The opinion
IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
January Term 2014
FILED
______________ January 29, 2014
released at 3:00 p.m.
No. 12-1270 RORY L. PERRY II, CLERK
SUPREME COURT OF APPEALS
______________ OF WEST VIRGINIA
STATE OF WEST VIRGINIA,
Plaintiff Below, Respondent
v.
KIMBERLY S.,
Defendant Below, Petitioner
Appeal from the Circuit Court of Wood County
The Honorable Jeffrey B. Reed, Judge
Case No. 12-M-3
AFFIRMED
Submitted January 15, 2014
Filed: January 29 , 2014
William B. Summers, Esq. Patrick Morrisey,
Parkersburg, West Virginia Attorney General
Counsel for the Petitioner Laura Young,
Assistant Attorney General
Derek Knopp
Assistant Attorney General
Charleston, West Virginia
Counsel for the Respondent
The Opinion of the Court was delivered PER CURIAM.
SYLLABUS BY THE COURT
1. “‘The Supreme Court of Appeals reviews sentencing orders . . .
under a deferential abuse of discretion standard, unless the order violates statutory or
constitutional commands.’ Syllabus Point 1, in part, State v. Lucas, 201 W.Va. 271, 496
S.E.2d 221 (1997).” Syl. pt. 1, State v. Watkins, 214 W.Va. 477, 590 S.E.2d 670 (2003).
2. “The question whether an Act is civil or punitive in nature is initially one
of statutory construction. A court will reject the Legislature’s manifest intent only when a
party challenging the Act provides the clearest proof that the statutory scheme is so
punitive in either purpose or effect as to negate the Legislature’s intention.” Syl. pt. 4,
Hensler v. Cross, 210 W.Va. 530, 558 S.E.2d 330 (2001).
3. “Where the language of a statute is clear and without ambiguity the plain
meaning is to be accepted without resorting to the rules of interpretation.” Syl. pt. 2,
State v. Elder, 152 W.Va. 571, 165 S.E.2d 108 (1968).
Per Curiam:
This case is before this Court upon the appeal of the defendant, Kimberly S.1 from the
September 26, 2012, order of the Circuit Court of Wood County. Kimberly S. was sentenced
to thirty days in jail and two years of probation for the offense of contributing to the neglect
of a minor - her seven year-old daughter. As reflected in the order, the circuit court also
directed Kimberly S. to register with the West Virginia State Police pursuant to the West
Virginia Child Abuse and Neglect Registration Act, W.Va. Code, 15-13-1 [2006], et seq. In
addition, custody of the daughter having been placed with the father (Kimberly S.’s former
husband) in a separate proceeding, the circuit court reduced Kimberly S.’s temporary
visitation schedule with the child, which had been established by the Wood County Family
Court.
In this appeal, Kimberly S. challenges neither the thirty day sentence nor her
placement on probation. Instead, she asks this Court to reverse and set aside those portions
of her sentence requiring her to register with the State Police and modifying her temporary
visitation schedule. Upon review, we conclude that the circuit court was within its discretion
1
We follow our past practice in domestic relations and juvenile cases which involve
sensitive matters and do not utilize the last names of the parties. The matter of: B.B., 224 W.Va.
647, 649 n. 1, 687 S.E.2d 746, 748 n. 1 (2009).
1
in requiring Kimberly S. to register under the West Virginia Child Abuse and Neglect
Registration Act. Moreover, this Court finds that the circuit court did not commit reversible
error in modifying the temporary visitation schedule established by the Family Court.
Accordingly, the September 26, 2012, order of the Circuit Court of Wood County is affirmed.
I. Factual and Procedural Background
In 2007, Kimberly S. and her husband were divorced, and Kimberly S. was designated
primary custodian of their daughter. On May 9, 2011, the daughter, then age seven, arrived
home at approximately 3:00 p.m. and found a note from Kimberly S. stating that she would
be home soon. However, Kimberly S. did not return until around 1:00 a.m. and had been
drinking.
Kimberly S. was arrested upon a charge of child neglect. Thereafter, she entered into
an agreement which provided that she would enter a plea of guilty to an information filed by
the prosecutor in lieu of a presentation of the case to the grand jury. Consequently, Kimberly
S. entered a plea of guilty to contributing to the neglect of a minor, a misdemeanor offense
set forth in W.Va. Code, 49-7-7 [1990], as charged in the information.2 In June 2012, the
2
W.Va. Code, 49-7-7 [1990], provides in part:
(a) A person who by any act or omission contributes to, encourages
or tends to cause the delinquency or neglect of any child . . . shall be
guilty of a misdemeanor, and, upon conviction thereof, shall be fined not
2
circuit court accepted the guilty plea. The case was then referred to the probation department
for a pre-sentence report.
