In re Z.S.-1
| Docket Number | 22-602,22-0478 |
| Decision Date | 09 November 2023 |
| Parties | IN RE Z.S.-1 and Z.S.-2 AND IN RE Z.S.-1 and Z.S.-2 |
| Court | West Virginia Supreme Court |
Submitted: September 6, 2023
Appeal from the Circuit Court of Wyoming County The Honorable James J. Rowe, Judge Juvenile Action Nos. 21-JA-5 and 21-JA-45
Thomas H. Evans, III, Esq. Thomas Hanna Evans, PLLC Oceana, West Virginia Attorney for the Petitioner
Patrick Morrisey, Esq. Attorney General Brittany Ryers-Hindbaugh, Esq. Assistant Attorney General Charleston West Virginia Lee Niezgoda, Esq. Assistant Attorney General Fairmont, West Virginia Attorneys for the Respondent, West Virginia Department of Health and Human Resources
Karen S. Hatfield, Esq. Law Office of Karen S. Hatfield, PLLC Gilbert, West Virginia Attorney for the Petitioner
Lela Walker, Esq. Lela Walker Attorney at Law, PLLC Oceana, West Virginia Guardian ad Litem for the Minor Children, Z.S.-1 and Z.S.-2
1. Syllabus point 8 In re C.S., 247 W.Va. 212, 875 S.E.2d 350 (2022).
2. Syllabus point 1, State v. T.C., 172 W.Va. 47, 303 S.E.2d 685 (1983).
3. Rule 26(a) of the West Virginia Rules of Procedure for Child Abuse and Neglect Proceedings requires a stipulated adjudication to include both "(1) [a]greed upon facts supporting court involvement regarding the respondent['s] problems, conduct, or condition" and "(2) [a] statement of respondent's problems or deficiencies to be addressed at the final disposition."
4. "Where it appears from the record that the process established by the Rules of Procedure for Child Abuse and Neglect Proceedings and related statutes for the disposition of cases involving children adjudicated to be abused or neglected has been substantially disregarded or frustrated, the resulting order of disposition will be vacated and the case remanded for compliance with that process and entry of an appropriate dispositional order." Syllabus point 5, In re Edward B., 210 W.Va. 621, 558 S.E.2d 620 (2001).
Two cases involving the same minor children, Z.S.-1[1] and Z.S.-2, have been consolidated for our consideration on appeal. In case number 22-602, Father, S.C., appeals the dispositional order entered by the Circuit Court of Wyoming County on May 31, 2022, terminating his parental rights to Z.S.-1 and Z.S.-2.[2] In case number 22-0478, Mother, S.S.-C., appeals the same order which also terminated her parental rights to both of the children, Z.S.-1 and Z.S.-2.[3] On appeal, the parents contend that the circuit court erred by terminating their respective parental rights. Both the West Virginia Department of Health and Human Resources ("the DHHR") and the children's guardian ad litem support the circuit court's order terminating the parents' parental rights.
Our review of the record of the children's abuse and neglect cases reveals numerous procedural errors that substantially affected the integrity of the underlying proceedings. These errors began at the inception of the proceedings, affected the adjudicatory stage of the cases, and continued through the court's final dispositional order that is the subject of these consolidated appeals. Therefore, to correct these errors, we vacate the circuit court's May 31, 2022 order terminating the parents' parental rights, as well as the court's adjudicatory orders, and remand to the circuit court for further proceedings consistent with this opinion.
