                              STATE OF WEST VIRGINIA
                            SUPREME COURT OF APPEALS                                 FILED
                                                                                February 7, 2020
                                                                                 EDYTHE NASH GAISER, CLERK
                                                                                 SUPREME COURT OF APPEALS
                                                                                     OF WEST VIRGINIA
In re M.W.-1, M.W.-2, C.R., L.W., R.W., and H.W.

No. 19-0528 (Ohio County 18-CJA-44, 18-CJA-45, 18-CJA-46, 18-CJA-47, 18-CJA-48, and 19-
CJA-10)



                               MEMORANDUM DECISION


         Petitioner Father M.W.-3, by counsel Ann Marie Morelli, appeals the Circuit Court of Ohio
County’s April 26, 2019, dispositional order terminating his parental rights to M.W.-1, M.W.-2,
L.W., R.W., and H.W.1, and his custodial rights to C.R.2 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, Joseph J. Moses, filed a response on behalf of the
children in support of the circuit court’s order. Respondent Mother K.R. (mother of C.R., R.W.,
and H.W.), by counsel Richard W. Hollandsworth, filed a response in support of the circuit court’s
order. Respondent Mother B.B. (mother of M.W.-1 and M.W.-2), by counsel John M. Jurco, also
filed a response in support of the circuit court’s order. On appeal, petitioner argues that the circuit
court erred in denying him an extension of his post-adjudicatory improvement period, refusing to
allow him to voluntarily relinquish his parental rights, and involuntarily terminating his parental
rights to the children without imposing a less-restrictive disposition.

       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,

       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 two of the children and petitioner share the
same initials, we will refer to them as M.W.-1, M.W.-2, and M.W.-3, respectively, throughout this
memorandum decision.
       2
         Petitioner is not the biological father of C.R., but was named in the petition as C.R.’s
“occasional custodian.” C.R. is the biological child of Respondent Mother K.R., with whom
petitioner resided prior to the onset of these proceedings.


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a memorandum decision affirming the circuit court’s order is appropriate under Rule 21 of the
Rules of Appellate Procedure.

        In May of 2018, the DHHR filed a child abuse and neglect petition alleging that petitioner
engaged in acts of domestic violence against Respondent Mother K.R. in the presence of the
children and abused drugs, which negatively affected his ability to parent.3 Specifically, the DHHR
alleged that petitioner was arrested and charged with domestic battery after an altercation took
place between him and Respondent Mother K.R. Subsequently, petitioner’s child, M.W.-2,
reported that he was injured during another incident of domestic violence between petitioner and
Respondent Mother K.R. After the petition’s filing, petitioner stipulated to the allegations
contained in the petition and was adjudicated as an abusing parent. Thereafter, petitioner was
granted a post-adjudicatory improvement period, which required that he remain drug free and
participate in random drug screening, anger management classes, and supervised visitation with
the children.

        The circuit court held a hearing on the DHHR’s motion to terminate petitioner’s post-
adjudicatory improvement period in January of 2019, where the DHHR produced evidence of
petitioner’s noncompliance with the terms and conditions of his improvement period. Specifically,
between September of 2018 and December of 2018, petitioner had twelve positive drug screens
for an array of illegal substances, which resulted in the termination of his supervised visits with
his children. Additionally, at prior multidisciplinary team meetings, petitioner refused to
acknowledge his drug abuse and claimed that his positive drug screens were due to his
consumption of Sudafed. Petitioner also claimed that someone placed drugs in his coffee without
his knowledge. However, at the hearing, petitioner acknowledged his substance abuse problem
and testified that he intended to enter an inpatient drug rehabilitation treatment facility. The circuit
court terminated petitioner’s post-adjudicatory improvement period, but advised petitioner that his
subsequent actions would be relevant to his final disposition.

