# In Re B.C.

> West Virginia Supreme Court · February 21, 2014 · 233 W. Va. 130

URL: https://www.frixlaw.com/law-library/cases/2654174

## Case

- **Full name:** In Re: B.C.
- **Court:** West Virginia Supreme Court
- **Decided:** February 21, 2014
- **Citations:** 233 W. Va. 130; 755 S.E.2d 664; 2014 W. Va. LEXIS 158; 2014 WL 763126
- **Precedential status:** Published
- **Opinion:** Opinion by Ketchum
- **Judges:** Ketchum
- **Nature of suit:** Juvenile
- **Cited by:** 8 later opinions in the Frix Law Library

## Citator (automated)

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## Opinion text

IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA

January 2014 Term
_______________
FILED
February 21, 2014
No. 13-0383 released at 3:00 p.m.
_______________ RORY L. PERRY II, CLERK
SUPREME COURT OF APPEALS
OF WEST VIRGINIA

IN RE: B.C.

____________________________________________________________

Appeal from the Circuit Court of Ohio County

The Honorable David J. Sims, Judge

Civil Action No. 12-CJA-20

REVERSED AND REMANDED

____________________________________________________________

Submitted: January 22, 2014

Filed: February 21, 2014

Teresa C. Toriseva, Esq. Patrick Morrisey
Toriseva Law Attorney General
Wheeling, West Virginia Lee A. Niezgoda
Counsel for the Petitioner Assistant Attorney General
White Hall, West Virginia
Joseph J. Moses, Esq. Counsel for the W.Va. Dept. of Health and
Wheeling, West Virginia Human Resources
Guardian ad litem

JUSTICE KETCHUM delivered the Opinion of the Court.
SYLLABUS BY THE COURT

1. “Before the prosecution of a lawsuit may be barred on the basis of

res judicata, three elements must be satisfied. First, there must have been a final

adjudication on the merits in the prior action by a court having jurisdiction of the

proceedings. Second, the two actions must involve either the same parties or persons in

privity with those same parties. Third, the cause of action identified for resolution in the

subsequent proceeding either must be identical to the cause of action determined in the

prior action or must be such that it could have been resolved, had it been presented, in the

prior action.” Syllabus Point 4, Blake v. Charleston Area Med. Ctr., Inc., 201 W.Va. 469,

498 S.E.2d 41 (1997).

2. “Collateral estoppel will bar a claim if four conditions are met: (1)

The issue previously decided is identical to the one presented in the action in question;

(2) there is a final adjudication on the merits of the prior action; (3) the party against

whom the doctrine is invoked was a party or in privity with a party to a prior action; and

(4) the party against whom the doctrine is raised had a full and fair opportunity to litigate

the issue in the prior action.” Syllabus Point 1, State v. Miller, 194 W.Va. 3, 459 S.E.2d

114 (1995).

3. “Though constitutionally protected, the right of the natural parent to

the custody of minor children is not absolute and it may be limited or terminated by the

State, as parens patriae, if the parent is proved unfit to be entrusted with child care.”

Syllabus Point 5, In re Willis, 157 W.Va. 225, 207 S.E.2d 129 (1973).

i
4. Under W.Va. Code § 48-27-305 [2001], a petition for a domestic

violence protective order may be pursued by three classes of people: (1) a person

individually seeking relief from domestic violence; (2) an adult person seeking relief

from domestic violence on behalf of a family or household member, such as a minor

child; or (3) a person who is being abused, threatened or harassed because they witnessed

or reported domestic violence.

5. While a civil abuse and neglect action pursuant to W.Va. Code § 49­

6-1 [2005] may be initiated by either the West Virginia Department of Health and Human

Resources or “a reputable person,” the action is pursued solely on behalf of the State of

West Virginia in its role as parens patriae.

