*1 THE Mr. COURT: Arlo Cook on lives Pansy Drive now. In re L. CESAR Okay, you yourself would consider 33317. No. friend, just somebody you or is he Supreme Appeals Court of knew? Virginia. No, just
JUROR he AKERS: some- body that I I wouldn’t know of. know this Sept. Submitted 2007. gentlemen if I saw him. [sic] Decided Oct. Hayes
Both Ms. and Ms. Akers remained jury panel jurors as Mr. served
Davis’s trial. Of the witnesses of whom jurors knowledge,
these had Dr. Kessel testi- trial; at
fied Mr. did not. Cook recited,
From the it is facts Hayes
evident that neither Ms. Ak- nor Ms. personal
ers as relationship with the
potential witnesses Ms. Patterson has with
Reverend Byers, Bullett and Reverend both
of whom “socially.” she stated she knows
Moreover, Patterson, unlike Ms. neither Ms.
Hayes nor Ms. informed Akers the trial they [they think “[did be could] not]
impartial” as did Ms. Patterson. Because Hayes they
Ms. and Ms. Akers indicated that impartial jurors,
could while Ms. Patter-
son stated that impartial, she could not be not permit error to State to use
peremptory strike to remove Ms. Patterson jury panel though even the State Hayes jurors
did also strike and Akers. ruling upon post-conviction Mr. Davis’s corpus petition,
habeas the circuit court de-
termined that no had error been committed regard.
in this We affirm this ruling.
IV.
CONCLUSION reasons,
For foregoing January
2006, order of Court the Circuit of Kanawha
County hereby affirmed.
Affirmed. *3 Barrat, Martinsburg, Virgi-
Robert West nia, Appellant, Tameka L. for the Gordon, Berkeley Springs, Margaret B. Virginia, Guardian ad Litem for the West Child, Minor Cesar L. Quasebarth,
Christopher Deputy- request C. Chief that she does not have Attorney, Martinsburg, modification in Cesar’s Prosecuting West refusing to set Virginia, Appellee, Virginia aside relin- De- quishment. Upon parties’ review and Human partment of Health Resources. matter,
arguments, the record and the pertinent authorities, we affirm the October DAVIS, Chief Justice: and December orders of Berkeley County Circuit Court. appellant respondent herein and be low, Tameka L.M.L.1 “Tameka” [hereinafter “mother”], appeals from orders entered I. 14, 2006, by October and December Berkeley County. By Court of
the Circuit AND FACTUAL PROCEDURAL *4 11, 2006, order entered October the circuit HISTORY court determined the mother does not 2005, began February 23, on This case request have a modification of mother, with the birth of Cesar L. to his child’s, the minor Cesar [hereinafter L.’s thereafter, 3, Shortly Tameka. on March “Cesar”], disposition in accordance with W. 2005, appellee petitioner herein and be- (1977) § (Repl.Vol.2004)2 Va.Code 49-6-6 low, Virginia Department the West of Health voluntarily relinquished because she had her and Human Resources [hereinafter “the and, thus, parental rights longer was no Ce DHHR”], emergency petition filed an re- parent. response In ruling, sar’s to this questing custody that Cesar’s care and be sought Tameka then to withdraw her earlier immediately transferred to the DHHR be- By relinquishment. order entered December DHHR cause the believed Cesar to be in 14, 2006, the circuit court found that Tame danger rights insofar as Tameka’s to three ka’s was and free involuntarily had older children been termi- and, fraud accordingly, and duress that it nated.4 The circuit court awarded the voluntary relinquishment pursu was a valid temporary custody DHHR the care and § (Repl.Vol.2 ant to W. Va.Code 49-6-7 3, Cesar order entered March 2005. The 004).3 Court, appeal DHHR, 2005, On to this Tameka placed in June Cesar his by finding custody.5 that the circuit court claims erred care and aunt’s light 1. In of the sensitive nature of the facts at termination of shall be valid if proceeding, prior duly acknowledged writing, in this we follow issue our made and en- practice parties in similar cases and refer to the tered into under circumstances free from duress K., by their last and fraud.” initials. See In re Clifford 1, 138, n. n. 1 (2005), and cases cited therein. seeking petition emergency tempo- 4.In its Cesar, rary custody of the DHHR enumerated case, aggravated various circumstances in this (1977) (Repl.Vol.2004) 2. W. Va.Code 49-6-6 including the fact that the mother has had her that, directs rights involuntarily terminated as to child, [u]pon parent motion of a a child's rights three older children: her chil- two department alleging custodian or the state involuntarily August dren were 2001, terminated on requiring of circumstances a different abandonment, aas result of and her disposition, hearing the court shall conduct a involuntarily as to third child were terminated pursuant to section two arti- [§ 49-6-2] of this aggravated on November due to cir- may modify dispositional cle order: Pro- cumstances in the 2001 case and her incarcera- vided, dispositional pursuant that a order felony charges involving forgery. tion on check (6), (a) subdivision subsection of section five petition further averred that all three of 49-6-5(a)(6) [§ ] shall not be modified after the adopted by par- these children were Tameka’s adopted. Adequate timely ents, resides, that, child has been with whom she still as a conditions, notice of motion for be modification shall living result of her she continues to counsel, given to the child’s counsel for the unsupervised access to all three of these Furthermore, child’s or custodian and to the state petition represented children. department. had a fourth Tameka born months, age presumably who at the of three died (1977) (Repl. co-sleeping 3. Pursuant to W. Va.Code 49-6-7 while in a twin-sized bunk with bed Vol.2004), agreement "[a]n of a natural Tameka. the DHHR an interests Subsequently, filed amend- and the discretion of Cesar’s care giver, his aunt. an petition alleging ed that Cesar abused was child the fact neglected upon based and/or The circuit court conducted oth- numerous positive marijuana
