             IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA

                                   January 2014 Term
                                   _______________                        FILED
                                                                       June 5, 2014
                                                                       released at 3:00 p.m.
                                      No. 13-0884                    RORY L. PERRY II, CLERK
                                                                   SUPREME COURT OF APPEALS
                                    _______________                     OF WEST VIRGINIA 




                                       IN RE: K.L.


           ___________________________________________________________

                      Appeal from the Circuit Court of Wetzel County
                       The Honorable David W. Hummel, Jr., Judge
                                Civil Action No. 12-JA-6

                 REVERSED AND REMANDED WITH DIRECTIONS
          ____________________________________________________________

                                 Submitted: April 9, 2014
                                   Filed: June 5, 2014


    Patricia A. Kurelac, Esq.                  Patrick Morrisey, Esq.
    Kurelac Law Offices, PLLC                  Attorney General
    Moundsville, West Virginia                 Charleston, West Virginia
    Counsel for the Petitioner                 Katherine M. Bond, Esq.
                                               Assistant Attorney General
                                               White Hall, West Virginia
                                               Counsel for the West Virginia
                                               Department of Health and Human
                                               Resources

                                               Roger R. Weese, Esq.
                                               Weese Legal Services
                                               New Martinsville, West Virginia
                                               Guardian Ad Litem



    The Opinion of the Court was delivered PER CURIAM.


 
                              SYLLABUS BY THE COURT


              1.     “Although conclusions of law reached by a circuit court are subject

to de novo review, when an action, such as an abuse and neglect case, is tried upon the

facts without a jury, the circuit 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. These findings shall not be set aside by a reviewing court unless clearly

erroneous. A finding is clearly erroneous when, although there is evidence to support the

finding, the reviewing court on the entire evidence is left with the definite and firm

conviction that a mistake has been committed. However, a reviewing court may not

overturn a finding simply because it would have decided the case differently, and it must

affirm a finding if the circuit court’s account of the evidence is plausible in light of the

record reviewed in its entirety.” Syl. pt. 1, In Interest of Tiffany Marie S., 196 W. Va.

223, 470 S.E.2d 177 (1996).



              2.     “[This Court] may, sua sponte, in the interest of justice, notice plain

error.” Syl. pt. 1, in part, State v. Myers, 204 W. Va. 449, 513 S.E.2d 676 (1998).



              3.     “To trigger application of the ‘plain error’ doctrine, there must be (1)

an error; (2) that is plain; (3) that affects substantial rights; and (4) seriously affects the

fairness, integrity, or public reputation of the judicial proceedings.” Syl. pt. 7, State v.

Miller, 194 W. Va. 3, 459 S.E.2d 114 (1995).


                                               i
 
              4.      “[T]he burden of proof in a child neglect or abuse case does not shift

from the State Department of [Health and Human Resources] to the parent, guardian or

custodian of the child. It remains upon the State Department of [Health and Human

Resources] throughout the proceedings.” Syl. pt. 2, in part, In Interest of S.C., 168 W. Va.

366, 284 S.E.2d 867 (1981).



              5.      “The presence of one of the factors outlined in W. Va. Code, 49-6-

5b(a)(3) [1998] merely lowers the threshold of evidence necessary for the termination of

parental rights. W. Va. Code, 49-6-5b(a)(3) [1998] does not mandate that a circuit court

terminate parental rights merely upon the filing of a petition filed pursuant to the statute,

and the Department of Health and Human Resources continues to bear the burden of

proving that the subject child is abused or neglected pursuant to W. Va. Code, 49-6-2

[1996].” Syl. pt. 5, In re George Glen B., Jr., 207 W. Va. 346, 532 S.E.2d 64 (2000).



              6.      “To be ‘plain,’ the error must be ‘clear’ or ‘obvious.’” Syl. pt. 8, in

part, State v. Miller, 194 W. Va. 3, 459 S.E.2d 114 (1995).



              7.      “Assuming that an error is ‘plain,’ the inquiry must proceed to its

last step and a determination made as to whether it affects the substantial rights of the

[petitioner]. To affect substantial rights means the error was prejudicial. It must have

affected the outcome of the proceedings in the circuit court . . . .” Syl. pt. 9, in part, State

v. Miller, 194 W. Va. 3, 459 S.E.2d 114 (1995).

                                               ii
 
              8.     “In the law concerning custody of minor children, no rule is more

firmly established than that the right of a natural parent to the custody of his or her infant

child is paramount to that of any other person; it is a fundamental personal liberty

protected and guaranteed by the Due Process Clauses of the West Virginia and United

States Constitutions.” Syl. pt. 1, In re Willis, 157 W. Va. 225, 207 S.E.2d 129 (1973).