6. A petition for a domestic violence protective order under W.Va.

Code § 48-27-101, et seq., and a petition alleging abuse and/or neglect under W.Va. Code

§ 49-6-1, et seq., may be filed upon the same facts without consequences under the

doctrine of res judicata or the doctrine of collateral estoppel.

ii
Justice Ketchum:

In this appeal from the Circuit Court of Ohio County, the parties dispute a

circuit court order dismissing a petition which alleged that a parent abused and/or

neglected a child. We are asked to determine whether one parent may seek a domestic

violence protective order against the other parent of the child, and then later file a petition

to initiate an abuse and neglect proceeding for the child in circuit court regarding the

same conduct. In its order dismissing the petition, the circuit court concluded that an

abuse and neglect proceeding filed after the conclusion of a domestic violence proceeding

would be barred by principles of res judicata and collateral estoppel.

As set forth below, we reverse the circuit court’s order. We find that even

if a civil domestic violence proceeding and a civil abuse and neglect proceeding involve

the same underlying facts, the separate proceedings do not implicate the doctrines of res

judicata or collateral estoppel.

I.

FACTUAL AND PROCEDURAL BACKGROUND

This case presents issues involving the overlapping jurisdictions of the

magistrate, family, and circuit courts of Ohio County, West Virginia. The underlying

facts are simple. K.S. and K.C. are the biological parents of B.C., a minor child. K.S.

(“the mother”) and K.C. (“the father”) divorced in 2004. The mother now alleges that the

father has been neglectful and physically violent toward B.C.

1

In December 2011, the mother filed a domestic violence petition in

magistrate court on behalf of B.C. She alleged several incidents of abuse and neglect by

the father against B.C.1 Based upon the abuse allegations, a magistrate granted an

emergency protective order for B.C., and then scheduled a final hearing on the petition

before a family court judge. Following the hearing, the family court judge dismissed the

mother’s domestic violence petition, in part because he did not find the testimony of B.C.

to be credible. On March 9, 2012, the circuit court affirmed the family court’s dismissal.

On March 12, 2012, the mother filed an abuse and neglect petition in the

circuit court. The mother asked the circuit court to terminate the father’s parental rights

1
In addition to citing several specific examples of violence by the father
against the child, the December 2011 domestic violence petition vaguely alleged that the
father had substance abuse problems that led him to neglect the child. We note that a
court may not issue a domestic violence protective order based solely upon allegations of
neglect, unless those allegations meet one of the five categories of “domestic violence” or
“abuse” that are defined in W.Va. Code § 48-27-202 [2010]:

(1) Attempting to cause or intentionally, knowingly or
recklessly causing physical harm to another with or without
dangerous or deadly weapons;

(2) Placing another in reasonable apprehension of physical
harm;

(3) Creating fear of physical harm by harassment, stalking,
psychological abuse or threatening acts;

(4) Committing either sexual assault or sexual abuse as those
terms are defined in articles eight-b and eight-d, chapter
sixty-one of this code; and

(5) Holding, confining, detaining or abducting another person
against that person's will.

2

based upon allegations of abuse and neglect. The circuit court later noted that the

allegations were “essentially the same allegations that were made” in the December 2011

domestic violence petition.

After filing the abuse and neglect petition, the mother alleges that an

additional incident of domestic violence was committed by the father against B.C. That

incident occurred on May 5, 2012, when the mother took B.C. to the Wheeling Police

Department to exchange him with the father as required by the parties’ shared parenting

agreement. Apparently, the father grabbed the child and forcefully tried to take him, and

in so doing twisted and fractured the child’s wrist. This incident was recorded by video

cameras.

On May 7th, the mother filed a new domestic violence petition on B.C.’s

behalf against the father. The family court granted the petition and entered an emergency

protective order in favor of B.C. The family court found clear and convincing evidence

that B.C. “sustained a fractured wrist at the hands of [the father] . . . The same would

constitute an act of domestic violence[.]”

On May 9th, the prosecutor filed a criminal complaint against the father

charging him with misdemeanor domestic battery for the fracturing of B.C.’s wrist.2

However, the prosecutor later agreed to a “pretrial diversion” with the father.3 The

prosecutor indicated that he would stay prosecution of the complaint for six months, and

2
See W.Va. Code § 61-2-28(a) [2011].

3
The prosecutor and K.C. reached this agreement on February 25, 2013.

3

that if the father complied with certain court orders during that time, the prosecutor

would dismiss the domestic battery charge.

