                              STATE OF WEST VIRGINIA

                            SUPREME COURT OF APPEALS


                                                                                    FILED
In Re: T.D. & T.D.
                                                                                  May 18, 2015
                                                                               RORY L. PERRY II, CLERK
No. 14-1040 (Wayne County 13-JA-69 & 13-JA-70)                               SUPREME COURT OF APPEALS
                                                                                 OF WEST VIRGINIA



                               MEMORANDUM DECISION
        Petitioner Mother E.S., by counsel Jack C. Dolance, appeals the Circuit Court of Wayne
County’s September 19, 2014, order denying her motion to set aside her voluntary
relinquishment to T.D.-1 and T.D.-2. The West Virginia Department of Health and Human
Resources (“DHHR”), by counsel S. L. Evans, filed its response in support of the circuit court’s
order. The guardian ad litem (“guardian”), David M. Tyson, filed a response on behalf of the
children in support of the circuit court’s order.1 On appeal, petitioner raises two issues: (1) denial
of due process of law and fundamental fairness in these proceedings because (a) of a purported
conflict of interest with the Wayne County Prosecuting Attorney’s Office and (b) no court had
determined that she murdered the children’s father prior to the filing of the underlying abuse and
neglect petition; and (2) invalid relinquishment of parental rights as involuntary, fraudulent, and
entered under duress.2

        This Court has considered the parties’ briefs and the record on appeal. The facts and legal
arguments are adequately presented, and the decisional process would not be significantly aided
by oral argument. Upon consideration of the standard of review, the briefs, and the record
presented, the Court finds no substantial question of law and no prejudicial error. For these
reasons, a memorandum decision affirming the circuit court’s order is appropriate under Rule 21
of the Rules of Appellate Procedure.

        In October of 2013, the DHHR filed an abuse and neglect petition against petitioner
alleging that she murdered the children’s father, was arrested and incarcerated therefor, and left
the children without a caretaker.3 Law enforcement arrested petitioner on October 5, 2013, at

       1
         The guardian incorrectly titled his response a “Reply Brief.” We refer the guardian to
Rules 10(d), 10(e), 10(g), 11(h), and 11(j) of the West Virginia Rules of Appellate Procedure
(requiring a guardian in abuse and neglect proceedings to file either a respondent’s brief or
summary response.).
       2
        In her brief to this Court, petitioner presented two assignments of error as to the alleged
denial of due process and fundamental fairness. Although sufficiently argued for appellate
review, she did not raise her claim as to the validity of the relinquishment in a separate
assignment of error. We reorganize petitioner’s issues in this memorandum decision to better
address her claims.
       3
           The DHHR filed a subsequent amended petition with no changes relevant to this appeal.
                                                  1


which time she was incarcerated on charges of first-degree murder.4 The DHHR claimed that she
shot the children’s father in the family home while the children were in that home in
approximately June of 2013 and buried his body with a friend’s assistance.

        In November of 2013, the circuit court held an adjudicatory hearing. The DHHR called
the Child Protective Services (“CPS”) worker, who testified that petitioner confessed to shooting
the children’s father in the head while the children were in the home and contacting a friend to
help bury the body. The CPS worker explained that the body was discovered months later, at
which time petitioner was arrested. She added that petitioner had been incarcerated since her
arrest in October of 2013. Under cross-examination, the CPS worker admitted that petitioner had
not been convicted of any crime in relation to the shooting. However, the CPS worker noted that
petitioner lacked the ability to parent because she was incarcerated and was not likely to be
released in the near future. She also testified that the children suffered psychological trauma
from these events, and petitioner had a CPS history. By order entered on November 22, 2013, the
circuit court adjudicated the children as neglected due to petitioner’s confession that she shot and
killed their father, while the children were in the home, disposed of his body, and was
subsequently incarcerated on a first-degree murder charge leaving them without a caretaker.

        In January of 2014, the circuit court permitted the parties to present additional evidence
as to whether the children had been abused or neglected.5 The DHHR called an officer with the
West Virginia State Police who testified that petitioner admitted to shooting and killing the
children’s father in approximately June of 2013 while the children were in the bedroom of the
home. Petitioner argued that the killing was justified because the children’s father abused both
her and the children. At the conclusion of this hearing, the circuit court again found that
petitioner neglected the children.

