In re Stephen Tyler R., No. 30654.

• Court: Supreme Court of West Virginia
• Writing for the Court: DAVIS, Justice
• Citation: 213 W.Va. 725,584 S.E.2d 581
• Parties: In re STEPHEN TYLER R.
• Decision Date: 01 July 2003
• Docket Number: No. 30654.

584 S.E.2d 581
213 W.Va. 725

In re STEPHEN TYLER R

No. 30654.

Supreme Court of Appeals of West Virginia.

Submitted January 21, 2003.

Decided July 1, 2003.

584 S.E.2d 585

Thomas Moore, Esq., Assistant Public Defender, Public Defender Corporation, Beckley, West Virginia, Attorney for the Appellant, Robert R

Michael W. Blake, Esq., Blake Law Offices, Darrell V. McGraw, Jr., Esq., Attorney General, Charlene A. Vaughan, Esq., Deputy Attorney General, Angela A. Ash, Esq., Assistant Attorney General, Charleston, Tanya L. Godfrey, Esq., Assistant Attorney General, Beckley, West Virginia, Attorneys for the Appellee, West Virginia Department of Health and Human Resources.

Beckley, West Virginia, Attorney for the Appellee, Aisha S.

Colleen C. McCulloch, Esq., Brown & Levicoff, P.L.L.C., Beckley, West Virginia, Guardian ad Litem for the minor child, Stephen Tyler R.

584 S.E.2d 582

584 S.E.2d 583

584 S.E.2d 584

DAVIS, Justice

The appellant herein and respondent below, Robert R.¹, appeals from an order entered November 27, 2001, by the Circuit Court of Raleigh County terminating his parental rights to his minor child, Stephen Tyler R., upon a finding of abuse and neglect. Before this Court, Robert R. asserts that the circuit court erred by (1) holding the adjudicatory hearing in his absence in violation of his due process rights; (2) concluding that he had abused and/or neglected Stephen; and (3) exceeding its authority by requiring him to pay child support for Stephen after it had terminated his parental rights to this child. Upon a review of the parties' arguments, the record submitted for appellate review, and the pertinent authorities, we affirm the ruling of the circuit court. We conclude that the circuit court committed no reversible error by holding the adjudicatory hearing in Robert R.'s absence; properly found that Robert R. subjected his son, Stephen Tyler R., to the conditions of abuse and/or neglect; and acted within its statutorily-granted discretion to continue Robert R.'s support obligation following the termination of his parental rights.

584 S.E.2d 586

I.

FACTUAL AND PROCEDURAL HISTORY

The instant abuse and neglect proceeding commenced when the appellee herein and petitioner below, the West Virginia Department of Health and Human Resources [hereinafter referred to as "DHHR"], filed, in the Circuit Court of Raleigh County, on February 20, 2001, a petition alleging that the infant child, Stephen Tyler R.,² had been abused, neglected, and/or abandoned. Such allegations were based upon a purported suicide attempt by the child's mother and Mr. R.'s girlfriend, Aisha S., on January 13, 2001; Ms. S.'s alleged marijuana use; Mr. R.'s felony drug charges; and ongoing instances of domestic violence between the child's parents, Mr. R.³ and Ms. S., which violence ultimately endangered the safety of case workers who were attempting to provide home services to prevent the removal of Stephen from his parents' home pursuant to a January 30, 2001, family treatment plan.⁴ During an emergency hearing on February 20, 2001, the court deemed Stephen to be in imminent danger and placed him with Ms. S.'s grandmother, Leva V. The court further awarded supervised visitation to both parents. Following this proceeding, Ms. S. and Mr. R. waived their rights to a preliminary hearing.

An adjudicatory hearing was scheduled for April 20, 2001, and was ultimately held on June 8, 2001. Mr. R. did not appear for this hearing because he was incarcerated in Kentucky in connection with an unrelated offense.⁵ At the hearing, Mr. R.'s counsel informed the court that her client was not present, but was not aware that his absence was due to his Kentucky incarceration. Despite the objections of Mr. R.'s counsel to conducting the hearing without him being present, the court proceeded with the hearing. Based upon testimony concerning various instances of domestic violence between Mr. R. and Ms. S., and, in particular, Mr. R.'s alleged beating of Ms. S. on November 19, 2000, while she was holding Stephen, the court determined that Mr. R. had abused his child. The court also found that Ms. S. had neglected her child as a result of her stipulation that Stephen had been neglected when she had exposed him to hostile situations. By orders entered July 13, 2001, the court rendered the above findings of abuse and neglect and granted Ms. S. a six-month post-adjudicatory improvement period. The court did not, however, grant Mr. R. a similar improvement period as his counsel made no such request.