Several days later, on May 14th, the Department of Health and Human

Resources (“DHHR”) made a motion to intervene in the abuse and neglect action still

pending in circuit court. DHHR said it wanted to intervene “to provide supportive

services to the infant” and “to remedy any circumstances which may be detrimental to the

child[.]”

Finally, on June 7th, the mother filed an amended abuse and neglect petition

in the circuit court. In this newest petition, the mother added the allegations of domestic

violence that the father allegedly committed against B.C. at the police department on

May 5, 2012.

Counsel for the father filed a motion to dismiss the original and amended

abuse and neglect petitions. The father asserted that the abuse and neglect allegations

were the same as the allegations in the domestic violence petition filed in December

2011. Because the family court and circuit court had issued final orders adjudicating the

mother’s domestic violence allegations and denying the mother any relief, the father

argued that the doctrines of res judicata and collateral estoppel supported dismissal of the

abuse and neglect action.

In an order dated March 18, 2013, the circuit court agreed and dismissed

the mother’s abuse and neglect petitions. Finding that the allegations in both the original

and amended abuse and neglect petitions were “essentially the same” as those made in

the December 2011 domestic violence petition, the circuit court determined that the abuse

4

and neglect petitions were barred by the doctrine of res judicata. Further, the circuit

court found the doctrine of collateral estoppel barred the abuse and neglect petitions

because the issues of abuse dispensed with in the domestic violence petition and in the

misdemeanor criminal complaint “are factually identical to the issues raised in this

action.” The circuit court accepted the father’s assertion that his ex-wife (the mother)

was simply attempting “to relitigate the domestic violence allegations that a Family Court

has addressed and dismissed and the criminal charges that the State intends to dismiss.”

Counsel for the mother now appeals the circuit court’s dismissal order.

II.

STANDARD OF REVIEW

“Appellate review of a circuit court’s order granting a motion to dismiss a

complaint is de novo.” Syllabus Point 2, State ex rel. McGraw v. Scott Runyan Pontiac–

Buick, Inc., 194 W.Va. 770, 461 S.E.2d 516 (1995).

III.

ANALYSIS

The circuit court dismissed the mother’s original and amended abuse and

neglect petitions under the doctrine of res judicata and the doctrine of collateral estoppel.

Both doctrines can be invoked to halt the prosecution of a lawsuit, or of a claim within a

lawsuit, when the claim has been resolved on the merits in a prior proceeding. We find

that the circuit court erred in applying these doctrines.

5

In Blake v. Charleston Area Med. Ctr., Inc., 201 W.Va. 469, 498 S.E.2d 41

(1997), we set forth a three-part test for determining if a lawsuit was barred by res

judicata. Syllabus Point 4 of Blake states:

Before the prosecution of a lawsuit may be barred on
the basis of res judicata, three elements must be satisfied.
First, there must have been a final adjudication on the merits
in the prior action by a court having jurisdiction of the
proceedings. Second, the two actions must involve either the
same parties or persons in privity with those same parties.
Third, the cause of action identified for resolution in the
subsequent proceeding either must be identical to the cause of
action determined in the prior action or must be such that it
could have been resolved, had it been presented, in the prior
action. (Emphasis added).

In State v. Miller, 194 W.Va. 3, 459 S.E.2d 114 (1995), we outlined a four-

part test to determine if a party was collaterally estopped from raising a previously

resolved question in a new civil action. We stated in Syllabus Point 1 of Miller:

Collateral estoppel will bar a claim if four conditions
are met: (1) The issue previously decided is identical to the
one presented in the action in question; (2) there is a final
adjudication on the merits of the prior action; (3) the party
against whom the doctrine is invoked was a party or in privity
with a party to a prior action; and (4) the party against whom
the doctrine is raised had a full and fair opportunity to litigate
the issue in the prior action.