that he for tested Cesar, proceedings regarding er his contin- amphetamines at the time of his birth and his care, thriving in ued his aunt’s and the Tameka, mother, positive marijua- tested 19, 2006, Tameka, by of his father. On June counsel, na pursuant at the time Cesar’s birth.6 Tameka a motion new filed to W. answer, requesting drug the circuit admitting filed an her abuse modify Cesar’s vis-a-vis stipulating ag- that Cesar’s was an case parental rights. support her of her re- gravated By circumstances order en- ease.7 relief, quest for Tameka that she asserted May 25, adjudicated tered Cesar was had been released incarceration and neglected an abused and child. that she wished to be reunited with son. Following adjudicatory hearing, hearing The circuit court conducted a Tame- on September 28, and issued its order with planned drug pro- ka enter a treatment regard modify disposi- motion to mother’s gram Beekley, Virginia. While she summary, tion October 2006. In checking facility, into this routine circuit court determined that Tame- because background outstanding check revealed an voluntarily relinquished ka had warrant for arrest been Tameka’s had issued *5 Cesar, rights she did not to have result, Virginia.8 the State of As a Tame- request a modification of his inso- in Virginia. ka was arrested incarcerated plainly far W. Va.Code 49-6-6 states postpone The circuit court then continued only persons that the that make such a dispositional hearing Cesar’s until such time motion are “a a child’s custo- as Tameka released incarceration. was department.” or the dian state The circuit 2005, Ultimately, September 29, Tameka, on did, however, suggest court that Tameka incarcerated, signed while she still was motion, could file a in accordance with W. voluntary relinquishment parental rights, 49-6-7, voluntary Va.Code withdraw her which later her counsel filed circuit "with relinquishment parental that if During hearing court.9 on November- held reinstated, rights were she could then re- presented disposition. counsel quest mother’s Tame- a modification of Cesar’s voluntary ka’s the circuit affidavit, an Tameka then filed on October court, accepted and the circuit court it after 11, 2006, alleging that her relinquishment represented counsel that the voluntary not but was had been obtained voluntary. was Counsel also for mother re- during her under duress incarceration Vir- quested permit court Tameka have affidavit, support ginia.10 In of her further Cesar, post-termination visitation with which attorney Tameka claimed that her had not explained granted subject motion Cesar’s best the ramifications of the 5. The record indicates that Tameka selected this 8. Tameka earlier had been in the incarcerated Cesar, placement for that relative this aunt felony involving Virginia charges Slate on passed study presently a home and is supra Although forgery. check note 4. she possible permanent placement pending Cesar for crime, had for failed to served the time she underlying conclusion abuse and ne- accompanying nonpay- pay $50 fine. Her glect proceedings. and, thus, violation, parole ment constituted a the warrant for her arrest was issued. peti- 6. The filed DHHR also a second amended neglect allega- tion wherein raised abuse and father, against Although tions Cesar's Luis A.L. 22, infra, language 9. See note for the of Tame- underlying proceedings the circuit court voluntary relinquishment ka's of her has also made various determinations as to the rights to Cesar. Cesar, status of ings such Luis’s vis-a-vis rul- petition separate been raised affidavit, For see 10. the text of Tameka's infra appeal pro- and are not at issue in the instant note 23. ceeding. supra 7.See note
254 account of the evidence been the circuit court’s her and that she had relinquishment to light of the record viewed plausible would that her to believe led entirety. sign the relin- its if she did not be terminated Following hearing on form. quishment S., 1, Tiffany Marie 196 W.Va. Syl. pt. In re court, by en- motion, circuit order (1996). 223, In the case sub 470 S.E.2d 2006, concluded December tered interpreted dif judice, the circuit court two duress subject to fraud or Tameka was statutes, §§ ferent voluntary relinquish- signed when she 49-6-7, interpretations to applied those motion to with- denied Tameka’s ment and it. have held facts before We From the orders relinquishment. draw her “[interpreting a or an adminis statute 11, 2006, and December entered October purely regulation presents a rale or trative appeals Court. to this Tameka now subject novo review.” legal question to de v. State
Syl. pt. Appalachian Power Co. Dep’t Virginia, Tax II. (1995). Syl. pt. Accord OF REVIEW A.L., STANDARD Chrystal R.M. v. Charlie (“Where the issue appeal arose in the con The instant clearly appeal an from the circuit court is neglect proceeding. abuse and text of an interpreta involving an question of law or rulings by a reviewing rendered lower When statute, apply a de novo standard tion of we context, we in the abuse review.”). Guided these standards carefully components various consider review, proceed to consider the mother’s ruling, according deference where the court’s assignments of error. reviewing legal novo inter de warranted pretations. III. reached Although conclusions of law subject to de novo re- court are a circuit DISCUSSION *6 action,
view,
such as an abuse and
an
when
Court,
assigns
appeal
Tameka
On
to this
case,
upon the facts with-
is tried
rulings finding
error to the circuit court’s
a
circuit court shall make
jury,
a
out
request
change
standing
lacked
to
a
that she
upon
based
the evidence
determination
disposition in accordance with W.
of Cesar’s
findings of fact and conclusions
make
shall
refusing
§
to set aside
Va.Code
49-6-6 and
child
to
such
is abused
of law as whether
voluntary relinquishment
of her
findings shall not be
These
neglected.
