                             STATE OF WEST VIRGINIA
                           SUPREME COURT OF APPEALS

In re S.P.-W.
                                                                                   FILED
No. 18-0884 (Gilmer County 18-JA-3)                                             April 19, 2019
                                                                              EDYTHE NASH GAISER, CLERK
                                                                              SUPREME COURT OF APPEALS
                                                                                  OF WEST VIRGINIA


                              MEMORANDUM DECISION



         Petitioner Mother D.P., by counsel Kevin W. Hughart, appeals the Circuit Court of
Gilmer County’s October 2, 2018, order terminating her parental rights to S.P.-W.1 The West
Virginia Department of Health and Human Resources (“DHHR”), by counsel Lee Niezgoda,
filed a response in support of the circuit court’s order. The guardian ad litem (“guardian”), Mary
Elizabeth Snead, 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 was an abusing parent in
its preliminary hearing order, failing to continue the final dispositional hearing, and terminating
her parental rights without granting her an improvement period.

        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 March of 2018, the DHHR filed a petition alleging that four-year-old S.P.-W. was
exposed to drug abuse and drug paraphernalia while in her father’s home. According to the
DHHR, petitioner knew that the father suffered from a serious drug addiction, but continued to
allow the child to remain in his care. Further, the DHHR alleged that petitioner had a history of
involvement with Child Protective Services (“CPS”) and was provided services in 2015. Later in
March of 2018, the circuit court held a preliminary hearing and found that the child was in
imminent danger of abuse and neglect at the time of her removal from the father’s custody.
Additionally, the circuit court found the child was abused and neglected and petitioner was an

       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).



                                                 1
abusing parent. The circuit court ordered petitioner to participate in drug screening and granted
petitioner supervised visitation with the child if the drug screen results were negative for two
consecutive weeks.

        The circuit court held an adjudicatory hearing in May of 2018, and petitioner admitted to
some of the allegations of abuse and neglect contained in the petition without objection from the
DHHR. The circuit court adjudicated petitioner as an abusing parent. Petitioner introduced an
exhibit from a clinic in Maryland that detailed her Subutex prescription as eight milligrams per
day for the preceding five months. Thereafter, the DHHR filed a motion to terminate petitioner’s
parental rights. In the motion, the DHHR alleged that petitioner participated in a psychological
examination during which she minimized her responsibility for the neglect the child suffered
while in the father’s custody. The evaluation stated that petitioner’s prognosis for improvement
was “very poor.” Petitioner filed a motion for a post-adjudicatory improvement period.

        In August of 2018, the circuit court held a hearing on the DHHR’s motion to terminate
petitioner’s parental rights. Petitioner’s psychological examiner’s testimony was consistent with
the DHHR’s motion. A DHHR worker testified that petitioner’s inconsistent inquiry into drug
screening resulted in a denial of supervised visitation with the child. The worker further testified
that she lost contact with petitioner in July of 2018 and was unable to locate petitioner at the
address listed in the DHHR files. The worker described traveling to petitioner’s home with the
parenting provider and leaving the DHHR contact information by the front door. The worker
explained that petitioner’s parenting provider attempted to meet with petitioner on various
occasions, but was unsuccessful in contacting petitioner. Petitioner acknowledged that her
parenting provider supplied in-home services, but denied that the DHHR left contact information
at her home. Petitioner also admitted that her participation in in-home parenting classes ended in
June of 2018 because the parenting provider stopped coming to her home for classes. Petitioner
indicated that she sent one message to the provider, but never contacted the DHHR regarding the
lack of services. The DHHR’s court report submitted in August of 2018 included copies of text
messages from the parenting provider sent to petitioner with no response from petitioner.
Petitioner also testified that she was taking twelve milligrams of Subutex daily, which was down
from twenty-four milligrams beginning six or seven months prior.2 The circuit court granted a
joint motion to continue the hearing after petitioner asserted that the hearing was not properly
noticed as a dispositional hearing.

