                            STATE OF WEST VIRGINIA

                          SUPREME COURT OF APPEALS


In re: A.J.                                                                        FILED
                                                                                June 9, 2017
No. 16-1015 (Raleigh County 15-JA-155-K)                                       RORY L. PERRY II, CLERK
                                                                             SUPREME COURT OF APPEALS
                                                                                 OF WEST VIRGINIA


                              MEMORANDUM DECISION
        Petitioner Father D.J., by counsel Amy O. Osgood, appeals the Circuit Court of Raleigh
County’s September 29, 2016, order terminating his parental rights to A.J.1 The West Virginia
Department of Health and Human Resources (“DHHR”), by counsel S.L. Evans, filed a response
in support of the circuit court’s order. The guardian ad litem (“guardian”), Winifred L. Bucy,
filed a response on behalf of the child in support of the circuit court’s order. On appeal,
petitioner argues that the circuit court erred in failing to elicit certain testimony during the
proceedings below.

        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 September of 2015, the DHHR filed an abuse and neglect petition against petitioner
and the mother that alleged the mother was intoxicated in public with the then sixteen-month-old
child. According to the petition, law enforcement contacted Child Protective Services (“CPS”)
after the mother’s arrest for being drunk in public with the infant. The mother could not identify
any individuals who could care for the child, so she was placed in foster care. Eventually,
petitioner sought placement of the child. While at the police department to arrange for a transfer
of physical custody, petitioner was told that he could not leave the State with the child or allow
the child to be alone with the mother, if the mother was released from incarceration, until after
CPS investigated the matter. Thereafter, the DHHR attempted to locate petitioner and the child
but could not find them. The mother then informed the DHHR that petitioner took the child to
her family’s home in the Commonwealth of Kentucky. CPS arranged to retrieve the child from
her grandmother and returned her to foster care in West Virginia. The DHHR’s petition alleged


       1
         Consistent with our long-standing practice in cases with sensitive facts, we use initials
where necessary to protect the identities of those involved in this case. See In re K.H., 235 W.Va.
254, 773 S.E.2d 20 (2015); Melinda H. v. William R. II, 230 W.Va. 731, 742 S.E.2d 419 (2013);
State v. Brandon B., 218 W.Va. 324, 624 S.E.2d 761 (2005); State v. Edward Charles L., 183
W.Va. 641, 398 S.E.2d 123 (1990).


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that petitioner’s actions, including removing the child from the state, constituted abuse and
neglect. Petitioner thereafter waived his preliminary hearing.

        In December of 2015, petitioner stipulated to adjudication and was granted a post­
adjudicatory improvement period.2 In August of 2016, the circuit court held a dispositional
hearing, during which the circuit court denied petitioner an extension of his post-adjudicatory
improvement period. At the outset of the hearing, the circuit court asked if the parties agreed to
proceed by proffer and no parties objected. The circuit court further found that petitioner failed
to comply with any services made available during the course of the proceedings. Ultimately, the
circuit court terminated petitioner’s parental rights.3 It is from this order that petitioner appeals.

       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
no error in the proceedings below.

        On appeal, petitioner raises three separate assignments of error that are all predicated
upon the circuit court’s alleged failure to elicit certain testimony. According to petitioner, the
circuit court erred in (1) failing to elicit testimony, including petitioner’s testimony, regarding his
alleged noncompliance with the terms of his improvement period; (2) failing to elicit testimony
from certain service providers who could attest to petitioner’s compliance with the terms of his
improvement period; and (3) failing to elicit testimony from either petitioner or a DHHR worker
concerning whether or not petitioner was informed he could not leave the State with the child.
Upon our review, we find no error in the proceedings.



       2
           Petitioner did not include his written stipulation in the appendix on appeal.
       3
         According to the DHHR and the guardian, the parental rights of both parents to the child
were terminated below. The DHHR and the guardian further state that the permanency plan for
the child is adoption in the current foster home.


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        Petitioner’s arguments on appeal are entirely without merit, as he cites to no authority
that places a burden on the circuit court to elicit certain testimony during abuse and neglect
proceedings. In regard to the burden of proof in abuse and neglect proceedings, we have held that

               “W.Va.Code [§] 49-6-2(c) [now West Virginia Code § 49-4-601(i)],
       requires the [DHHR], in a child abuse or neglect case, to prove ‘conditions
       existing at the time of the filing of the petition . . . by clear and convincing
       [evidence].’ The statute, however, does not specify any particular manner or mode
       of testimony or evidence by which the [DHHR] is obligated to meet this burden.”
       Syllabus Point 1, In Interest of S.C., 168 W.Va. 366, 284 S.E.2d 867 (1981).