              9.     “The standard of proof required to support a court order limiting or

terminating parental rights to the custody of minor children is clear, cogent and

convincing proof.” Syl. pt. 6, In re Willis, 157 W. Va. 225, 207 S.E.2d 129 (1973).



              10.    “Failure to observe a constitutional right constitutes reversible error

unless it can be shown that the error was harmless beyond a reasonable doubt.” Syl. pt. 5,

State ex rel. Grob v. Blair, 158 W. Va. 647, 214 S.E.2d 330 (1975).




                                             iii
 
Per Curiam:


                             Petitioner Ashley L. appeals the August 21, 2013, order of the Circuit Court

of Wetzel County that terminated her parental rights to her daughter, K.L.1 Because this

Court finds plain error in the proceedings below, we reverse the circuit court’s order and

remand for proceedings as directed in this opinion.


                                                               I. FACTS

                             On or about July 17, 2012, Respondent Department of Health and Human

Resources (hereinafter “DHHR” or “the Department”) filed a petition to institute abuse

and neglect proceedings against Petitioner Ashley L. regarding her child K.L. The

petition was filed pursuant to W. Va. Code § 49-6-5b(a)(3) (2006), which requires the

DHHR to file such a petition when the parental rights of the parent to a sibling of the

subject child have been terminated involuntarily.2 The petition alleged, inter alia, that on

May 6, 2008, in Marion County, the petitioner’s parental rights were terminated as to

child C.W., a sibling of K.L.3




                                                            
              1
          As is customary in cases involving children and sensitive facts, this Court uses
initials to identify the parties.
              2
         West Virginia Code § 49-6-5b(a)(3) provides in pertinent part: “(a) Except as
provided in subsection (b) of this section, the department shall file or join in a petition or
otherwise seek a ruling in any pending proceeding to terminate parental rights . . . (3) [if]
the parental rights of the parent to a sibling have been terminated involuntarily.”
 
              3
          The petition also indicated that the petitioner voluntarily relinquished her
parental rights to three other children in 2010.
                                                                  1
 
              The DHHR’s petition against the petitioner was based solely on the prior

involuntary termination. The DHHR requested in the petition that K.L. be placed in the

legal custody of the Department and that the physical custody remain with the petitioner

pending further proceedings. After a subsequent hearing, the circuit court found in its

adjudication order that the petitioner admitted that there was a prior involuntary

termination of her parental rights, and therefore the petition was substantiated. The circuit

court ordered that K.L. remain in the legal custody of the Department and the physical

custody of the petitioner.



              In February 2013, the petitioner was the victim of domestic violence when

Curtis L., her husband and K.L.’s father, beat the petitioner. Curtis L. was arrested, and

the petitioner shortly thereafter filed for divorce. As a result of this domestic violence

incident, K.L. was removed from the petitioner’s physical custody.



              The circuit court held the disposition hearing on the abuse and neglect

petition against the petitioner on August 2, 2013. At the beginning of the hearing, the

circuit court noted that “the unique posture of [the case] is that the burden of proof is

upon the parents to prove a substantial change in circumstances such that their parental

rights should not be terminated.” At the close of the hearing, the circuit court found as

follows:


                    I believe it’s West Virginia 49-6 and 5; burden is upon,
              not the Department, being represented by the Prosecuting

                                             2
 
                             Attorney, but upon the parents in this instance, Curtis and
                             Ashley [L.] to prove substantial change in circumstances.
                                     I would suppose and would believe that the burden of
                             proof would be by clear and convincing evidence insofar as
                             that’s what the burden of proof is on the Department to prove
                             that, at an adjudication, abuse and/or neglect, but even if I
                             lowered the standard to preponderance of the evidence, the
                             Court is not satisfied that Curtis and Ashley [L.] have, with
                             all due respect, met their burden of proof to satisfy the Court
                             that they have substantially changed their circumstances as
                             since having previously been involuntarily terminated from
                             the parental rights of prior children.
                                     With that, the burden does not shift to the Department
                             then to put on a case to prove otherwise.4

(Footnote added). Accordingly, by order dated August 21, 2013, the circuit court

terminated the petitioner’s parental rights to K.L. after finding that the petitioner failed to

meet her burden of showing a change in her circumstances since the termination of her

parental rights to C.W.5 The petitioner now appeals this order.


