                             STATE OF WEST VIRGINIA

                           SUPREME COURT OF APPEALS

                                                                                    FILED
In Re: C.W., A.W., & K.W.                                                         April 13, 2015
                                                                               RORY L. PERRY II, CLERK
                                                                             SUPREME COURT OF APPEALS
No. 14-1164 (Mingo County 13-JA-23 through 13-JA-25)                             OF WEST VIRGINIA




                               MEMORANDUM DECISION
        Petitioner Mother M.M., by counsel Stacey Kohari, appeals the Circuit Court of Mingo
County’s October 10, 2014, order denying her motion to reinstate her parental rights to C.W.,
A.W., and K.W. 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, Diana Carter Wiedel, filed a response on behalf of the children supporting the circuit
court’s order. Petitioner filed a reply. On appeal, petitioner alleges that the circuit court erred in
denying her motion to reinstate her parental rights to the children because her voluntary
relinquishment of parental rights was obtained by fraud and duress.

        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 March of 2013, the DHHR filed an abuse and neglect petition alleging that petitioner’s
neglect threatened the children’s health and welfare. According to the petition, four days prior,
Child Protective Services (“CPS”) visited the home. Petitioner’s oldest child, A.M., then an
adult, stepped onto the porch and told CPS that the children were at church and that petitioner
had been rushed to the hospital, although she was unable to say why. However, a CPS employee
observed thirteen-year-old K.W. outside the home playing with a water hose in sub-freezing
temperatures. Then another child, fifteen-year-old C.W., stepped outside and made excuses for
why A.M. would not allow CPS into the home. While standing on the threshold, CPS observed
the home to be in a state of complete neglect, with dog feces, garbage, spoiled food, and clothing
scattered throughout. The family was further using the electric oven as a primary source of heat.
Petitioner later told CPS that she worked long hours and that her daughter, A.M., cared for the
children in her absence.

       The circuit court held a preliminary hearing the next month, which petitioner attended
with appointed counsel. It was later determined that petitioner did not qualify for appointed
counsel and her attorney, Joshua Ferrell, was permitted to withdraw. As such, petitioner
proceeded pro se at the adjudicatory hearing held in April of 2013, at which the circuit court
found petitioner to be an abusing parent. In May of 2013, the circuit court granted petitioner a
post-adjudicatory improvement period. In September of 2013, the circuit court reappointed Mr.

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Ferrell to represent petitioner because she had recently lost her job and, therefore, qualified for
appointed counsel. Thereafter, in October of 2013, the circuit court held a dispositional hearing,
at which time petitioner announced a desire to voluntarily relinquish her parental rights to the
children. The circuit court called a two-hour recess so that the appropriate paperwork could be
completed, after which the circuit court questioned petitioner regarding her desire to voluntarily
relinquish her parental rights. Ultimately, the circuit court accepted petitioner’s voluntary
relinquishment.

        In February of 2014, petitioner, by new counsel Stacey Kohari, filed a motion seeking to
reinstate her parental rights, alleging her relinquishment was not valid because it was obtained
through fraud and duress. The circuit court held a hearing the following day and continued the
matter to allow time to review transcripts and subpoena witnesses. In April of 2014, the circuit
court held a hearing on petitioner’s motion, during which her prior attorney testified. Ultimately,
the circuit court entered an order denying petitioner’s motion. Petitioner now appeals from the
order denying her motion to reinstate parental rights.

       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). Moreover, pursuant to West
Virginia Code § 49-6-7, “[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 discussing this statute, we have previously stated 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. Accordingly, we hold that under the provisions of W.Va.Code [§] 49–6–7,
       a circuit court may conduct a hearing to determine whether the signing by a parent
       of an agreement relinquishing parental rights was free from duress and fraud.




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State ex rel. Rose L. v. Pancake, 209 W.Va. 188, 191, 544 S.E.2d 403, 406 (2001). Upon our
review, we find no error in the circuit court denying petitioner’s motion for reinstatement of
parental rights because she failed to show that she voluntarily relinquished her parental rights
due to fraud or duress.

        On appeal, petitioner argues that she testified to several factors that evidenced fraud or
duress below, including the following: (1) that she believed she may have been charged
criminally if she proceeded to disposition; (2) that she did not understand she had a right to a
dispositional hearing; (3) that she would not have voluntarily relinquished if she had not been
under the impression that her parental rights were going to be terminated; (4) that she was
hurried into signing the dispositional order without being allowed to read it; (5) and that Mr.
Ferrell advised her she may not be granted visitation with the children if her parental rights were
terminated. However, the Court does not agree that this testimony established fraud or duress in
obtaining petitioner’s voluntary relinquishment because her argument on this issue wholly
ignores the conflicting evidence introduced during testimony from her prior attorney.

        According to Mr. Ferrell’s testimony, petitioner approached him with the idea to
voluntarily relinquish her parental rights. The record shows that petitioner contacted Mr. Ferrell
on several occasions to discuss voluntarily relinquishing her parental rights to the children
because she wished to continue her employment as a truck driver, which required her to be away
from home for extended periods. In response, Mr. Ferrell indicated to petitioner that he did not
believe the DHHR would seek termination of her parental rights and would provide her with
services if she were available. However, according to Mr. Ferrell, petitioner would become “irate
and scream” at him that she had to continue working as a truck driver to support her children.
Further, Mr. Ferrell testified that he advised petitioner this was not a criminal proceeding and
that petitioner never indicated to him that she feared jail time or criminal charges as a result of
proceeding to disposition. Additionally, Mr. Ferrell advised petitioner as to what typically occurs
at dispositional hearings, discussed the contents of the voluntary relinquishment of parent rights
form with petitioner, and advised her about the form.

        Based upon this evidence, the circuit court found that petitioner’s voluntary
relinquishment of parental rights “was free from duress and fraud.” Upon our review, the Court
agrees. As noted above, the only evidence upon which petitioner relies is her own self-serving
testimony that was contradicted by Mr. Ferrell’s testimony. We have previously held that “[a]
reviewing court cannot assess witness credibility through a record. The trier of fact is uniquely
situated to make such determinations and this Court is not in a position to, and will not, second
guess such determinations.” Michael D.C. v. Wanda L.C., 201 W.Va. 381, 388, 497 S.E.2d 531,
538 (1997). As such, the circuit court was free to make credibility determinations when
presented with conflicting testimony from petitioner and her prior attorney, and the Court refuses
to disturb these determinations.

       For the foregoing reasons, we find no error in the circuit court’s decision and its October
10, 2014, order is hereby affirmed.




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                                          Affirmed.

ISSUED: April 13, 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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