§
rights pursuant
to
Va.Code
49-6-7.
W.
by reviewing court unless clear-
a
set aside
assignments in
address each of these
We will
clearly
finding
A
is
errone-
ly erroneous.
turn.
when,
to
although there is evidence
ous
Standing
pursuant
to
A.
reviewing court on
finding, the
support the
(Order
§
W.Va.Code
October
19-6-6
the definite
is left with
the entire evidence
2006)
that a mistake
and firm conviction
assigns
to the circuit
However,
reviewing
Tameka first
error
a
been committed.
finding that she does not have stand-
finding simply court’s
may not overturn a
court
of Cesar’s
ing to
for a modification
decided the case
move
it would have
because
W. Va.Code
finding
disposition
if
accordance with
differently, and it must affirm a
appeal
assignments
error as to both orders on
petition
appeal
De-
11.
for
was filed on
Tameka’s
Salmons,
an
Syl. pt.
and indicated that it was
cember
State v.
this Court. See
to
entered,
appeal
(1998)
[and]
also”
("When
front an order “to
11, 2006." The circuit
"Ocl[.]
an order entered
court entered its order
assigns
an error
a criminal case
defendant
denying Tameka relief
appeal,
time on direct
the state does not
the first
pursuant
§
W. Va.Code 49-6-7 on December
to
assignment
actually
object
error and
to the
herein,
appellee
as the
Insofar
matter,
adequately
is
and the record
briefs
DHHR,
appealing
that Tameka is
has conceded
issue,
may, in
developed
discretion,
this Court
its
fully briefed Tameka’s
orders and has
both
assignment
of the
review the merits
orders,
arguments relating
we find there
to both
error.”).
considering
procedural
Tameka's
barrier to
no
By
tary
(Repl.Vol.2004).
§
order
to
49-6-6
to seek
re-enter the
parent
virtually
court
child’s life
October
.the circuit
when
entered
voluntarily
stranger
Moreover,
Tameka had
to the child.
the Guard-
ruled that because
Cesar,
relinquished
permitting
parent
to
ian
asserts
under
thus,
longer
parent,
standing
request
she was no
Cesar’s
these circumstances
to
qualify
unnecessarily
as one of the enumerated
she did not
modification
also
statutorily permitted
delays
permanent placement.
are
individuals who
child’s
disposition.
for a
move
modification
§
1. W. Va.Code
49-6-6. At issue in
§
W. Va.Code 49-6-6.
assignment
language
of error is the
Court,
argues
Tameka
that the
Before this
§
application
W. Va.Code
49-6-6 and its
by finding
circuit court erred
that she does
portion12
the facts of this case. The
of W.
request
not have
a modification
§
Va.Code
49-6-6 that is relevant to these
disposition.
support
of Cesar’s
of her
proceedings permits
argument,
suggests
Tameka
that W. Va.
[u]pon
motion of a
a child’s
§
§
Code
49-6-6 and W. Va.Code
49-6-7
department[13]
or custodian or the state
independently of one another
should be read
alleging
requir-
of circumstances
permit parents
voluntarily
who have
relin-
ing
disposition,
a different
the court shall
quished
request
their
mod-
hearing pursuant
conduct a
to section two
dispositional or-
ification of their children’s
may modify
of this article and
[§ 49-6-2]
Otherwise,
argues,
ders.
the circuit
Tameka
Provided,
dispositional order:
That a dis-
§
application
court’s
of W. Va.Code
positional
pursuant
order
to subdivision
any rights
completely eradicates
she has as
(a)
(6), subsection
of section five
49-6-
[§
request
pursuant
Cesar’s
relief
5(a)(6)
shall not be modified after the
]
W. Va.Code 49-6-6.
adopted....
child has been
Likewise,
substantially agrees
the DHHR
(Footnote added).
In order to assess the
the circuit
with Tameka’s contention
ruling
correctness of the circuit court’s
re-
by finding
that she
erred
does
have
section, however,
garding this
we first must
standing to
for modification under
move
statute,
language
consider the
itself.
regard,
49-6-6.
In this
interpretation
DHHR claims that
an
such
held that “[t]he
We
procedural
W. Va.Code
49-6-6 creates
primary object
construing
a statute is to
permanency
of children
barrier to
whose
give
ascertain and
effect to the intent of the
parents’ rights
have been terminated
vol-
Syl. pt.
Legislature.”
Smith v. State
*7
untary relinquishment
parents
because those
Comm’r,
108,
Comp.
Workmen's
159 W.Va.
prove
relinquishments
must
their
were
(1975).
examining
219
361
the
S.E.2d
When
they
obtained
fraud or duress before
can
statutory provision, language
text of a
that is
move for modification to demonstrate
a plain
ap
it is
need
be construed before
change in circumstances and be reunited
statutory
“A
plied to the facts of the case.
children.
with their
provision
unambiguous
which is clear and
contrast,
By
plainly expresses
legislative
ad
the
intent
Cesar’s Guardian
Litem
interpreted by
urges
will not be
the courts but will
“the
this Court
[hereinafter
Guardian”]
2,
given
Syl. pt.
ruling
circuit
be
full force and effect.”
to affirm the
court’s
because
877,
voluntarily relinquished
Epperly,
her State v.