        Between February and July of 2014, the circuit court held three dispositional hearings.
The circuit court heard evidence that petitioner remained incarcerated with no foreseeable release
date. Testimony further established that the children were doing well in their placements and that
guardianship with the children’s paternal aunt was a fully appropriate disposition. At the
conclusion of the second dispositional hearing in April of 2014, the circuit court stated that it
perceived only two alternatives at that time: terminate petitioner’s parental rights or grant
permanent guardianship with the children’s paternal aunt. However, it continued the matter for a
final dispositional hearing. In May of 2014, the children were placed with their paternal aunt. At
the final dispositional hearing in July of 2014, under oath, in open court, and in writing,



       4
       She was incarcerated throughout the entirety of the proceedings below, and, according to
the West Virginia Regional Jail authority website, she remains incarcerated as of the date of this
memorandum decision, following her guilty plea to the criminal offense of voluntary
manslaughter.
       5
         By order entered on November 22, 2013, the circuit court entered an adjudication in this
matter, which completed the adjudicatory phase of these proceedings. It is unclear from the
record on appeal why the circuit court permitted the presentation of additional evidence on the
issue of whether the children had been abused or neglected.
                                                 2


petitioner voluntarily relinquished her parental rights to both children. She stated that she
understood that her relinquishment would result in the termination of her parental rights,
although her counsel stated that she could later petition the court to “perhaps” receive visitation
or parenting time with the children. She admitted that the relinquishment was in the children’s
best interests. By order entered on July 30, 2014, the circuit court accepted her voluntary
relinquishment.

         In August of 2014, petitioner filed a motion to set aside the July 30, 2014, relinquishment
and termination order. Her sole argument in support of her motion was that she was under duress
at the time of her relinquishment due to her incarceration and indictment on first-degree murder
charges and her inability to participate in services. In September of 2014, the circuit court held a
hearing on petitioner’s motion. Petitioner testified that she was under duress due to her
incarceration, which was due to her lack of a bond set in her criminal proceedings at the time of
her relinquishment, and that she had no choice but to voluntarily relinquish her parental rights
because she could not participate in DHHR services under such circumstances. She admitted at
that hearing that she remained incarcerated despite having a bond set because she could not post
that bond. By order entered on September 19, 2014, the circuit court denied her motion finding
that her relinquishment was voluntary. This appeal followed.

       The Court has previously established the following standard of review:

               “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
       viewed in its entirety.” Syl. Pt. 1, In Interest of Tiffany Marie S., 196 W.Va. 223,
       470 S.E.2d 177 (1996).

Syl. Pt. 1, In re Cecil T., 228 W.Va. 89, 717 S.E.2d 873 (2011).

        On appeal, petitioner argues that she was denied due process of law and fundamental
fairness as a result of (1) an impermissible conflict of interest with the Wayne County
Prosecuting Attorney’s Office; (2) improper actions by the DHHR regarding a meeting with a
CPS worker days before the final dispositional hearing and the handling of a home study in the
State of Florida; and (3) the circuit court permitting the DHHR to proceed and making findings
based on the murder of the children’s father when no court had yet determined that she murdered




                                                 3


him.6 However, petitioner admits that she did not raise these issues below, either by objection or
motion prior to her relinquishment. See Rule 10(c)(7), R. App. Pro. (stating that “[t]he argument
must contain appropriate and specific citations to the record on appeal, including citations that
pinpoint when and how the issues in the assignments of error were presented to the lower
tribunal.”). It is well-established that “[o]rdinarily, a party must raise his or her objection
contemporaneously with the trial court’s ruling to which it relates or be forever barred from
asserting that that ruling was in error.” State v. Whittaker, 221 W.Va. 117, 131, 650 S.E.2d 216,
230 (2007). “This Court will not consider an error which is not preserved in the record nor
apparent on the face of the record.” Syl. pt. 6, State v. Byers, 159 W. Va. 596, 224 S.E.2d 726
(1976). In addition,

       [t]o preserve an issue for appellate review, a party must articulate it with such
       sufficient distinctiveness to alert a circuit court to the nature of the claimed defect.
       The rule in West Virginia is that parties must speak clearly in the circuit court on
       pain that, if they forget their lines, they will likely be bound forever to hold their
       peace . . . it must be emphasized that the contours for appeal are shaped at the
       circuit court level by setting forth with particularity and at the appropriate time
       the legal ground upon which the parties intend to rely.