In the meantime, the Family Court, upon conducting a hearing, designated the father
as the daughter’s custodian, and a temporary visitation schedule was established between
Kimberly S. and the child. That schedule permitted visitation every Tuesday and Thursday
and every other weekend. The Family Court specified that it would review the matter at a
final hearing.
On September 24, 2012, the circuit court conducted a sentencing hearing in the
criminal matter at which time Kimberly S.’s counsel informed the court that the issue of
visitation with the daughter was pending before the Family Court. Nevertheless, in addition
to the other aspects of Kimberly S.’s sentence imposed during the hearing, the circuit court
reduced her visitation schedule with the child, which had been established on a temporary
basis by the Family Court. The circuit court stated:
Upon the defendant’s release from jail, visitation will be as follows:
One day through the week on Wednesday from the time school ends until 7:00
p.m., and for four hours on Sunday.
less than fifty nor more than five hundred dollars, or imprisoned in the
county jail for a period not exceeding one year, or both fined and
imprisoned.
3
On September 26, 2012, the circuit court entered an order sentencing Kimberly S. to
a one year jail term for the offense of contributing to the neglect of a minor. However, the
circuit court suspended the one year sentence and directed that Kimberly S. serve thirty days
in jail, with a two year period of probation to follow. In addition, the circuit court reduced
her temporary visitation with the child, as stated, and required her to register with the West
Virginia State Police under the West Virginia Child Abuse and Neglect Registration Act.
With regard to registration, Kimberly S. was required to provide all information required by
the Act and “continue to do so for a period of ten (10) years.”3
Kimberly S. appeals from the circuit court’s directive requiring her to register with
the State Police under the Child Abuse and Neglect Registration Act and the circuit court’s
modification of her visitation schedule.
3
W.Va. Code, 15-13-4(a) [2006], provides, in part:
A person required to register pursuant to the provisions of this article
shall continue to comply with this section, except during ensuing periods of
incarceration or confinement, until ten years have elapsed since the person
was released from prison, jail or a mental health facility or ten years have
elapsed since the person was placed on probation, parole or supervised or
conditional release.
The ten year requirement is also found in the West Virginia Code of State Rules
pertaining to the Child Abuse and Neglect Registration Act. See W.Va. C.S.R. § 81-16
7.1. (2010).
4
II. Standard of Review
In syllabus point 1 of State v. Watkins, 214 W.Va. 477, 590 S.E.2d 670 (2003), this
Court confirmed the following standard of review with regard to sentencing orders in
criminal cases:
“The Supreme Court of Appeals reviews sentencing orders . . .
under a deferential abuse of discretion standard, unless the order violates
statutory or constitutional commands.” Syllabus Point 1, in part, State v.
Lucas, 201 W.Va. 271, 496 S.E.2d 221 (1997).
Accord syl. pt. 1, State v. James, 227 W.Va. 407, 710 S.E.2d 98 (2011).
In conjunction with that standard, we note, generally, that “[w]here the issue on appeal
from the circuit court is clearly a question of law or involving an interpretation of a statute,
we apply a de novo standard of review.” Syl. pt. 1, Chrystal R. M. v. Charlie A. L., 194
W.Va. 138, 459 S.E.2d 415 (1995). Accord syl. pt. 1, State v. White, 231 W.Va. 270, 744
S.E.2d 668 (2013).
III. Discussion
A. Registration
Kimberly S. contends that the circuit court’s directive that she register under the Child
Abuse and Neglect Registration Act should be reversed and set aside because it was not part
5
of her plea agreement. In addition, she asserts that the registration requirement is excessive
in view of her conviction of a misdemeanor offense, contributing to the neglect of a minor.
The State, however, contends that the inclusion of the registration requirement in the
September 26, 2012, order was within the circuit court’s discretion. Although not a part of
the plea agreement, Kimberly S. was made aware of the requirement prior to sentencing.
Moreover, the State emphasizes that the registration requirement is regulatory in nature and,
thus, is not to be considered an additional punishment.
The State’s characterization of the requirement is correct. The intent of the Child
Abuse and Neglect Registration Act was expressed by the West Virginia Legislature in
W.Va. Code, 15-13-1 [2006]. Subsection (a) of the Act states, in part: “This article is
intended to be regulatory in nature and not penal, and is intended to provide for the safety of
children who are exposed to persons convicted of child abuse and neglect.” See also W.Va.
