                                                      STATE OF WEST VIRGINIA 

                                                    SUPREME COURT OF APPEALS

                                                                                     FILED
In re S.H.-1, S.H.-2, K.H., and S.R.                                               April 9, 2018
                                                                                 EDYTHE NASH GAISER, CLERK
                                                                                 SUPREME COURT OF APPEALS
No. 17-1004 (Wood County 16-JA-193, 194, 195, and 197)                               OF WEST VIRGINIA 




                                                          MEMORANDUM DECISION
        Petitioner Mother S.J., by counsel Eric K. Powell, appeals the Circuit Court of Wood
County’s October 11, 2017, order terminating her parental rights to S.H.-1, S.H.-2, K.H., and
S.R.1 The West Virginia Department of Health and Human Resources (“DHHR”), by counsel
Mindy M. Parsley, filed a response in support of the circuit court’s order. The guardian ad litem
(“guardian”), Debra L. Steed, filed a response on behalf of the children also in support of the
circuit court’s order. Petitioner filed a reply. On appeal, petitioner argues that the circuit court
erred in (1) adjudicating her as an abusing parent with regard to S.R., (2) terminating her parental
rights to S.R. without considering his wishes, and (3) terminating her parental rights to the other
children based upon insufficient evidence.

        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 November of 2016, the DHHR filed an abuse and neglect petition against the parents
after learning that the father allowed S.H.-1, S.H.-2, and K.H. to stay with petitioner on
weekends, despite knowing that her custodial rights to the children had been involuntarily
terminated during abuse and neglect proceedings in 2012. Petitioner was a party to prior abuse
and neglect proceedings in 2007 and 2012 due to instances of domestic violence, failure to
protect the children, and substance abuse. Petitioner’s custodial rights were terminated in 2012
after she failed to follow through with a family case plan, continued to engage in domestic
violence, and abused drugs throughout her improvement period. The DHHR further alleged that
the father dropped the children off at petitioner’s house in October of 2016 and had not returned
                                                            
              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 share the same
initials, we will refer to them as S.H.-1 and S.H.-2, respectively, throughout this memorandum
decision.


                                                                   1

 
for them. In November of 2016, petitioner filed a domestic violence protective order against the
father after he threatened to shoot her, S.H.-1, SH.-2, and K.H.

        The circuit court held an adjudicatory hearing in January of 2017, during which petitioner
stipulated to the allegations contained in the petition. The circuit court granted petitioner a post-
adjudicatory improvement period. Per the circuit court’s subsequent adjudicatory order,
petitioner was adjudicated as an abusing parent in regard to all four children.

        In September of 2017, the circuit court held a dispositional hearing. Petitioner failed to
appear but was represented by counsel, who advised the circuit court that he had not heard from
petitioner for a few weeks as she had been admitted to Highland Hospital. Counsel for petitioner
requested a continuance so that petitioner could complete a rehabilitation program or provide
negative drug screens. A Court Appointed Special Advocates (“CASA”) representative proffered
that petitioner appeared at the last multidisciplinary team meeting via telephone because she was
admitted to Highland Hospital after using an illegal substance for six days straight and had
“flipped out.” The CASA representative stated that petitioner then underwent a mental hygiene
assessment and treatment. Petitioner had since been released but failed to contact either the
DHHR or CASA. The circuit court denied petitioner’s counsel’s request for a continuance,
noting that petitioner also failed to attend a prior hearing in August of 2017. A DHHR report and
a CASA report were submitted into evidence. The DHHR proffered that petitioner had been
noncompliant with the terms of her post-adjudicatory improvement period, had not provided
drug screens, and had not kept in contact with the DHHR. As such, the DHHR did not believe
that there was a substantial likelihood of change for petitioner. The circuit court found that this
was petitioner’s third abuse and neglect proceeding and that her custodial rights had previously
been terminated. Further, while petitioner remained drug-free for a time throughout the
improvement period, she subsequently relapsed and then failed to participate in services. As
such, the circuit court found that she had not completed her post-adjudicatory improvement
period. 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
was necessary for the children’s welfare. It is from the October 11, 2017, dispositional order
terminating her parental rights that petitioner appeals.2

              The Court has previously established the following standard of review in cases such as
this:

                     “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

                                                            
              2
        The circuit court also terminated the parental rights of the father of S.H.-1, S.H.-2, and
K.H. during the proceedings below. According to the guardian, these children are currently
placed with a non-adoptive foster family while the DHHR searches for a suitable permanent
placement, as the permanency plan is adoption. The father of S.R. is a non-abusing parent and
the permanency plan for S.R. is to remain in the care of his father.
                                                               2