                                                               II. STANDARD OF REVIEW

                             In this case, we are asked to review an order that terminated the petitioner’s

parental rights. Our applicable standard of review is as follows:

                                    Although conclusions of law reached by a circuit court
                             are subject to de novo review, when an action, such as an
                             abuse and neglect case, is tried upon the facts without a jury,
                             the circuit court shall make a determination based upon the
                             evidence and shall make findings of fact and conclusions of
                                                            
              4
         This burden of proof was reiterated in the circuit court’s disposition order which
stated: “Whereupon, the Court further found that even if he lowered [the burden of proof]
to just preponderance that the Court would not be satisfied that a change in circumstances
had occurred since the involuntary relinquishment of the other children.”
 
              5
          The circuit court’s order also terminated the parental rights of Curtis L., K.L.’s
father, to K.L.; however, he is not a party to this appeal.
                                                                         3
 
                             law as to whether such child is abused or neglected. These
                             findings shall not be set aside by a reviewing court unless
                             clearly erroneous. A finding is clearly erroneous when,
                             although there is evidence to support the finding, the
                             reviewing court on the entire evidence is left with the definite
                             and firm conviction that a mistake has been committed.
                             However, a reviewing court may not overturn a finding
                             simply because it would have decided the case differently,
                             and it must affirm a finding if the circuit court’s account of
                             the evidence is plausible in light of the record reviewed in its
                             entirety.

Syl. Pt. 1, In Interest of Tiffany Marie S., 196 W. Va. 223, 470 S.E.2d 177 (1996). Our

decision in this case hinges on an issue of law which we review de novo.



                                                               III. DISCUSSION

                             The petitioner’s sole assignment of error is that the circuit court erred in

terminating her parental rights to K.L. because the evidence did not meet the standard

required for termination of parental rights under our law. The DHHR and the guardian ad

litem posit that the petitioner’s parental rights were properly terminated. This Court

finds, however, that the parties’ arguments are not dispositive of our decision in this case.

Instead, we find that the circuit court committed reversible error below by shifting the

burden to the petitioner to show a change in her circumstances since the previous

involuntary termination of her parental rights. Even though the petitioner did not raise

this issue in her appeal, this Court sua sponte notices plain error in the circuit court’s

burden shifting.6

                                                            
              6
         Although the practice of noticing plain error sua sponte is usually applied in
criminal cases, it is not exclusive to such cases. Recently, in Cartwright v. McComas, 223
                                                                      4
 
                             In syllabus point 1, in part, of State v. Myers, 204 W. Va. 449, 513 S.E.2d

676 (1998), we held that “[this Court] may, sua sponte, in the interest of justice, notice

plain error.” Our plain error analysis involves a four-step test. “To trigger application of

the ‘plain error’ doctrine, there must be (1) an error; (2) that is plain; (3) that affects

substantial rights; and (4) seriously affects the fairness, integrity, or public reputation of

the judicial proceedings.” Syl. pt. 7, State v. Miller, 194 W. Va. 3, 459 S.E.2d 114 (1995).

This Court finds that the circuit court’s burden-shifting below constitutes error, in that it

deviated from a rule of law of this Court. See Syl. pt. 8, in part, Id. (holding that “[a]

deviation from a rule of law is error unless there is a waiver” which is “a knowing and

intentional relinquishment or abandonment of a known right”). The rule of law from

which the circuit court deviated is found in syllabus point 2, in part, of In Interest of S.C.,

168 W. Va. 366, 284 S.E.2d 867 (1981), which holds that “the burden of proof in a child

neglect or abuse case does not shift from the State Department of [Health and Human

Resources] to the parent, guardian or custodian of the child. It remains upon the State

Department of [Health and Human Resources] throughout the proceedings.”



                             More recently and more specific to the instant case, this Court held in

syllabus point 5 of In re George Glen B., Jr., 207 W. Va. 346, 532 S.E.2d 64 (2000):

                                   The presence of one of the factors outlined in W. Va.
                             Code, 49-6-5b(a)(3) [1998] merely lowers the threshold of
                                                                                                                                                                                               
                                                                                                                                                                                               
W. Va. 161, 672 S.E.2d 297 (2008), this Court applied the doctrine in an appeal
involving a claim of medical malpractice. In that case, we cited, inter alia, 2A Fed. Proc.,
L.Ed. § 3:860 (acknowledging the power of federal courts to apply the plain error
doctrine in appeals of civil as well as criminal cases).
                                                                                             5
 
                             evidence necessary for the termination of parental rights. W.
                             Va. Code, 49-6-5b(a)(3) [1998] does not mandate that a
                             circuit court terminate parental rights merely upon the filing
                             of a petition filed pursuant to the statute, and the Department
                             of Health and Human Resources continues to bear the burden
                             of proving that the subject child is abused or neglected
                             pursuant to W. Va. Code, 49-6-2 [1996].

