                             STATE OF WEST VIRGINIA
                           SUPREME COURT OF APPEALS


In re A.H.-1
                                                                                      FILED
                                                                                   June 25, 2020
                                                                                 EDYTHE NASH GAISER, CLERK
No. 19-0791 (Wood County 17-JA-328)                                              SUPREME COURT OF APPEALS
                                                                                     OF WEST VIRGINIA




                              MEMORANDUM DECISION



       Petitioner Mother A.H.-2, by counsel Eric K. Powell, appeals the Circuit Court of Wood
County’s August 1, 2019, order terminating her parental rights to A.H.-1. 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, Robin Bonovitch, filed a
response on behalf of the child in support of the circuit court’s order. Petitioner filed a reply. On
appeal, petitioner argues that the circuit court erred in permitting a Child Protective Services
(“CPS”) worker to express an opinion as to petitioner’s mental capacity, denying her motion to
dismiss the petition, and in finding that she neglected the child. 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 December of 2017, the DHHR filed an abuse and neglect petition alleging that
petitioner’s parental rights to an older child were terminated in April of 2011. According to the

       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). Additionally, because the child and petitioner share
the same initials, they will be referred to as A.H.-1 and A.H.-2, respectively, throughout this
memorandum decision.
       2
        On appeal, petitioner does not raise an assignment of error regarding the termination of
her parental rights to the child.



                                                 1
current petition, in 2009 the DHHR filed a petition charging that petitioner was “not providing
adequate and appropriate care to the [older] child” due to her “mental health issues which
inhibited [her] ability to care for the child.” The DHHR’s current petition went on to explain that,
following an improvement period in the earlier proceeding, the circuit court terminated
petitioner’s parental rights to the older child in 2011 because she “incurred emotional illness,
mental illness or mental deficiency of such duration or nature as to render her incapable of
exercising proper parenting skills or sufficiently improving the adequacy of such skills.” In
regard to A.H.-1, the DHHR alleged that “[d]ue to part of the reason for the prior termination
being that [petitioner] was low functioning, there is no way to remedy the issue as evidenced by
[petitioner’s] participation in the last improvement period.” The petition finally stated that
“[t]here are no additional services to provide [petitioner] in order to provide her with the ability
to appropriately parent.” Petitioner thereafter waived her right to a preliminary hearing.

       In February of 2018, the circuit court held an adjudicatory hearing and admitted into
evidence the petition, adjudicatory order, and dispositional order from petitioner’s prior abuse
and neglect case. The dispositional order from the prior case included the circuit court’s specific
finding that petitioner’s parental rights to her older child were terminated because petitioner
“incurred emotional illness, mental illness or mental deficiency of such a duration or nature as to
render her incapable of exercising proper parenting skills or sufficiently improving the adequacy
of such skills.”

        The DHHR called one witness, Child Protective Services (“CPS”) worker Kylie Pickens.
During Ms. Pickens’s testimony, the DHHR asked the following: “In your conversations with
[petitioner], did she still seem to suffer from any mental impairments?” Counsel for petitioner
objected on the grounds that Ms. Pickens was not qualified to answer the question without the
DHHR first laying a proper foundation. At that point, the DHHR questioned Ms. Pickens as to
her qualifications and training. After this line of questioning, the DHHR again asked Ms. Pickens
if she believed petitioner “is . . . able to adequately or appropriately parent the child due to her
mental abilities.” Counsel for petitioner again objected on the basis that Ms. Pickens is not a
medical professional with training in psychology and, thus, not qualified to “giv[e] that diagnosis
as to a person’s intellect.” The circuit court, however, permitted Ms. Pickens to answer, at which
point she indicated that petitioner “didn’t know . . . what day [a follow-up] appointment [for the
child] was” and that she would have to contact a family friend to get the specifics. Ms. Pickens
further testified that petitioner “was telling me that she thought the appointment was on either
Christmas Eve or Christmas Day.” At the close of the DHHR’s evidence, petitioner moved to
dismiss the petition on the grounds that there was insufficient evidence to support adjudication
and that the petition was legally deficient for failing to allege any facts that constituted current
abuse or neglect to the child. The circuit court denied the motion.