Syl. Pt. 1, In re Joseph A., 199 W.Va. 438, 485 S.E.2d 176 (1997) (citations omitted). Moreover,
we have held that the burden of proof never shifts from the State to the parent throughout a child
abuse and neglect case. Syl. Pt. 2, In the Interest of S.C., 168 W.Va. 366, 284 S.E.2d 867 (1981).
However, in discussing evidentiary burdens, we have set forth the following:

       [a]s a general matter, the burden of proof consists of two components: burden of
       production and burden of persuasion. The burden of persuasion requires the party
       upon whom it is placed, to convince the trier of fact . . . on a given issue. When a
       party has the burden of persuasion on an issue, that burden does not shift. The
       burden of production merely requires a party to present some evidence to rebut
       evidence proffered by the party having the burden of persuasion. The term burden
       of production is also used to refer to either party presenting some evidence on a
       matter.

In re Tax Assessment of Foster Foundation’s Woodlands Retirement Community, 223 W.Va. 14,
29, 672 S.E.2d 150, 165 (2008) (quoting Mayhew v. Mayhew, 205 W.Va. 490, 497 n. 15, 519
S.E.2d 188, 195 n. 15 (1999)).

         In this matter, although the DHHR had the burden of proof and, thus, the burden of
persuasion, as it relates to establishing conditions existing at the time of the petition’s filing,
petitioner had the burden of production. That is to say that petitioner was required to present
some evidence to rebut the DHHR’s evidence submitted below. Instead of satisfying this burden
in the circuit court, petitioner now complains that the circuit court erred in failing to elicit
evidence that would support his position. We find this argument unpersuasive. In short, there is
simply no authority upon which petitioner can rely that would impose a duty on the circuit court
to elicit testimony on his behalf.

        Moreover, petitioner provides no citation to any instance of the circuit court preventing
him from calling or cross-examining witnesses. In fact, the transcript from the dispositional
hearing shows that the circuit court asked the parties if they objected to proceeding by way of
proffer, and no parties objected. Further, it is clear that evidence concerning whether the DHHR
informed petitioner that he could not leave the State with the child was immaterial, given
petitioner’s stipulation to the petition’s allegations, including the allegation that he left the State
with the child against the DHHR’s directions. We have previously held that “‘[a] litigant may not
silently acquiesce to an alleged error, or actively contribute to such error, and then raise that error

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as a reason for reversal on appeal.’ Syllabus Point 1, Maples v. West Virginia Dep’t of
Commerce, 197 W.Va. 318, 475 S.E.2d 410 (1996).” Syl. Pt. 2, Hopkins v. DC Chapman
Ventures, Inc., 228 W.Va. 213, 719 S.E.2d 381 (2011). Further,

               “[a] judgment will not be reversed for any error in the record introduced
       by or invited by the party seeking reversal.” Syllabus Point 21, State v. Riley, 151
       W.Va. 364, 151 S.E.2d 308 (1966), overruled on other grounds by Proudfoot v.
       Dan’s Marine Service, Inc., 210 W.Va. 498, 558 S.E.2d 298 (2001).

Id. at 215, 719 S.E.2d at 383, Syl. Pt. 3. The record in this matter is clear that petitioner
voluntarily chose to stipulate to the adjudication against him and further raised no objection to
the circuit court proceeding to disposition by proffer. For these reasons, the Court finds that
petitioner is entitled to no relief in regard to the circuit court’s alleged failure to elicit testimony
concerning these issues, as he clearly invited any such error by entering into a stipulated
adjudication and failing to object to presenting evidence by proffer.

        Further, in support of his assignments of error, petitioner generally argues that it was
error for the circuit court to terminate his parental rights because of its failure to elicit the
testimony referenced above. Because we find no error in regard to petitioner’s assignments of
error concerning the circuit court’s alleged failure to elicit certain testimony, we thus find no
error in the circuit court’s termination of petitioner’s parental rights.

      For the foregoing reasons, we find no error in the decision of the circuit court, and its
September 29, 2016, order is hereby affirmed.


                                                                                             Affirmed.

ISSUED: June 9, 2017


CONCURRED IN BY:

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




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