This Court made clear in In re George Glen B., Jr., that “while the Department does have

a mandatory duty to file a petition, a circuit court may not terminate parental rights

without additional evidence of abuse or neglect of the current child.” Id., at 350, 532

S.E.2d at 68. Therefore, under our law, it is clear that the DHHR retains the burden of

showing by clear and convincing evidence, even in a case in which there has been a prior

termination of parental rights, that the subject child is neglected or abused.7

                                                            
              7
          With regard to neglect and abuse cases involving prior termination of parental
rights, this Court has held:

                                    Where there has been a prior involuntary termination
                             of parental rights to a sibling, the issue of whether the parent
                             has remedied the problems which led to the prior involuntary
                             termination sufficient to parent a subsequently-born child
                             must, at minimum, be reviewed by a court, and such review
                             should be initiated on a petition pursuant to the provisions
                             governing the procedure in cases of child neglect or abuse set
                             forth in West Virginia Code §§ 49-6-1 to -12 (1998).
                             Although the requirement that such a petition be filed does
                             not mandate termination in all circumstances, the legislature
                             has reduced the minimum threshold of evidence necessary for
                             termination where one of the four factors outlined in West
                             Virginia Code § 49-6-5b(a) (1998) is present.

Syl. pt. 2, In re George Glen B., Jr., 205 W. Va. 435, 518 S.E.2d 863 (1999). In addition,
we have held:

                                    When an abuse and neglect petition is brought based
                             solely upon a previous involuntary termination of parental
                                                               6
 
                             In addition, this Court finds that the error is plain. “To be ‘plain,’ the error

must be ‘clear’ or ‘obvious.’” Syl. pt. 8, in part, Miller, 194 W. Va. 3, 459 S.E.2d 114.

The circuit court stated clearly on the record that under the facts of this case the burden

shifted to the petitioner to show a substantial change in circumstances since the previous

termination of her parental rights. Thus, the circuit court’s error is obvious to this Court.



                             Finally, “[a]ssuming that an error is ‘plain,’ the inquiry must proceed to its

last step and a determination made as to whether it affects the substantial rights of the

[petitioner]. To affect substantial rights means the error was prejudicial. It must have

affected the outcome of the proceedings in the circuit court . . . . ” Syl. pt. 9, in part, Id.

There can be no doubt that the circuit court’s burden shifting prejudiced the substantial

rights of the petitioner. This Court has recognized that

                                     [i]n the law concerning custody of minor children, no
                             rule is more firmly established than that the right of a natural
                             parent to the custody of his or her infant child is paramount to
                             that of any other person; it is a fundamental personal liberty
                             protected and guaranteed by the Due Process Clauses of the
                             West Virginia and United States Constitutions.



                                                                                                                                                                                               
                                                                                                                                                                                               
                             rights to a sibling pursuant to West Virginia Code § 49-6-
                             5b(a)(3) (1998), prior to the lower court’s making any
                             disposition regarding the petition, it must allow the
                             development of evidence surrounding the prior involuntary
                             termination(s) and what actions, if any, the parent(s) have
                             taken to remedy the circumstances which led to the prior
                             termination(s).

Syl. pt. 4, In re George Glen B., Jr., supra.
                                                                                             7
 
Syl. pt. 1, In re Willis, 157 W. Va. 225, 207 S.E.2d 129 (1973). As a result, “[t]he

standard of proof required to support a court order limiting or terminating parental rights

to the custody of minor children is clear, cogent and convincing proof.” Syl. pt. 6, Id.

Significantly, this burden of proof is a constitutional imperative. In Santosky v. Kramer,

455 U.S. 745, 747 (1982), the United States Supreme Court held that the Due Process

Clause of the Fourteenth Amendment of the Federal Constitution demands more than a

showing of “a fair preponderance of the evidence” to extinguish the parent-child

relationship.” Instead, opined the Court, “[b]efore a State may sever completely and

irrevocably the rights of parents in their natural child, due process requires that the State

support its allegations [of abuse and/or neglect] by at least clear and convincing

evidence.” 455 U.S. at 747–48. Thus, we find that the circuit court below violated the

petitioner’s constitutional due process rights when it shifted the burden to her to show a

change in circumstances since the previous termination of the petitioner’s parental rights

to another child.



