                               STATE OF WEST VIRGINIA

                             SUPREME COURT OF APPEALS


In re: D.W. & H.G.
                                                                                        FILED
                                                                                    January 11, 2016
                                                                                  RORY L. PERRY II, CLERK
No. 15-0892 (Ohio County 14-CJA-89-DJS & 14-CJA-90-DJS)                         SUPREME COURT OF APPEALS
                                                                                    OF WEST VIRGINIA



                                MEMORANDUM DECISION
        Petitioner Mother J.W., by counsel Justin M. Hershberger, appeals the Circuit Court of
Ohio County’s August 17, 2015, order terminating her parental rights to five-year-old D.W. and
seven-year-old H.G. The West Virginia Department of Health and Human Resources (“DHHR”),
by counsel Lee Niezgoda, filed its response in support of the circuit court’s order. The guardian
ad litem (“guardian”), Joseph J. Moses, 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 denying her
motion to continue the dispositional hearing.1

        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 2014, the DHHR filed an abuse and neglect petition alleging that
petitioner committed domestic violence in the presence of D.W. and maintained unsanitary home
conditions which included the presence of animal urine, feces, and trash throughout the house.
The DHHR also noted petitioner’s history of Child Protective Services (“CPS”) involvement
since 2008, including a substantiated case for drug abuse, and failure to provide proper
supervision.2 Furthermore, petitioner admitted that she was currently in possession of
prescription drugs without a valid prescription.

       In December of 2014, the circuit court held a preliminary hearing during which the
DHHR presented testimony of domestic violence, petitioner’s drug use, and possession of drug
paraphernalia, and the deplorable living conditions. Based upon the evidence and testimony
presented, the circuit court found that the children were in imminent danger. Further, the circuit

       1
         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.
       2
           In 2008, CPS provided petitioner with parenting and adult life skills classes.
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court ordered petitioner to submit to a drug test. In January of 2015, the circuit court held an
adjudicatory hearing during which petitioner stipulated to the allegations as set forth in the
petition. Based on petitioner’s stipulations, the circuit court adjudicated petitioner as an abusive
and neglectful parent. By order entered February 12, 2015, petitioner agreed to attend anger
management and domestic violence classes.

        Thereafter, the circuit court granted petitioner a post-adjudicatory improvement period.
The terms and conditions of the improvement period required petitioner to remain drug and
alcohol free, submit to random drug tests, attend outpatient rehabilitation, submit to a
psychological evaluation, and to obtain employment and independent housing. The circuit court
also granted petitioner visitation with her children and ordered her to not associate with known
criminals.

        Beginning in February of 2015, the circuit court held several status hearings on the
progress of petitioner’s post-adjudicatory improvement period. During these hearings, the DHHR
proffered that petitioner was not complying with her improvement period, had moved to the
State of Ohio, and was dating a sex offender. Petitioner also admitted that she relapsed into drug
use. According to the DHHR, services were discontinued because petitioner failed to participate
in services for two months and was evicted from her apartment. Following the final status
hearing in June of 2015, the circuit court set the matter for a dispositional hearing on July 31,
2015.

        At the dispositional hearing, which petitioner did not attend, her counsel moved for a
continuance to allow for her attendance. The circuit court denied petitioner’s motion and
proceeded with the hearing. Thereafter the circuit court proceeded to hear testimony that
petitioner failed to remedy the conditions of abuse and neglect. A CPS worker testified that
petitioner submitted to eight of the twenty-three required drug screens and was arrested.
According to the worker, services and visitations were canceled due to petitioner’s non­
compliance and because petitioner admitted to relapsing. Finally, the worker testified that she
admitted to maintaining a relationship with a sex offender in direct violation of the terms of her
improvement period. Based on the evidence presented, the circuit court found that it was in the
children’s best interests to terminate petitioner’s parental rights. 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
       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

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       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 review of the record, we find no error in the circuit court’s denial of petitioner’s
motion to continue the dispositional hearing. Petitioner argues that the circuit court erred in
denying her motion because she expressed her desire to attend the hearing (by informing her
counsel that she was unable to attend) and that any delay would be minimal. This Court has 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). We also bear in mind the following:

                The granting of a continuance is a matter within the sound discretion of
       the trial court, though subject to review, and the refusal thereof is not ground for
       reversal unless it is made to appear that the court abused its discretion, and that its
       refusal has worked injury and prejudice to the rights of the party in whose behalf
       the motion was made.

Syl. Pt. 1, State v. Jones et al., 84 W.Va. 85, 99 S.E. 271 (1919). See In Interest of Tiffany Marie
S., 196 W.Va. 223, 235, 470 S.E.2d 177, 189 (1996) (establishing “four salient factors that
appellate courts consider when reviewing denials of requests for a continuance.”)

        Here, the circuit court heard evidence that despite having more than one month’s notice
of the dispositional hearing, petitioner waited mere hours prior to the hearing before notifying
her counsel that she was unable to secure transportation to the hearing. Further, at the time of the
request for continuance, the circuit court had no assurance that petitioner would appear. As noted
above, petitioner failed to participate in the underlying proceedings for two months, admitted to
relapsing, failed to submit to random drug tests, and maintained a relationship with a sex
offender in direct violation of her post-adjudicatory improvement period. The circuit court
denied petitioner’s request for a continuance and we will not look behind that decision. “We may
not reweigh the grounds afresh and, absent an abuse of discretion, the decision of the circuit
court to reject a request for a continuance will not be overturned by an appellate court.” Id. at
236, 470 S.E.2d at 190. For these reasons, we find no abuse of discretion.

       For the foregoing reasons, we find no error in the circuit court’s August 17, 2015, order,
and we hereby affirm the same.


                                                                                           Affirmed.

ISSUED: January 11, 2016




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CONCURRED IN BY:

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




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