In re K.L.

• Decision Date: 05 June 2014
• Docket Number: No. 13–0884.,13–0884.
• Citation: 233 W.Va. 547,759 S.E.2d 778
• Parties: In re K.L.
• Court: West Virginia Supreme Court

233 W.Va. 547

759 S.E.2d 778

In re K.L.

No. 13–0884.

Supreme Court of Appeals of

West Virginia.

Submitted April 9, 2014.

Decided June 5, 2014.

Syllabus by the Court

1. “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 reviewed in its entirety.” Syl. pt. 1, In Interest of Tiffany Marie S., 196 W.Va. 223, 470 S.E.2d 177 (1996).

2. “[This Court] may, sua sponte, in the interest of justice, notice plain error.” Syl. pt. 1, in part, State v. Myers, 204 W.Va. 449, 513 S.E.2d 676 (1998).

3. “To trigger application of the ‘plain error’ doctrine, there must be (1) an error; (2) that is plain; (3) that affects substantial rights; and (4) seriously affects the fairness, integrity, or public reputation of the judicial proceedings.” Syl. pt. 7, State v. Miller, 194 W.Va. 3, 459 S.E.2d 114 (1995).

4. “[T]he burden of proof in a child neglect or abuse case does not shift from the State Department of [Health and Human Resources] to the parent, guardian or custodian of the child. It remains upon the State Department of [Health and Human Resources]throughout the proceedings.” Syl. pt. 2, in part, In Interest of S.C., 168 W.Va. 366, 284 S.E.2d 867 (1981).

5. “The presence of one of the factors outlined in W. Va.Code, 49–6–5b(a)(3) [1998] merely lowers the threshold of evidence necessary for the termination of parental rights. W. Va.Code, 49–6–5b(a)(3) [1998] does not mandate that a circuit court terminate parental rights merely upon the filing of a petition filed pursuant to the statute, and the Department of Health and Human Resources continues to bear the burden of proving that the subject child is abused or neglected pursuant to W. Va.Code, 49–6–2 [1996].” Syl. pt. 5, In re George Glen B., Jr., 207 W.Va. 346, 532 S.E.2d 64 (2000).

6. “To be ‘plain,’ the error must be ‘clear’ or ‘obvious.’ ” Syl. pt. 8, in part, State v. Miller, 194 W.Va. 3, 459 S.E.2d 114 (1995).

7. “Assuming that an error is ‘plain,’ the inquiry must proceed to its last step and a determination made as to whether it affects the substantial rights of the [petitioner]. To affect substantial rights means the error was prejudicial. It must have affected the outcome of the proceedings in the circuit court....” Syl. pt. 9, in part, State v. Miller, 194 W.Va. 3, 459 S.E.2d 114 (1995).

8. “In the law concerning custody of minor children, no rule is more firmly established than that the right of a natural parent to the custody of his or her infant child is paramount to that of any other person; it is a fundamental personal liberty protected and guaranteed by the Due Process Clauses of the West Virginia and United States Constitutions.” Syl. pt. 1, In re Willis, 157 W.Va. 225, 207 S.E.2d 129 (1973).

9. “The standard of proof required to support a court order limiting or terminating parental rights to the custody of minor children is clear, cogent and convincing proof.” Syl. pt. 6, In re Willis, 157 W.Va. 225, 207 S.E.2d 129 (1973).

10. “Failure to observe a constitutional right constitutes reversible error unless it can be shown that the error was harmless beyond a reasonable doubt.” Syl. pt. 5, State ex rel. Grob v. Blair, 158 W.Va. 647, 214 S.E.2d 330 (1975).

Patricia A. Kurelac, Esq., Kurelac Law Offices, PLLC, Moundsville, WV, for Petitioner.

Patrick Morrisey, Esq., Attorney General, Charleston, WV, Katherine M. Bond, Esq., Assistant Attorney General, White Hall, WV, for West Virginia Department of Health and Human Resources.

Roger R. Weese, Esq., Weese Legal Services, New Martinsville, WV, Guardian Ad Litem.