As we discuss below, the circuit court misapplied both of these doctrines.

Generally speaking, two of the key elements to invoking these doctrines are that (1) the

party in the current lawsuit, against whom either doctrine is being invoked, must be same

as the party in the prior proceeding, and (2) the claims in both suits must essentially be

identical. Neither of these elements was satisfied in the instant appeal. As a matter of

6

law, petitions for domestic violence protective orders involve different parties from civil

abuse and/or neglect actions. Further, in the instant case, the mother’s abuse and neglect

petitions raised claims substantially different from those adjudicated in the December

2011 domestic violence petition.

A. Identical Parties

The doctrines of res judicata and collateral estoppel prevent parties from

relitigating in a new action a claim or issue that was definitively settled by a prior judicial

decision. The doctrine of res judicata essentially requires that the prior and current

actions must involve the same parties;4 the doctrine of collateral estoppel only requires

the party against whom the doctrine is invoked to have been a party5 to the prior action.

In this case, the circuit court presumed that B.C.’s mother was the same

party who pursued both the December 2011 domestic violence petition and the March

and June 2012 abuse and neglect petitions.6 The circuit court concluded that because the

mother was the same party asserting “essentially the same” allegations in both these

4
In the rare alternative, individuals in “privity” with the parties may be
barred from pursuing an action based upon res judicata.
5
In the rare alternative, an individual in “privity” with a party may be
barred from pursuing a claim in a later action because of collateral estoppel.
6
As we discuss later, the circuit court also seems – incorrectly – to have
presumed that the same parties and allegations raised in the abuse and neglect petition
were also involved in the criminal action against K.C., and that the resolution of the
criminal action also resolved the allegations of abuse and neglect.

7

actions, she could not pursue her abuse and neglect petition. We reject this conclusion by

the circuit court because the parties to a civil domestic violence proceeding are inherently

different from those in a civil abuse and neglect proceeding.

A domestic violence proceeding is brought “[t]o assure victims of domestic

violence the maximum protection from abuse that the law can provide,” and to “create a

speedy remedy to discourage violence against family or household members[.]” W.Va.

Code § 48-27-101 (b)(1) and (2) [2001]. Our domestic violence prevention statutes

identify three “persons” who may seek protection, for themselves or others, by filing a

petition for a protective order. W.Va. Code § 48-27-305 [2001] states:

A petition for a protective order may be filed by:

(1) A person seeking relief under this
article for herself or himself;

(2) An adult family or household
member for the protection of the victim or for
any family or household member who is a
minor child or physically or mentally
incapacitated to the extent that he or she cannot
file on his or her own behalf, or

(3) A person who reported or was a
witness to domestic violence and who, as a
result, has been abused, threatened, harassed or
who has been the subject of other actions
intended to intimidate the person.

Specifically, the Legislature has established that the party in interest who pursues a

petition for a domestic violence protective order is a “person.”

A civil abuse and neglect proceeding is substantially different from a

proceeding for a domestic violence protective order. West Virginia’s abuse and neglect

8

statutes “establish a mechanism whereby the courts may adjudicate questions arising

when the State or a citizen thereof believes there is necessity to change the custodial

relationship of natural parent and child because of some dereliction on the part of the

parent[.]” In re Willis, 157 W.Va. 225, 238, 207 S.E.2d 129, 137 (1973). West

Virginia’s abuse and neglect statues indicate that a petition may be filed by two entities:

either the West Virginia Department of Health and Human Resources (“DHHR”) or “a

reputable person.” W.Va. Code § 49-6-1[2005] states, in part:

(a) If the department or a reputable person believes
that a child is neglected or abused, the department or the
person may present a petition setting forth the facts to the
circuit court. . . . The petition shall be verified by the oath of
some credible person having knowledge of the facts. The
petition shall allege specific conduct including time and
place, how such conduct comes within the statutory definition
of neglect or abuse with references thereto, any supportive
services provided by the department to remedy the alleged
circumstances and the relief sought. . . .

