                            STATE OF WEST VIRGINIA

                          SUPREME COURT OF APPEALS


In re: J.N., R.N.-1, and K.N.                                                      FILED
                                                                               October 23, 2017
No. 17-0367 (Mingo County 16-JA-21, 16-JA-22, & 16-JA-23)                         RORY L. PERRY II, CLERK
                                                                                SUPREME COURT OF APPEALS
                                                                                    OF WEST VIRGINIA


                              MEMORANDUM DECISION
         Petitioner Father R.N.-2, by counsel Susan Van Zant, appeals the Circuit Court of Mingo
County’s March 16, 2017, order terminating his parental rights to J.N., R.N.-1, and K.N.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”), Diana
Carter Wiedel, filed a response on behalf of the children in support of the circuit court’s order.
On appeal, petitioner argues that the circuit court erred in terminating his parental rights.

        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 February of 2016, the DHHR filed an abuse and neglect petition against petitioner and
the mother. According to the petition, the DHHR received two referrals in November of 2015
regarding the family. The first referral indicated that R.N.-1, five years old at the time, came to
school with a black eye and was overheard saying “It is ok [sic], she gets angry and hits me.”
When interviewed, R.N.-1 stated that her mother accidentally hit her. R.N.-1 stated that she
sometimes observed her parents hit each other. When questioned by a Child Protective Services
(“CPS”) worker, the mother explained that she accidently scratched the child while attempting to
buckle R.N.-1’s seatbelt while the child was misbehaving. The second referral indicated that
R.N.-1 would sometimes arrive home from school to find no one at home. Further, in December
of 2015, police were dispatched to the home for a domestic violence incident where the mother
allegedly stabbed petitioner. The DHHR also alleged that petitioner previously had his parental
rights to an older child, D.H., involuntarily terminated. The DHHR alleged that petitioner failed

       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). Further, because one of the children and petitioner share the
same initials, we will refer to them as R.N.-1 and R.N.-2, respectively, throughout this
memorandum decision.


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to acknowledge his termination of parental rights to D.H. Petitioner stated that he did not know
about the prior proceedings when they were occurring. The DHHR ultimately based the petition
on aggravated circumstances concerning petitioner’s prior termination of parental rights and
domestic violence in the home.

       In February of 2016, the circuit court held a preliminary hearing in which it found
probable cause to believe that the parents neglected the children. The circuit court found that the
children remaining in the home was not contrary to their best interests so long as the DHHR
provided appropriate supervision and services. The circuit court also granted petitioner a
preadjudicatory improvement period.

        In May of 2016, the circuit court held a preliminary hearing on an amended petition in
which the DHHR alleged additional abuse and/or neglect due to drug abuse, among other things.
A CPS worker testified that, the mother and petitioner, while undergoing a psychiatric
evaluation, tested positive for marijuana. The mother became unstable during the evaluation and
threatened to harm herself. During her transfer to Three Rivers Medical Center, the mother
accused petitioner of committing acts of domestic violence against her in the presence of the
children, including one incident in which he attempted to strangle her by lifting her against the
wall. The CPS worker testified that petitioner spoke privately with her and stated that he wanted
to relinquish his rights to the children. The CPS worker told petitioner that he should speak to his
attorney and to “not give up yet.” The circuit court again found probable cause to believe that the
parents had neglected their children; that they had participated in domestic violence, which
endangered the children; and that aggravated circumstances existed as to petitioner. The circuit
court ordered the DHHR to remove the children from the home due to the severe risk of neglect.

        In July of 2016, the circuit court held an adjudicatory hearing. Petitioner requested a post­
adjudicatory improvement period to which the guardian objected, stating that less than two
weeks prior, there had been another domestic violence incident between petitioner and the
mother. Petitioner thereafter appeared at a multidisciplinary team (“MDT”) meeting with bloody
knuckles. The guardian stated that petitioner did not have a stable home and was unsure where
he was residing. Previously, petitioner had advised that he scheduled an appointment for
counseling services but could not remember the date or time of such appointment. However, the
guardian noted that he never showed up for those services. The guardian stated that petitioner
failed to successfully complete the preadjudicatory improvement period. As such, the circuit
court denied petitioner’s request for a post-adjudicatory improvement period and adjudicated
him as an abusing parent.

        The circuit court held another hearing in August of 2016 and petitioner again moved for
an improvement period. The guardian objected, noting that petitioner was having problems with
his current girlfriend who had been pulled over by police and was found to be in possession of
petitioner’s prescription medication. Petitioner did not test positive for the prescribed
medication. The circuit court granted petitioner a post-adjudicatory improvement period of sixty
days.