        In April of 2019, the circuit court held a dispositional hearing. The circuit court heard
testimony from a Child Protective Services (“CPS”) worker who testified that petitioner failed to
participate in drug screens since the termination of his post-adjudicatory improvement period in
January of 2019. The CPS worker further testified that, despite petitioner’s assertion that he
intended to enter a drug rehabilitation treatment facility, petitioner failed to do so. The CPS worker
also testified that petitioner’s failure to obtain a special medical card, which would have permitted
him to be admitted into treatment, was due to petitioner’s failure to provide the DHHR with a
denial letter for a standard medical card, which petitioner was instructed to do. Finally, the CPS
worker testified that petitioner failed to participate in any services designed to address his anger
management issues. As such, the CPS worker recommended termination of petitioner’s parental
rights. At the conclusion of the CPS worker’s testimony, petitioner informed the circuit court that
he wished to voluntarily relinquish his parental rights to the children; however, the circuit court
denied petitioner’s motion and proceeded to take evidence regarding petitioner’s disposition.
Petitioner testified that he applied to an inpatient treatment facility but was not accepted because


        3
          On appeal, petitioner failed to include the DHHR’s petition in his appendix. However, the
briefs filed by the parties, as well as the transcripts of the hearings below, contain sufficient details
to elucidate the contents of the petition.
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he did not have a medical card. However, petitioner testified he recently received a medical card
and intended to enter drug rehabilitation. Petitioner admitted that he did not have stable housing
and testified that while he initially stopped submitting to drug screens because he was depressed,
he had resumed drug screening the previous week. Based on the testimony and evidence presented,
the circuit court found that there was no reasonable likelihood that the conditions of abuse and
neglect could be substantially corrected and terminated petitioner’s parental rights to the children.
It is from the April 26, 2019, dispositional order that petitioner appeals.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).

         On appeal, petitioner first argues that the circuit court erred in denying him an extension
of his post-adjudicatory improvement period; however, the record is devoid of any evidence that
petitioner moved for such an extension. Moreover, petitioner fails to cite to the record to
demonstrate that he moved for an extension of his post-adjudicatory improvement period or that
such motion was denied. “‘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). Accordingly, we find that petitioner is entitled to no relief
in this regard.

        Petitioner next argues that the circuit court erred in refusing to allow him to voluntarily
relinquish his parental rights at the dispositional hearing. Specifically, petitioner asserts that the
circuit court “failed to acknowledge that [he] had a right to relinquish [his parental rights] or
provide a sound legal reason as to why he should be denied the right to do so.” In support of this


       4
         According to the DHHR, the permanency plan for M.W.-1 and M.W.-2 is to remain in the
custody of their nonabusing mother. The permanency plan for C.R., R.W., and H.W. is to remain
in the custody of Respondent Mother K.R., who successfully completed her preadjudicatory
improvement period. L.W.’s mother’s parental rights were also terminated below. L.W. is
currently placed in the home of Respondent Mother K.R., with the permanency plan of adoption
therein.
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argument, petitioner cites to Syllabus Point 3 of In re James G., 211 W. Va. 339, 566 S.E.2d 226
(2002), wherein this Court held that

               [i]n the context of an abuse and neglect proceeding, a court may accept a
        parent’s voluntary relinquishment of parental rights without the consent of the West
        Virginia Department of Health and Human Resources, provided that the agreement
        meets the requirements of [West Virginia Code § 49-4-607], where applicable, and
        the relevant provisions of the Rules of Procedure for Abuse and Neglect
        Proceedings.

(Emphasis added). However, petitioner ignores Syllabus Point 4 of James G., wherein we further
held that

                [a] circuit court has discretion in an abuse and neglect proceeding to accept
        a proffered voluntary termination of parental rights, or to reject it and proceed to a
        decision on involuntary termination. Such discretion must be exercised after an
        independent review of all relevant factors, and the court is not obliged to adopt any
        position advocated by the Department of Health and Human Resources.

Id. at 341, 566 S.E.2d at 228 (emphasis added). Given that the circuit court had full discretion to
reject petitioner’s request to enter into a voluntary relinquishment of his parental rights, we find
petitioner’s argument that the circuit court failed to acknowledge his “right” to voluntarily
relinquish his parental rights to be meritless. Furthermore, contrary to petitioner’s assertion that
the circuit court failed to state a proper basis for denying the relinquishment, a review of the record
shows that the circuit court properly exercised its discretion in rejecting the same. Petitioner did
not inform the circuit court that he wished to voluntarily relinquish his parental rights until after
the DHHR’s presentation of evidence, at which point petitioner’s counsel indicated that she had
not prepared any paperwork for the proposed relinquishment because petitioner initially requested
to proceed with a contested dispositional hearing. In response, the circuit court asked for the
parties’ positions on the issue. The DHHR stated that while it recognized the court’s discretion in
considering petitioner’s relinquishment, it preferred to move forward with the disposition rather
than having to return at a later date for a relinquishment proceeding. Similarly, the guardian
acknowledged the circuit court’s discretion to consider the relinquishment, and expressed that it
be made clear to the mothers that an accepted voluntary relinquishment would not permit them to
allow petitioner contact with the children. After considering the positions of the parties, the circuit
court found that if petitioner wished to enter into a voluntary relinquishment, he could have done
so prior to the presentation of the DHHR’s evidence, concluded that it was not “inclined to
entertain a voluntary relinquishment,” and proceeded with the dispositional hearing. Accordingly,
we find no error in the circuit court’s decision to reject petitioner’s offer to voluntarily relinquish
his parental rights.

