In re L.R., 11-1756

• Decision Date: 29 May 2012
• Docket Number: Fayette County 11-JA-08 - 10,No. 11-1756,11-1756
• Court: Supreme Court of West Virginia
• Parties: In the Interest of: L.R., K.R., and M.R.

In the Interest of: L.R., K.R., and M.R.

No. 11-1756

Fayette County 11-JA-08 - 10

STATE OF WEST VIRGINIA SUPREME COURT OF APPEALS

ISSUED: May 29, 2012

MEMORANDUM DECISION

This appeal with accompanying appendix record, filed by counsel J.B. Rees, arises from the Circuit Court of Fayette County, wherein Petitioner Mother's parental rights were terminated by order entered on November 29, 2011. The children's guardian ad litem, Thomas Rist, filed a response on behalf of the children in support of the circuit court's order. The Department of Health and Human Resources ("DHHR"), by its attorney William Bands, filed a response joining in and concurring with the guardian ad litem.

This Court has considered the parties' briefs and the appendix 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 appendix 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.

"'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.' Syllabus Point 1, In the Interest of: Tiffany Marie S., 196 W.Va. 223, 470 S.E.2d 177 (1996)." Syl. Pt. 1, In re Faith C., 226 W.Va. 188, 699 S.E.2d 730 (2010).

DHHR filed the petition in this case in January of 2011. The petition was based on allegations that the parents knew of a relative's sexual abuse against the children. The petition also indicated that one of the children reported that she had seen her parents and grandfather use drugs, and that two of the children reported witnessing sexual abuse of their cousin by the same relative who abused the subject children. The petition also notes that the family has had open cases with DHHR in the past due to allegations of substance abuse and educational neglect and that the parents have failed to cooperate in offered services. DHHR filed an amended petition in March of 2011,alleging medical neglect. These allegations were based on medical records indicating that K.R. was severely behind on her immunizations required for school, and dental records indicating that the parents neglected to keep several of their children's appointments. When the children were eventually examined, M.R. needed to have three teeth removed and six fillings, and L.R. was prescribed antibiotics for an infection resulting from visible tooth decay and needed two teeth extracted.

Both parents waived their rights to a preliminary hearing. Accordingly, the circuit court found imminent danger to the children's well-being and ordered that the parents may participate in supervised visitation with the children, at the discretion of the guardian ad litem and as long as they produce negative drug screens. Shortly after the preliminary hearing, both parents entered stipulations to abuse and neglect at the adjudicatory hearing. The circuit court granted each parent a post-adjudicatory improvement period, which outlined orders for them to submit to random drug screens, maintain a suitable home, participate in available programs, submit to a substance abuse evaluation, participate in supervised visitation, and maintain employment. Both parents had their improvement periods revoked in August of 2011 when the circuit court found that neither parent had complied with the terms of their improvement periods. The circuit court also found that the parents had since been arrested by the federal authorities on drug charges, to which they both entered guilty pleas.

At the dispositional hearing in November of 2011, neither parent appeared in person, although their lawyers were present. Earlier that day, someone who claimed to be Petitioner Mother called the circuit court and claimed that she and her husband were caught in traffic behind an automobile accident in Danese, Fayette County. The same call and claim were made to a Child Protective Services ("CPS") worker. Upon investigation of this alleged accident, however, Corporal Legg found that no such accident had occurred at either the time or place claimed by the caller. Nevertheless, the circuit court and everyone else present waited for nearly an hour before beginning the hearing. Neither parent ever appeared. The circuit court found that both parents were voluntarily absent from the hearing and accepted proffers from DHHR for its motion to terminate parental rights. The circuit court's termination order reflects twenty-four separate findings, outlining the parents' drug use and knowledge of their children's sexual abuse; their failure to maintain a suitable home; their failure to maintain employment; their failure to maintain contact with service providers and their attorneys; their failure to participate in services, including Multi-Disciplinary Treatment Team ("MDT") meetings; their failure to submit to drug screens and pill counts; and their failure to participate in supervised visitation. Accordingly, the circuit court terminated both parents' parental rights to the subject children, without visitation. Petitioner Mother appeals this order, arguing one assignment of error.

On appeal, Petitioner Mother argues that the circuit court erred by allowing DHHR to proffer evidence instead of being required to call witnesses to the stand. She argues that although the parents did not appear at the dispositional hearing, they were nevertheless deprived of their right of confrontation and cross-examination in this regard. Petitioner Mother submits that she does not dispute any of the facts found by the circuit court or that any different facts would have come out byallowing cross-examination, but argues that "it is unknown if some of the facts may have appeared had [c]ounsel been given the opportunity to cross-examine the witnesses." In support, Petitioner Mother argues that the right to cross-examine is fundamental and intended for the use of an opponent to "bring to light qualifying or contradictory facts and circumstances not disclosed by the witness on cross-examination and [] for the further purpose of developing those facts which may diminish the personal trustworthiness or credit of the witness which may have remained undisclosed on cross-examination." Kominar v. Health Mgmt. Assoc. of W.Va., Inc., 220 W.Va. 542, 559, 648 S.E.2d 48, 65 (2007) (...