        The circuit court held the final dispositional hearing in September of 2018 and petitioner
did not appear. Petitioner’s counsel noted an automobile accident in the area and suggested that
petitioner may have been stuck in traffic.3 A DHHR worker reiterated her testimony that
petitioner ceased contact and services with the DHHR in June of 2018. The DHHR worker
       2
         Petitioner gave no explanation as to the difference in her testimony and the letter from
her clinic she submitted into evidence in May of 2018 that indicated that she was prescribed
eight milligrams of Subutex daily.
       3
         According to the record, petitioner’s counsel only suggested the accident delayed
petitioner’s arrival and did not move to continue the hearing as a result of petitioner’s absence.



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explained that petitioner contacted her following the prior hearing, but the DHHR was no longer
offering her services due to her prior noncompliance. The worker recommended termination of
petitioner’s parental rights. Ultimately, the circuit court found there was no reasonable likelihood
that the conditions of abuse and neglect could be substantially corrected based on petitioner’s
failure to participate in services or drug screening. The circuit court found that termination of
petitioner’s parental rights was in the child’s best interests. Accordingly, the circuit court
terminated petitioner’s parental rights by its October 2, 2018, order. Petitioner now appeals that
order.4

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

        On appeal, petitioner first argues that the circuit court erred in finding that she was an
abusing parent and that the child was an abused and neglected child in the preliminary hearing
order. Petitioner states that the preliminary hearing is simply to determine whether probable
cause exists that the child was in imminent danger at the time of the removal, and the Rules of
Procedure for Abuse and Neglect Proceedings do not allow a circuit court to adjudicate a parent
as abusing at the preliminary hearing. Although we agree with petitioner’s assertion, we find this
to be harmless error.5 Petitioner did not express that she experienced any prejudice from the
circuit court’s premature adjudication. Additionally, petitioner was granted an opportunity to
challenge the allegations in the petition, but instead waived that right and admitted to the
allegations at a subsequent adjudicatory hearing. Petitioner was again adjudicated based on her

       The father’s parental rights were also terminated. According to the parties, the
       4

permanency plan for the child is adoption in her current relative foster placement.
       5
        This Court has previously recognized that, “[m]ost errors, including constitutional ones
are subject to harmless error analysis.” State ex rel. Waldron v. Scott, 222 W. Va. 122, 126, 663
S.E.2d 576, 580 (2008) (citation omitted).



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admissions. Therefore, because petitioner was afforded an opportunity to challenge the
allegations at an adjudicatory hearing and declined to do so, we find the circuit court’s ruling
regarding adjudication in the preliminary hearing order amounts to harmless error.

          Petitioner also argues that the circuit court erred in failing to continue the final
dispositional hearing when her counsel stated that traffic may have caused her absence.
However, we note that petitioner’s counsel did not move to continue the hearing, request any
delay in the proceedings, or object to proceeding with the hearing. Petitioner’s counsel only
suggested that petitioner may have been delayed due to the accident. Thus, petitioner argues for
this continuance for the first time on appeal. “‘Our general rule is that nonjurisdictional questions
. . . raised for the first time on appeal, will not be considered.’ Shaffer v. Acme Limestone Co.,
Inc., 206 W.Va. 333, 349 n. 20, 524 S.E.2d 688, 704 n. 20 (1999).” Noble v. W. Va. Dep’t of
Motor Vehicles, 223 W. Va. 818, 821, 679 S.E.2d 650, 653 (2009). Further, petitioner cites to no
authority that requires the circuit court to continue an abuse and neglect proceeding sua sponte
when a litigant does not appear. Accordingly, we find petitioner is entitled to no relief in this
regard.

        Finally, petitioner argues that the circuit court erred in terminating her parental rights
without first granting her an improvement period. Petitioner’s argument relies on the DHHR’s
alleged “failures” and the circuit court’s refusal to recognize her medically assisted addiction
treatment. However, petitioner fails to acknowledge that she did not prove by clear and
convincing evidence that she was likely to fully participate in an improvement period and, thus,
we find petitioner is entitled to no relief. West Virginia Code § 49-4-610(2)(B) provides that a
circuit court may grant a post-adjudicatory improvement period when the parent “demonstrates,
by clear and convincing evidence, that the [parent] is likely to fully participate in the
improvement period.” The decision to grant or deny an improvement period rests in the sound
discretion of the circuit court. See In re M.M., 236 W. Va. 108, 115, 778 S.E.2d 338, 345 (2015)
(“West Virginia law allows the circuit court discretion in deciding whether to grant a parent an
improvement period.”); Syl. Pt. 6, in part, In re Katie S., 198 W. Va. 79, 479 S.E.2d 589 (1996)
(“It is within the court’s discretion to grant an improvement period within the applicable
statutory requirements . . . .”).