C.S.R. §§ 81-16-1.1. and -5.1. (Registration is regulatory, not penal, and the information
obtained is not to be used to inflict retribution or additional punishment.).
Similar to the Child Abuse and Neglect Registration Act are the provisions of the West
Virginia Sex Offender Registration Act, W.Va. Code, 15-12-1 [1999], et seq. In Hensler v.
Cross, 210 W.Va. 530, 558 S.E.2d 330 (2001), this Court, rejecting a challenge to
6
registration, determined that the Sex Offender Registration Act is regulatory and “does not
make an action which was innocent when done, criminal and punish it as such.” 210 W.Va.
at 535, 558 S.E.2d at 335. The analytical framework for challenges to registration was set
forth by this Court in Hensler in syllabus point four:
The question whether an Act is civil or punitive in nature is initially one
of statutory construction. A court will reject the Legislature’s manifest intent
only when a party challenging the Act provides the clearest proof that the
statutory scheme is so punitive in either purpose or effect as to negate the
Legislature’s intention.
Accord syl. pt. 3, Haislop v. Edgell, 215 W.Va. 88, 593 S.E.2d 839 (2003).
In this case, the applicability of the Child Abuse and Neglect Registration Act and the
discretion of the circuit court in requiring registration are clear. W.Va. Code, 15-13-2(b)
[2006], requires registration by a person who has been convicted under any of the following
provisions: W.Va. Code, 61-8D-2 [1988] (murder of a child by a parent); W.Va. Code, 61-8D
2a [1994] (death of a child by a parent by child abuse); W.Va. Code, 61-8D-3 [1996] (child
abuse resulting in injury and abuse or neglect creating a risk of injury); W.Va. Code, 61-8D
3a [1999] (mutilation of a female child); W.Va. Code, 61-8D-4 [1996] (child neglect resulting
in injury and neglect creating a risk of injury); and W.Va. Code, 61-8D-4a [1997] (child
neglect resulting in death). Those offenses are felonies and do not mandate registration with
7
regard to Kimberly S.’s misdemeanor conviction under W.Va. Code, 49-7-7 [1990].
However, W.Va. Code, 15-13-2 [2006], further provides in subsection (d):
If a person has been convicted of any criminal offense against a child
in his or her household or of whom he or she has custodial responsibility, and
the sentencing judge makes a written finding that there is a continued
likelihood that the person will continue to have regular contact with that child
or other children and that as such it is in the best interest of the child or
children for that person to be monitored, then that person is subject to the
reporting requirements of this article.
Subsection (d), clear in its import, is addressed in Title 18 of the West Virginia Code
of State Rules pertaining to child abuse and neglect registration. W.Va. C.S.R. § 81-16-2.4.
(2010), states, in part:
“Qualifying child abuse and neglect criminal offenses” – those offenses
that require registration as an offender of child abuse or neglect upon
conviction or when found not guilty by reason of mental illness, mental
retardation or addiction. These offenses include, but are not limited to, §§ 61
8D-2, 61-8D-2a, 61-8D-3, 61-8D-3a, 61-8D-4 or 61-8D-4a. . . . Also
included are those offenses in which a person upon [being] convicted of a
criminal offense(s) against a child in his or her household or in which the
person convicted has custodial responsibility, the sentencing judge makes a
written finding that there is a continued likelihood that the person convicted
will continue to have regular contact with that child or other children and that
as such it is in the best interest of the child or children for that person to be
monitored.
8
(Emphasis added).4
The transcript of the sentencing hearing reveals a number of problems set out by the
circuit court concerning Kimberly S.’s conduct warranting registration. The circuit court
noted that Kimberly S.’s version of the events concerning the evening in question was
contradictory, i.e., that she told her daughter not to answer the door and that someone was
coming to take her daughter to soccer practice. Either way, Kimberly S. never called to
check on her daughter. In addition, the circuit court stated that Kimberly S.’s conduct
included (1) failing to provide proof of employment, (2) not having the child with her when
scheduled to do so, (3) making unauthorized visits to the child’s school and (4) not being
truthful about whether she had undergone mental health or substance abuse treatment. In
view of those problems, the circuit court questioned whether Kimberly S. understood the
significance of the criminal proceedings against her and the importance of those proceedings
to her daughter.
This Court is of the opinion that the September 26, 2012, order directing Kimberly S.
to register under the Act, in conjunction with the court’s reasons stated on the record during
sentencing, are sufficient to withstand Kimberly S.’s challenge. The provisions of subsection
4
Language similar to the emphasized portion of W.Va. C.S.R. § 81-16-2.4. (2010),
is found throughout the State Rules concerning child abuse and neglect registration. See
§§ 81-16-2.6.; -5.1.; -6.3.; -13.1.a.; and -13.8.a.