135 W.Va.
65 S.E.2d
when Tameka
(1951).
1,
Syl. pt.
Farley v.
parental rights,
legal
as Cesar’s
488
But see
status
Buckalew,
693,
The Guardian fur-
186 W.Va.
Nevertheless,
Legisla
specific
the
in
where
ent”
the
child welfare statutes
statutory
provide
49-6-6,
a
defini
encompassing
§
ture has failed
W. Va.Code
enactments,
in one of its
Legislature
provided
tion for a
used
word
a definition for the
common, ordinary meaning of the word is
“parent”
in
criminalizing
word
the statutes
give meaning to the
upon
relied
statute.
context,
child abuse.
“
In the criminal law
“Generally the
of a statute are to be
words
‘[p]arent’
biological
means the
father or
ordinary
significance
familiar
given
their
child,
adoptive
mother of a
or the
mother or
regard
meaning, and
is to be had for
61-8D-R7)
father of child.” W. Va.Code
4,
Syl.
general
proper
pt.
use.”
their
(1988) (Repl.Vol.2000).16 This definition is
Morgan
Daniel
Post No.
State v. General
particularly
part
instructive insofar
itas
V.F.W.,
548,
137,
144 W.Va.
2. Definition of If While the these rules conflict with other rules or Legislature “par- statutes, has not defined the apply.”). word these rules shall supra 16.Following pro 14. See note the institution of the instant ceedings, Legislature the amended W. Va.Code judice 15. Insofar as die facts of the case sub (1988) (Repl.Vol.2000), § 61-8D-1 however the voluntary relinquishment involve Tameka's her of "parent” by definition of was not affected these parental rights, opposed involuntary to the 61-8D-1(7) (2005) changes. § W. See Va.Code thereof, we will limit termination our discussion (Repl.Vol.2005). relinquishments voluntary parental herein to of rights. by termination, Reconciling legislative involuntary very is the definition or seri 61-8D-1(7) “parent” definition, § By of in W. with “parental Va.Code matter. rights” ous “parent” the contained in definition of Rule encompasses “any rights and all and duties 3(j) Virginia of the West Rules of Procedure child, regarding parent a minor to includ Proceedings, for Child Neglect Abuse and we to, ing, rights but not limited custodial find the discrete between these differences rights rights participate visitational to two definitions be distinctions without a decisions affecting the a minor child.” W. that, we Accordingly, difference. hold 49-l-3(o) (1999) § (Repl.Vol.2004) Va.Code (1977) purposes § of W. Va.Code 49-6-6 added).18 (emphasis importance to the As (Repl.Vol.2004), “parent” biologi means the sanctity parental rights, frequently of we child; or cal natural father or mother of a “[n]othing have observed that is more sacred child; adoptive mother of a father or or scrupulously safeguarded parent’s or as a legal guardian of a child.17 right custody to the child.” of In re his/her K., voluntary 217 W.Va. 619 S.E.2d 3. Effect relin of Clifford (2005). quishment rights. parental pt. ques of Accord In re The (1973) remains, Willis, however, tion parent whether a who (“In voluntarily relinquished parental custody the law concerning of minor his/her a “parent” children, retains status as firmly his/her no rule is more established after relinquishment: such W. Va.Code right parent than that the of a natural to the (1977) § (Repl.Vol.2004) 49-6-7 sets forth the custody of his child para or her infant is procedure parent follow in must order to person; mount that of other ais voluntarily relinquish parental rights: his/her personal liberty protected fundamental agreement parent of a “[a]n natural termi by guaranteed Process of Due Clauses nation of shall be if valid Virginia the West States and United Consti by duly acknowledged writing, made tutions.”); Robinson, Syl. pt. Whiteman v. entered into under circumstances free from (“A (1960) Applying duress and fraud.” tenets parent custody has the to the right natural above, statutory construction discussed parent or her his infant unless the is an plain find this statute also to and in need misconduct, person neglect, unfit because of of no further construction to understand its immorality, or other abandonment dereliction Therefore, terms. we hold that W. Va.Code duty, right, by or such has waived or § (Repl.Vol.2004) permits agreement transferred, or otherwise has re parent voluntarily relinquish pa his/her linquished custody, such or surrendered rights. voluntary relinquish rental Such custody right parent his pursuant ment is valid W. Va.Code 49- recognized infant child will be and en duly 6-7 if the is made “a courts.”). by the forced acknowledged and is writing” “entered into under circumstances free from duress and reason, For this decision to end a address, fraud.” What this statute does not parent’s parental rights is not one that whether, though, virtue of a lightly, process ending made this parental rights, parent’s parental guided many rights is loses parent. status as child’s his/her stringent protect regulations rules and query The resolution of is critical to rights both the child. his/her determining whether Tameka has 49-6-1, generally seq. et W. Va.Code move for a modification of Cesar’s procedure (outlining followed in child to be under W. 49-6-6. cases); Va. R. abuse and Proc. for parent’s seq. Neglect of a Abuse & et revocation Child Proceed. rights, by voluntary relinquishment (providing guidelines whether to be followed further *9 recodified, goes saying It that the without definition of 18. This section has since but the been "parent" § in W. 49-6-6 changed. does not also "parental rights” definition of was not "custodian,” encompass 3(j), contemplated by as Rule (2007) (Supp.2007). 49-]-3(q) § W. See Va.Code distinguishes § insofar as between 49-6-6 “a child’s or custodian.”
