In re Cesar L.

• Decision Date: 25 October 2007
• Docket Number: No. 33317.,33317.
• Citation: 221 W.Va. 249,654 S.E.2d 373
• Court: West Virginia Supreme Court
• Parties: In re CESAR L.

654 S.E.2d 373

221 W.Va. 249

In re CESAR L.

No. 33317.

Supreme Court of Appeals of West Virginia.

Submitted September 19, 2007.

Decided October 25, 2007.

Syllabus by the Court

1. The plain language of W. Va.Code § 49-6-6 (1977) (Repl.Vol.2004) permits a child, a child's parent or custodian, or the West Virginia Department of Health and Human Resources to move for a modification of the child's disposition where a change of circumstances warrants such a modification. However, a child's disposition may not be modified after he/she has been adopted.

2. For purposes of W. Va.Code § 49-6-6 (1977) (Repl.Vol.2004), "parent" means the biological or natural father or mother of a child; the adoptive father or mother of a child; or the legal guardian of a child.

3. W. Va.Code § 49-6-7 (1977) (Repl. Vol.2004) permits a parent to voluntarily relinquish his/her parental rights. Such voluntary relinquishment is valid pursuant to W. Va.Code § 49-6-7 if the relinquishment is made by "a duly acknowledged writing" and is "entered into under circumstances free from duress and fraud."

4. A final order terminating a person's parental rights, as the result of either an involuntary termination or a voluntary relinquishment of parental rights, completely severs the parent-child relationship, and, as a consequence of such order of termination, the law no longer recognizes such person as a "parent" with regard to the child(ren) involved in the particular termination proceeding.

5. A valid voluntary relinquishment of parental rights, effectuated in accordance with W. Va.Code § 49-6-7 (1977) (Repl.Vol. 2004), includes a relinquishment of "rights to participate in the decisions affecting a minor child," W. Va.Code § 49-1-3(o) (1999) (Repl. Vol.2004), and causes the person relinquishing his/her parental rights to lose his/her status as a parent of that child.

6. 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.

Robert Barrat, Martinsburg, West Virginia, for the Appellant, Tameka L.

Margaret B. Gordon, Berkeley Springs, West Virginia, Guardian ad Litem for the Minor Child, Cesar L Christopher C. Quasebarth Chief Deputy Prosecuting Attorney Martinsburg, West Virginia Attorney for the Appellee, West Virginia, Department of Health and Human Resources.

DAVIS, Chief Justice:

The appellant herein and respondent below, Tameka L.M.L.¹ [hereinafter "Tameka" or "mother"], appeals from orders entered October 11, 2006, and December 14, 2006, by the Circuit Court of Berkeley County. By order entered October 11, 2006, the circuit court determined that the mother does not have standing to request a modification of the minor child's, Cesar L.'s [hereinafter "Cesar"], disposition in accordance with W. Va.Code § 49-6-6 (1977) (Repl.Vol.2004)² because she had voluntarily relinquished her parental rights and, thus, was no longer Cesar's parent. In response to this ruling, Tameka then sought to withdraw her earlier relinquishment. By order entered December 14, 2006, the circuit court found that Tameka's relinquishment was voluntary and free of fraud and duress and, accordingly, that it was a valid voluntary relinquishment pursuant to W. Va.Code § 49-6-7 (1977) (Repl.Vol. 2004).³ On appeal to this Court, Tameka claims that the circuit court erred by finding that she does not have standing to request a modification in Cesar's disposition and by refusing to set aside her voluntary relinquishment. Upon a review of the parties' arguments, the record of this matter, and the pertinent authorities, we affirm the October 11, 2006, and December 14, 2006, orders of the Berkeley County Circuit Court.

