                                                      STATE OF WEST VIRGINIA 

                                                    SUPREME COURT OF APPEALS


                                                                                     FILED
In re R.R.
                                                                                 March 12, 2018
                                                                                 EDYTHE NASH GAISER, CLERK
No. 17-0930 (Raleigh County 16-JA-146)                                           SUPREME COURT OF APPEALS
                                                                                     OF WEST VIRGINIA 



                                                          MEMORANDUM DECISION
        Petitioner Mother C.R., by counsel Steven K. Mancini, appeals the Circuit Court of
Raleigh County’s September 13, 2017, order terminating her parental rights to R.R.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”), Matthew B.
Fragile, filed a response on behalf of the child in support of the circuit court’s order. On appeal,
petitioner argues that the circuit court erred in finding that she abandoned her child, in not
requiring the amended petition to be verified, and in denying her a preliminary hearing on the
amended petition.2

        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 September of 2016, the DHHR filed a petition alleging that after petitioner gave birth
to R.R., the child tested positive for opiates. Petitioner was incarcerated at the time of birth due
to a probation violation, so she agreed to give legal and physical custody of R.R. to the DHHR.
The father also was not in a position to take custody of the child. Before the preliminary hearing,
petitioner was released from incarceration and moved into an inpatient substance abuse treatment
facility. Petitioner waived her right to a preliminary hearing, orally stipulated to neglect caused
by substance abuse and orally moved for an improvement period. The circuit court deferred
ruling on petitioner’s motion for an improvement period until both the stipulation and motion
                                                            
              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).
              2
        Petitioner does not allege an assignment of error concerning the circuit court’s
termination of her parental rights.



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could be submitted in writing.3 Petitioner continued in the substance abuse treatment facility as a
term of her probation.

        Before the adjudicatory hearing, petitioner left the treatment facility against medical
advice and a warrant was issued for her arrest.4 The DHHR filed an amended petition alleging
that petitioner did not contact the DHHR after leaving the facility to inquire about her daughter
and that petitioner abandoned R.R. Later, the circuit court held a hearing regarding the amended
petition. Petitioner did not appear but was represented by counsel.

        In May of 2017, the circuit court held an adjudicatory hearing. Petitioner did not appear
but was represented by counsel. The DHHR presented testimony that petitioner had not
contacted the case worker or visitation provider since she left the treatment facility in November
of 2016. Further, petitioner did not provide any financial support or have meaningful contact
with the child. Ultimately, the circuit court adjudicated petitioner as having abandoned R.R. and
set the case for a dispositional hearing.

In August of 2017, the circuit court held a dispositional hearing. Again, petitioner did not appear
but was represented by counsel. The case workers testified that there was no change in the case;
petitioner had not contacted the DHHR about her daughter nor had she provided support for her
daughter. Ultimately, the circuit court found petitioner’s “continued abandonment was clearly
and convincingly established by unrefuted evidence” and, given the findings of abandonment,
the DHHR was not required to make reasonable efforts to preserve the family. The circuit court
terminated petitioner’s parental rights to R.R in its September 13, 2017.5 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
                                                            
              3
       It does not appear from the record that either the stipulation or the motion for
improvement period were ever submitted in writing.
              4
                  According to petitioner’s brief, she was arrested and returned to the area in October of
2017.
              5
         The father’s parental rights were also terminated below. R.R. is currently placed in a
foster home and the permanency plan is adoption in that home.



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       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). Upon our review, this Court
finds no error in the proceedings below.

       Petitioner first argues that the circuit court erred in finding she abandoned her child
because she did not have legal or actual custody of the child and, therefore, could not abandon
her. Specifically, petitioner argues that she voluntarily gave custody of R.R. to the DHHR
because she was incarcerated and when she transferred custody she was no longer “obligated by
any ‘duties’ to R.R.” Petitioner relies on State ex rel. McCartney v. Nuzum, 161 W.Va. 740, 248
S.E.2d 318 (1978), which holds that a parent cannot abuse or neglect a child when they do not
have actual custody of that child. Petitioner argues that In re Katie S., 198 W.Va. 79, 479 S.E.2d
589 (1996), which overrules that holding in McCartney, should be modified. We disagree.

       We have previously held that

       [w]hen the Department of Health and Human Services finds a situation in which
       apparently one parent has abused or neglected the children and the other has
       abandoned the children, both allegations should be included in the abuse and
       neglect petition filed under W. Va. Code 49–6–1(a) (1992). Every effort should
       be made to comply with the notice requirements for both parents. To the extent
       that State ex rel. McCartney v. Nuzum, 161 W.Va. 740, 248 S.E.2d 318 (1978),
       holds that a non-custodial parent can be found not to have abused and neglected
       his or her child it is expressly overruled.

In re Katie S., 198 W. Va. at 81, 479 S.E.2d at 591.

