                             STATE OF WEST VIRGINIA

                           SUPREME COURT OF APPEALS


                                                                                   FILED
In Re: M.D., K.S., L.S. and C.C.                                                June 15, 2015
                                                                             RORY L. PERRY II, CLERK
No. 14-1182 (Clay County 14-JA-45 through 14-JA-50)                        SUPREME COURT OF APPEALS
                                                                               OF WEST VIRGINIA




                              MEMORANDUM DECISION
       Petitioner Mother A.D., by counsel Daniel K. Armstrong, appeals the Circuit Court of
Clay County’s November 14, 2014, order adjudicating her as an abusing parent1 in regard to
M.D.-1, K.S., L.S., and C.C.2 The West Virginia Department of Health and Human Resources
(“DHHR”), by counsel Lee A. Niezgoda, filed its response in support of petitioner’s appeal. The
guardian ad litem (“guardian”), Michael W. Asbury Jr., filed a response on behalf of the children
also supporting petitioner’s appeal. On appeal, petitioner alleges that the circuit court erred in
adjudicating her as an abusing parent.

       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 that the circuit court erred in adjudicating petitioner as an abusing
parent solely on the ground that she drove a vehicle without possessing a valid driver’s license.
However, we further find that the circuit court was correct in finding that the DHHR failed to

       1
         The circuit court actually adjudicated petitioner as an “abusive and neglectful parent.”
However, the Court notes that pursuant to West Virginia Code § 49-1-3(2), an “abusing parent”
is defined as “a parent, guardian or other custodian . . . whose conduct, as alleged in the petition
charging child abuse or neglect, has been adjudged by the court to constitute child abuse or
neglect.” Because this definition governs parents who commit both abuse and neglect against
children, and because the pertinent statute has purposefully omitted a definition of “neglecting
parent,” the Court will use the appropriate statutory term throughout this memorandum decision.
       2
         The circuit court proceedings below involved six children, though only four are
petitioner’s biological children; M.D.-1, K.S., L.S., and C.C. Petitioner’s arguments on appeal
concern only the biological children for which she was adjudicated as being an abusing parent.
Therefore, the Court will address only the circuit court’s rulings in regard to these children.
Further, because two children share the same initials, they will be referred to throughout the
memorandum decision as M.D.-1 and M.D.-2. Finally, we note that West Virginia Code §§ 49-1­
1 through 49-11-10 were repealed and recodified during the 2015 Regular Session of the West
Virginia Legislature. The new enactment, West Virginia Code §§ 49-1-101 through 49-7-304,
has minor stylistic changes and became effective ninety days after the February 19, 2015,
approval date. In this memorandum decision, we apply the statutes as they existed during the
pendency of the proceedings below.


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establish that petitioner otherwise abused or neglected the children. This case satisfies the
“limited circumstances” requirement of Rule 21(d) of the Rules of Appellate Procedure and is
appropriate for a memorandum decision rather than an opinion.

        In August of 2014, the DHHR filed an abuse and neglect petition that alleged petitioner
abused several children when she engaged in an argument in the children’s presence, during
which her paramour, G.D., punched a door and knocked an iron off a cabinet. According to the
petition, petitioner took M.D.-1, M.D.-2, K.S., and G.D. and left the residence following the
argument. At the time, petitioner did not have a valid driver’s license. According to the circuit
court, petitioner’s license had been suspended for nonpayment of fines. After driving the
children to a friend’s house, petitioner allowed the friend, who had been consuming alcohol, to
drive her and the children to another location. The petition further alleged that petitioner also
consumed alcohol in the car.

        Petitioner later waived her right to a preliminary hearing. The next month, petitioner filed
a motion to strike the petition and argued that the DHHR failed to allege abuse or neglect
sufficient to support an adjudication. The circuit court held a hearing on petitioner’s motion and
granted the DHHR leave to amend the petition on or before October 10, 2014. On that date,
petitioner filed a motion to dismiss given that the DHHR did not amend the petition. Thereafter,
the circuit court held an adjudicatory hearing, after which it dismissed several paragraphs from
the petition. The circuit court specifically found that the DHHR failed to present evidence that
petitioner drove the children while intoxicated, allowed her friend to drive the children while
intoxicated, or engaged in an altercation or fight with G.D. in the children’s presence. However,
the circuit court adjudicated petitioner as an abusing parent based solely on the allegation that
she did not have a valid driver’s license when she operated a vehicle with the children as
passengers. The circuit court thereafter returned physical custody of the children to petitioner and
granted her an improvement period. Petitioner appeals from the adjudicatory order.

       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). Upon our review, the Court finds
that the circuit court erred in adjudicating petitioner as an abusing parent.

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        To begin, the Court does not agree with the circuit court’s finding that “any violation of
the law is per se abuse and neglect.” A reading of the applicable statutes shows that the
legislature has clearly enumerated certain crimes for which a conviction constitutes per se abuse
and/or neglect. According to West Virginia Code § 49-6-11,

       [i]n any case where a person is convicted of an offense described in section
       twelve, article eight, chapter sixty-one of this code or articles eight-b or eight-d of
       said chapter against a child and the person has custodial, visitation or other
       parental rights to the child who is the victim of the offense or to any child who
       resides in the same household as the victim, the court shall, at the time of
       sentencing, find that the person is an abusing parent within the meaning of this
       chapter as to the child victim, and may find that the person is an abusing parent as
       to any child who resides in the same household as the victim, and the court shall
       take such further steps as are required by this article.

The convictions addressed in this statute do not extend to the offense of driving on a suspended
license in violation of West Virginia Code § 17B-4-3. As such, it is clear that the circuit court’s
finding that any violation of the law constitutes abuse or neglect was erroneous.

        Moreover, West Virginia Code §§ 49-1-3(1) and 49-1-3(11)(A)(i) define abused child
and neglected child, respectively, as requiring harm or threat of harm to a child’s health or
welfare. In the instant matter, the circuit court specifically found that the DHHR failed to prove
the allegations against petitioner, with the exception of the allegation that she drove while her
driver’s license was suspended, which petitioner admitted. While illegal, the Court does not find
that this constitutes a harm or threat of harm to the children, especially in light of the specific
circumstances of this case. Specifically, petitioner drove with the children in the car in order to
extract them from a potentially dangerous situation in which G.D. exhibited signs of violence,
including having punched a door and knocked an iron off a cabinet. Further, as the circuit court
pointed out in its adjudicatory order, petitioner’s license was not suspended for prior driving
infractions evidencing a propensity for dangerous driving, but instead for nonpayment of fines.
As such, we find that the circuit court erred in adjudicating petitioner as an abusing parent for the
sole act of having driven a vehicle without a valid driver’s license.

        For the foregoing reasons, we find that the circuit court erred in adjudicating petitioner as
an abusing parent and reverse the November 14, 2014, order, in part, in regard to the finding that
her driving without a valid driver’s license constitutes abuse. However, we affirm the order, in
part, as it concerns the DHHR’s failure to satisfy its burden of proof in regard to the remaining
allegations in the petition. As such, we remand the matter to the circuit court for the entry of an
order dismissing petitioner from the proceedings in light of the lack of evidence that she abused
or neglected the children at issue.


                                               Affirmed, in part. Reversed and Remanded, in part.




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ISSUED: June 15, 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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