State ex rel. Cooper v. Caperton, 196 W.Va. 208, 216, 470 S.E.2d 162, 170 (1996). However,
this Court has recognized that “[t]he ‘raise or waive’ rule is not absolute where, in extraordinary
circumstances, the failure to object constitutes plain error.” Id. at 131 n. 18, 650 S.E.2d at 230 n.
18. “The ‘plain error’ doctrine grants appellate courts, in the interest of justice, the authority to
notice error to which no objection has been made.” State v. Miller, 194 W.Va. 3, 18, 459 S.E.2d
114, 129 (1995). Therefore, because petitioner failed to properly preserve these issues, any error
is foreclosed from appellate review unless it rises to the level of plain error. “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.” Id. at 6, 459 S.E.2d at 117, Syl. Pt. 7.

        Petitioner correctly states that she had a right to fundamentally fair procedures and due
process of law in the underlying proceedings. See Santosky v. Kramer, 455 U.S. 745, 754 (1982)
(requiring State to “provide the parents with fundamentally fair procedures” and due process of
law in proceedings to terminate parental rights); Syl. Pt. 1, In re Willis, 157 W.Va. 225, 207
S.E.2d 129 (1973) (holding parental custody of minor child is fundamental personal liberty
protected and guaranteed by Due Process Clauses of West Virginia and United States
Constitutions); see also Syl. Pt. 6, In re Elizabeth A., 217 W.Va. 197, 617 S.E.2d 547 (2005)
(where it appears from record that process established by the Rules of Procedure for Child Abuse
and Neglect Proceedings . . . has been substantially disregarded or frustrated, resulting order of
disposition will be vacated and case remanded for compliance with that process and entry of
appropriate dispositional order.). However, based on our review of the record on appeal, we find
no denial of due process or fundamentally fair proceedings in this matter.

       6
         Although petitioner separates her claims of denial of due process into two assignments
of error, we find that they are related. Therefore, we address them together.


                                                  4


        Despite petitioner’s argument that the assistant prosecutor at issue, Gary L. Michels, and
the entire prosecuting attorney’s office, should have been disqualified because he previously
represented the children’s father in domestic proceedings against petitioner, it is not clear from
the record on appeal that a conflict existed.7 Nonetheless, if an impermissible conflict did exist,
petitioner admits that Mr. Michels did not participate in these abuse and neglect proceedings,
although others in the Wayne County prosecutor’s office did. Importantly, petitioner fails to cite
any controlling authority to support disqualification of an assistant prosecutor, or the entire
prosecuting attorney’s office, from civil abuse and neglect proceedings under these
circumstances. While she cites a favorable passage from our opinion in Nicholas v. Sammons to
support her claim, regarding a prosecutor’s personal interest in the criminal context, she ignores
our holding in that opinion that “[i]t is generally held that past representations of a victim on
civil matters unrelated to the criminal charges involving the defendant ordinarily will not
disqualify a prosecutor.” Syl. Pt. 3, 178 W.Va. 631, 363 S.E.2d 516 (1987). Contrary to
petitioner’s argument, it appears that the impetus for the prosecuting attorney’s office to
voluntarily disqualify itself from her criminal proceedings was that she listed Mr. Michels as a
potential witness at her criminal trial. Petitioner does not indicate where in the record on appeal
in this matter where she filed a similar witness list. However, even if we applied the same
standards applicable in the criminal context to this matter, we cannot find, based on the record
before us, that Mr. Michels’s representation of the children’s father was related to the underlying
abuse and neglect petition here. Mr. Michels represented the children’s father in domestic
proceedings against petitioner. The underlying abuse and neglect petition was based, not on the
domestic violence, but on petitioner’s alleged murder of the children’s father and her subsequent
incarceration for that offense leaving the children without a caretaker.

        We also find no error in petitioner’s remaining claims that she was denied due process.
Petitioner cites no authority to support her argument that the CPS worker was not permitted to
meet with petitioner prior to the final dispositional hearing. Moreover, as petitioner was
incarcerated at the time of this alleged meeting, petitioner must have agreed to do so. We also
disagree with her claim that the DHHR could not proceed on an abuse and neglect petition until a
court determined that petitioner committed murder. West Virginia Code § 49-6-5b(a)(3) requires
the DHHR to seek termination of a person’s parental rights when “a court has determined the
parent had committed murder . . . of . . . the other parent[.]” Petitioner misunderstands the
requirements of this statutory provision. The fact that no court had determined that petitioner
committed the murder, while not triggering the requirement of West Virginia Code § 49-6­