 
       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 argues that the circuit court erred in adjudicating her as an abusing
parent with regard to S.R. Specifically, petitioner argues that the petition did not contain
allegations of abuse regarding S.R. Therefore, because she only stipulated to the allegations in
the petition, she argues that the circuit court should not have adjudicated her as an abusing parent
with regard to S.R. However, a review of the record indicates that petitioner did not object to the
circuit court’s order finding that S.R. was an abused child, nor did she otherwise seek to dismiss
the petition in regard to that child for failure to adequately allege abuse and/or neglect. As such,
petitioner has waived her right to raise this issue on appeal. See State v. Jessie, 225 W.Va. 21,
27, 689 S.E.2d 21, 27 (2009) ( “This Court’s general rule is that nonjurisdictional questions not
raised at the circuit court level will not be considered to the first time on appeal.”). Accordingly,
the Court finds that petitioner is entitled to no relief in this regard.

        Petitioner next argues that the circuit court erred in terminating her parental rights.
Specifically, petitioner argues that there was no evidence submitted that she abused and
neglected S.H.-1, S.H.-2, and K.H. after the termination of her custodial rights in 2012. We
disagree. Petitioner stipulated to the allegations of abuse and neglect in the current proceedings.
Therefore, there was sufficient evidence upon which to find that she had abused and neglected
the children after her custodial rights were terminated. Moreover, pursuant to West Virginia
Code § 49-4-604(b)(6), circuit courts are directed to terminate parental rights upon findings that
there is no reasonable likelihood the conditions of abuse and neglect can be substantially
corrected in the near future and when necessary for the children’s welfare. West Virginia Code §
49-4-604(c)(3) clearly indicates that 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 . . . [has] 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 .
       ...

        The record demonstrates that there was sufficient evidence upon which to terminate
petitioner’s parental rights. The DHHR proffered that petitioner stopped complying with services
after July of 2017, including drug screening and adult life skills and individualized parenting
classes. A CASA representative proffered that petitioner abused drugs for six days straight such


                                                 3

 
that she was hospitalized after she “flipped out.” After her release, petitioner contacted neither
the DHHR nor CASA. Further, the guardian, the DHHR, and CASA submitted reports into
evidence substantiating petitioner’s failure to sufficiently comply with her improvement period
and their determination that termination of petitioner’s parental rights was in the children’s best
interests. Petitioner intentionally chose not to attend either her last review hearing or the
dispositional hearing. We have previously held that

                      “[t]ermination of parental rights, the most drastic remedy under the
              statutory provision covering the disposition of neglected children, W. Va.Code [§]
              49-6-5 [now 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 W. Va.Code [§] 49-6-5(b) [now 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). Clearly, there was sufficient
evidence to find that there was no reasonable likelihood that petitioner could correct the
conditions of abuse and neglect in the near future and termination was necessary for the
children’s welfare. As mentioned above, circuit courts are directed to terminate parental rights
upon such findings.

        Additionally, petitioner argues that the circuit court erred in failing to consider S.R.’s
wishes regarding the termination of petitioner’s parental rights when he was over the age of
fourteen. Pursuant to West Virginia Code § 49-4-604(b)(6)(C), at disposition, circuit courts must
consider the wishes of “a child fourteen years of age or older or otherwise of an age of discretion
as determined by the court[.]” While petitioner argues that the circuit court did not consider
S.R.’s wishes, she cites to nothing in the record suggesting that S.R. desired petitioner’s parental
rights to remain intact. To the extent petitioner argues that the child was not asked his preference,
we find no objection on this ground in the record below.3 As noted above, this Court will not
consider issues raised for the first time on appeal.

       Lastly, 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.


                                                            
              3
        While we find that petitioner is not entitled to relief in this regard because she did not
object during the proceedings below, we admonish the guardian to speak with children in abuse
and neglect proceedings who are over the age of fourteen in order to ascertain their wishes
regarding disposition pursuant to West Virginia Code § 49-4-604(b)(6)(C).
                                                               4

 
        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 children
within twelve months of the date of the disposition order. As this Court has stated,

               [t]he [twelve]-month period provided in Rule 43 of the West Virginia
       Rules of Procedures 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 W.Va.Code § 49-6-5(a)(6) [1996] [now 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 can not 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
October 11, 2017, order is hereby affirmed.


                                                                                         Affirmed.

ISSUED: April 9, 2018


CONCURRED IN BY:

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




                                                 5

 
