                             STATE OF WEST VIRGINIA

                           SUPREME COURT OF APPEALS


In Re: A.W., N.S., & E.S.                                                          FILED
                                                                                June 15, 2015
No. 14-1276 (Mercer County 14-JA-27 through 14-JA-29)                        RORY L. PERRY II, CLERK
                                                                           SUPREME COURT OF APPEALS
                                                                               OF WEST VIRGINIA


                              MEMORANDUM DECISION
       Petitioner Father W.S., by counsel John G. Byrd, appeals the Circuit Court of Mercer
County’s July 21, 2014, order terminating his parental, custodial, and guardianship rights to
A.W., N.S., and E.S.1 The West Virginia Department of Health and Human Resources
(“DHHR”), by counsel S. L. Evans, filed its response in support of the circuit court’s order. The
guardian ad litem (“guardian”), Malorie N. Estep-Morgan, filed a response on behalf of the
children also in support of the circuit court’s order. On appeal, petitioner argues that the circuit
court erred in (1) terminating his rights based on his incarceration; (2) terminating his rights
when the DHHR failed to fully implement the family case plan; and (3) allowing the
multidisciplinary team “to [d]ictate” to the psychologist what to include in petitioner’s
psychological evaluation.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 February of 2014, the DHHR filed an abuse and neglect petition alleging that
petitioner committed domestic violence and used controlled substances causing his children to be
abused and neglected. In March of 2014, the circuit court held a preliminary hearing. At that
hearing, the children’s maternal grandmother testified that she witnessed petitioner threaten the
children’s mother and that she observed bruises on the children’s mother “many, many times”
from domestic violence incidents occurring when the children were in the home. The maternal
grandmother also testified that petitioner used drugs in the home. Based on this testimony, the

       1
         Petitioner is not the biological father of A.W. However, as the circuit court terminated
petitioner’s “parental, custodial, and guardianship rights” to all three children, A.W. is included
in this direct appeal.
       2
         We note that West Virginia Code §§ 49-1-1 through 49-11-10 were repealed and
recodified during the 2015 Regular Session of the West Virginia Legislature. The new
enactment, West Virginia Code §§ 49-1-101 through 49-7-304, has minor stylistic changes and
became effective ninety days after the February 19, 2015, approval date. In this memorandum
decision, we apply the statutes as they existed during the pendency of the proceedings below.
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circuit court found that imminent danger existed and that the DHHR properly took custody of the
children.

       In April of 2014, the circuit court held an adjudicatory hearing. The circuit court
incorporated the testimony presented at the preliminary hearing, and the DHHR presented
additional evidence of drug use in the home and domestic violence between petitioner and the
children’s mother. Based on the evidence presented, the circuit court found that petitioner abused
and neglected all three children. At a meeting of the multidisciplinary team (“MDT”) in June of
2014, the MDT decided, without any noted disagreement by petitioner, that petitioner would
complete a psychological evaluation, which would address issues including “domestic violence,
parenting, and substance abuse.”

         In July of 2014, the circuit court held a dispositional hearing. Petitioner testified that he
had been arrested and incarcerated on three separate occasions during the pendency of the
underlying proceedings. Those arrests and incarcerations were for domestic violence; a gun
charge that was ultimately dismissed; and an indictment on charges of a felon in possession of a
firearm, counterfeiting, and uttering. At the time of the hearing, petitioner remained incarcerated
awaiting trial on the indictment for felon in possession of a firearm, counterfeiting, and uttering
with no indication of a possible release date. He further testified that he had not participated in
his previously scheduled supervised visitation with the children twice per week, but he had
visited with the children at other times when they were in the physical custody of their mother.
He admitted that he was not permitted by the court to be around the children at those times. The
DHHR presented additional evidence of petitioner’s failure to attend court-ordered supervised
visitations; failure to complete the psychological evaluation; failure to pay child support; and
prior involuntary termination of petitioner’s parental rights to another child for failure to follow
through with a family case plan. Finally, the DHHR presented evidence of petitioner’s criminal
history, which included a felony conviction for possession of a controlled substance with the
intent to deliver; a conviction for making a fraudulent insurance claim; two petitions to revoke
probation due to larceny, domestic violence, and a protective order violation; and the indictment
for felon in possession of a firearm, counterfeiting, and uttering. Based on this evidence, the
circuit court found that petitioner failed to follow through with the family case plan in his prior
abuse and neglect proceeding; failed to comply with court-ordered supervised visitation in this
matter; and that the children needed permanency that would not wait until petitioner’s potential
release at some unknown future date. Therefore, given those findings, the circuit court concluded
that petitioner could not substantially correct the conditions of neglect in the near future and that
termination was necessary for the children’s welfare. By order entered on July 21, 2014, the
circuit court terminated petitioner’s parental, custodial, and guardianship rights to the children.
This appeal followed.

       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

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       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 assigns error to the circuit court’s termination of his parental,
custodial, and guardianship rights based on his incarceration. Although petitioner argues that the
circuit court “should have waited” to determine the results of petitioner’s criminal charges prior
to termination, we have explained that circuit courts are specifically directed to proceed with
abuse and neglect matters regardless of any related proceedings. Rule 5 of the West Virginia
Rules of Procedure for Child Abuse and Neglect Proceedings clearly states that “[u]nder no
circumstances shall a civil protection proceeding be delayed pending the initiation, investigation,
prosecution, or resolution of any other proceeding, including, but not limited to, criminal
proceedings.” We have also held that “[c]hild abuse and neglect cases must be recognized as
being among the highest priority for the courts’ attention. Unjustified procedural delays wreak
havoc on a child’s development, stability and security.” Syl. Pt. 1, in part, In the Interest of
Carlita B., 185 W.Va. 613, 408 S.E.2d 365 (1991). Therefore, we find no error in the circuit
court’s decision to proceed with the dispositional hearing prior to the resolution of petitioner’s
criminal charges.

