that this has gone on for a year-and-a-half. And she did make some admissions at the original adjudication of abuse and neglect which allowed us to adjudicate the situation. And I don't know that the time standards and the best interests of these children would allow me to continue this any further. She is responsible for her own situation and incarceration and her own future situation. In light of the fact that she has admitted the elements that allowed the Court to adjudicate in the first place, I do believe that I should go ahead, for the best interests of the children, with a termination hearing today.

The prosecuting attorney then proceeded to vouch the record to include the fact that "there was an initial adjudication of drug abuse and addiction by both parents" at the June 16, 1994, hearing.

By order dated May 3, 1995, the court terminated Appellant's parental rights, noting within its order, that she "has previously admitted in Court that she neglected and/or abused her infant children due to her habitual drug habits and a judicial determination of neglect and/or abuse was rendered in June of 1994.

As her single assignment of error, Appellant complains that the circuit court terminated her parental rights without ever holding a hearing on the merits wherein evidence was presented. She questions whether the "agreed order" entered after the June 16, 1994, hearing, where no testimony was adduced, is sufficient "to eventually terminate" parental rights. Appellant asserts that she was entitled to an evidentiary hearing before her parental rights were terminated, that clear and convincing evidence must be presented both for an adjudication of abuse and neglect and for a termination of parental rights. Additionally, Appellant states that the court could not rely on her letters to it since they were not introduced into evidence. In response, Appellees state that the documentary evidence and Appellant's own admissions provide adequate evidence to support the court's findings.(2)

Parental rights can only be terminated pursuant to compliance with specific statutory procedures. Appellant argues that the circuit court failed to comply with the provisions of West Virginia Code 49-6-2(c) (1995). That provision states that:

In any proceeding under this article, the party or parties having custodial or other parental rights or responsibilities to the child shall be afforded a meaningful opportunity to be heard, including the opportunity to testify and to present and cross-examine witnesses. The petition shall not be taken as confessed. A transcript or recording shall be made of all proceedings unless waived by all parties to the proceeding. The rules of evidence shall apply. Where relevant, the court shall consider the efforts of the state department to remedy the alleged circumstances. At the conclusion of the hearing the 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, which shall be incorporated into the order of the court. The findings must be based upon conditions existing at the time of the filing of the petition and proven by clear and convincing proof.

Appellant's specific complaint regarding lack of compliance with West Virginia Code 49-6-2(c) focuses on the circuit court's complete reliance on the agreement represented by the assistant prosecuting attorney at the June 16, 1994, hearing in lieu of requiring the DHHR to put on any evidence to prove the allegations of its petition.

We stated in syllabus point three of In re Christina L., 194 W. Va. 446, 460 S.E.2d 692 (1995):

"'"W. Va. Code, 49-6-2(c) [1980], requires the State Department of Welfare [now the Department of Human Services], in a child abuse or neglect case, to prove 'conditions existing at the time of the filing of the petition . . . by clear and convincing proof.' The statute, however, does not specify any particular manner or mode of testimony or evidence by which the State Department of Welfare is obligated to meet this burden." Syllabus Point 1, In Interest of S.C., 168 W. Va. 366, 284 S.E.2d 867 (1981).' Syllabus Point 1, West Virginia Department of Human Services v. Peggy F., 184 W. Va. 60, 399 S.E.2d 460 (1990)." Syllabus Point 1, In re Beth, 192 W. Va. 656, 453 S.E.2d 639 (1994).

In this case, both the assistant prosecutor and the circuit court appear to have assumed that the agreement referenced by the assistant prosecutor at the June 16, 1994, sufficed to constitute the clear and convincing proof of the petition's averments required by West Virginia Code 49-6-2(c). We agree with Appellant that the DHHR failed to meet its statutory burden of proof.

While West Virginia Code 49-6-2(c) "does not specify any particular manner or mode of testimony or evidence by which the State Department of Welfare [DHHR] is obligated to meet this burden[,]" what occurred in this case clearly falls short of statutory intent. In re Christina L., 194 W. Va. at 448, 460 S.E.2d at 694. The circuit court was not presented with a signed stipulation reflecting the representations, which the assistant prosecutor made to the court, that could then properly be entered into evidence. If the stipulation had not been reduced to writing, the parties could have testified regarding their understanding of and assent to the terms of the agreement. Although the circuit court did engage in limited questioning of Appellant and her husband regarding their understanding and agreement concerning the assistant prosecutor's statements to the court, this did not constitute evidence. Significantly, neither Appellant, her husband, or their respective counsel signed the order dated July 11, 1994, which references and incorporates the agreement of the parties concerning the veracity of the petition's averments, including the finding that "the infant children were abused and/or neglected at the time of the filing of the petition."

As we explained in syllabus point one of State v. T.C., 172 W. Va. 47, 303 S.E.2d 685 (1983),

In a child abuse and neglect hearing, before a court can begin to make any of the dispositional alternatives under W. Va. Code, 49-6-5, it must hold a hearing under W. Va. Code, 49-6-2, and determine "whether such child is abused or neglected." Such a finding is a prerequisite to further continuation of the case.