258 omitted)). neglect Ensuring fi proceedings). See also tations citations
in abuse
79,
safeguard
nality
vital to
7,
S.,
for these children is
In re
198 W.Va.
479
pt.
Katie
‘
they may
(1996) (“
ing their best interests so that
have
paren
of
589
“Termination
S.E.2d
continually
remedy
permanency
not be
shuttled
under
rights, the most drastic
tal
1,
placement
Syl.pt.
placement.
See
statutory provision covering the
of
[1977]
neglected
may
be
children,
employed
W.Va.Code,
without
49-6-5
use of
S.E.2d 365
part,
In re Carlita
(1991) (“Child
B.,
185 W.Va.
abuse and
613,
neglect
408
being among
must
recognized
cases
be
as
intervening less
alternatives when
restrictive
259 by duress); Syl. rights pt. (Repl.Vol.2004),to obtained fraud or move for a modification of S., I, Tiffany In re Marie disposition respect of the child with to whom (limiting reversal of abuse and S.E.2d parental rights have been terminat- his/her by neglect rulings a lower court to those Applying holdings ed.20 these to the facts erroneous”). “clearly decisions that are As us, presently before we conclude that the result, person formerly possessed who by ruling circuit court did err that Tame- parental rights loses status as such his/her standing ka does not have aas to Accordingly, parent. we hold that child’s request disposition a modification of Cesar’s voluntary relinquishment parental a valid of § in accordance with W. Va.Code 49-6-6 be- rights, effectuated in accordance with W. Va. cause, by voluntary relinquish- virtue of her (1977) § (Repl.Vol.2004), Code 49-6-7 in Cesar, parental rights ment of her Tame- “rights partici cludes a of longer parent.21 ka is no considered to be his child,” pate affecting in the a minor decisions Thus, 11, 2006, the October order of the 49-l-3(o) (1999) (Repl.Vol. § W. Va.Code County Berkeley Circuit Court of is affirmed. 2004), person relinquishing causes parental rights to lose status his/her his/her as child. We hold further B. Relinquishment Voluntariness of person that a whose have pursuant § Va.Code 19-6-7 by order, been terminated a final as (Order 2006) H, December involuntary result of either an termination assigns Tameka also error to the circuit voluntary relinquishment ruling finding court’s relin- rights, standing “parent,” does not have as a (1977) § pursuant quishment to W. parental rights22 Va.Code 49-6-6 to be valid. Court, preclude any persons per- 20. Before DHHR this contends that does not of the other permitted person this Court by § request mitted W. Va.Code 49-6-6 to parental rights involuntarily were whose termi change disposition doing in the child’s so if disposition nated to move for modification of relinquished parent's improved circum- pursuant § to W. Va.Code 49-6-6 and that such they stances are such that constitute "a ruling finding would be with a thereunder, and, inconsistent required of circumstances” standing parent. Citing Syl. Tameka lacks as a 49-6-6, § W. Va.Code such motion is made R., pt. Stephen Tyler In re adopted. before child has been (2003) ("A may, S.E.2d 581 circuit court in the modifying previously-entered disposi- course of voluntary relinquish- 22.The text of Tameka’s neglect tional order an abuse case in parental rights provides: ment Cesar with W. accordance 49-6-6 RELINQUISHMENT OF PARENTAL BY RIGHTS (Repl.Vol.2001), parent’s continuing amend a MOTHER!;] REQUEST FOR POST-RELIN- support obligation or the amount thereof. QUISHMENT VISITATION not, however, modify disposition said I,Tameka M[.]-L[J, Respondent Mother of support al order to cancel accrued child or de- L[.], February Cesar date of birth A[.] judgments resulting support cretal from child matter, thoughtful after consideration this arrearages.”). Such a construction is not accu acknowledge hereby following: rate, however, correctly recog and the Guardian 1. That I believe it is the best interest of disposition permit nizes that the modification of custody A[J Cesar to remain in the L[.] Stephen solely ted case limited to a Virginia Department Health and Human Moreover, support. modification of child W. Va. Resources; (2001) (Repl.Vol.2004) per Code repre- 2. I understand that I am entitled to be party mits a to move for child modification of proceedings. sented counsel at all support at time there exists a "substantial Myers appointed by 3. Heidi J. has been this change in circumstances.” represent my Honorable Court to interests at hearings. these Court, arguments parties, 21. In their this DHHR, 4. I that I would be entitled understand namely expressed Tameka and the have evidence, witnesses, present testify my call person relinquished concern that if a who has behalf, my attorney own any and have cross-examine does not his/her move for a modification of any hearing called held in witnesses at this under W. matter; 49-6-6, persons Va.Code stantially then who have sub- my right adjudication 5. I wish to waive to an corrected the conditions of abuse and hearing dispositional present in this matter and vol- would never be able to evidence untarily relinquish my parental improvement all to Ce- of such erating to the court. Without reit- A[J the limited under which a sar L[.] circumstances voluntary relinquishment parental rights may I understand the Court would consider less invalidated, termination, say opinion grant- suffices to drastic alternatives to such as *11 denying October that the In Tameka asserts circuit court should its order standing permitted present to move for a modification her to in a evidence Tameka disposition hearing prove she earlier had before the court to that her of Cesar’s because parental rights