(b) The petition and notice of the hearing shall be
served upon both parents and any other custodian . . . Notice
shall also be given to the department, any foster or
preadoptive parent, and any relative providing care for the
child. . . .

(c) At the time of the institution of any proceeding
under this article, the department shall provide supportive
services in an effort to remedy circumstances detrimental to a
child.

Our abuse and neglect statutes certainly permit “a reputable person” to

initiate a petition for relief. “By permitting an individual who believes that abuse and/or

neglect is occurring, or has occurred, to file a petition alleging such circumstances, and

by requiring this person to also have sufficient knowledge of the facts underlying this

9

belief to verify the petition, the statutory framework attempts to protect parents,

custodians, guardians, and care givers from unsubstantiated charges while permitting the

filing of petitions seeking to protect the health, safety, and well-being of children.” State

ex rel. Paul B. v. Hill, 201 W.Va. 248, 256, 496 S.E.2d 198, 206 (1997).

However, while “a reputable person” may initiate an abuse and neglect

action under W.Va. Code § 49-6-1, it does not mean that the reputable person has any

stake in the action or that the action is being pursued on behalf of the reputable person as

the party in interest. Instead, our cases make clear that an abuse and neglect action is

prosecuted on behalf of one party, and only one party: the State of West Virginia, in its

role as parens patriae.

The doctrine of parens patriae allows the State “in its capacity as provider

of protection to those unable to care for themselves” to prosecute a suit “on behalf of

someone who is under a legal disability.” Black’s Law Dictionary 1221 (9th Ed. 2009).

The State, in its role of parens patriae, “[s]tand[s] at the side of the natural parents with

benign, but continuing, interest” in the care and custody of children. In re Willis, 157

W.Va. at 238, 207 S.E.2d at 137. The Legislature first adopted our abuse, neglect and

child welfare statutes in 1915 as a way to “afford special protection to persons of tender

years,” and crafted those statutes as “an obvious expression of our lawmakers to join the

then modern sociological trend by the codification of the doctrine of parens patriae.”

State ex rel. Slatton v. Boles, 147 W.Va. 674, 679, 130 S.E.2d 192, 196 (1963). As

Justice Miller observed:

10

While parents enjoy an inherent right to the care and
custody of their own children, the State in its recognized role
of parens patriae is the ultimate protector of the rights of
minors. The State has a substantial interest in providing for
their health, safety, and welfare, and may properly step in to
do so when necessary. . . . . In cases of suspected abuse or
neglect, the State has a clear interest in protecting the child
and may, if necessary, separate abusive or neglectful parents
from their children.

In the Interest of Betty J.W., 179 W.Va. 605, 608, 371 S.E.2d 326, 329 (1988). Hence, as

we said in Syllabus Point 5 of In re Willis, supra:

Though constitutionally protected, the right of the
natural parent to the custody of minor children is not absolute
and it may be limited or terminated by the State, as parens
patriae, if the parent is proved unfit to be entrusted with child
care.

While a civil abuse and neglect action is pursued solely under the State’s

parens patriae authority, “the legislature has made DHHR the State’s representative.”

Syllabus Point 4, in part, State ex rel. Diva P. v. Kaufman, 200 W.Va. 555, 490 S.E.2d

642 (1997). “DHHR is the client of county prosecutors,” and “prosecutors must

cooperate with DHHR’s efforts to pursue civil abuse and neglect actions.” Id. And it is

the circuit court that has exclusive “jurisdiction to entertain an abuse and neglect petition

and to conduct proceedings in accordance therewith[.]” Syllabus Point 3, State ex rel.

Paul B. v. Hill, 201 W.Va. 248, 496 S.E.2d 198 (1997).

To summarize, under W.Va. Code § 48-27-305, a petition for a domestic

violence protective order may be prosecuted by three classes of people: (1) a person

individually seeking relief from domestic violence; (2) an adult person seeking relief

from domestic violence on behalf of a family or household member, such as a minor

11

child; or (3) a person who is being abused, threatened or harassed because they witnessed

or reported domestic violence. However, while a civil abuse and neglect action pursuant

to W.Va. Code § 49-6-1 may be initiated by either the West Virginia Department of

Health and Human Resources or “a reputable person,” the action is prosecuted solely on

behalf of the State of West Virginia in its role as parens patriae.

