In Re: A.N.-1.
16-0477
| W. Va. | Nov 14, 2016Background
- DHHR filed a verified abuse-and-neglect petition (Nov. 2014) naming father (A.N.-2) and mother; petition alleged father was incarcerated and could not provide for or take care of the child.
- Father was incarcerated in Michigan for most of the child’s life, had parole revoked after new felony charges, and provided no financial support.
- Father repeatedly requested continuances and/or to appear in person; he was represented by counsel at all hearings and appeared by teleconference when possible.
- The circuit court conducted adjudicatory and dispositional hearings in Feb. 2016 while father remained incarcerated and denied further continuances.
- The court found father’s incarceration prevented involvement with the child and compliance with a case plan, concluded he emotionally and financially abused the child, and terminated his parental rights.
- Father appealed, arguing (1) petition lacked specific allegations against him, (2) adjudication/termination were based on abandonment though abandonment was not alleged, and (3) denial of further continuances violated due process.
Issues
| Issue | Petitioner’s Argument | Respondent’s Argument | Held |
|---|---|---|---|
| Sufficiency of petitional allegations against father | Petition contained no specific allegations against him; therefore proceedings were improper | Petition specifically alleged father’s incarceration prevented him from providing for/taking care of the child, placing him on notice | Court: Petition was legally sufficient; allegations of incarceration/failure to provide were adequate notice and father responded to them |
| Adjudication/termination based on abandonment | Court adjudicated and terminated on “abandonment” though abandonment was not pled | Court’s findings concerned failure to provide due to incarceration, not legal abandonment | Court: No finding of legal abandonment; adjudication/termination were based on neglect (failure to provide), not abandonment |
| Due process — termination without specific allegations | Termination violated substantive/procedural due process because petition allegedly lacked allegations against him | Due process protected but petitions need be sufficiently specific; here father had notice and opportunity to respond | Court: No due process violation; petition sufficient and father had counsel and chance to respond |
| Due process — denial of continuance because of criminal proceedings | Father’s criminal case prevented his attendance and should not be used to deny continuance | Rule bars delaying child abuse/neglect proceedings for other proceedings; multiple continuances were already granted and child’s permanency interests prevail | Court: Denial of further continuance did not violate due process; Rule 5 forbids delaying child abuse/neglect proceedings for criminal cases; child’s best interests controlled |
Key Cases Cited
- In re Cecil T., 228 W.Va. 89, 717 S.E.2d 873 (W. Va. 2011) (standard of review for circuit court fact findings in abuse/neglect trials)
- In Interest of Tiffany Marie S., 196 W.Va. 223, 470 S.E.2d 177 (W. Va. 1996) (appellate review deferential to trial court findings)
- In re Emily, 208 W.Va. 325, 540 S.E.2d 542 (W. Va. 2000) (trial court as factfinder and credibility determiner in abuse/neglect cases)
- Michael D.C. v. Wanda L.C., 201 W.Va. 381, 497 S.E.2d 531 (W. Va. 1997) (appellate courts should not reassess witness credibility)
- In re Willis, 157 W.Va. 225, 207 S.E.2d 129 (W. Va. 1973) (parental custody is a fundamental liberty interest protected by due process)
- In re Katie S., 198 W.Va. 79, 479 S.E.2d 589 (W. Va. 1996) (child’s health and welfare paramount in abuse/neglect matters)
- State v. Scritchfield, 167 W.Va. 683, 280 S.E.2d 315 (W. Va. 1981) (petition legally sufficient if it gives custodian notice of basis for allegations)
- Wimer v. Hinkle, 180 W.Va. 660, 379 S.E.2d 383 (W. Va. 1989) (requiring objections at trial to preserve error)
- Tennant v. Marion Health Care Foundation, Inc., 194 W.Va. 97, 459 S.E.2d 374 (W. Va. 1995) (written order controls over conflicting oral statements)
- In re Daniel D., 211 W.Va. 79, 562 S.E.2d 147 (W. Va. 2002) (prompt resolution of child abuse/neglect proceedings is essential; proceedings cannot be delayed pending other cases)