       7
         To the extent petitioner argues that we should consider this issue as newly discovered
evidence, we cannot find that the alleged conflict with the Wayne County prosecutor’s office is
newly discovered. Although we find no authority that permits a person to re-open abuse and
neglect proceedings following a relinquishment due to newly discovered evidence, we need not
consider the point here. Petitioner states in her brief that she knew that Mr. Michels represented
the children’s father before his death, which was before the underlying petition was filed. She
further claims that the alleged conflict added to her duress when she relinquished her parental
rights. Therefore, she knew of the alleged conflict prior to the underlying proceedings, and it
could not have been newly discovered by her after those proceedings ended. Thus, we do not
now consider the alleged conflict as newly discovered evidence.
                                                5


5b(a)(3) to seek termination, would not prevent the DHHR from filing a petition and pursuing
the same. Indeed, such a ruling would fly in the face of Rule 5 of the West Virginia Rules of
Procedure for Child Abuse and Neglect, which provides that “[u]nder no circumstances shall a
civil protection proceeding be delayed pending the initiation, investigation, prosecution, or
resolution of any other proceeding, including, but not limited to, criminal proceedings.” As to her
final due process claim, we find no error in the circuit court’s finding of aggravated
circumstances and ruling that the DHHR need not make reasonable efforts to preserve the
family. See W. Va. Code § 49-6-5(a)(7) (stating that “the department is not required to make
reasonable efforts to preserve the family if the court determines . . . [t]he parent has: (i)
Committed murder of the child’s other parent. . .”). The circuit court was permitted to make such
a finding in light of petitioner’s confession to police. Even if we found error, such error would be
harmless and not plainly affecting substantial rights. Petitioner remained incarcerated throughout
these proceedings and, as a result, failed to participate in services. We find no plain error in the
circuit court’s failure to await petitioner’s outcome in the criminal matter and potential release to
require the DHHR to make reasonable efforts to preserve the family. See In re: Cecil T., 228
W.Va. 89, 717 S.E.2d 873 (2011) (stating that “incarceration may unreasonably delay the
permanent placement of the child deemed abused or neglected, and the best interests of the child
would be served by terminating the incarcerated person’s parental rights.”). For the foregoing
reasons, we find no plain error in petitioner’s proceedings.

        In her final claim on appeal, petitioner argues that her relinquishment of parental rights
was invalid.8 West Virginia Code § 49-6-7 provides that “[a]n agreement of a natural parent in
termination of parental rights shall be valid if made by a duly acknowledged writing, and entered
into under circumstances free from duress and fraud.” In syllabus point 3 of In re: Cesar L., we
explained that West Virginia Code § 49-6-7 “permits a parent to voluntarily relinquish his/her
parental rights. Such voluntary relinquishment is valid pursuant to W.Va. Code § 49-6-7 if the
relinquishment is made by ‘a duly acknowledged writing’ and is ‘entered into under
circumstances free from duress and fraud.’” 221 W.Va. 249, 654 S.E.2d 373 (2007). We have
further explained that

       [w]hile W.Va. Code [§] 49-6-7 specifically permits a relinquishment of parental
       rights, it clearly suggests that such an agreement may be invalid if it is not entered
       into under circumstances that are free of duress and fraud. Whether there has been
       fraud or duress is a question of fact that must be determined by the circuit court
       judge.

State ex rel Rose v. Pancake, 209 W.Va. 188, 191, 544 S.E.2d 403, 406 (2001).




       8
         Petitioner lacks standing to move to modify the circuit court’s dispositional order. See
Syl. Pt. 6, In re: Cesar L., 221 W.Va. 249, 654 S.E.2d 373 (2007) (stating that when “parental
rights have been terminated by a final order, as the result of . . . a voluntary relinquishment of
parental rights, [that person] does not have standing . . . to move for a modification of
disposition[.]”). Therefore, we address only petitioner’s arguments as to the final disposition as
they relate to the validity of her relinquishment of parental rights.
                                                 6


       In both In re: Cesar L. and Rose, we discussed the elements of duress and fraud as
follows:

               [A] relinquishment agreement that is made in writing and entered into
       under circumstances free from duress and fraud is valid. A parent attempting to
       show otherwise is faced with a challenging task. Indeed, the threshold for
       establishing duress and fraud in the context of the relinquishment of parental
       rights is extremely high. As to duress, this Court has held that, in the context of an
       adoption, duress “means a condition that exists when a natural parent is induced
       by the unlawful or unconscionable act of another to consent to the adoption of his
       or her child. Mere ‘duress of circumstance’ does not constitute duress[.]” Syl. pt.
       2, in part, Wooten v. Wallace, 177 W.Va. 159, 351 S.E.2d 72 (1986). See also
       Baby Boy R. v. Velas, 182 W.Va. 182, 185, 386 S.E.2d 839, 842 (1989)
       (“[Duress] means a condition that exists when a natural parent is induced by the
       unlawful or unconscionable act of another to consent to the adoption of his or her
       child.”). With respect to fraud, we have held:

              The essential elements in an action for fraud are: (1) that the act
              claimed to be fraudulent was the act of the defendant or induced by
              him; (2) that it was material and false; that plaintiff relied on it and
              was justified under the circumstances in relying upon it; and (3)
              that he was damaged because he relied on it.

       Syl. pt. 1, Lengyel v. Lint, 167 W.Va. 272, 280 S.E.2d 66 (1981) . . . .

              Finally, I wish to emphasize that a parent challenging a relinquishment of
       his or her parental rights on the grounds of duress and fraud has the difficult
       responsibility of establishing the elements outlined above by clear and convincing
       evidence. See, e.g., [W. Va.Code §] 48–4–5(a)(2) (1997) (Repl.Vol.1999)
       (allowing revocation of adoption due to fraud or duress only where “[t]he person
       who executed the consent or relinquishment proves by clear and convincing
       evidence . . . that the consent or relinquishment was obtained by fraud or duress ”
       (emphasis added)) . . . .

              [I]t is clear that a parent has a heavy burden to establish duress or fraud
       once he or she has relinquished parental rights . . . .

In re: Cesar L. at 261-62, 654 S.E.2d at 385-86 (citing Rose, 209 W.Va. at 192–93, 544 S.E.2d at
407–08 (Davis, J., concurring) (emphasis in original) (additional citations omitted)).

       In this case, petitioner fails to satisfy her heavy burden on appeal. Although she argues
that she was under “extraordinary duress” due to her incarceration on a first-degree murder
charge and the pressure of a potentially imminent involuntary termination, these circumstances
do not constitute duress sufficient to set aside a voluntary relinquishment. As to petitioner’s
incarceration, we have held that incarceration alone does not constitute sufficient duress to set
aside a voluntary relinquishment. See Id. (stating that incarceration alone, which removed

                                                 7


parent’s ability to care for child, was a “[m]ere ‘duress of circumstance’” that did not constitute
duress to set aside voluntary relinquishment.) (citations omitted). As to her potentially imminent
involuntary termination, petitioner expressly testified, under oath, that her relinquishment was
made without any coercion or intimidation and was of her own free will. We find no evidence to
contradict that testimony. The record before us does not support a finding of duress.

        Petitioner also fails to demonstrate that she was the victim of fraud. Contrary to her
argument that she failed to understand the consequences of her relinquishment due to statements
by her counsel and the circuit court, the record clearly demonstrates that she signed the
relinquishment forms with advice of counsel. Those forms specifically provide, “I hereby
voluntarily consent to the permanent transfer of the legal custody” of the children to the DHHR.
Her counsel stated on the record that “I believe that she has been fully advised of her rights as to
her children and the consequences of relinquishing her parental rights.” Her counsel then asked
her, under oath, “[a]nd do you know and understand that if the Judge approves, accepts, your
voluntary relinquishment, your parental rights to these boys will be terminated?” She
unequivocally replied, “[y]es.” While her counsel stated that she could later petition the court to
“perhaps” have parenting time or visitation, such a statement does not support a finding of fraud.
Post-termination visitation is a separate and distinct issue from that of termination. Similarly, we
find no fraud in her counsel’s and the circuit court’s questions regarding whether she believed
relinquishment was in the children’s best interests “at that time” to which she answered “[y]es.”
Petitioner’s argument implies that the circuit court should have disregarded her statement of
understanding at the time she entered her relinquishment. We find no merit to petitioner’s
argument. Petitioner’s relinquishment was valid.

       Therefore, we find no error in the decision of the circuit court, and its September 19,
2014, order is hereby affirmed.


                                                                                         Affirmed.


ISSUED: May 18, 2015

CONCURRED IN BY:

Chief Justice Margaret L. Workman
Justice Robin Jean Davis
Justice Brent D. Benjamin
Justice Menis E. Ketchum
Justice Allen H. Loughry II




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