PER CURIAM:

Petitioner Ashley L. appeals the August 21, 2013, order of the Circuit Court of Wetzel County that terminated her parental rights to her daughter, K.L. ¹ Because this Court finds plain error in the proceedings below, we reverse the circuit court's order and remand for proceedings as directed in this opinion.

I. FACTS

On or about July 17, 2012, Respondent Department of Health and Human Resources (hereinafter “DHHR” or “the Department”) filed a petition to institute abuse and neglect proceedings against Petitioner Ashley L. regarding her child K.L. The petition was filed pursuant to W. Va.Code § 49–6–5b(a)(3) (2006), which requires the DHHR to file such a petition when the parental rights of the parent to a sibling of the subject child have been terminated involuntarily.² The petition alleged, inter alia, that on May 6, 2008, in Marion County, the petitioner's parental rights were terminated as to child C.W., a sibling of K.L.³

The DHHR's petition against the petitioner was based solely on the prior involuntary termination. The DHHR requested in the petition that K.L. be placed in the legal custody of the Department and that the physical custody remain with the petitioner pending further proceedings. After a subsequent hearing, the circuit court found in its adjudication order that the petitioner admitted that there was a prior involuntary termination of her parental rights, and therefore the petition was substantiated. The circuit court ordered that K.L. remain in the legal custody of the Department and the physical custody of the petitioner.

In February 2013, the petitioner was the victim of domestic violence when Curtis L., her husband and K.L.'s father, beat the petitioner. Curtis L. was arrested, and the petitioner shortly thereafter filed for divorce. As a result of this domestic violence incident, K.L. was removed from the petitioner's physical custody.

The circuit court held the disposition hearing on the abuse and neglect petition against the petitioner on August 2, 2013. At the beginning of the hearing, the circuit court noted that “the unique posture of [the case] is that the burden of proof is upon the parents to prove a substantial change in circumstances such that their parental rights should not be terminated.” At the close of the hearing, the circuit court found as follows:

I believe it's West Virginia 49–6 and 5; burden is upon, not the Department, being represented by the Prosecuting Attorney, but upon the parents in this instance, Curtis and Ashley [L.] to prove substantial change in circumstances.

I would suppose and would believe that the burden of proof would be by clear and convincing evidence insofar as that's what the burden of proof is on the Department to prove that, at an adjudication, abuse and/or neglect, but even if I lowered the standard to preponderance of the evidence, the Court is not satisfied that Curtis and Ashley [L.] have, with all due respect, met their burden of proof to satisfy the Court that they have substantially changed their circumstances as since having previously been involuntarily terminated from the parental rights of prior children.

With that, the burden does not shift to the Department then to put on a case to prove otherwise.⁴

(Footnote added). Accordingly, by order dated August 21, 2013, the circuit court terminated the petitioner's parental rights to K.L. after finding that the petitioner failed to meet her burden of showing a change in her circumstances since the termination of her parental rights to C.W.⁵ The petitioner now appeals this order.

II. STANDARD OF REVIEW

In this case, we are asked to review an order that terminated the petitioner's parental rights. Our applicable standard of review is as follows:

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 reviewed in its entirety.

Syl. Pt. 1, In Interest of Tiffany Marie S., 196 W.Va. 223, 470 S.E.2d 177 (1996). Our decision in this case hinges on an issue of law which we review de novo.

III. DISCUSSION

The petitioner's sole assignment of error is that the circuit court erred in terminating her parental rights to K.L. because the evidence did not meet the standard required for termination of parental rights under our law. The DHHR and the guardian ad litem posit that the petitioner's parental rights were properly terminated. This Court finds, however, that the parties' arguments are not dispositive of our decision in this case. Instead, we find that the circuit court committed reversible error below by shifting the burden to the petitioner to show a change in her circumstances since the previous involuntary termination of her parental rights. Even though the petitioner did not raise this issue in her appeal, this Court sua sponte notices plain error in the circuit court's burden shifting.⁶

In syllabus point 1,...