        Finally, petitioner argues that the circuit court erred in terminating his parental rights, rather
than imposing a less-restrictive disposition. Specifically, petitioner asserts that a less-restrictive
disposition would have been appropriate because it would have given him a chance to remedy his
addiction issues. Additionally, petitioner asserts that the DHHR failed to provide evidence as to
why termination of his parental rights was in the best interests of the children. We disagree.

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        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 children’s
welfare. According to West Virginia Code § 49-4-604(c)(3), a situation in which there is no
reasonable likelihood the conditions of abuse and neglect can be substantially corrected includes
one in which

       [t]he abusing parent or parents have 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, as evidenced by the continuation or insubstantial diminution
       of conditions which threatened the health, welfare or life of the child[.]

        Here, petitioner failed to follow through with rehabilitative efforts designed to reduce or
prevent the abuse and neglect of the children. Petitioner stipulated to abusing his children based
upon his substance abuse and acts of domestic violence, yet failed to correct either of these issues
despite being granted a post-adjudicatory improvement period. As stated in detail above, the CPS
worker provided ample testimony of petitioner’s overall lack of participation and compliance with
the terms and conditions of his post-adjudicatory improvement period, which resulted in his
improvement period being terminated. Moreover, despite petitioner’s numerous assertions that he
intended to enter an inpatient treatment center, petitioner failed to enter treatment. Although
petitioner asserts that he was unable to enter treatment because he did not have a medical card, the
testimony of the CPS worker established that the DHHR provided petitioner with specific
instructions on how to obtain a medical card, but petitioner failed to take the necessary steps to do
so. Additionally, the CPS worker’s testimony established that petitioner failed to participate in any
anger management services and continued to test positive for an array of illegal substances
throughout the proceedings. After reviewing the testimony and evidence presented, the circuit
court concluded that sufficient evidence existed to find that there was no reasonable likelihood that
petitioner could correct the conditions of abuse and neglect and that termination was in the
children’s best interests. Further, while petitioner argues that a less-restrictive alternative to
termination was appropriate in this case, we have previously held that

                “[t]ermination 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). As the circuit court’s findings
are fully supported by the record, we find no error in the circuit court’s termination of petitioner’s
parental rights without the use of a less-restrictive dispositional alternative. Accordingly, petitioner
is entitled to no relief.



                                                   5
        Finally, we note that the record is devoid of any information regarding the identity of C.R.’s
father or the status of said father’s parental rights to C.R. On appeal, the parties did not include the
DHHR’s petition in the appendix record. Accordingly, upon our review, the Court is unable to
determine what steps, if any, the parties took to ensure that both of C.R.’s parents were involved
in the proceedings. Due to the limited record, the Court cannot ensure that permanency for C.R.
has been achieved by placement with the mother, given that C.R.’s father is not identified.
Accordingly, we remand this matter for the limited purpose of determining what actions may be
necessary to ensure the C.R.’s permanent placement with the mother is not jeopardized. If the
child’s father—be he known or unknown—was included in the DHHR’s petition below, the circuit
court on remand is directed to take the appropriate steps to proceed in light of his inclusion and
any allegations of abuse and/or neglect alleged against that father, in accordance with the
applicable rules and statutes governing child abuse and neglect proceedings. If the DHHR did not
include C.R.’s father in its petition, the circuit court is hereby directed to require the DHHR to
undertake an investigation into whether C.R.’s father has engaged in any conduct that would
constitute abuse and/or neglect to that child and file any additional petitions that may be necessary
in regard to C.R.’s father and in furtherance of obtaining permanency for C.R. in accordance with
the child’s best interests.


                                                    Affirmed and remanded for further proceedings.


ISSUED: February 7, 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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