In re B.C.

• Citation: 755 S.E.2d 664,233 W.Va. 130
• Decision Date: 21 February 2014
• Docket Number: No. 13–0383.,13–0383.
• Court: West Virginia Supreme Court
• Parties: In re B.C.

233 W.Va. 130

755 S.E.2d 664

In re B.C.

No. 13–0383.

Supreme Court of Appeals of West Virginia.

Submitted Jan. 22, 2014.

Decided Feb. 21, 2014.

Syllabus by the Court

1. “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.” Syllabus Point 4, Blake v. Charleston Area Med. Ctr., Inc., 201 W.Va. 469, 498 S.E.2d 41 (1997).

2. “Collateral estoppel will bar a claim if four conditions are met: (1) The issue previously decided is identical to the one presented in the action in question; (2) there is a final adjudication on the merits of the prior action; (3) the party against whom the doctrine is invoked was a party or in privity with a party to a prior action; and (4) the party against whom the doctrine is raised had a full and fair opportunity to litigate the issue in the prior action.” Syllabus Point 1, State v. Miller, 194 W.Va. 3, 459 S.E.2d 114 (1995).

3. “Though constitutionally protected, the right of the natural parent to the custody of minor children is not absolute and it may be limited or terminated by the State, as parens patriae, if the parent is proved unfit to be entrusted with child care.” Syllabus Point 5, In re Willis, 157 W.Va. 225, 207 S.E.2d 129 (1973).

4. Under W.Va.Code § 48–27–305 [2001], a petition for a domestic violence protective order may be pursued by three classes of people: (1) a person individually seeking relief from domestic violence; (2) an adult person seeking relief from domestic violence on behalf of a family or household member, such as a minor child; or (3) a person who is being abused, threatened or harassed because they witnessed or reported domestic violence.

5. While a civil abuse and neglect action pursuant to W.Va.Code § 49–6–1 [2005] may be initiated by either the West Virginia Department of Health and Human Resources or “a reputable person,” the action is pursued solely on behalf of the State of West Virginia in its role as parens patriae.

6. A petition for a domestic violence protective order under W.Va.Code § 48–27–101 et seq., and a petition alleging abuse and/or neglect under W.Va.Code § 49–6–1 et seq., may be filed upon the same facts without consequences under the doctrine of res judicata or the doctrine of collateral estoppel.

Appeal from the Circuit Court of Ohio County, The Honorable David J. Sims, Judge, Civil Action No. 12–CJA–20. REVERSED AND REMANDED.

Teresa C. Toriseva, Esq., Toriseva Law, Wheeling, WV, for the Petitioner.

Joseph J. Moses, Esq., Wheeling, WV, Guardian ad litem.

Patrick Morrisey, Attorney General, Lee A. Niezgoda, Assistant Attorney General, White Hall, WV, for the W.Va. Dept. of Health and Human Resources.

Justice KETCHUM:

In this appeal from the Circuit Court of Ohio County, the parties dispute a circuit court order dismissing a petition which alleged that a parent abused and/or neglected a child. We are asked to determine whether one parent may seek a domestic violence protective order against the other parent of the child, and then later file a petition to initiate an abuse and neglect proceeding for the child in circuit court regarding the same conduct. In its order dismissing the petition, the circuit court concluded that an abuse and neglect proceeding filed after the conclusion of a domestic violence proceeding would be barred by principles of res judicata and collateral estoppel.

As set forth below, we reverse the circuit court's order. We find that even if a civil domestic violence proceeding and a civil abuse and neglect proceeding involve the same underlying facts, the separate proceedings do not implicate the doctrines of res judicata or collateral estoppel.

I.FACTUAL AND PROCEDURAL BACKGROUND

This case presents issues involving the overlapping jurisdictions of the magistrate, family, and circuit courts of Ohio County, West Virginia. The underlying facts are simple. K.S. and K.C. are the biological parents of B.C., a minor child. K.S. (“the mother”) and K.C. (“the father”) divorced in 2004. The mother now alleges that the father has been neglectful and physically violent toward B.C.