relinquishment to had been obtained du- relinquished her this under duress, indicated that if As to her claim of circuit court Tameka ress. Tameka the voluntary relinquish- her incarcerated at the time sought relief from states she was ment, rights potentially relinquishment could be of her and claims that al- though represented by attorney at time she then would have she was an restored which time, request to that Cesar’s at that did not receive the advice of she order, prior executing relinquish- to be modified. Pursuant this Tameka counsel to seeking an to withdraw her The DHHR and filed affidavit23 ment. the Guardian re- voluntary relinquishment parental rights. spond by urging this Court to affirm the court, Thereafter, ruling circuit order en- circuit court’s insofar as Tameka failed prove relinquishment found that Tameka that her tered December to presented parental rights evidence sufficient to had had not war- been obtained evidentiary hearing required by rant an on her motion fi-aud or duress same, determining 49-6-7 to invalidate an otherwise valid re- denied relinquishment linquishment. was valid and had Tameka’s by fraud or not been obtained duress. permits The statute which to Court, voluntarily appeal complains relinquish Tameka On to this his/her affording provides guidance that the circuit court erred not as to when such a evidentiary hearing by refusing relinquishment her an should be invalidated is W. relinquishment. regard, (Repl.Vol.2004). set aside her this Va.Code 49-6-7 As adjudicatory ing pre post improvement peri- hereby freely, knowingly, intelligently or I od, voluntarily relinquish my parental rights returning my custody simply child all into or having custody Virginia remain Cesar A[.]L[J with West De- signed by partment This document was "Tameka M[J Health Human Resources. notarized, L[.]," "September and dated fully consequences 7. I understand the of this 2005.” my decision. I understand decision will result in my the termination of as to Cesar 23. Tameka’s affidavit states: L[J AIM L[J AFFIDAVIT OF TAMEKA CONCERNING WVA right I 8. I that have no to custo- understand RELINQUISHMENT CODE OF PAREN- matter, dy request in this but at or visitation this TALRIGHTS time that be afforded to me in the visitation L[J, being comes Tameka L[.] Now and first future. sworn, duly deposes following: and states the right that I 9. I understand will have no relinquished my rights my 1. That I son care, control, custody, participate edu- under L[J Cesar duress. cation, training any aspect raising or Cesar any 2. I was incarcerated at the time of relin- point forward. A[J L[.] this quishment Virginia. in the State of by relinquishing parental I 10. understand my attorney Myers 3. That at the time Heidi did disposi- A[.] L[.] to Cesar that it is a final explain only not me. I custody tion as towards and therefore I leave the once, spoke secretary with her and then a option Court alternative no less restrictive put block was further calls. Heidi my parental rights. other than termination of Myers sign sent form down for me to but no authorizing I 11. I understand that am explaining letter it. Virginia Department of Health and Human Re- secretary Myers 4. at the Law Office in- adoption to the A[.] sources to consent of Cesar relinquish formed me that if I did not I would L[.], right I his name and under- my be terminated from then I son and could waiving pro- stand that I am notice as to these get him back. ceedings. my That it be in the 5. would best interests of thoroughly 12. I have read and discussed L[J child Cesar for the to be aside; my attorney rights. with all above-mentioned polar set that is the star to follow. I fully meaning 13. I understand the my con- desire to be reunited with son. sequences executing willing testify this document. 6. I am further about induced, 14. I have not been coerced or matter in Court and under oath. signing you[r] sayelh threatened into this document. And further affiant not. promises Appearing 15. No or rewards have been of- at the end of this affidavit was notarization, L[.j," my signature fered execution of this L[J consideration of "Tameka document. and the date of October preceding development section of this during evidentiary observed ther an opinion, provides this statute hearing. “[a]n agreement a natural termination 2. Proof fraud or duress. *12 by of shall if be valid made challenges Tameka also the circuit court’s duly acknowledged writing, and entered into ruling upholding relinquishment her as valid
under circumstances free from duress and
prove
because she had
to
failed
that it had
Having
language
fraud.” Id.
determined the
by
required
been obtained
fraud or duress as
only
of
provision
plain,
this
to be
we need
by
previously
49-6-7. We
apply
presently
it to the facts
before us.
that,
have observed
Hearing
on motion to with
W.Va.Code,
specifically
[w]hile
voluntary relinquishment.
draw
Tameka
permits
a relinquishment
argues
first
that
the circuit court
re
was
rights,
clearly
it
suggests that such an
quired
permit
present evidence,
to
her to
at a
agreement may be invalid if it is not en-
court,
hearing
prove
before
to
that she
tered into under circumstances that are
improperly
by
was
induced
fraud or duress
free of duress and fraud.
there
Whether
relinquish
parental rights
to
to Cesar.
question
has been fraud or
duress is
We
have addressed this issue and
fact
by
that must be determined
the circuit
concluded that the decision to hold an eviden
judge.
tiary hearing rests within the court’s sound
provisions
discretion: “Under the
of W.Va. Rose,
191,
209 W.Va. at
S.E.2d
544
at 406.