        Although petitioner cites Katie S. in her brief, she ignores the relevant authority
contained therein. Katie S. clearly holds that non-custodial parents are expected to show interest
in the child’s welfare and provide financial and emotional support for the child; a failure to do so
is strong evidence of abandonment and may be alleged in an abuse and neglect petition. Id., 161
W.Va. at 85-86, 248 S.E.2d at 595-96. We decline petitioner’s invitation to reevaluate that
holding. Petitioner’s willful transfer of custody to the DHHR did not free her from showing
interest in her child’s well-being or providing support for the child. Although petitioner correctly
argues she was not obligated to participate in treatment as part of the abuse and neglect case, she
knew that her failure to complete substance abuse treatment would be a violation of her
probation and would ultimately result in her incarceration. Because petitioner did not consider
the child’s welfare or show any interest in parenting, we find that the circuit court did not err in
finding that petitioner abandoned her child.

        Second, petitioner argues that the circuit court erred in finding clear and convincing
evidence that she abandoned R.R. Specifically, petitioner asserts that an abuse and neglect
petition must be based on facts existing at the time of its filing and that the evidence that she left

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the treatment facility and went missing for two months was insufficient proof of abandonment.
We disagree.

       West Virginia Code § 49-1-201 provides that abandonment means “any conduct that
demonstrates the settled purpose to forego the duties and parental responsibilities to the child[.]”6
After a parent leaves the child with a third-party care giver for a limited time, abandonment
begins when the limited time “exceeded what was contemplated” and the parent allows the
“thread of potential contact between [the parent] and the child’s actual care giver to break.” In re
Destiny Asia H., 211 W.Va. 481, 484, 566 S.E.2d 618, 621 (2002).

        It is clear that petitioner demonstrated a settled purpose to forego her duties and parental
responsibilities to R.R. Petitioner voluntarily gave temporary custody to the DHHR while she
was incarcerated. The DHHR’s custody was extended pursuant to the abuse and neglect
proceedings. Rather than completing treatment and abiding by the terms of her probation,
petitioner left treatment and created a situation where the DHHR could not return custody to her.
Further, petitioner never contacted the DHHR to show an interest in R.R.’s welfare or provide
any support. Although petitioner argues that she was missing for only two months at the filing of
the petition, petitioner’s lack of participation in the proceedings served to strengthen the
evidence that petitioner had truly abandoned R.R. Petitioner further asserts that if she had been
arrested after leaving treatment, then the abandonment allegation still would not have been
actionable because the sole basis would be incarceration; however this assertion is also incorrect.
“[T]his Court has never held that incarceration cannot be the sole basis for terminating parental
rights.” Cecil T., 228 W.Va. at 97, 717 S.E.2d at 881. Accordingly, we find no error in
adjudication.

       Third, petitioner argues that the circuit court erred by allowing the amended petition to be
filed without verification, as required by West Virginia Code § 49-4-601(b). We disagree. West
Virginia Code § 49-4-601(b) requires the petition be “verified under oath of some credible
person having knowledge of the facts.” However, we have held that

                      “[w]here it appears from the record that the process established by the
              Rules of Procedure for Child Abuse and Neglect Proceedings and related statutes
              for the disposition of cases involving children [alleged] to be abused or neglected
              has been substantially disregarded or frustrated, the resulting order . . . will be
              vacated and the case remanded for compliance with that process and entry of an
              appropriate . . . order.” Syl. Pt. 5, in part, In re Edward B., 210 W.Va. 621, 558
              S.E.2d 620 (2001).
Syl. Pt. 3, In re Emily G., 224 W.Va. 390, 686 S.E.2d 41 (2009). Here, the circuit court did not
accept the amended petition as confessed. Instead, the DHHR called witnesses to testify and be
cross-examined under oath to the facts alleged in the petition. No evidence was offered to
                                                            
              6
        Although petitioner applies the definition of abandonment from West Virginia Code §
48-22-102 and § 48-22-306, we decline to apply those definitions as alternatives to the definition
provided in § 49-1-201, which has more relevance to abuse and neglect actions.



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contradict any of the allegations in the amended petition. Further, the original abuse and neglect
petition filed against petitioner was verified. Based on petitioner’s opportunity to challenge the
allegation of abandonment, we find that the process was not substantially disregarded or
frustrated such that vacation is warranted.
        Finally, petitioner argues that the circuit court erred in not holding a preliminary hearing
on the amended petition. Rule 19(d) of the Rules of Procedure for Child Abuse and Neglect
Proceedings provides that “[i]f the petition is amended after the conclusion of a preliminary
hearing in which custody has been temporarily transferred to the Department or a reasonable
person, it shall be unnecessary to conduct another preliminary hearing.” The circuit court did
grant temporary custody to the DHHR after petitioner waived her right to a preliminary hearing
in October of 2016, and, therefore, the circuit court did not err by declining to hold an extended
preliminary hearing on the amended petition.
      For the foregoing reasons, we find no error in the decision of the circuit court, and its
September 13, 2017, order is hereby affirmed.


                                                                                         Affirmed.

ISSUED: March 12, 2018


CONCURRED IN BY:

Chief Justice Margaret L. Workman
Justice Robin Jean Davis
Justice Menis E. Ketchum
Justice Allen H. Loughry II
Justice Elizabeth D. Walker
 




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