Although Mr. R.'s dispositional hearing was scheduled for July 27, 2001, it was not held until September 12, 2001. At this hearing, the court considered and denied Mr. R.'s motion for a post-adjudicatory improvement period.⁶ Counsel for Mr. R. also renewed his earlier objection that the court had conducted the adjudicatory hearing in Mr. R.'s absence. Mr. R. provided brief testimony regarding his Kentucky incarceration at the time of the adjudicatory hearing, but the court again overruled counsel's objection on this point. By order entered November 27,

584 S.E.2d 587

2001, the circuit court terminated Mr. R.'s rights to his minor child, Stephen Tyler R., but continued his duty to support his son.⁷ From these dispositions, Mr. R. appeals to this Court.⁸

II.

STANDARD OF REVIEW

Procedurally, this matter comes before us as an appeal from the lower court's conclusion that the subject child was abused and/or neglected and its corresponding determination that his best interests necessitated the termination of his father's parental rights. In appeals of abuse and neglect cases, such as the instant proceeding, we apply a compound standard of review.

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.

Syl. pt. 1, In re Tiffany Marie S., 196 W.Va. 223, 470 S.E.2d 177 (1996). With this standard in mind, we proceed to consider the parties' arguments.

III.

DISCUSSION

On appeal to this Court, Mr. R. raises three assignments of error, arguing that the circuit court erred by (1) holding the adjudicatory hearing in his absence in violation of his due process rights; (2) concluding that he had abused and/or neglected his son; and (3) exceeding its authority by requiring him to pay child support for Stephen after it had terminated his parental rights to his child.

A. Due Process

Mr. R. first contends that he was denied his right to due process when the circuit court conducted the adjudicatory hearing in his absence. In the proceedings underlying the instant appeal, an adjudication of whether Mr. R. had abused and/or neglected Stephen was initially scheduled to be held on April 20, 2001. This hearing did not take place, however, until June 8, 2001. At the appointed hearing time, Mr. R. was absent from the proceedings, and neither the circuit court nor his counsel knew of his whereabouts, although Mr. R.'s counsel did object to the conduction of the hearing in her client's absence. Mr. R. represents that he was absent from this proceeding because he was being held in the Pike County, Kentucky, jail incident to a traffic arrest. Additionally, Mr. R. claims that he wrote a letter to the presiding judge in Pike County, Kentucky, to request leniency so that he could participate in the Raleigh County, West Virginia, abuse and neglect proceedings regarding Stephen. Nevertheless, there is no indication from the record that Mr. R. similarly attempted to notify either the circuit court or his counsel about his Kentucky confinement. On appeal to this Court, Mr. R. claims that the circuit court's decision to hold the adjudicatory hearing in his absence violated his due process right to participate therein, specifically

584 S.E.2d 588

his opportunity to be heard and to cross-examine witnesses.

Although we previously have recognized that an incarcerated parent may participate in an abuse and neglect proceeding, this right is conditional, not automatic, and subject to many limitations.

Whether an incarcerated parent may attend a dispositional hearing addressing the possible termination of his or her parental rights is a matter committed to the sound discretion of the circuit court.

In exercising its discretion to decide whether to permit an incarcerated parent to attend a dispositional hearing addressing the possible termination of his or her parental rights, regardless of the location of the institution wherein the parent is confined, the circuit court should balance the following factors: (1) the delay resulting from parental attendance; (2) the need for an early determination of the matter; (3) the elapsed time during which the proceeding has been pending before the circuit court; (4) the best interests of the child(ren) in reference to the parent's physical attendance at the termination hearing; (5) the reasonable availability of the parent's testimony through a means other than his or her attendance at the hearing; (6) the interests of the incarcerated parent in presenting his or her testimony in person rather than by alternate means; (7) the affect of the parent's presence and personal participation in the proceedings upon the

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