Code, 49-6-7,
a circuit court
conduct
guide
maldng
To
lower
courts
a deter-
hearing
by
signing
to determine whether the
to
relinquish-
mination as
or not a
whether
parent
agreement
an
relinquishing pa
invalidated,
ment should be
the elements
rental
was free from duress and
prove
duress,
needed to
fraud or
as
well
3,
pt.
Syl.
fraud.”
rel
State ex
Rose v. Pan
requisite
proof therefor,
burden of
were
cake,
(2001)
188,
209 W.Va.
The essential
(1)
subsequent
assertion in her
affidavit
the act
to be
this
fraud are:
that
claimed
representations in the
are Tameka’s own
was the act of
defendant
fraudulent
(2)
nt,25
him;
sharply
which
con
that it
mate-
or induced
was
docume
duress,
false;
tradict her current assertions of
plaintiff
rial and
relied on
“fully
consequences
justified
understand^]
she
under
circum-
and was
decision;”
it;
she has “read and discussed
relying upon
stances
thoroughly
attorney
with
all the above-
[her]
damaged
he
he
on it.
because
relied
rights;”
“fully
mentioned
she
understand[s]
Lint,
1, Lengyel
pt.
v.
meaning
consequences
executing
(1981)....
*13
document;”
induced,
this
has “not
she
been
Finally, I
emphasize
par-
wish to
that a
signing
or
into
docu
coerced
threatened
this
challenging
relinquishment
ent
his or
of
ment;”
“freely, knowingly,
and
intelli
she
parental
grounds
her
on the
of du-
relinquishes]
gently
voluntarily
and
all [her]
responsibil-
ress
fraud has the difficult
A[.]
to Cesar
L[.]”
ity
establishing
the elements outlined
convincing
by dear
above
evidence.
above-quoted
The
statements contained in
48-4-5(a)(2)
See,
e.g.,
[W.
]
relinquishment
judicial
Tameka’s
constitute
(1997) (Repl.Vol.1999) (allowing revocation
by
admissions which she is bound and which
only
of adoption due to fraud or duress
Syl.
4,
deny.
pt.
she cannot now
See
State v.
person
where
who executed the con-
“[t]he
McWilliams,
369,
177 W.Va.
by
relinquishment proves
sent
or
clear
(“A
(1986)
judicial admission
a statement
is
convincing evidence ...
that
consent
by
in
party
fact made
the course of the
relinquishment
or
was obtained
ftuud
litigation
withdrawing
purpose
”
added))_
(emphasis
or duress
dispute.”).
sig
fact from the realm of
“The
heavy
that
has
is clear
[I]t
nificance of such an admission is that it “will
to establish duress or fraud once
burden
stop
subsequently
the one
it
who made
from
”
relinquished parental
he
has
or
she
asserting
claim inconsistent therewith.’
rights....
Rowing,
Wheeling-Pittsburgh
Corp.
Steel
v.
Rose,
286, 302,
192-93,
at
at
205 W.Va.
517 S.E.2d
779
209
W.Va.
Clark,
(quoting
(Davis, J.,
Clark v.
70
concurring) (emphasis
407-08
(1912) (additional
omitted).
(additional
cita
original)
74 S.E.
236
citations
omitted)).
quotations
Accord Kel
tions
Reviewing the
of the
contents
affidavit
States,
n.
ler v.
58 F.3d
United
sought
which
her relin-
Tameka
withdraw
(7th Cir.1995) (“Judicial
are for
admissions
quishment,24
agree with the circuit court’s
we
stipulations by par
...
mal concessions
or
prove
conclusion that she did not
that she
ty
binding upon
its
...
that
or
counsel
are
subject
had
to fraud or
at the
been
duress
party making
They
them.
not be
relinquished
parental rights.
time she
her
at
Be
appeal.”).
controverted
trial or on
that,
Although
appreciate
at
time she
we
Tameka
cause
is bound
the admissions
signed
relinquishment
her
her
relinquishment,
in her
contained
we cannot
parental
Cesar,
rights to
Tameka
incar-
present attempts
condone her
to recant these
cerated and thus not then able
care for
convincing
statements
clear and
evi
absent
fact, alone,
simple
her
this
not suffi-
dence
duress
which she claims to
cient
this regard,
to constitute duress.
we
subject at the time
have been
thereof.
“[mjere
cir-
held
‘duress of
does not
cumstance’
constitute duress.”
Furthermore, because Cesar is the fourth
Wallace,
pt.
part,
Wooten v.
