                               STATE OF WEST VIRGINIA
                             SUPREME COURT OF APPEALS

                                                                                      FILED
In re G.K.
                                                                                   June 12, 2019
                                                                                 EDYTHE NASH GAISER, CLERK
No. 19-0027 (Monongalia County 18-JA-118)                                        SUPREME COURT OF APPEALS
                                                                                     OF WEST VIRGINIA




                                 MEMORANDUM DECISION



        Petitioner Father J.K., by counsel Richard M. Gutmann, appeals the Circuit Court of
Monongalia County’s December 4, 2018, order adjudicating him to be an abusing parent.1 The
West Virginia Department of Health and Human Resources (“DHHR”), by counsel Brandolyn N.
Felton-Ernest, filed a response in support of the circuit court’s order and a supplemental appendix.
The guardian ad litem, Diane D. Michael, filed a response on behalf of the child in support of the
circuit court’s order. On appeal, petitioner argues that the circuit court lacked subject matter
jurisdiction and, therefore, erred in adjudicating him as an abusing parent.

       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 August of 2018, the DHHR filed a petition alleging that petitioner engaged in domestic
violence in the presence of G.K., failed to provide the child with financial support, and abandoned
the child. In October of 2018, the DHHR amended the petition and included allegations that
petitioner was charged with aggravated battery against the mother while she was pregnant in 2012.2
The DHHR alleged that G.K. remembered incidents of domestic violence between petitioner and
the mother and recalled that petitioner “smashed her mom’s head into a mirror, breaking the mirror
and making her face bleed.” Petitioner waived his preliminary hearing.



       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
           According to the record, this unborn child perished as a result of this abuse.
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         Later in October of 2018, the circuit court held an adjudicatory hearing. The DHHR
presented testimony consistent with the amended petition. The mother testified that petitioner had
not provided the child with any emotional support since November of 2016. Further, the mother
testified that, prior to April of 2016, petitioner scheduled three visits with G.K., but did not appear
for those visits. The mother testified that petitioner was violent toward her during their
relationship, which resulted in the loss of an unborn child. The mother explained that the criminal
charges against petitioner were later dismissed because she failed to appear for the hearing.
Petitioner testified that he attempted to have contact with the child, but was not successful. He
further testified that he paid $135.00 in child support every month by personal check. Ultimately,
the circuit court adjudicated petitioner as an abusing parent by virtue of “significant domestic
violence in the home while the child was present and alcohol consumption in the presence of the
child.” The circuit court’s decision was memorialized by its December 4, 2018, order. Petitioner
now appeals that order.3

       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 argues that the circuit court lacked subject matter jurisdiction and,
therefore, erred in adjudicating him as an abusing parent. Specifically, petitioner argues that the
circuit court’s finding that there was significant domestic violence was based on evidence of
domestic violence that occurred in Florida. Petitioner asserts that a West Virginia circuit court
does not have subject matter jurisdiction over such allegations. We disagree and find petitioner is
entitled to no relief.

       Subject matter jurisdiction was conferred upon the circuit court by state law. The child
G.K. is a resident of West Virginia, and West Virginia Code § 49-1-105(a) provides that the


       3
        The mother stipulated to adjudication and is participating in an improvement period.
According to the parties, the permanency plan for the child is reunification with her biological
parents pending the successful completion of their respective improvement periods.