        The circuit court held an additional adjudicatory hearing in March of 2018, during which
petitioner presented testimony from psychologist Kristen Deem, the lead career specialist for
Care Advantage, a program that helps young adults with work readiness skills, life skills, and
leadership skills. Ms. Deem testified that, despite her progress, petitioner had been continuously
enrolled in the program since 2012. The average participant completes the program in less than
two years, Ms. Deem explained. According to Ms. Deem, petitioner’s inability to pass her high
school diploma equivalency tests precluded her from completing the program. Ms. Deem also

                                                 2
testified regarding petitioner’s preparation for having A.H.-1, although this preparation mostly
concerned finances and leave from work, not remedying any of the past issues with her inability
to properly parent. Petitioner also called as a witness a friend who has known petitioner for
thirteen years and has four children of her own. According to the friend, petitioner spent
extensive time around her and her children and the friend allowed petitioner to change her
children’s diapers, prepare bottles for them, and feed, burp, and hold the children as infants.
According to the friend, she never noticed any deficiencies in petitioner’s parenting and believed
that she demonstrated the ability to parent A.H.-1.

        Petitioner testified on her own behalf and disputed evidence submitted in the prior abuse
and neglect proceeding that established she had problems diapering her older child prior to the
termination of her parental rights to that child. According to petitioner, “the foster family would
say that [her older child] would come back with a messy diaper,” but that “everything was fine
when [her parenting teacher] was there.” During her testimony, petitioner failed to identify the
skills she would need to work on through services in order to regain custody of her child.
Petitioner also admitted to abusing alcohol and overdosing on prescribed antianxiety medication,
which resulted in her being airlifted to Columbus, Ohio, for emergency medical treatment in
December of 2016.

        Following the hearing, the circuit court directed the parties to submit proposed findings
of fact and conclusions of law. Ultimately, it entered an adjudicatory order in November of 2018,
in which it found that petitioner neglected the child. According to the circuit court,

       [t]he [c]ourt in the previous case found, among other things, that [petitioner] had
       failed to successfully complete her improvement period due to the following
       reasons: . . . [she] had problems dealing with the infant when he was fussy; that
       [petitioner] struggled feeding the child and got frustrated when he did not like the
       food; that [petitioner] had money issues and that she struggled with budgeting;
       that [petitioner] did not obtain her GED [and] struggled with trying to obtain it;
       that [petitioner] struggled to assemble a bed for the infant; that [petitioner] did not
       take steps to protect the infant after the infant was hurt on an entertainment
       system; that [petitioner] struggled with diaper changes; and that [petitioner]
       lacked a good support system.

Further, the circuit court noted that “the [c]ourt [in the prior proceeding] explained that
[petitioner] had ‘been receiving visitation four days a week along with intense hands-on
parenting services and adult life skills services.’” Despite petitioner’s receipt of extensive
services, the circuit court noted that, in the prior proceeding, termination was based on concern
over “the lack of general parenting knowledge including nutrition, feeding schedules, [and]
diapering that [petitioner] was never able to master.” Ultimately, petitioner’s parental rights to
her older child were terminated because petitioner “was not able to safely parent the child,”
despite the DHHR’s having provided “more intense teaching, education and training than the
[c]ourt has seen in twenty-five years.”

        As it relates to A.H.-1, the circuit court found that the DHHR presented testimony that
petitioner “was not able to recall her child’s pediatrician or appointment date for the child”

                                                 3
shortly after her birth. Based on a DHHR worker’s conversations with petitioner, the worker
“had serious concerns about [petitioner’s] ability to parent” the child. The circuit court
additionally found that petitioner was hospitalized an extra day after the child’s birth because she
and the father “got into an argument and he would not come pick her up from the hospital for
discharge.” The circuit court also considered petitioner’s testimony concerning the prior
proceeding. According to the circuit court, petitioner testified that, at the time of the prior
termination, she “wasn’t sure what she needed to adequately care for the [older] child” and,
further, that she “didn’t know why the [c]ourt terminated her rights.” Regarding the issues she
needed to address in relation to A.H.-1, petitioner testified that she needed to learn “what they
would want me to have as far as in the home for her.” Petitioner also testified that she knew how
to balance a checkbook, “but when questioned about the details, admitted ‘I do not remember.’”
When questioned about dealing with A.H.-1 “when she became fussy or irritable,” petitioner
indicated that she would have to ask a friend for assistance. Ultimately, the circuit court found
that

       based upon the parenting issues that [she] still exhibits, namely not knowing what
       items she needs to care for the child, failure to name the child’s pediatrician,
       failure to know the date of the child’s next appointment, not having transportation
       for herself and the child upon discharge from the hospital and volatile relationship
       with the father of the child, the child has in fact been neglected by [petitioner].