Id. at 48, 303 S.E2d at 686. In this case, the circuit court appears to have circumvented its duty of holding a hearing for the purposes of making a determination of abuse or neglect under West Virginia Code 49-6-2(c), or, in the alternative, of overseeing the formalization of the stipulation and its entry into evidence. The assistant prosecutor's request for an "adjudicatory hearing" after she informed the court regarding the agreement indicates that even she recognized the need for an evidentiary proceeding.

We do not suggest that a stipulation cannot be used to meet the requirements of West Virginia Code 49-6-2(c). Clearly, a stipulation is a valid means of establishing the parties' assent to the averments contained within an abuse or neglect petition. See T.C., 172 W. Va. at 52, 303 S.E.2d at 690 n.5 (noting use of stipulation to make showing of abuse and neglect); see also In re D.R., 673 A.2d 1259, 1270 (D.C. Ct. App. 1996) (finding that "[i]n a stipulation dated June 19, 1994, the mother admitted to both prenatal and postnatal drug abuse that impaired her ability to provide for her child"); In re Shollenberger, No. 1995CA00135, 1996 WL 363538, slip op. at 1 (Ohio Ct. App. May 20, 1996) (stating that "[o]n December 18, 1990, upon a stipulation by the parties, the children were adjudicated as being neglected"). We further note that the proposed West Virginia Rules of Child Abuse and Neglect Proceedings, which are currently under public comment until August 15, 1996, include an express rule that addresses the use of stipulations within abuse and neglect proceedings. Proposed rule 26 states that:

Stipulated Adjudication and Uncontested Petitions. (a) Required Information. Any stipulated or uncontested adjudication shall include the following information:

(1) Agreed upon facts supporting court involvement regarding the respondent's (s') problems, conduct, or condition;

(2) A statement of facts asserted by the petitioner, but not admitted, which relate to respondent's (s') problems, conduct, or condition; and

(3) A statement of respondent's (s') problems or deficiencies to be addressed at the final disposition.

(b) Voluntariness of Consent. Before accepting a stipulated or uncontested adjudication, the court shall determine that the parties understand the content and consequences of the admission or stipulation and that they voluntarily consent.

While these rules have not been formally adopted, they clearly lend validity to the use of stipulations in connection with abuse and neglect proceedings.

While a stipulation may have been reached in this case, it was never sufficiently formalized. Not only was the agreement never reduced to writing or signed by the parties, the stipulation itself was never introduced into evidence. The agreement is not part of the record other than by the representations of the assistant prosecuting attorney and the lack of any response by Appellant or her counsel regarding its terms. Accordingly, we are compelled to conclude that the DHHR failed to meet its burden of demonstrating by clear and convincing proof the veracity of the statements in its petition. Because no evidence was ever introduced in this case, the circuit court's sole reliance on this loosely assembled stipulation was erroneous. The statute clearly contemplates the introduction of evidence to substantiate the averments of the petition, although such evidence may take the from of a properly prepared and tendered stipulation. See W. Va. Code 49-6-2(c).

Because the threshold issue of abuse and neglect was inadequately addressed, we reverse and remand for further proceedings. On remand, we direct the circuit court to determine whether in fact a stipulation was made. If such a stipulation was made and can be properly introduced into evidence, the court should proceed to make a determination of whether abuse or neglect existed at the time of the petition and subsequently, to make further disposition of this matter. See W. Va. Code 49-6-2(c). Under this Court's decision in State ex rel. Amy M. v. Kaufman, ___ W. Va. __, __ S.E.2d __ (No. 23212, April 8, 1996), we further instruct the circuit court that it may be entitled to proceed without granting a further pre-adjudicatory improvement period. We note, however, that it would be in the court's discretion to consider granting a post-adjudicatory improvement period upon proper motion.(3) Under any circumstance, the court should act with great dispatch to bring resolution to Brandie's and Christopher's lives.

For the foregoing reasons, the decision of the Circuit Court of Cabell County is hereby reversed and remanded.

Reversed and remanded.

1. As grounds for the requested continuance, counsel represented that he had not been able to meet with his client; that a meeting required a drive of "five plus hours;" that the prison did not regard him as Appellant's counsel of record; that Appellant was scheduled to be released in June of 1995; and that the State would not be prejudiced by a continuance.

2. Appellees contend additionally that Appellant was not prejudiced by her absence from the termination hearing on two grounds: (1) she occasioned her own absence; and (2) she was represented by counsel. Further, Appellees argue that the circuit court retains the authority to modify its dispositional orders as circumstances change. Because we dispose of this case on other grounds, we do not address these contentions.

3. A new statute is now in effect which addresses the granting of improvement periods in cases of child neglect or abuse. See W. Va. Code 49-6-12 (1996).