        Petitioner did not fully participate in the services offered by the DHHR. The service
provider and the DHHR worker testified that they lost contact with petitioner in June of 2018 and
could not schedule the required services with her. Further, petitioner admitted that she was
noncompliant with drug screening and testified that she stopped calling the drug screening
location daily to inquire if she was required to screen. This evidence does not prove that
petitioner was likely to participate in an improvement period as she asserted in her testimony.
Rather, petitioner clearly indicated a disinterest in cooperating with the DHHR. Moreover,
petitioner argues that because the circuit court did not order the DHHR to continue services
following the August of 2018 hearing, her opportunity to prove that she would participate was
hindered. We do not find this point persuasive. Only sixteen days elapsed between the two
dispositional hearings, and petitioner demonstrated her disinterest in participating throughout the
prior two months. Finally, petitioner’s challenge to the circuit court’s negative consideration of
her medically assisted addiction treatment is unconvincing considering petitioner’s disinterest in
participating in services. It is clear from the record that petitioner could not carry the burden of

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proof that she would participate in an improvement period upon based her conduct during the
proceedings, regardless of the treatment she received from her Subutex clinic. Moreover,
petitioner provided little evidence regarding this treatment program and the evidence she did
provide was inconsistent with her testimony. Therefore, the circuit court did not abuse its
discretion in denying petitioner’s motion for a post-adjudicatory improvement period.

         The evidence of petitioner’s noncompliance with services also supports the circuit court’s
termination of her parental rights. West Virginia Code § 49-4-604(b)(6) provides that circuit
courts are to terminate parental rights upon findings that there is “no reasonable likelihood that
the conditions of neglect or abuse can be substantially corrected in the near future” and that
termination is necessary for the child’s welfare. West Virginia Code § 49-4-604(c)(3) provides
that a situation in which there is no reasonable likelihood the conditions of abuse and neglect can
be substantially corrected includes one in which the abusing parent “ha[s] 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.” Clearly, the DHHR attempted to provide services to petitioner and she
simply did not follow through with those services. Additionally, petitioner minimized her
responsibility regarding the neglect that the child suffered, despite acknowledging that she knew
the father was addicted to controlled substances. Petitioner’s inability to understand her role in
the child’s neglect demonstrated that services were necessary to achieve minimally adequate
parenting. Without petitioner’s cooperation with the DHHR and participation in services, there
was no reasonable likelihood that she would remedy these conditions of neglect on her own.
Accordingly, the record supports a finding that there was no reasonable likelihood that the
conditions of neglect or abuse could be substantially corrected in the near future.

        Similarly, the record supports a finding that termination of parental rights was necessary
for the welfare of the child. Petitioner’s inability to remove the child from a dangerous caregiver
raised serious doubts regarding her judgment as a parent. This poor judgment would continue to
threaten the child if she was returned to petitioner’s care. We have also held as follows:

               “Termination of parental rights, the most drastic remedy under the
       statutory provision covering the disposition of neglected children, [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 [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).

Syl. Pt. 5, In re Kristin Y., 227 W. Va. 558, 712 S.E.2d 55 (2011). The record supports the
requisite findings for the circuit court to terminate petitioner’s parental rights. Accordingly, we
find no error in the circuit court’s ruling below.

      For the foregoing reasons, we find no error in the decision of the circuit court, and its
October 2, 2018, order is hereby affirmed.

                                                                                        Affirmed.

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ISSUED: April 19, 2019


CONCURRED IN BY:

Chief Justice Elizabeth D. Walker
Justice Margaret L. Workman
Justice Tim Armstead
Justice Evan H. Jenkins
Justice John A. Hutchison




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