        In December of 2018, the circuit court granted petitioner a post-adjudicatory
improvement period. The circuit court further ordered that petitioner submit to a psychological
evaluation. In July of 2019, the circuit court held a final dispositional hearing. Petitioner failed to
attend, but was represented by counsel. During the hearing, the circuit court was presented with
evidence that petitioner “was really non-cooperative and rejecting of many of the concepts
presented” in her parenting and adult life skills classes. The circuit court further found that
petitioner made no improvement since the granting of the improvement period and that she
“requires constant supervision to provide appropriate care to the child.” Additionally, the circuit
court found that petitioner’s psychological evaluation concluded that her prognosis for improved
parenting was “poor.” According to the evaluating psychologist, petitioner appeared under the
influence of alcohol during the evaluation, although the evaluator found that this did not impact
the prognosis. The circuit court additionally noted that if petitioner were, in fact, under the
influence during her evaluation, it would only further support the finding that petitioner was
unable to properly parent, given that she received advance notice of the evaluation and knew that
it was being undertaken to determine her fitness to parent. Based on the foregoing, the circuit
court found that petitioner suffered “emotional illness, mental illness or mental deficiency of
such duration or nature as to render her incapable of exercising proper parenting skills or
sufficiently improving the adequacy of such skills.” Further, the circuit court found that there
was no reasonable likelihood that petitioner could substantially correct the conditions of abuse
and neglect in the near future and that termination of her parental rights was necessary for the




                                                  4
child’s welfare. As such, the circuit court terminated petitioner’s parental rights to the child. 3 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).

        On appeal, petitioner first argues that the circuit court erred in permitting a CPS worker
to offer opinion testimony concerning petitioner’s mental capacity as it relates to her ability to
properly parent the child. We find, however, that no such testimony occurred below. In support
of this assignment of error, petitioner makes much of the fact that counsel for the DHHR asked
Ms. Pickens if petitioner suffered from any mental impairments. The record shows, however,
that petitioner objected to this question, and it was never answered. Instead, the DHHR laid a
foundation for Ms. Pickens’s qualifications as a CPS social worker to make determinations as to
individuals’ ability to properly parent children.

         Ms. Pickens testified that she is a licensed social worker with four years of experience,
her job requires her to ensure the safety of children, she has been trained to assess the ability of a
parent to safely parent a child, and her job requires her to make such assessment in every case
she is assigned. “Whether a witness is qualified to state an opinion is a matter which rests within
the discretion of the trial court and its ruling on that point will not ordinarily be disturbed unless
it clearly appears that its discretion has been abused.” Syl. Pt. 12, Bd. of Educ. of McDowell Cty.
v. Zando, Martin & Milstead, Inc., 182 W. Va. 597, 390 S.E.2d 796 (1990) (citations omitted).
Further, “[t]he admissibility of testimony by an expert witness is a matter within the sound
discretion of the trial court, and the trial court’s decision will not be reversed unless it is clearly
wrong.” Syl. Pt. 3, State ex rel. Jones v. Recht, 221 W. Va. 380, 655 S.E.2d 126 (2007) (citation
omitted). In this case, Ms. Pickens’s qualifications clearly entitled her to express an opinion
regarding petitioner’s ability to safely parent a child, especially considering that her
        3
       The father’s parental rights were also terminated below. According to respondents, the
permanency plan for the child is adoption in the current foster home.



                                                   5
determination on the issue informed her decision to seek to remove the child due to imminent
danger. Further, it is clear that Ms. Pickens did not render an opinion as to petitioner’s mental
impairment, as petitioner argues on appeal.

