IN THE SUPREME COURT OF APPEALS OF WEST
September 1997 Term
IN THE MATTER OF ELIZABETH A.D., Infant
Respondent Below, Appellant
Petitioner Below, Appellee
BRENDA K.J. and JAMES D., Adults
Respondents Below, Appellees
Appeal from the Circuit Court of Calhoun
Honorable Charles E. McCarty, Judge
Civil Action No. 96-JA-9
REVERSED AND REMANDED
Submitted: September 10, 1997
Filed: October 3, 1997
Howley & Venezia Prosecuting Attorney
Grantsville, West Virginia Grantsville, West Virginia
Attorney for Appellant Attorney for F. Hammack
Mark G. Sergent F. John Oshoway
Attorney for Brenda K.J. Attorney for James D.
The opinion of the Court was delivered PER CURIAM.
SYLLABUS BY THE COURT
' "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 the Interest of
Tiffany Marie S., 196 W.Va. 223, 470 S.E.2d 177 (1996).' State
ex rel. Virginia M. v. Virgil Eugene S. II, 197 W.Va. 456,
475 S.E.2d 548 (1996)." Syl. Pt. 1, In the Interest of
Diva P., ___ W.Va. ___, ___ S.E.2d ___ (No. 23928, July 11,
2. "When parental rights are terminated due to neglect or abuse, the circuit court may nevertheless in appropriate cases consider whether continued visitation or other contact with the abusing parent is in the best interest of the child. Among other things, the circuit court should consider whether a close emotional
bond has been established between parent and child and the
child's wishes, if he or she is of appropriate maturity to make
such request. The evidence must indicate that such visitation or
continued contact would not be detrimental to the child's well
being and would be in the child's best interest." Syl. Pt.
5, In re Christina L., 194 W.Va. 446, 460 S.E.2d 692
Per Curiam:See footnote 1 1
appeal was brought by the guardian ad litem for the appellant,
Elizabeth A.D., from a final order of the Circuit Court of
Calhoun County. The circuit court found Elizabeth A.D. was an
abused child and terminated the parental rights of the child's
mother, appellee Brenda K.J. In this appeal the guardian ad litem
contends that it was error for the circuit court to deny
post-termination visitation between the child and her mother.See footnote 2 2 We
On September 18, 1996, a petition was filed against Brenda K.J. charging her with abusing and neglecting her child, by failing to prevent numerous sexual assaults on the child.See footnote 3 3 At the time of the petition the child was thirteen years old. The record indicates the child was sexually assaulted more than five times, starting at the age of six and continuing through the age of twelve. On January 9, 1997, a dispositional hearing was held. At the conclusion of the hearing the circuit court found that the child was abused and neglected. At a dispositional hearing held on
January 24, 1997, the circuit court terminated
the parental rights of the mother. A post-dispositional hearing
was held on May 2, 1997, wherein the guardian ad litem requested
some form of post-termination visitation between the child and
Brenda K.J. The circuit court denied the request. On appeal the
guardian ad litem contends that it was error for the circuit
court to deny post-termination visitation. We agree.
This Court pointed out in syllabus point 1 of In the Interest of Diva P., ___ W.Va. ___, ___ S.E.2d ___ (No. 23928, July 11, 1997) that the ruling of a circuit court, in a civil abuse and neglect proceeding, will not be set aside unless clearly erroneous. The facts in this case leave little doubt that the circuit court committed error in denying supervised post-termination visitation. The record reveals a close emotional bond between Elizabeth A.D. and Brenda K.J. See Syl. Pt. 5, In re Christina L., 194 W.Va. 446, 460 S.E.2d 692 (1995); Syl. Pt. 8, In re Katie S., 198 W.Va. 79, 479 S.E.2d 589 (1996). We, therefore, reverse the denial of supervised post-termination visitation and remand for a hearing to determine the appropriate visitation plan.
Reversed and Remanded.
Footnote: 1 1 We point out that a per curiam opinion is not legal precedent. See Lieving v. Hadley, 188 W.Va. 197, 201 n.4, 423 S.E.2d 600, 604 n 4. (1992) ("Per curiam opinions ... are used to decide only the specific case before the Court; everything in a per curiam opinion beyond the syllabus point is merely obiter dicta.... Other courts, such as many of
the United States Circuit Courts of Appeals, have gone to non-published (not-to-be-cited) opinions to deal with similar cases. We do not have such a specific practice, but instead use published per curiam opinions. However, if rules of law or accepted ways of doing things are to be changed, then this Court will do so in a signed opinion, not a per curiam opinion.").
Footnote: 2 2 The guardian ad litem also argued that it was error to terminate parental rights. We find no error in the circuit court's decision to terminate the mother's parental rights.
Footnote: 3 3 The father of the child was named in the petition, however, his whereabouts were unknown and he was not represented. The record indicates that the child's father "disappeared" when she was six years old.