These consolidated cases began as an abuse and neglect proceeding against Mother; S.B., the biological father of Z.S.-1;[4] and Father, the stepfather of Z.S.-1.[5] In March 2021, when Z.S.-1 was approximately eight months old, Mother took Z.S.-1 to the emergency room because he had a fever and severe bruising on his forehead and cheek. Both Mother and Father had been with the child the previous day, and it appears that the child was in their sole care at the time of his injuries. Mother claimed she believed the child's bruising was an allergic reaction either to a recent antibiotic or to food the child had eaten in a restaurant the day before. The emergency room physician ruled out allergic reaction as a possible cause of the child's injuries. Contemporaneous photographs of Z.S.-1 show bruising on the child's forehead. Due to the nature of the child's injuries, the emergency room physician suspected abuse and notified the DHHR. During the DHHR's ensuing investigation, Father acknowledged that the child "deserve[d] better," but that Mother was a "good mom"; Father did not provide any other information about the cause of the child's injuries. Mother, who was sixteen years old[6] at the time of these events, likewise did not explain how the child had been injured. Also during this time, Mother was pregnant with child Z.S.-2. The DHHR filed a child abuse and neglect petition and sought the emergency removal of Z.S.-1 from Mother's and Father's care.
The record contains discrepancies between what actually occurred at Mother's two adjudicatory hearings and the court's memorialization of its rulings from those hearings in its adjudicatory orders. During Mother's first adjudicatory hearing, in July 2021, Mother was prepared to stipulate that Z.S.-1 suffered injuries while in the custody of Mother but that she did not know how he had been injured.[7] However, based on a review of the hearing transcript, due to the DHHR's newly disclosed video evidence,[8] Mother did not complete her stipulation, and the circuit court did not accept it. Nevertheless, the order from this hearing adjudicates Z.S.-1 as a neglected[9] child and finds that Mother neglected Z.S.-1 based upon its purported acceptance of her stipulation. Other than referring to Mother's stipulation and the "conditions existing at the time of the filing of the Petition," the order does not contain any facts to support its findings that Z.S.-1 was a neglected child and that Mother was responsible for Z.S.-1's neglect.
The circuit court then held a second adjudicatory hearing in August 2021 where Mother tendered her stipulation, and the circuit court accepted it. However, neither of these actions are reflected in the circuit court's order from that hearing. Instead the order notes only that the court continued the adjudicatory hearing for Z.S.-1's biological father and dismissed Father from Z.S.-1's abuse and neglect proceeding because he was not the child's biological father, and, thus, he claimed he did not have parental rights to this child that could be terminated.[10] Following Z.S.-2's birth at the end of August 2021, the DHHR sought his emergency removal and amended the petition to also allege that Z.S.-2 was an abused and/or neglected child due to Z.S.-1's injuries that led to the initial abuse and neglect petition regarding Z.S.-1; the amendments also added Father as a respondent parent because he is Z.S.-2's biological father. In response to the amended petition, Father entered, and the court accepted, a stipulation, similar to Mother's. Although Father's actual stipulation is not in the record, the circuit court recounted Father's stipulation in its order from Father's adjudicatory hearing: "the Respondent [Father] . . . stipulated to the fact that injuries occurred to the infant child, [Z.S.-1,] while in her [sic] care and does not know how they occurred." As with Mother's stipulation and the adjudicatory order accepting it, no other facts regarding Z.S.-1's injuries are included in the court's order finding Father neglected[11] Z.S.-1. Although the appendix records in the parents' appeals contain hearing transcripts and court orders accepting Mother's and Father's stipulations to the neglect of Z.S.-1, the record before this Court does not indicate that either parent was adjudicated as to child Z.S.-2.
The circuit court granted Mother's and Father's respective motions for post-adjudicatory improvement periods, and both parents claim to have successfully complied with the terms and services and to have visited with the children; the DHHR, the children's guardian ad litem, and the circuit court were less complimentary of the parents' improvement period progress. Although Mother's appendix record contains documentation that indicates her visits with the children went well, testimony during the dispositional hearing suggests that Z.S.-1 is more bonded with his current caretaker than with Mother; nothing in Father's appendix record addresses his compliance with services.
By order entered May 31, 2022, the circuit court terminated Mother's and Father's parental rights to both children.[12] Although the order terminates Mother's parental rights to Z.S.-1, it does not include any factual allegations pertaining specifically to this child. In the portion of the court's order purporting to terminate Mother's and Father's parental rights to Z.S.-2, the court recited the circumstances of Z.S.-1's injuries. However, Z.S.-2 could not have been injured as the circuit court described because he was removed...
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