child who
DHHR
removed
159,
IV. petitioned for modifi neglect dispositional cation of the abuse and CONCLUSION pursuant provisions of order to the reasons, foregoing For the October *14 (1977) (Repl.Vol. Virginia Code or- order and the December 2004). the Section article VIII of West Berkeley County der of the Circuit Court Virginia provides in Constitution relevant hereby are affirmed. “[wjhen part judgment that a or order of Affirmed. reversed, is modified or af another court court, every [supreme] point firmed the Justice, BENJAMIN, concurring. fairly arising upon the record be consid shall taken the ered and decided.” This Court has It case is not about the mother. is This provision seriously by enforcement of this L. It about his The about Cesar is welfare. entertaining deciding only matters those voluntarily The mother mother had counsel. fairly arising from the record. Pt. rights. There was relinquished her maternal Comstock, State v. 70 S.E.2d There no duress. This volun- no fraud. was (1952) (“Under Virginia the West Consti L. tary relinquishment notarized. Cesar tution, judgment ... a or decree is when stability. permanency is entitled Court, by this the Court reversed or affirmed correctly and in best Judge ruled the Silver point a not consider and decide which will this child. I concur in this affir- interests of fairly upon the record of the does not arise mation. CAMC, case.”); Thornton v. (appellate 320-21 ALBRIGHT, Justice, concurring part, in to those issues which review must be limited dissenting part. in record). majority improvi The appear- the majority opinion the I the concur with long-recog dently to adhere to this declined proper very that it reaches the limited basis Instead, nized, the self-imposed restriction. underlying for facts of the legal result the holding majority extends its to include cases my separately register firm ease. I write involuntary involving termination of majority to the manner which the dissent present in this rights, a circumstance not unreasonably fit to extend its deci- has seen facts The issue was not raised case. I fear sion to facts not before Court. properly developed issue was entirely majority’s zeal to eliminate that the argu through brief and before this Court might possibility biological parents that majority’s decision is As a result the ment. modification of court decisions involun- seek fatally ill-considered flawed. in an tarily terminating parental rights abuse disconcerting the conclu- equally It wrongly establishes a new is neglect case clearly majority opinion in the point of over- sion reached point of law. That new law reading of legislative Proper intent. ignores of this constitutional limitations looks the statutory provision regarding modifica- Court, ignores legislative intent and disre- necessarily blush, results in the conclusion tion At approach first taken parent permitted biological a to seek modi- majoiity opinion seemingly streamlines the dispositional order in an fication of abuse adoption process by reducing potential im- expressly pro- case. statute pediments placement for of children who modify dispositional vides that motion neglect. have been victims of abuse and “child, may order made be child’s However, eye it also turns blind to what department” or custodian or the state actually the future many holds for too dispositional pursuant order “[t]hat Adoption these children. often is not a via- (a) (6), subdivision subsection of section five possibility “special ble needs children.” 6—5(a)(6) not be shall modified after [§ ] 49— not, reality Like it or is that some chil- adopted;” child has been W.Va.Code dren adoption will never be candidates for Virginia 49-43-6. West Code 49-6- age, physical because of their mental or dis- 5(a)(6) (2002) (Repl.Vol.2004) includes the cir- ability, factor, race they or other will may proceed under which a cumstances simply languish in foster care for num- involuntarily rights. terminate years. possible ber of It that a By using a direct internal cross-reference to involuntarily whose have been termi- parental rights provision, the termination of could, time, nated over effect a Legislature expressed the intent that support circumstances which would counter- biological parents whose have been manding the termination decision. It judicially terminated have a narrow window very well be that it is these children the oppoi'tunity dispo- seek modification of Legislature contemplated protected would majority wrongly sitional orders. The re- policy adopted by and served enact- legislative buffs that clear intent in order to ing the modification providing statute and judicially policy announce a created social opportunity. narrow window that closes the door in child abuse and ne- *15 glect by any cases to modification natural I majority’s do not understand the desire parent, including parental rights those whose drastically standing so restrict the par- involuntarily by judicial are terminated de- judicially ents whose have been termi- cree. nated to Having seek modification. standing
Furthermore, by holding majority apply its attaining modification and modi- has created a conflict with established case synonymous. fication are far from A natural allowing post-termination law visitation. No parent seeking to overturn a termination de- majority mention in opinion is even made exceptionally heavy cision has an burden to by of the Cleckley decision authored Justice proving motion, overcome in timeliness of the L., in 1995 in the case of In re Christina parent, validity fitness to be a of the (1995). The rele change parent’s claimed ways errant significant holding vant and in Christina L. finally, the lodestar —that recognition involved the that a close emotion be in would the best interests of the child. It al parent may bond between a and child exist quantum proof is the and not the elimina- even when are terminated in opportunity governed tion of the that has neglect abuse and cases and that continued govern should the rare modification of termi- visitation or other contact be in the best nation orders in neglect abuse and cases. interests of the child. at Pt. Id. 5. It is Collins, v. Overfield surprising majority ignores (1996) (setting S.E.2d 27 forth burdens and Christina L. because effort to distin quantum proof in proceeding natural guish that disingenuous case would be at best regain custody per- of child either since visitation under Christina L. is condi manently temporarily transferred to third upon tioned the existence of a close emotion party). al bond between child. With sum, L., majority’s out I concur addressing majority with the affir- Christina inappropriately very rulings mance of the of the created conflict in this court below in the difficult particularly instant case because no prov sensitive area of the clear error was law. application en as to the lower court of the tion, regard voluntary facts to the law with engineers poor policy by social concur, result, judicial fiat. parental rights.1However, part, As a I dissent, part. adamantly majority’s I dissent beyond reaching fairly arising the matters I am authorized state that Justice upon the record order to foreclose the joins separate opinion. Starcher in this opportunity parents of natural whose involuntary have been terminated to seek dispositional
modification of orders abuse majority’s policy case. The contrary expressed
statement is inten Legislature,
tion of prior is at odds with regarding post-termination
case law visita course, court, person 1. Of retains chal- merits both this and the Court lower lenge the existence of a valid relin- standing. not on the basis aof lack of quishment. Although Appellant’s contest of the validity was unsuccessful case, challenge rejected in this on the