In December 2011, the mother filed a domestic violence petition in magistrate court on behalf of B.C. She alleged several incidents of abuse and neglect by the father against B.C.¹ Based upon the abuse allegations, a magistrate granted an emergency protective order for B.C., and then scheduled a final hearing on the petition before a family court judge. Following the hearing, the family court judge dismissed the mother's domestic violence petition, in part because he did not find the testimony of B.C. to be credible. On March 9, 2012, the circuit court affirmed the family court's dismissal.

On March 12, 2012, the mother filed an abuse and neglect petition in the circuit court. The mother asked the circuit court to terminate the father's parental rights based upon allegations of abuse and neglect. The circuit court later noted that the allegations were “essentially the same allegations that were made” in the December 2011 domestic violence petition.

After filing the abuse and neglect petition, the mother alleges that an additional incident of domestic violence was committed by the father against B.C. That incident occurred on May 5, 2012, when the mother took B.C. to the Wheeling Police Department to exchange him with the father as required by the parties' shared parenting agreement. Apparently, the father grabbed the child and forcefully tried to take him, and in so doing twisted and fractured the child's wrist. This incident was recorded by video cameras.

On May 7th, the mother filed a new domestic violence petition on B.C.'s behalf against the father. The family court granted the petition and entered an emergency protective order in favor of B.C. The family court found clear and convincing evidence that B.C. “sustained a fractured wrist at the hands of [the father] ... The same would constitute an act of domestic violence[.]”

On May 9th, the prosecutor filed a criminal complaint against the father charging him with misdemeanor domestic battery for the fracturing of B.C.'s wrist.² However, the prosecutor later agreed to a “pretrial diversion” with the father.³ The prosecutor indicated that he would stay prosecution of the complaint for six months, and that if the father complied with certain court orders during that time, the prosecutor would dismiss the domestic battery charge.

Several days later, on May 14th, the Department of Health and Human Resources (“DHHR”) made a motion to intervene in the abuse and neglect action still pending in circuit court. DHHR said it wanted to intervene “to provide supportive services to the infant” and “to remedy any circumstances which may be detrimental to the child[.]”

Finally, on June 7th, the mother filed an amended abuse and neglect petition in the circuit court. In this newest petition, the mother added the allegations of domestic violence that the father allegedly committed against B.C. at the police department on May 5, 2012.

Counsel for the father filed a motion to dismiss the original and amended abuse and neglect petitions. The father asserted that the abuse and neglect allegations were the same as the allegations in the domestic violence petition filed in December 2011. Because the family court and circuit court had issued final orders adjudicating the mother's domestic violence allegations and denying the mother any relief, the father argued that the doctrines of res judicata and collateral estoppel supported dismissal of the abuse and neglect action.

In an order dated March 18, 2013, the circuit court agreed and dismissed the mother's abuse and neglect petitions. Finding that the allegations in both the original and amended abuse and neglect petitions were “essentially the same” as those made in the December 2011 domestic violence petition, the circuit court determined that the abuse and neglect petitions were barred by the doctrine of res judicata. Further, the circuit court found the doctrine of collateral estoppel barred the abuse and neglect petitions because the issues of abuse dispensed with in the domestic violence petition and in the misdemeanor criminal complaint “are factually identical to the issues raised in this action.” The circuit court accepted the father's assertion that his ex-wife (the mother) was simply attempting “to relitigate the domestic violence allegations that a Family Court has addressed and dismissed and the criminal charges that the State intends to dismiss.”

Counsel for the mother now appeals the circuit court's dismissal order.

II.STANDARD OF REVIEW

“Appellate review of a circuit court's order granting a motion to dismiss a complaint is de novo.” Syllabus Point 2, State ex rel. McGraw v. Scott Runyan Pontiac–Buick, Inc., 194 W.Va. 770, 461 S.E.2d 516 (1995).

III.ANALYSIS

The circuit court dismissed the mother's original and amended abuse and neglect petitions under the doctrine of res judicata and the doctrine of collateral estoppel. Both doctrines can be invoked to halt the prosecution of a lawsuit, or of a claim within a lawsuit, when the claim has been resolved on the merits in a prior proceeding. We find that the circuit court erred in applying these doctrines.

In Blake v. Charleston Area Med. Ctr., Inc., 201 W.Va. 469, 498 S.E.2d 41 (1997), we set forth a three-part test for determining if a lawsuit was barred by res judicata. Syllabus Point 4 of Blake states:

Before the prosecution of a lawsuit may...