S. C., In Interest of, No. 15200

• Court: Supreme Court of West Virginia
• Writing for the Court: McHUGH
• Citation: 168 W.Va. 366,284 S.E.2d 867
• Docket Number: No. 15200
• Decision Date: 03 December 1981
• 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.

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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.

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Syllabus by the Court

1. W.Va.Code, 49-6-2(c) [1980], requires the State Department of Welfare, in

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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).

[168 W.Va. 367] 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 [168 W.Va. 368] 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

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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.

[168 W.Va. 369] 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...