                              UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                              No. 13-1807


AMANDA UNDERWOOD,

                 Plaintiff - Appellant,

           v.

THE WEST VIRGINIA DEPARTMENT OF HEALTH AND HUMAN RESOURCES;
JOHN J. NAJMUSKI, Commissioner, West Virginia Department of
Health and Human Services, in his official capacity; KATHRYN
A.    BRADLEY,    Community    Services     Manager    of     the
Berkeley/Jefferson/Morgan    County   Offices    of   the    West
Virginia   Department    of   Health   and   Human   Resources,
Individually; MARY CARPER, Individually; JUSTIN CASTLEMAN,
Individually;     TZOURI    OLIVER,     Individually;      SHELLY
NICEWARNER,    Individually;    UNKNOWN    EMPLOYEES    OF    THE
DEPARTMENT OF HEALTH AND HUMAN RESOURCES, and Supervisors of
Mary Carper, Individually; MARY DOE(S), Individually; JOHN
DOE(S), Individually,

                 Defendants – Appellees,

           and

STORM SHILEY, Individually,

                 Defendant.



Appeal from the United States District Court for the Southern
District of West Virginia, at Charleston. Joseph R. Goodwin,
District Judge. (2:11-cv-00506)


Argued:   March 18, 2014                    Decided:   April 4, 2014
Before TRAXLER, Chief Judge, DUNCAN, Circuit Judge, and DAVIS,
Senior Circuit Judge.


Affirmed by unpublished per curiam opinion.


ARGUED: Nancy A. Dalby, Charles Town, West Virginia, for
Appellant. Natalie C. Schaefer, SHUMAN, MCCUSKEY & SLICER, PLLC,
Charleston, West Virginia, for Appellees. ON BRIEF: Kimberly M.
Bandy, SHUMAN, MCCUSKEY & SLICER, PLLC, Charleston, West
Virginia, for Appellees.


Unpublished opinions are not binding precedent in this circuit.




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PER CURIAM:

     This    appeal      concerns   the        process    afforded     to     Appellant

Amanda     Underwood     during     the     course       of   abuse     and    neglect

proceedings in West Virginia state court and culminating in the

termination       of   Underwood’s        parental       rights.      Underwood      was

originally drawn into the purview of the state’s Department of

Health and Human Resources (DHHR) because her husband, Travis

Harrell,    was    the   subject    of     an       investigation     by    its   child

protective        services.     Following           an   ex    parte        proceeding

accompanied by a series of concededly sloppy paperwork, DHHR

removed Underwood’s children from her physical custody without

court ratification or the setting of a hearing. 1 Eventually,

after    Underwood     conceded     medical         neglect   and   was     unable   to

demonstrate       improvement      during       a     probationary      period,      the

Circuit Court of Berkeley County, West Virginia terminated her

parental rights.

     Underwood then filed a motion for reconsideration, alleging

that DHHR had committed serious procedural improprieties while

handling her case. The circuit court found cause to believe that

DHHR had indeed violated Underwood’s due process rights “when

     1
       A comprehensive recitation of the factual record and
procedural history can be found in the district court’s May 28,
2013 opinion granting Appellees’ motion for summary judgment.
Underwood v. W. Va. Dep’t of Health and Human Serv., No. 11-
00506, 2013 WL 2319253, at *1 (S.D. W.Va. May 28, 2013).



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custody    of    the        Infants    was    removed        from    her    without     court

notification          and    without    setting        a    date     for    a   preliminary

hearing[.]” J.A. 138. Notwithstanding this finding, however, the

court denied Underwood’s motion for reconsideration. It found

that     during        the     subsequently-imposed                improvement      period,

Underwood had not demonstrated sufficient progress to justify a

return of her children.

        Underwood timely appealed and filed a writ of habeas corpus

for the return of her children in the Supreme Court of Appeals

of West Virginia. Building off the circuit court’s holding, she

argued that DHHR had violated her federal due process rights

under    the    Fourteenth          Amendment     and      under    West    Virginia     law.

According to Underwood, the entirety of the flawed termination

proceedings, including her concession of medical neglect, flowed

from the improvident removal of her children, such that the DHHR

actions     poisoned         the     ultimate      termination         of   her    parental

rights.

        On September 26, 2011, the state supreme court affirmed the

circuit    court’s          order     and    denied        Underwood’s      petition.     The

judgment        rested         primarily          on       the      court’s       differing

interpretation of the events that transpired during Underwood’s

court appearances, Specifically, the court held that DHHR had

never     relinquished          legal       custody         of     Underwood’s     children

(rather,       only    physical       custody      had      been    restored)     and    that

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Underwood had waived certain process rights. It concluded that

“the record shows that petitioner’s due process rights were not

violated . . . despite the circuit court’s finding [otherwise].”

J.A. 455B. Underwood’s parental rights having been terminated,

DHHR       subsequently     arranged    for       the     legal    adoption      of   the

children, which, as we were advised by counsel at oral argument,

has been consummated.

       Underwood’s instant lawsuit, filed in the Southern District

of West Virginia on July 25, 2011, alleges the same nucleus of

facts      litigated   in    the    state       courts.    Her     amended      complaint

contained      seven   counts,       including      Count        III,   which    alleges

claims      pursuant   to    42    U.S.C.   § 1983        that    Appellees      deprived

Underwood of due process, and Count V-A, which alleges that the

West Virginia Abuse and Neglect Statute is unconstitutional on

its face and as applied to Underwood. 2

       The parties submitted cross-motions for summary judgment.

After several rounds of briefing, the district court granted

DHHR’s motion and denied Underwood’s motion. Underwood v. W. Va.




       2
       Underwood had also sought injunctive relief to prohibit
DHHR from retaining custody, but that claim was denied by the
district court under the Rooker-Feldman doctrine and is not
challenged on appeal. Underwood v. W. Va. Dep’t of Health and
Human Serv., No. 11-00506, 2012 WL 2026547, at *2-3 (S.D. W.Va.
June 5, 2012).



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Dep’t of Health and Human Serv., No. 11-00506, 2013 WL 2319253

(S.D. W.Va. May 28, 2013).

     Having     had   the   benefit   of   oral   argument   and    having

carefully reviewed the briefs, record, and applicable law, we

agree with the district court’s analysis as set forth in its

well-reasoned    memorandum.   Id.    Accordingly,   we   affirm    on   the

reasoning of the district court.

                                                                   AFFIRMED




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