        Because Ms. Pickens did not answer the DHHR’s initial question as to whether she
believed petitioner suffered from mental impairment, the only question that Ms. Pickens did
answer that petitioner raises an issue with was whether she believed petitioner was “able to
adequately or appropriately parent the child due to her mental abilities.” We find no error in the
circuit court’s permitting Ms. Pickens to answer this question, as the witness’s answer did not
implicate any specialized knowledge or skill requiring the witness to have a background in
psychology or healthcare, as petitioner argues. Indeed, the question of whether Ms. Pickens, a
CPS worker, believed that petitioner was able to adequately or appropriately parent her child
speaks directly to Ms. Pickens’s area of expertise and to the heart of CPS and its involvement in
abuse and neglect proceedings. As evidenced by Ms. Pickens’s answer to the question, counsel
for the DHHR’s inclusion of the phrase “due to her mental abilities” was an unnecessary
qualification and in no way required Ms. Pickens to express an opinion in regard to anything
outside her area of expertise. Specifically, in response to this question, Ms. Pickens stated that
petitioner “didn’t know . . . what day [a follow-up] appointment [for the child] was” and that she
would have to contact a family friend to get the specifics. Ms. Pickens further testified that
petitioner “was telling me that she thought the appointment was on either Christmas Eve or
Christmas Day.” This evidences the fact that Ms. Pickens’s answer in no way expressed an
opinion that required expertise in psychology or healthcare. Rather, Ms. Pickens testified to
specific facts regarding petitioner’s apparent inability to recall basic information related to
crucial follow-up care for her newborn infant. Given that petitioner’s parental rights to her older
child were terminated because of her inability to properly parent the infant—including struggling
to feed and diaper the child, failing to protect the child from injury, and exhibiting an inability to
deal with the child when he was “fussy”—this testimony was directly relevant to the issue of
whether petitioner remedied the issues of abuse and neglect upon which the prior termination
was based. Accordingly, we find no error in the circuit court permitting this testimony.

        Next, petitioner argues that the circuit court erred in denying her motion to dismiss the
petition. According to petitioner, the petition in this matter almost exclusively addressed the facts
surrounding the prior involuntary termination of her parental rights to an older child. In regard to
A.H.-1, the petition alleged that “there is no way to remedy the issue” from the prior case
because termination was based, in part, on petitioner being “low functioning.” According to
petitioner, there were no specific facts establishing that petitioner abused or neglected A.H.-1, as
required by Rule 18 of the West Virginia Rules of Procedure for Child Abuse and Neglect
Proceedings. We do not agree and, instead, find that the petition in this matter was sufficient
such that dismissal was not warranted.

       Specifically, Rule 18(c) requires that the petition contain

       [a] statement of facts justifying court intervention which is definite and particular
       and describes: (a) The specific misconduct, including time and place, if known, or
       incapacity of the parent(s) and other person(s) responsible for the child’s care; and



                                                  6
       (b) Any supportive services provided by the Department or others to remedy the
       alleged circumstances.

Moreover,

               [w]here a child neglect petition is premised upon the inability of the parent
       to care for the child due to the parent’s mental illness, such petition must set forth
       specific allegations of fact sufficient to inform the parent of the nature of the
       condition or conduct which constitutes or is likely to result in neglect in order to
       satisfy the requirements of W.Va. Code [§ 49-4-601].

Syl. Pt. 2, State v. Scritchfield, 167 W. Va. 683, 280 S.E.2d 315 (1981).

        On appeal, petitioner argues that the DHHR’s failure to include in the petition the
specifics of Ms. Pickens’s conversation concerning petitioner’s understanding of A.H.-1’s
medical care is fatal, given that this conversation formed the entire basis of the DHHR’s
allegation that petitioner abused or neglected A.H.-1. We find, however, that it was unnecessary
to include the specifics of that conversation in detail, because the petition contained specific facts
related to petitioner’s inability to properly parent the child. While succinct, the petition plainly
alleged that petitioner gave birth to A.H.-1 in December of 2017 and that because the termination
in the prior case was based on petitioner’s intellectual inability to properly parent, “there is no
way to remedy this issue as evidenced by [petitioner’s] participation in the last improvement
period.” It is sufficient that the DHHR clearly alleged that petitioner’s parental rights to an older
child were terminated because she “incurred emotional illness, mental illness or mental
deficiency of such duration or nature as to render her incapable of exercising proper parenting
skills or sufficiently improving the adequacy of such skills” and that those conditions persisted
after A.H.-1’s birth. 4 That Ms. Pickens elaborated on the details of her interaction with petitioner
at adjudication did not require the entirety of her testimony to be reduced to writing in the