        In March of 2017, the circuit court held a dispositional hearing. Petitioner failed to
attend, but was represented by counsel. During the hearing, the mother voluntarily relinquished

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her parental rights to all three children. Neither party presented any witnesses. The guardian
submitted a supplemental report in which she stated that during the pendency of his case,
petitioner had been in at least two separate relationships with other women who also have open
CPS cases. Petitioner also intentionally cut his wrists in December of 2016. Petitioner’s counsel
stated that he had not heard from petitioner in months. The circuit court noted that petitioner was
not present and had made no effort to participate in services. Ultimately, the circuit court found
by clear and convincing evidence that there was no reasonable likelihood that the conditions of
abuse and neglect could be substantially corrected in the near future and that termination of
petitioner’s parental rights was necessary for the children’s welfare. As such, the circuit court
terminated petitioner’s parental rights.2 It is from the dispositional 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).

         Petitioner argues that the circuit court erred in terminating his parental rights. In support
of his assignment of error, petitioner argues that the circuit court erred in considering the hearsay
testimony of a CPS worker at the preliminary hearings addressing the petition and amended
petition. Petitioner additionally argues that his parental rights were terminated by presentation of
a case plan in the circuit court that failed to meet minimum standards. However, this Court finds
that petitioner’s arguments are without merit. There is no evidence in the record that petitioner
objected to the worker’s testimony nor to any alleged deficiency with the case plan below. We
have previously held that “[o]ur general rule is that nonjurisdictional questions . . . raised for the
first time on appeal, will not be considered.” Noble v. W.Va. Dep’t of Motor Vehicles, 223 W.Va.
818, 821, 679 S.E.2d 650, 653 (2009) (quoting Shaffer v. Acme Limestone Co., Inc., 206 W.Va.
333, 349 n. 20, 524 S.E.2d 688, 704 n. 20 (1999)). As such, we decline to consider these
arguments on appeal.



       2
        The parents’ parental rights were either terminated or voluntarily relinquished below.
According to the parties, the children have been placed in separate foster homes, due to concerns
over their behavior, with a goal of adoption by foster families.
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        Petitioner also argues that his parental rights were terminated because of his failure to
appear at the dispositional hearing. However, we see no evidence in the record suggesting that
petitioner’s absence was the cause of such termination. Rather, the circuit court found that, at the
time of the dispositional hearing, petitioner was unwilling or unable to correct the conditions of
abuse and/or neglect that necessitated the removal of his children from the home and further
found that there was no reasonable likelihood that petitioner could correct the conditions in the
near future. Pursuant to West Virginia Code § 49-4-604(c)(3), a situation in which there is no
reasonable likelihood the conditions of abuse and neglect can be substantially corrected includes
one in which

       [t]he abusing parent . . . [has] not responded to or followed through with a
       reasonable family case plan or other rehabilitative efforts of social, medical,
       mental health or other rehabilitative agencies designed to reduce or prevent the
       abuse or neglect of the child, as evidenced by the continuation or insubstantial
       diminution of conditions which threatened the health, welfare or life of the child .
       ...

        In this case, petitioner was granted a pre- and post-adjudicatory improvement period,
both of which he failed to complete. As set forth in the record, the terms of petitioner’s
improvement period required that he submit to drug screens, participate in counseling sessions,
and attend visitation with the children, among other things. The circuit court noted that petitioner
made no effort to participate in these services. In fact, the guardian noted in her supplemental
report that petitioner had been noncompliant with most services from October of 2016 through
January of 2017. Further, the transcript from the hearing held in August of 2016, shows that
petitioner engaged in domestic violence against the mother and, thereafter arrived at a MDT
meeting with bloody knuckles, showing a lack of progress during the improvement periods.
Petitioner disregarded his children’s well-being by associating with women who also had
pending CPS cases. Petitioner also intentionally cut his wrists during the pendency of this case. It
is clear from the evidence that petitioner made minimal attempts to correct his behavior in
accordance with the case plan.

        Based upon the evidence outlined above, it is clear that there was no reasonable
likelihood that petitioner could substantially correct the conditions of abuse and neglect. The
circuit court found that termination of petitioner’s parental rights was necessary for the
children’s welfare. Pursuant to West Virginia Code § 49-4-604(b)(6), circuit courts are directed
to terminate a parent’s parental rights upon such findings. Moreover, we have previously held
that

               “[t]ermination of parental rights, the most drastic remedy under the
       statutory provision covering the disposition of neglected children, W. Va.Code [§]
       49-6-5 [now West Virginia Code § 49-4-604] . . . may be employed without the
       use of intervening less restrictive alternatives when it is found that there is no
       reasonable likelihood under W. Va.Code [§] 49-6-5(b) [now West Virginia Code
       § 49-4-604(c)] . . . that conditions of neglect or abuse can be substantially
       corrected.” Syllabus point 2, In re R.J.M., 164 W.Va. 496, 266 S.E.2d 114 (1980).



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Syl. Pt. 5, In re Kristin Y., 227 W.Va. 558, 712 S.E.2d 55 (2011). For these reasons, we 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
March 16, 2017, order is hereby affirmed.


                                                                                      Affirmed.

ISSUED: October 23, 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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