In re T.S. Decided April 11, 2019 Reversed and Remanded Signed Opinion

In this matter, the child, T.S., and his half-sister, V.A., petitioner’s stepdaughter, were removed from the home of Petitioner, father of T.S., and their biological mother, J.S., due to allegations of domestic violence.  Specifically, the children had witnessed Petitioner and their mother engage in domestic violence and had been traumatized.  Each parent was given a three-month pre-adjudicatory improvement period.  Approximately six months later, the GAL filed an amended “imminent danger” petition alleging medical abuse and neglect and physical abuse. The matter next went to an adjudicatory hearing, with both Petitioner and the biological mother signing stipulated adjudications.  Petitioner stipulated he had caused emotional harm to both children and that the stipulated adjudication was in the children’s best interest.  The lower court granted Petitioner a post-adjudicatory improvement period not to exceed six months.  The matter ultimately went to a dispositional hearing with the children being placed in the care of a guardian (V.A.’s biological father and his wife).

At the dispositional hearing, the DHHR presented evidence reflecting the progress made by Petitioner and the progress made by the children.  The lower court asked Petitioner if he had any evidence to present.  Petitioner, through his lawyer, stated he wished to call the CASA representative, but was denied the right to do so because the CASA representative was not listed on his witness list.  Petitioner, through his lawyer, indicated he wished to testify on his own behalf.  The lower court asked about the nature of Petitioner’s testimony and rather than allowing Petitioner to testify, took his attorney’s representations as a “proffer,” even though Petitioner and his lawyer did not intend for the lawyer’s response to be a proffer.  The lower court then proceeded to disposition without receiving evidence from Petitioner, concluding Petitioner was unwilling or unable to provide adequately for either of the children.

Petitioner appealed and alleged several errors.  The Supreme Court of Appeals of West Virginia elected to focus on one alleged error – whether the lower court had erred by prohibiting Petitioner from presenting evidence at the dispositional hearing in violation of his constitutional right to a meaningful opportunity to be heard.  Petitioner argued he did not receive due process as he was not allowed to present witnesses.  The GAL and the DHHR replied that Petitioner had received sufficient due process because he had been represented by an attorney at every proceeding.  The DHHR also argued the lower court could make an appropriate decision based on Petitioner’s attorney’s “proffer” of evidence.

The Court concluded Petitioner had been denied a meaningful opportunity to be heard and an opportunity to testify and to present and cross-examine witnesses in violation of his rights.  The Court stated our law “unequivocally require that parents, . . ., be afforded a meaningful opportunity to be heard. This necessarily includes the right to testify and to present witnesses, as well as to cross-examine witnesses in any abuse and neglect proceeding. State ex rel. H.S., 240 W. Va. at 647, 814 S.E.2d at 664; W. Va. Code § 49-4-601(h).”  In this matter, Petitioner clearly indicated he wished to testify and wished to present other witnesses, but, the lower court denied him that right.  The Court reversed and remanded the case with directions to the lower court to afford Petitioner the opportunity to testify and present any other evidence he so desires, clarifying the DHHR and the GAL should only be allowed to present additional evidence, if necessary, to respond to Petitioner’s evidence.

As a practice pointer, a judge may push to summarily resolve a proceeding.  An attorney should make sure objections are lodged in the record, including the identity of the witnesses who may have been called.  Do not be intimidated into silence or acquiescence.


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