       4
        In support of this assignment of error, petitioner additionally alleges that she was denied
fair notice of the allegations against her and a meaningful opportunity to be heard at
adjudication. According to petitioner,

              West Virginia Code, Chapter 49, Article [4], Section [601] . . . and the
       Due Process Clauses of the West Virginia and United States Constitutions
       prohibit a court or other arm of the State from terminating the parental rights of a
       natural parent having legal custody of his child, without notice and the
       opportunity for a meaningful hearing.

Syl. Pt. 2, In re Willis, 157 W. Va. 225, 207 S.E.2d 129 (1973). Given that we find that the
DHHR appropriately complied with the requirements of Rule 18, we find that petitioner is
entitled to no relief in regard to her assertions that she was denied fair notice or a meaningful
opportunity to be heard. See W. Va. R. P. for Child Abuse and Neglect.




                                                  7
petition prior to the holding of that evidentiary hearing, and we find that petitioner is entitled to
no relief in this regard.

        Petitioner further argues that her motion to dismiss should have been granted because the
DHHR failed to prove neglect or abuse by clear and convincing evidence in its case-in-chief.
According to petitioner, other than Ms. Pickens’s testimony, the DHHR relied solely on the
record from petitioner’s prior case to support adjudication in this matter. We find, however, that
this evidence was sufficient to establish that petitioner, at a minimum, neglected the child.

       Petitioner’s challenge to the sufficiency of the evidence is governed by the following:

               “[West Virginia Code § 49-4-601(i)], requires the [DHHR], in a child
       abuse or neglect case, to prove ‘conditions existing at the time of the filing of the
       petition . . . by clear and convincing [evidence].’ The statute, however, does not
       specify any particular manner or mode of testimony or evidence by which the
       [DHHR] is obligated to meet this burden.” Syllabus Point 1, In Interest of S.C.,
       168 W.Va. 366, 284 S.E.2d 867 (1981).

Syl. Pt. 1, In re Joseph A., 199 W. Va. 438, 485 S.E.2d 176 (1997) (citations omitted). This
Court has explained that “‘clear and convincing’ is the measure or degree of proof that will
produce in the mind of the factfinder a firm belief or conviction as to the allegations sought to be
established.” In re F.S., 233 W. Va. 538, 546, 759 S.E.2d 769, 777 (2014) (citation omitted).
However, “the clear and convincing standard is ‘intermediate, being more than a mere
preponderance, but not to the extent of such certainty as is required beyond a reasonable doubt as
in criminal cases.’” Id. (citation omitted). Further,

       [w]hen an abuse and neglect petition is brought based solely upon a previous
       involuntary termination of parental rights to a sibling pursuant to West Virginia
       Code § [49-4-605], prior to the lower court’s making any disposition regarding
       the petition, it must allow the development of evidence surrounding the prior
       involuntary termination(s) and what actions, if any, the parent(s) have taken to
       remedy the circumstances which led to the prior termination(s).

Syl. Pt. 4, In re George Glen B., Jr., 205 W. Va. 435, 518 S.E.2d 863 (1999). Additionally,
pursuant to West Virginia Code § 49-1-201, a “neglected child” is one “[w]hose physical or
mental health is harmed or threatened by a present refusal, failure or inability of the child’s
parent . . . to supply the child with necessary food, clothing, shelter, supervision, medical care, or
education.” (Emphasis added). Finally, it is important to note the following:

       The [applicable] standard of review requires deference by this Court to the
       findings of a circuit court in a civil abuse and neglect proceeding. The critical
       nature of unreviewable intangibles justify the deferential approach we accord
       findings by a circuit court. As we said in Brown v. Gobble, 196 W.Va. 559, 563,
       474 S.E.2d 489, 493 (1996), “the standard of review for judging a sufficiency of
       evidence claim is not appellant friendly.” See Gentry v. Mangum, 195 W.Va. 512,
       520 n. 6, 466 S.E.2d 171, 179 n. 6 (1995) (“Only rarely and in extraordinary

                                                  8
       circumstances will we, from the vista of a cold appellate record, reverse a circuit
       court’s on-the-spot judgment concerning the relative weighing of probative value
       and unfair effect.”).