I. FACTUAL AND PROCEDURAL HISTORY

This case began on February 23, 2005, with the birth of Cesar L. to his mother, Tameka. Shortly thereafter, on March 3, 2005, the appellee herein and petitioner below, the West Virginia Department of Health and Human Resources [hereinafter "the DHHR"], filed an emergency petition requesting that Cesar's care and custody be immediately transferred to the DHHR because the DHHR believed Cesar to be in danger insofar as Tameka's rights to three older children had been involuntarily terminated.⁴ The circuit court awarded the DHHR the temporary care and custody of Cesar by order entered March 3, 2005. The DHHR, in June 2005, placed Cesar in his aunt's care and custody.⁵

Subsequently, the DHHR filed an amended petition alleging that Cesar was an abused and/or neglected child based upon the fact that he tested positive for marijuana and amphetamines at the time of his birth and his mother, Tameka, tested positive for marijuana at the time of Cesar's birth.⁶ Tameka filed an answer, admitting her drug abuse and stipulating that Cesar's case was an aggravated circumstances case.⁷ By order entered May 25, 2005, Cesar was adjudicated to be an abused and neglected child.

Following the adjudicatory hearing, Tameka planned to enter a drug treatment program in Beckley, West Virginia. While she was checking into this facility, a routine background check revealed an outstanding warrant for Tameka's arrest had been issued by the State of Virginia.⁸ As a result, Tameka was arrested and incarcerated in Virginia. The circuit court then continued to postpone Cesar's dispositional hearing until such time as Tameka was released from incarceration. Ultimately, on September 29, 2005, Tameka, while she was still incarcerated, signed a voluntary relinquishment of parental rights, which her counsel later filed with the circuit court.⁹ During a hearing held on November 30, 2005, mother's counsel presented Tameka's voluntary relinquishment to the circuit court, and the circuit court accepted it after counsel represented that the relinquishment was voluntary. Counsel for mother also requested the court to permit Tameka to have post-termination visitation with Cesar, which motion was granted subject to Cesar's best interests and the discretion of Cesar's care giver, his aunt.

The circuit court conducted numerous other proceedings regarding Cesar, his continued thriving in his aunt's care, and the rights of his father. On June 19, 2006, Tameka, by new counsel, filed a motion pursuant to W. Va.Code § 49-6-6 requesting the circuit court to modify Cesar's disposition vis-a-vis her parental rights. In support of her request for relief, Tameka asserted that she had been released from incarceration and that she wished to be reunited with her son. The circuit court conducted a hearing on September 28, 2006, and issued its order with regard to mother's motion to modify disposition on October 11, 2006. In summary, the circuit court determined that because Tameka had voluntarily relinquished her parental rights to Cesar, she did not have standing to request a modification of his disposition insofar as W. Va.Code § 49-6-6 plainly states that the only persons that may make such a motion are "a child, a child's parent or custodian or the state department." The circuit court did, however, suggest that Tameka could file a motion, in accordance with W. Va.Code § 49-6-7, to withdraw her voluntary relinquishment and that if her parental rights were reinstated, she could then request a modification of Cesar's disposition.

Tameka then filed an affidavit, on October 11, 2006, alleging that her relinquishment was not voluntary but had been obtained under duress during her incarceration in Virginia.¹⁰ In further support of her affidavit, Tameka claimed that her attorney had not explained the ramifications of the voluntary relinquishment to her and that she had been led to believe that her parental rights would be terminated if she did not sign the relinquishment form. Following a hearing on this motion, the circuit court, by order entered December 14, 2006, concluded that Tameka was not subject to fraud or duress when she signed her voluntary relinquishment and denied Tameka's motion to withdraw her relinquishment. From the orders entered October 11, 2006, and December 14, 2006, Tameka now appeals¹¹ to this Court.

II. STANDARD OF REVIEW

The instant appeal arose in the context of an abuse and neglect proceeding. When reviewing rulings rendered by a lower court in the abuse and neglect context, we consider carefully the various components of the court's ruling, according deference where warranted and reviewing de novo legal interpretations.

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 and 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 re Tiffany Marie S., 196 W.Va. 223, 470 S.E.2d 177 (1996). In the case sub judice, the circuit court interpreted two different statutes, W. Va.Code §§ 49-6-6 and 49-6-7, and applied those interpretations to the facts before it. We previously have held that "[i]nterpreting a statute or an administrative rule or regulation presents a purely legal question subject to de novo review." Syl. pt. 1, Appalachian Power Co....