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purpose of Chapter 49 laws – including the abuse and neglect provisions – is to “provide a system
of coordinated child welfare and juvenile justice services for the children of this state.” Moreover,
the venue statute West Virginia Code § 49-4-601(a) directs that if the DHHR believes a child is
abused or neglect, the DHHR may file a petition in the “circuit court in the county in which the
child resides” or “in which the custodial respondent or other named party abuser resides, or in
which the abuse or neglect occurred.” This Court has routinely held that “[a] circuit court has
jurisdiction to entertain an abuse and neglect petition and to conduct proceedings in accordance
therewith as provided by [West Virginia Code § 49-4-601].” Syl. Pt. 3, State ex rel. Paul B. v. Hill,
201 W. Va. 248, 496 S.E.2d 198 (1997) (holding that the circuit court properly exercised
jurisdiction by entertaining an abuse and neglect petition and “ensur[ing] the safety and well-being
of the . . . children”). Further, this Court noted in In re K.R. that a circuit court’s determination that
it lacked jurisdiction to hear evidence regarding out-of-state abuse and neglect allegations was
“without a proper basis in law or fact.” 229 W. Va. 733, 747, 735 S.E.2d 882, 896 (2012). “[T]he
perceived obstacle of the allegations taking place out-of-state did not necessarily preclude a
finding, by clear and convincing evidence, of abuse and neglect . . . .” Id. In accordance with the
statutes and rules governing abuse and neglect proceedings, the circuit court considered evidence
of whether the child was an abused or neglected child and whether petitioner’s conduct constituted
abuse or neglect of that child. West Virginia Code § 49-1-201 provides that an abused child is “[a]
child whose health or welfare is being harmed or threatened by . . . [a] parent . . . who knowingly
or intentionally inflicts, [or] attempts to inflict . . . physical injury or mental or emotional injury,
upon the child.” (Emphasis added). Additionally, West Virginia Code § 49-1-201 defines an
abusing parent as “a parent . . . whose conduct has been adjudicated by the court to constitute child
abuse or neglect as alleged in the petition.” In this case, the DHHR presented evidence that
petitioner participated in domestic violence in the child’s presence. The evidence also showed that
the child remembered this violence and described some details of the violent acts. The DHHR
proved that petitioner participated in violent acts against the child’s mother and those acts
threatened the child’s mental and emotional state. Petitioner did not dispute this evidence at the
adjudicatory hearing or on appeal nor does he assert that he remedied these conditions in any way.
Accordingly, we find that the circuit court properly exercised subject matter jurisdiction and did
not err in adjudicating petitioner as an abusing parent.

       Finally, because the matter concerning the parents is ongoing in the circuit court, this Court
reminds the circuit court of its duty to establish permanency for the children. Rule 39(b) of the
Rules of Procedure for Child Abuse and Neglect Proceedings requires:

        At least once every three months until permanent placement is achieved as defined
        in Rule 6, the court shall conduct a permanent placement review conference,
        requiring the multidisciplinary treatment team to attend and report as to progress
        and development in the case, for the purpose of reviewing the progress in the
        permanent placement of the child.

Further, this Court reminds the circuit court of its duty pursuant to Rule 43 of the Rules of
Procedure for Child Abuse and Neglect Proceedings to find permanent placement for the children
within twelve months of the date of the disposition order. As this Court has stated,




                                                    3
                [t]he [twelve]-month period provided in Rule 43 of the West Virginia Rules
       of Procedure[] for Child Abuse and Neglect Proceedings for permanent placement
       of an abused and neglected child following the final dispositional order must be
       strictly followed except in the most extraordinary circumstances which are fully
       substantiated in the record.

Cecil T., 228 W. Va. at 91, 717 S.E.2d at 875, syl. pt. 6. Moreover, this Court has stated that

               [i]n determining the appropriate permanent out-of-home placement of a
       child under [West Virginia Code § 49-4-604(b)(6)], the circuit court shall give
       priority to securing a suitable adoptive home for the child and shall consider other
       placement alternatives, including permanent foster care, only where the court finds
       that adoption would not provide custody, care, commitment, nurturing and
       discipline consistent with the child’s best interests or where a suitable adoptive
       home [cannot] be found.

Syl. Pt. 3, State v. Michael M., 202 W. Va. 350, 504 S.E.2d 177 (1998). Finally, “[t]he guardian
ad litem’s role in abuse and neglect proceedings does not actually cease until such time as the child
is placed in a permanent home.” Syl. Pt. 5, James M. v. Maynard, 185 W. Va. 648, 408 S.E.2d 400
(1991).

     For the foregoing reasons, we find no error in the decision of the circuit court, and its
December 4, 2018, order is hereby affirmed.

                                                                                          Affirmed.

ISSUED: June 12, 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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