9
(d) of W.Va. Code, 15-13-2 [2006], and W.Va. C.S.R. § 81-16-2.4. (2010), clearly authorize
registration in circumstances beyond the specific offenses listed in those provisions. Syllabus
point two of State v. Elder, 152 W.Va. 571, 165 S.E.2d 108 (1968), states: “Where the
language of a statute is clear and without ambiguity the plain meaning is to be accepted
without resorting to the rules of interpretation.” Accord syl. pt. 2, State v. Euman, 210 W.Va.
519, 558 S.E.2d 319 (2001).
The registration requirement in the West Virginia Child Abuse and Neglect
Registration Act is regulatory rather than punitive. Registration does not make Kimberly S.’s
sentence more severe than the terms bargained for in her plea agreement. This assignment
of error, therefore, is without merit.5
5
We see equally little ground in Kimberly S.’s assertion that the circuit court’s
directive of registration is disproportional to her jail term and placement on probation.
See W.Va. Const. art. III, § 5 (providing that penalties are to be proportioned to the
character and degree of the offense). In addition to the fact that registration under the Act
is regulatory in nature, syllabus point four of Wanstreet v. Bordenkircher, 166 W.Va. 523,
276 S.E.2d 205 (1981), observes:
While our constitutional proportionality standards theoretically can
apply to any criminal sentence, they are basically applicable to those
sentences where there is either no fixed maximum set by statute or where
there is a life recidivist sentence.
Accord syl. pt. 3, State ex rel. Hatcher v. McBride, 221 W.Va. 760, 656 S.E.2d 789
(2007), cert. denied, 552 U.S. 1269 (2008). See generally, George L. Blum, Annotation,
Constitutional Challenges to State Child Abuse Registries, 36 A.L.R.6th 475 (2008).
10
B. The Visitation Schedule
This Court also finds no merit in Kimberly S.’s second assignment of error concerning
the circuit court’s modification of her temporary visitation schedule. Kimberly S.’s visitation
with her daughter, twice per week and every other weekend, was established on a temporary
basis by the Family Court. The Family Court specified that it would review the issue of
visitation at a final hearing. During sentencing in Kimberly S.’s criminal case, the circuit
court was informed that the issue of visitation was pending before the Family Court.
However, the circuit court modified and reduced Kimberly S.’s temporary visitation to one
day per week and four hours on Sunday.
As justification for the change, the circuit court stated:
West Virginia Code 62-12-9(a)(4) does allow the Court to monitor
visitation under certain circumstances. This set of facts and this crime does
not fall under that code section; however, it does – I don’t think that it says that
I cannot impose a similar term if deemed appropriate.
Chapter 62, Article 12, of the West Virginia Code concerns probation and parole, and
W.Va. Code, 62-12-9(a)(4) [2001], provides:
(a) Release on probation is conditioned upon the following:
. . . .
11
(4) That in every case wherein the probationer has been convicted of an
offense defined in section twelve, article eight, chapter sixty-one of this code
or article eight-b or eight-d of said chapter, against a child, the probationer
may not live in the same residence as any minor child, nor exercise visitation
with any minor child and has [sic] no contact with the victim of the offense:
Provided, That the probationer may petition the court of the circuit wherein he
or she was convicted for a modification of this term and condition of his or her
probation and the burden rests upon the probationer to demonstrate that a
modification is in the best interest of the child.
None of the enumerated provisions in that subsection apply in this case: W.Va. Code,
61-8-12 [1994] (concerns incest); W.Va. Code, 61-8B-1 [2007], et seq. (concerns sexual
offenses); and W.Va. Code, 61-8D-1 [2005], et seq. (concerns the offenses addressed in
section A. of this opinion which are different from W.Va. Code, 49-7-7 [1990], under which
Kimberly S. was convicted).6 Although citing W.Va. Code, 62-12-9(a)(4) [2001], in its
ruling, the circuit court acknowledged that its provisions are not controlling in the
circumstances pertaining to Kimberly S. and her daughter. Moreover, as stated above, the
Family Court conducted a hearing prior to establishing visitation on a temporary basis, and
a final hearing is to be conducted by the Family Court on the visitation issue.
Nevertheless, in modifying Kimberly S.’s temporary visitation schedule, the circuit
court had before it, inter alia, her plea of guilty to contributing to the neglect of her daughter
and the pre-sentence report completed by the probation department. In those circumstances,
6
W.Va. Code, 62-12-9 [2001], was amended in 2013. However, the amendment is
neither applicable nor relevant to the current matter.