Comparing these statutory schemes, it is clear that the party in interest in a

domestic violence action is, as a matter of law, different from the party in interest in an

abuse and neglect action. Accordingly, we hold that a petition for a domestic violence

protective order under W.Va. Code § 48-27-101, et seq., and a petition alleging abuse

and/or neglect under W.Va. Code § 49-6-1, et seq., may be filed upon the same facts

without consequences under the doctrine of res judicata or the doctrine of collateral

estoppel.

Applied to the instant case, it is obvious that the circuit court erred in

dismissing the mother’s petitions alleging abuse and neglect under the doctrines of res

judicata and collateral estoppel. The mother unsuccessfully pursued her December 2011

petition for a domestic violence protective order on behalf of her son, B.C. However,

when she alleged these same acts of domestic violence in her March 2012 abuse and

neglect petition, she did so only as “a reputable person.”7 Upon the filing of the abuse

7
Before the circuit court, counsel for the father argued that the mother was
not a “reputable person” under W.Va. Code § 49-6-1 “because she is, in part, forum
shopping” and “is clearly showing a level of bias and animosity that the Legislature could
not have meant” when enacting the abuse and neglect statutes. In its order, the circuit
court declined to address this argument by the father.
(continued . . .)
12

and neglect petition, it was the State of West Virginia who became the prosecuting party

in interest. The DHHR, as the agent for the State, was then charged with investigating

the allegations and pursuing the best course to assure the “care, safety and guidance,” and

the “mental and physical welfare,” of the minor child. W.Va. Code § 49-1-1(a)(1) and

(2). Put simply, the mother was neither the same party nor was she in privity with the

parties in both the December 2011 domestic violence action and the March 2012 abuse

and neglect action. The circuit court erred in holding otherwise.

B. Identical question

The doctrines of res judicata and collateral estoppel bar the relitigation of a

claim or issue previously resolved in another suit. Res judicata (also called “claim

preclusion”) generally applies if “the cause of action identified for resolution in the

subsequent proceeding” is “identical to the cause of action determined in the prior

action,” or could have been raised and determined in the prior action. Syllabus Point 4,

Blake, supra. Collateral estoppel (also called “issue preclusion”) applies if the “issue

previously decided is identical to the one presented in the action in question.” Syllabus

A “reputable person” under W.Va. Code § 49-6-1 is simply a person who
“believes that abuse and/or neglect is occurring, or has occurred,” and who has
“sufficient knowledge of the facts underlying this belief to verify the petition.” State ex
rel. Paul B. v. Hill, 201 W.Va. at 256, 496 S.E.2d at 206. In Paul B., we approved of an
abuse and neglect petition filed by respite caregivers whose belief about the existence of
abuse and/or neglect was based upon “personal familiarity with and observations of the
children during their provision of respite care[.]” 201 W.Va. at 257, 496 S.E.2d at 207.
On the appendix record presented to this Court, it appears that the mother meets these
standards to qualify as a “reputable person.”

13

Point 1, Miller, supra. An “issue” is “any right, fact or legal matter which is put in

issue[.]” Miller, 194 W.Va. at 9, 459 S.E.2d at 120. In the instant case, the circuit court

ruled that the causes of action and issues in both the December 2011 domestic violence

petition and the March and June 2012 abuse and neglect petitions were identical “because

the same evidence supports each of these separate and various causes of action [and

issues].”