              Further, this Court has held that “[f]ailure to observe a constitutional right

constitutes reversible error unless it can be shown that the error was harmless beyond a

reasonable doubt.” Syl. pt. 5, State ex rel. Grob v. Blair, 158 W. Va. 647, 214 S.E.2d 330

(1975). In the instant case, the constitutional error in burden shifting was not harmless

beyond a reasonable doubt. Significantly, the circuit court did not require the DHHR to

adduce evidence or provide testimony at the dispositional hearing that the petitioner

abused or neglected K.L. Moreover, the circuit court’s termination of the petitioner’s

                                             8
 
parental rights to K.L. clearly was based on the fact that the petitioner failed to meet her

burden of showing a change in circumstances. Therefore, this Court finds that the circuit

court violated the petitioner’s due process rights when it shifted the burden of proof to the

petitioner, and that this violation clearly prejudiced the petitioner.



              Finally, this Court notes the legally unsound arguments of the DHHR and

the guardian ad litem before this Court to the effect that despite any procedural

irregularities in the proceedings below, the dispositive factor in this case is the best

interests of K.L. First, terminating the parental rights of the petitioner to K.L. based on

shifting the burden of proof to her to show that she did not neglect and or abuse K.L. is

not a mere procedural irregularity, but rather a constitutional due process error. Second,

the best interests of the child do not become paramount until the child’s parents are found

to be unfit. Until that time, the best interests of the parents and children are presumed to

be the same. As the Supreme Court said in Santosky, it is not until “[a]fter the State has

established parental unfitness . . . that the interests of the child and the natural parents do

diverge. . . . [U]ntil the State proves parental unfitness, the child and his [or her] parents

share a vital interest in preventing erroneous termination of their natural relationship.”

455 U.S. at 760 (footnote omitted). Indeed, if a parent’s unfitness did not have to be

shown prior to considering a child’s best interests, the State could simply dispense with

due process procedures and simply remove children from fit parents who may be poor or

uneducated and place them with fit parents who may be more affluent and or better

educated based on the State’s belief that it knows what is best for a child.

                                               9
 
              In sum, this Court finds that the circuit court committed reversible error in

shifting the burden to the petitioner in the instant abuse and neglect case. As noted above,

the burden of proof never shifts from the DHHR to the parent throughout a case

involving allegations of child abuse and neglect. Upon remand of this case, if the DHHR

chooses to go forward in alleging abuse and neglect against the petitioner, we direct the

circuit court to follow the points of law set forth by this Court in In re George Glen B.,

Jr., 207 W. Va. 346, 532 S.E.2d 64 (2000). Specifically, the burden remains with the

DHHR to show by clear and convincing evidence that the petitioner committed abuse

and/or neglect of K.L. in addition to showing the previous termination of the petitioner’s

parental rights to a sibling of K.L. As noted above, the DHHR’s petition against the

petitioner was based solely on the prior involuntary termination, without further

allegations. There must be specific allegations and evidence of abuse or neglect of K.L.,

which could include demonstrating that K.L. was abused and/or neglected by showing the

petitioner failed to correct the conditions that led to the prior termination of her parental

rights and/or that other circumstances exist which would establish abuse and/or neglect.



              Consequently, on remand, if such circumstances exist, the DHHR should

file an amended abuse and neglect petition that includes any developments subsequent to

the filing of the original petition that are relevant to the petitioner’s fitness as a parent to

K.L., including anything that occurred during the petitioner’s improvement period.

However, the circuit court must remain mindful that



                                              10
 
                                     [i]n making the final disposition in a child abuse and
                             neglect proceeding, the level of a parent’s compliance with
                             the terms and conditions of an improvement period is just one
                             factor to be considered. The controlling standard that governs
                             any dispositional decision remains the best interests of the
                             child.

Syl. pt. 4, In Re B.H., 233 W. Va. 57, 753 S.E.2d 743 (2014). Because the child is in

placement, such petition should be filed within sixty days of this opinion. If no such

petition is filed and if the child is to be returned to the mother, the lower court should

develop a plan of gradual transition, pursuant to James M. v. Maynard, 185 W. Va. 648,

408 S.E.2d 400 (1991),8 calculated to minimize emotional trauma to the child.



                                                               IV. CONCLUSION

                             For the reasons set forth above, this Court reverses the August 21, 2013,

order of the Circuit Court of Wetzel County that terminated Petitioner Ashley L.’s

parental rights to K.L., and we remand this case to the circuit court for proceedings as

directed in this opinion.

                                                                          Reversed and remanded with directions.


                                                            
              8
                  Syllabus point 3 of James M. provides as follows:

                                    It is a traumatic experience for children to undergo
                             sudden and dramatic changes in their permanent custodians.
                             Lower courts in cases such as these should provide, whenever
                             possible, for a gradual transition period, especially where
                             young children are involved. Further, such gradual transition
                             periods should be developed in a manner intended to foster
                             the emotional adjustment of the children to this change and to
                             maintain as much stability as possible in their lives.
                                                                     11
 