State ex rel. Diva P. v. Kaufman, 200 W. Va. 555, 562, 490 S.E.2d 642, 649 (1997). With these
parameters in mind, it is clear that petitioner’s challenge to the sufficiency of the evidence upon
which to base her adjudication requires us to afford the circuit court’s findings substantial
deference and that petitioner carries an incredibly high burden.

        Based on the plain language of the definition of “neglected child” set forth above, we find
that the DHHR satisfied its burden of proof for establishing that petitioner neglected A.H.-1. Ms.
Pickens’s testimony, taken together with the evidence surrounding the prior termination of
petitioner’s parental rights, established that A.H.-1’s physical health was threatened by
petitioner’s inability to properly supervise and obtain medical care for the child. While brief, Ms.
Pickens was able to establish that petitioner was already struggling to recall basic information
necessary for the infant’s follow up care, which is a condition similar to that upon which her
parental rights to an older child were terminated. The DHHR’s evidence spoke directly to
petitioner’s continued inability to properly parent a child that has persisted across two abuse and
neglect proceedings separated by several years.

       In support of this assignment of error, petitioner points out the following:

       This Court made clear that “while the Department does have a mandatory duty to
       file a petition [based on a prior involuntary termination of parental rights], a
       circuit court may not terminate parental rights without additional evidence of
       abuse or neglect of the current child.” [In re George Glen B., Jr., 207 W.Va.
       346,] 350, [532 S.E.2d 64,] 68 [(2000)]. Therefore, under our law, it is clear that
       the DHHR retains the burden of showing by clear and convincing evidence, even
       in a case in which there has been a prior termination of parental rights, that the
       subject child is neglected or abused.

In re K.L., 233 W. Va. 547, 553, 759 S.E.2d 778, 784 (2014) (emphasis added). The Court
provided further instruction on this issue by explaining that in cases of a prior termination of
parental rights,

       [t]here must be specific allegations and evidence of abuse or neglect of [the
       subsequently born child], which could include demonstrating that [the
       subsequently born child] was abused and/or neglected by showing the petitioner
       failed to correct the conditions that led to the prior termination of her parental
       rights and/or that other circumstances exist which would establish abuse and/or
       neglect.

Id. at 554, 759 S.E.2d at 785 (emphasis added).

       While petitioner argues that the DHHR relied entirely on the prior termination of her
parental rights and failed to present evidence of additional evidence of abuse or neglect to A.H.-

                                                  9
1, we disagree. As set forth above, the evidence established that petitioner neglected A.H.-1 by
threatening her health because of an inability to properly supervise the child or ensure that she
received proper medical care. As instructed in K.L., the DHHR here demonstrated not only that
petitioner failed to correct the conditions that led to the prior termination, but cited to specific
findings from the prior proceeding that these conditions were incapable of correction. Moreover,
the DHHR established that these conditions persisted through Ms. Pickens’s testimony as to
petitioner’s inability to ensure that the child received proper medical care. As such, dismissal of
the petition against petitioner upon an alleged failure to satisfy the burden of proof following the
DHHR’s case-in-chief was not warranted. 5

         Finally, petitioner argues that the circuit court erred in finding that she neglected the
child. Although we have already established that the DHHR’s evidence was sufficient to satisfy
this burden, we note that in determining whether the findings from the adjudicatory order were
appropriate, this Court must also review the evidence introduced following the denial of
petitioner’s motion to dismiss the petition. Petitioner is correct that this evidence, including her
own testimony intended to rebut the DHHR’s evidence, is irrelevant to a determination of
whether the DHHR carried its burden of proof at the time she moved for dismissal. However, it
is relevant to the circuit court’s ultimate finding at adjudication and this Court must consider the
totality of all the evidence introduced at adjudication in resolving petitioner’s final assignment of
error. 6