The circuit court’s ruling was clearly in error, because the court failed to

consider that the claims and issues that can be raised before, and the relief that could be

granted by, the circuit court in an abuse and neglect action are substantially different and

broader than the claims, issues and relief that can be considered by the magistrate and

family courts in a proceeding for a domestic violence protective order. A domestic

violence action is intended solely as a short-term, temporary response to prevent

domestic violence; an abuse and neglect action is designed to craft long-term solutions to

both violence and neglect in the household. While the circuit courts have concurrent

jurisdiction with the family and magistrate courts over domestic violence proceedings,

only circuit courts have jurisdiction to preside over abuse and neglect actions. Compare

W.Va. Code § 48-27-301(a) [2012] (“Circuit courts, family courts and magistrate courts,

have concurrent jurisdiction over domestic violence proceedings”); W.Va. Code 49-6-1(a)

(if a child is neglected or abused, “the department or the person may present a petition

setting forth the facts to the circuit court”).

To state it succinctly, many of the long-term, comprehensive remedies that

a circuit court can order in an abuse and neglect case are simply not available in a

14

domestic violence action. We perceive that, in many instances, the same factual scenario

of domestic abuse and/or neglect could support not only a civil abuse and/or neglect

action and an action for a domestic violence protective order, but could also

simultaneously support a criminal prosecution, a civil tort action for damages, and an

action in family court for divorce or allocation of parental responsibility. Each of these

actions involves different parties, different causes of action, different burdens of proof,

and/or different forms of relief not available in one court or another.

Additionally, the circuit court failed to make any reference to the mother’s

amended abuse and neglect petition, which raised allegations of violence against the child

that happened in May 2012. Counsel for the mother plainly expressed to the circuit court

that new, unresolved, unadjudicated facts supported the petition. The new issues raised

in the amended petition occurred five months after the events detailed in the December

2011 domestic violence action, and therefore could not have been identical to the

previously adjudicated questions. Yet the circuit court still went on find the issues raised

by the amended petition were “essentially the same” as those in the domestic violence

action, and dismissed the amended petition as barred by the doctrines of res judicata and

collateral estoppel.

Finally, we are troubled by one additional conclusion by the circuit court.

The mother was not a party to the criminal action filed in magistrate court. The criminal

case was initiated by the prosecutor, and it was the prosecutor who entered into a bargain

with the father. Still, counsel for the father argued that the abuse and neglect petition was

“simply another attempt” by the mother “to re-litigate the domestic violence . . . criminal

15

charges that the State intends to dismiss.” The circuit court accepted this argument, and

found that the mother “had a full and fair opportunity to litigate all of the issues” in the

criminal proceeding in magistrate court. The circuit court concluded that the mother’s

abuse and neglect assertions were collaterally estopped, in part, because they were

“issues of (domestic) abuse . . . dispensed with by the State in the criminal action[.]”

This conclusion by the circuit court was in error. This Court has

determined that civil abuse and neglect proceedings are to be treated as separate and apart

from criminal proceedings arising from child abuse or neglect. As we stated in Syllabus

Point 2 of Matter of Taylor B., 201 W.Va. 60, 491 S.E.2d 607 (1997),

A civil child abuse and neglect petition instituted by
the West Virginia Department of Health and Human
Resources pursuant to Code, 49–6–1 et seq., is not subject to
dismissal pursuant to the terms of a plea bargain between a
county prosecutor and a criminal defendant in a related child
abuse prosecution.

This is because “civil abuse and neglect proceedings focus directly upon the safety and

well-being of the child and are not simply ‘companion cases’ to criminal prosecutions.”

201 W.Va. at 66, 491 S.E.2d at 613. The circuit court erred when it found that the

allegations in the abuse and neglect petition were collaterally estopped by the

prosecutor’s choice to dismiss the criminal charges against the father.

In sum, because the claims and issues resolved in the December 2011

domestic violence proceeding were different from those in the original and amended

abuse and neglect petitions, the circuit court erred in finding the mother’s abuse and

neglect action was precluded by the doctrines of res judicata and collateral estoppel.

16

IV.

CONCLUSION

The circuit court erred in finding that the original and amended abuse and

neglect petitions were barred by the doctrines of res judicata and collateral estoppel.

Accordingly, the circuit court’s March 18, 2013, order must be reversed.

Reversed and remanded.

17

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/2654174. Public record. Not legal advice.