S. C., In Interest of

• Decision Date: 03 December 1981
• Docket Number: No. 15200,15200
• Citation: 168 W.Va. 366,284 S.E.2d 867
• Parties: In the Interest of S. C., M. C., D. C., B. C., B. C., R. C., G. C., J. A. C., A. R. C., D. E. C.
• Court: West Virginia Supreme Court

Page 867

284 S.E.2d 867

168 W.Va. 366

In the Interest of S. C., M. C., D. C., B. C., B. C., R. C.,

G. C., J. A. C., A. R. C., D. E. C.

No. 15200.

Supreme Court of Appeals of West Virginia.

Dec. 3, 1981.

Syllabus by the Court

1. W.Va.Code, 49-6-2(c) [1980], requires the State Department of Welfare, in a child abuse or neglect case, to prove "conditions existing at the time of the filing of the petition ... by clear and convincing proof." The statute, however, does not specify any particular manner or mode of testimony or evidence by which the State Department of Welfare is obligated to meet this burden.

2. Even when an improvement period is granted, the burden of proof in a child neglect or abuse case does not shift from the State Department of Welfare to the parent, guardian or custodian of the child. It remains upon the State Department of Welfare throughout the proceedings.

3. "An order to which no objection was made and which was actually approved by counsel, will not be reviewed on appeal." Syl. pt. 1, Loar v. Massey, W.Va., 261 S.E.2d 83 (1979).

Smith & Rumora and Robert D. Calfee, Williamson, for appellant.

Jane Moran, Williamson, for father.

Paul E. Pinson, Williamson, for children.

Chauncey H. Browning, Atty. Gen. and Billie Gray, Asst. Atty. Gen., for State.

McHUGH, Justice:

This is an appeal by Rebecca C. from an order of the Circuit Court of Mingo County, entered on July 11, 1980, which granted permanent custody and guardianship of eight of the appellant's ten children to the West Virginia State Department of Welfare and terminated the appellant's parental rights. ¹ On this appeal Rebecca C. assigns three errors: (1) that she was denied her right under W.Va.Code, 49-6-2 [1980], to cross-examination of the witnesses who appeared in opposition to her; (2) that the trial judge improperly shifted the burden of proof from the State Department of Welfare to the appellant, and that the State failed to meet its burden; and (3) that the trial judge erred by failing to make findings of fact and conclusions of law in his final order as required by W.Va.Code, 49-6-2(c) [1980]. The assignments of error will be considered in order.

I

On September 5, 1979, the West Virginia State Department of Welfare filed a petition with the Circuit Court of Mingo County alleging that the children of the appellant were neglected children within the meaning of W.Va.Code, 49-1-3 [1978]. ² Included as part of the petition were reports made by social workers Lewis Childers and Marcia Corbett. At a hearing on July 2, 1980, the State Department of Welfare did not call either Lewis Childers or Marcia Corbett to testify, nor did the State Department of Welfare offer their reports as evidence. The appellant assigns this as error.

The appellant's argument is based on W.Va.Code, 49-6-2(c) [1980], which provides:

In any proceeding under this article, the party or parties having custody of the child shall be afforded a meaningful opportunity to be heard, including the opportunity to testify and to present and cross-examine witnesses. The petition shall not be taken as confessed. A transcript or recording shall be made of all proceedings unless waived by all parties to the proceeding. The rules of evidence shall apply. Where relevant, the court shall consider the efforts of the state department to remedy the alleged circumstances. At the conclusion of the hearing the 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, which shall be incorporated into the order of the court. The findings must be based upon conditions existing at the time of the filing of the petition and proven by clear and convincing proof.

The appellant argues that the language of this section requires the State Department of Welfare to call the social workers who prepared the reports which were incorporated into the petition and to offer those reports into evidence. She further argues that the State's failure to call the social workers and to offer their reports into evidence denied her the right to cross-examination provided for in the statute. We find no merit in this argument.

W.Va.Code, 49-6-2(c) [1980], requires the State Department of Welfare, in a child abuse or neglect case, to prove "conditions existing at the time of the filing of the petition ... by clear and convincing proof." The statute, however, does not specify any particular manner or mode of testimony or evidence by which the State Department of Welfare is obligated to meet this burden. Specifically, there is no statutory requirement that the State Department of Welfare call any or all of the social workers who may have been involved in the case or to offer their reports into evidence. In this case the State Department of Welfare elected to attempt to meet its burden without relying on social workers Childers and Corbett or their reports. The State Department of Welfare, instead, chose to rely on the testimony of three of the children and social worker Kerry Burmeister.

Similarly, the State Department of Welfare's decision not to call social workers Childers and Corbett, or to offer their reports into evidence, did not violate the appellant's statutory right to cross-examine witnesses. The statute merely provides that there be an "opportunity ... to cross-examine witnesses." In this case the appellant was afforded, and exercised, her opportunity to cross-examine each witness presented by the State.

II

An adjudicatory hearing was held on the neglect petition in this case on July 2, 1980. At that hearing the State Department of Welfare offered testimony by social worker Kerry Burmeister, and three of the appellant's children. At the close of the State's case, counsel for Rebecca C., relying principally on the fact that social workers Childers and Corbett had not been called to testify, moved to dismiss the petition. In overruling the motion, the trial judge said:

The gist of this action is neglect, and I think there is sufficient evidence as to what the living conditions were and it has been established by the evidence that the living conditions were such that it could be concluded that the children or that the parents had neglected to give the children proper surroundings, proper environment, in which to grow up. I think the State has sustain [sic] the burden of proof in that connection, and that when the stipulation was entered into on a former occasion that Mrs. C. be given an improvement period, I construe that to be an admission by all--not an admission--a concurrence by all parties that the living conditions of the children were not satisfactory and that stipulation amounted to a tacit agreement that conditions were not what they should have been, but that the parties would permit an improvement period. There has been no evidence that the conditions have improved, and for that reason, I think the State has sustained its case.

The appellant argues that the trial judge's comment, "that the stipulation amounted to a tacit agreement that conditions were not what they should have been," indicates that the trial judge had improperly shifted the burden of proof to the appellant.

The appellant, citing Pierce v. Pierce, W.Va., 274 S.E.2d 514 (1981), correctly points out that this Court will reverse a lower court judgment if it appears that such judgment was based on an incorrect conclusion of law. In a child abuse or neglect case the burden of proof under W.Va.Code, 49-6-2 [1980], is upon the State Department of Welfare to show by clear and convincing proof that conditions existing at the time of the filing of the petition constituted neglect or abuse. That burden does not shift.

The question here, however, is whether the trial judge did misinterpret the law and improperly shift the burden of proof on the issue of neglect to the appellant. The statement of the trial judge cited by the appellant must be taken in context. Prior to the taking of the children's testimony at the July 2, 1980, hearing, for example, the following exchange occurred:

Mr. Calfee [Counsel for Rebecca C.]: I don't have any objection to the testimony that pertains to the conditions prior to the removal of the children, because our concern here is what has happened in the improvement period more than what happened prior to the removal. If the State wants to take a life history of these children in their home, that is fine, but I don't see what real purpose...