12
two other statutes provided the circuit court with authority to determine the temporary
custody of Kimberly S.’s daughter.
W.Va. Code, 49-7-11 [1936], provides: “Where a person is found guilty of
contributing to the delinquency of a child, the court or judge may place the child in the
temporary custody of the state department or of some responsible person or approved
institution.” More specifically, W.Va. Code, 49-7-12 [1936], provides:
If the guilty person had custody of the child prior to conviction, the
court or judge may, on suspending sentence, permit the child to remain in the
custody of the person, and make it a condition of suspending sentence that the
person provides whatever treatment and care may be required for the welfare
of the child, and shall do whatever may be calculated to secure obedience to
the law or to remove the cause of such delinquency.7
With regard to the latter statute, the circuit court suspended Kimberly S.’s one year
sentence, directed that she serve a short jail term with probation to follow, and set forth a
modified, temporary visitation schedule.
7
While W.Va. Code, 49-7-11 [1936], and W.Va. Code, 49-7-12 [1936], refer to
“delinquency,” the statute under which Kimberly S. was convicted, W.Va. Code, 49-7-7
[1990], also refers to “delinquency,” i.e., a person “who by any act or omission
contributes to, encourages or tends to cause the delinquency or neglect of any child[.]”
See n. 1, supra.
13
In addition to those statutes, this Court has consistently held that a court has inherent
authority to protect a child and “retains the ultimate power of disposition,” with the best
interests determination to be rendered by the court “exercising its independent judgment.”
State ex rel. Jeanne U. v. Canady, 210 W.Va. 88, 97, 554 S.E.2d 121, 130 (2001).
Furthermore, W.Va. Code, 49-5-4 [1998], states that “[a] person under the age of eighteen
years who appears before the circuit court in proceedings under this article shall be
considered a ward of the court and protected accordingly.” In In re Samantha M., 205 W.Va.
383, 518 S.E.2d 387 (1999), the following observation was made:
Our statutes are clear that whenever a child appears in court, that child
is a ward of that court. That court has both a right and a responsibility to see
to it that the child is protected. See Julie G., 201 W.Va. at 776, 500 S.E.2d at
889 (Workman, J., dissenting) (“Furthermore, whenever a child appears in
court, he is a ward of that court. W.Va. Code § 49-5-4 (1996); Mary D. v.
Watt, 190 W.Va. 341, 438 S.E.2d 521 (1992). Courts are thus statutorily
reposed with a strong obligation to oversee and protect each child who comes
before them.”)
205 W.Va. at 392, 518 S.E.2d at 396 (Workman, J., concurring, in part, and dissenting, in
part.)
As long settled, the best interests of the child is the “polar star” by which decisions
must be made which affect children. See State ex rel. Jeanne U., supra, 210 W.Va. at 97,
554 S.E.2d at 130. See also, syl. pt. 7, In the matter of Brian D., 194 W.Va. 623, 461 S.E.2d
14
129 (1995) (“Cases involving children must be decided not just in the context of competing
sets of adults’ rights, but also with a regard for the rights of the children.”).
This Court’s opinion in State ex rel. Jeanne U. makes clear: “While many of this
Court’s prior opinions discussing the ‘polar star’ involve child custody, abuse and neglect,
or paternity determinations, the concept is equally applicable to matters in which visitation
with children is being adjudicated.” (emphasis added) 210 W.Va. at 97 n. 10, 554 S.E.2d
at 130 n. 10.
Based on the foregoing, this Court concludes that the circuit court in this case had
inherent power to modify Kimberly S.’s visitation schedule on a temporary basis, pending
a full hearing in the Family Court. The circuit court’s temporary order is necessary based on
the reality that the final hearing before the Family Court may not occur immediately and that
the issues of custody and visitation must not languish in uncertainty.
Consequently, this Court concludes that the circuit court did not commit reversible
error in modifying Kimberly S.’s temporary visitation schedule during the sentencing hearing
in her criminal case. Nevertheless, this Court directs that a final resolution of the visitation
issue shall be made by the Family Court on an expedited basis.
15
IV. Conclusion
The circuit court did not abuse its discretion in requiring Kimberly S. to register under
the West Virginia Child Abuse and Neglect Registration Act. Moreover, the circuit court did
not commit reversible error in modifying the temporary visitation schedule established by the
Family Court. The schedule determined by the circuit court shall stand, and this Court directs
that a final resolution of the visitation issue shall be made by the Family Court on an
expedited basis.. Accordingly, the September 26, 2012, order of the Circuit Court of Wood
County is affirmed.
Affirmed.
16