       5
         In support of this assignment of error, petitioner also alleges that the circuit court’s
findings of fact to support the denial of her motion to dismiss the petition were insufficient and
legally flawed. According to petitioner, in denying her motion the circuit court found that the
evidence was “sufficient to proceed.” Petitioner argues that this is not the appropriate standard,
as the circuit court was instead required to make a finding as to whether the child was abused
and/or neglected. See W. Va. R. P. For Child Abuse and Neglect Proceedings 27. We note,
however, that

               “[t]his Court may, on appeal, affirm the judgment of the lower court when
       it appears that such judgment is correct on any legal ground disclosed by the
       record, regardless of the ground, reason or theory assigned by the lower court as
       the basis for its judgment.” Syllabus point 3, Barnett v. Wolfolk, 149 W.Va. 246,
       140 S.E.2d 466 (1965).

Syl. Pt. 2, Adkins v. Gatson, 218 W. Va. 332, 624 S.E.2d 769 (2005). Having determined that the
DHHR’s evidence in its case-in-chief was sufficient to establish that petitioner neglected the
child, we find that petitioner is entitled to no relief in this regard.
       6
         In support of this assignment of error, petitioner also alleges that the burden of proof was
improperly shifted to her at adjudication. Petitioner is correct that this Court has held that “the
burden of proof never shifts from the DHHR to the parent throughout a case involving
allegations of child abuse and neglect.” K.L., 233 W. Va. at 554, 759 S.E. 2d at 785. However,
the record in this matter shows no such burden shifting. Petitioner points to testimony from Ms.
Pickens wherein the witness indicated that “[i]n an aggravated circumstance petition it’s not [the

                                                                                    (continued . . . )
                                                 10
        In its adjudicatory order, the circuit court specifically found that petitioner neglected the
child

        based upon the parenting issues that [she] still exhibits, namely not knowing what
        items she needs to care for the child, failure to name the child’s pediatrician,
        failure to know the date of the child’s next appointment, not having transportation
        for herself and the child upon discharge from the hospital and volatile relationship
        with the father of the child.

According to petitioner, none of these allegations were contained in the DHHR’s petition and the
failure to put her on notice of these allegations constitutes a violation of her due process rights.
However, as addressed above, we find that petitioner was put on full notice of the allegations
against her and was permitted a meaningful opportunity to be heard in response to those
allegations. That the circuit court heard additional, specific evidence in support of the allegations
in the petition and subsequently made findings regarding adjudication based upon that evidence
does not constitute a due process violation. Rather, the circuit court was tasked with weighing
the evidence and making appropriate findings. Under West Virginia Code § 49-4-601(i),

        [a]t the conclusion of the adjudicatory hearing, the court shall make a
        determination based upon the evidence and shall make findings of fact and
        conclusions of law as to whether the child is abused or neglected and whether the
        respondent is abusing, neglecting, or, if applicable, a battered parent, all of which
        shall be incorporated into the order of the court. The findings must be based upon
        conditions existing at the time of the filing of the petition and proven by clear and
        convincing evidence.

Based on this statute, it is clear that the circuit court was required to consider all evidence
introduced during the adjudicatory hearing. Further, the circuit court’s finding of neglect was
clearly based on conditions existing at the time of the petition’s filing, given that it related to
petitioner’s inability to properly parent the child at the time the matter was initiated. As such, we
find that the circuit court properly adjudicated petitioner of neglecting A.H.-1 and that she is
entitled to no relief in this regard.

      For the foregoing reasons, we find no error in the decision of the circuit court, and its
August 1, 2019, order is hereby affirmed.


                                                                                          Affirmed.

DHHR] that has to show that something has changed, [petitioner] has to show that something’s
changed. I mean, it’s put on her to show that.” This testimony is simply insufficient to show that
the circuit court shifted the burden of proof to petitioner below, especially considering our
analysis above related to the DHHR successfully satisfying the burden of proof by establishing
that petitioner neglected the child.



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ISSUED: June 25, 2020

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




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