        Further, despite petitioner’s argument that the circuit court failed to consider the relevant
factors set forth in Cecil T. for termination of parental rights based on incarceration, Cecil T. is
distinguishable from the case at bar. In Cecil T., this Court explained that

               [w]hen no factors and circumstances other than incarceration are raised
       at a disposition hearing in a child abuse and neglect proceeding with regard to a
       parent’s ability to remedy the condition of abuse and neglect in the near future,
       the circuit court shall evaluate whether the best interests of a child are served by
       terminating the rights of the biological parent in light of the evidence before it.
       This would necessarily include but not be limited to consideration of the nature of
       the offense for which the parent is incarcerated, the terms of the confinement, and
       the length of the incarceration in light of the abused or neglected child’s best
       interests and paramount need for permanency, security, stability and continuity.

228 W.Va. at 89, 717 S.E.2d 873, Syl. Pt. 3 (emphasis added). Moreover, Cecil T. recognized
that “this Court has never held that incarceration can not [sic] be the sole basis for terminating
parental rights.” Id. at 96, 717 S.E.2d at 880. In this case, although petitioner was incarcerated at
the time of disposition, which was a consideration for the circuit court, other factors and
circumstances were also considered. In addition to his incarceration, the circuit court clearly
considered petitioner’s failure to follow through with the family case plan in his prior abuse and

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neglect proceeding, and his failure to comply with court-ordered supervised visitation and
violation of the court’s order by visiting the children outside of that designated supervision. The
circuit court also considered that the children’s best interests required permanency, and awaiting
petitioner’s release from incarceration, which was not set at any date certain at the time of
disposition, would only unreasonably delay that permanency. See Id. at 97, 717 S.E.2d at 881
(stating that “incarceration may unreasonably delay the permanent placement of the child
deemed abused or neglected, and the best interests of the child would be served by terminating
the incarcerated person’s parental rights.”). Therefore, as explained above, the circuit court did
not rely solely on petitioner’s incarceration to terminate his parental, custodial, and guardianship
rights to the children. As such, we find no error in the circuit court’s consideration of petitioner’s
incarceration as a factor at disposition.

        Next, petitioner argues that the circuit court erred in terminating his rights to the children
because the DHHR failed to fully implement the family case plan. While petitioner argues that
the DHHR failed to provide him with complete services for both substance abuse and domestic
violence treatment, the record on appeal clearly reflects that the DHHR, as part of the MDT,
created a family case plan with which petitioner failed to comply. The DHHR provided
petitioner with supervised visitation with the children; however, petitioner admittedly failed to
participate in the same. Although he claimed that he had no reason to attend supervised visitation
because he saw the children at times and places outside of the supervised setting, he admitted
that he was not permitted to be with the children without court-designated supervision.
Moreover, in addition to petitioner’s admitted violation of a court order, the third-party
supervisor could not witness petitioner’s on-going relationship with the children. The DHHR
also provided petitioner with an appointment for a psychological evaluation, upon which the
MDT could determine what further services were necessary in this matter. The MDT clearly
determined that “[o]nce the psychological evaluations are back, the [DHHR] will follow the
recommendations of the psychological evaluation.” However, petitioner failed to participate in
that evaluation due to his incarceration. Based on the foregoing, we find no error in the
termination of petitioner’s rights to these children without further services. The circuit court
found that there was no reasonable likelihood that petitioner could substantially correct the
conditions of neglect in the near future and that termination was necessary for the children’s
welfare. See W. Va. Code § 49-6-5(b)(3) (providing that no reasonable likelihood that the
conditions of abuse or neglect can be substantially corrected exists when “[t]he abusing parent . .
. [has] not responded to or followed through with a reasonable family case plan or other
rehabilitative efforts[.]”). Pursuant to West Virginia Code § 49-6-5(a)(6), circuit courts are
directed to terminate parental rights upon such findings.

        Petitioner’s third and final assignment of error is that the MDT “dictate[d]” to the
psychologist what to include in his evaluation of petitioner. At the outset, we note that petitioner
cites no law in support of his position and that he fails to indicate when and how he placed this
issue before the circuit court. We have often stated that “[o]ur general rule is that
nonjurisdictional questions . . . raised for the first time on appeal, will not be considered.” Noble
v. W.Va. Dep’t of Motor Vehicles, 223 W.Va. 818, 821, 679 S.E.2d 650, 653 (2009) (quoting
Shaffer v. Acme Limestone Co., Inc., 206 W.Va. 333, 349 n. 20, 524 S.E.2d 688, 704 n. 20
(1999)). Further, “[g]enerally the failure to object constitutes a waiver of the right to raise the
matter on appeal.” State v. Asbury, 187 W.Va. 87, 91, 415 S.E.2d 891, 895 (1992). See also R.

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App. P. 10(c)(7) (stating that a petitioner’s argument “must contain appropriate and specific
citations to the record on appeal, including citations that pinpoint when and how the issues in the
assignments of error were presented to the lower tribunal.”). Therefore, due to petitioner’s failure
to present this issue to the circuit court, we find that petitioner waived this issue for appellate
review.

       For the foregoing reasons, we find no error in the circuit court’s July 21, 2014, order, and
we hereby affirm the same.


                                                                                         Affirmed.


ISSUED: June 15, 2015

CONCURRED IN BY:

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




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