                            STATE OF WEST VIRGINIA

                          SUPREME COURT OF APPEALS

                                                                                  FILED
In Re: H.M., D.M., L.M., K.M., & C.M.                                           March 16, 2015
                                                                             RORY L. PERRY II, CLERK
                                                                           SUPREME COURT OF APPEALS
No. 14-1170 (Randolph County 13-JA-40 through 13-JA-44)                        OF WEST VIRGINIA


                              MEMORANDUM DECISION
        Petitioner Father, by counsel Jeremy Cooper, appeals the Circuit Court of Randolph
County’s September 24, 2014, order terminating his parental rights to H.M., D.M., L.M., K.M.,
and C.M. 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”), Heather Weese, filed a response on behalf of the children that supports the
circuit court’s order. On appeal, Petitioner Father argues that the circuit court erred in denying
his motion to vacate the earlier proceedings presided over by former Judge Jaymie Wilfong.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 2013, the DHHR filed a petition for abuse and neglect against petitioner
alleging that he abandoned his children and left them with an inappropriate caregiver. The circuit
court held its first adjudicatory hearing on December 6, 2013, during which petitioner waived
any conflict as a result of his counsel filing a judicial ethics complaint against Judge Wilfong.2
The circuit court continued the adjudicatory hearing until January of 2014 because petitioner had
just been released from incarceration in the State of North Carolina and to allow the DHHR to
serve petitioner with a copy of the petition for abuse and neglect.



       1
        On May 1, 2014, then Chief Justice Robin Jean Davis signed an Administrative Order
disqualifying Judge Wilfong from all cases prosecuted or otherwise handled by the Randolph
County Prosecuting Attorney’s Office following multiple judicial ethics complaints filed against
Judge Wilfong. By order entered on October 30, 2014, this Court suspended Judge Wilfong until
the end of her term in December 2016. See In re Wilfong, -- W.Va. --, 765 S.E.d2d 283 (2014).
The following month, Judge Wilfong resigned as Randolph County Circuit Court Judge,
Twentieth Judicial Circuit.
       2
       On October 16, 2013, petitioner’s counsel filed a judicial ethics complaint against Judge
Wilfong alleging that she had an affair with William T. Carter, then director of the North Central
Community Corrections Program.

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        The circuit court held another adjudicatory hearing in March of 2014. During the hearing,
the testimony established that petitioner knowingly left his children with an inappropriate
caregiver who was not allowed to have any contact with his children. The testimony also
established that petitioner abandoned his children and failed to take responsibility for the
underlying issues of neglect. Accordingly, the circuit court adjudicated petitioner as a “neglectful
parent”3 and found that aggravating circumstances existed because he abandoned his children.
Following adjudication, petitioner moved for a post-adjudicatory improvement period. After
considering petitioner’s argument, the circuit court denied his motion for a post-adjudicatory
improvement period. Specifically, the circuit court found that the DHHR was not required to
offer petitioner services based on aggravating circumstances.

        Following the disqualification of Judge Wilfong, the Honorable Thomas Keadle was
assigned to hear the underlying abuse and neglect proceeding. Several days later, petitioner filed
a motion to stay his dispositional hearing, to allow Judge Keadle an opportunity to review the
transcripts of the prior proceedings, or in the alternative, vacate Judge Wilfong’s prior orders.
After considering the parties’ arguments, Judge Keadle continued the dispositional hearing and
directed the court reporter to produce copies of the transcripts from the prior hearings for his
review. After reviewing the transcripts of the prior proceedings, Judge Keadle held a
dispositional hearing, denied petitioner’s motion to vacate Judge Wilfong’s prior orders, took
judicial notice of Judge Wilfong’s prior orders, and terminated petitioner’s parental rights. It is
from this order that petitioner appeals.

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

               “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).
       3
         The circuit court actually adjudicated petitioner as a “neglectful” parent. However, West
Virginia Code § 49-1-1 et seq. does not contain a definition of “neglectful parent.” According to
West Virginia Code § 49-1-3(2), “‘[a]busing parent’ means a parent, guardian or other custodian,
regardless of his or her age, whose conduct, as alleged in the petition charging child abuse or
neglect, has been adjudged by the court to constitute child abuse or neglect.” (Emphasis added).



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       On appeal, petitioner argues that the circuit court erred in denying his motion to vacate
Judge Wilfong’s prior orders. Specifically, petitioner asserts that Judge Wilfong deliberately
withheld her personal animosity toward petitioner’s counsel for filing a judicial ethics
complaint.4 Petitioner’s argument is premised on our holding in syllabus point three of Tennant
v. Marion Health Care Foundation, 194 W.Va. 97, 459 S.E.2d 374 (1995). Petitioner contends
that he is entitled to a new trial because Judge Wilfong intentionally failed to disclose facts
leading to a disqualification. We disagree.

       This Court has held that

               [a] claim of an appearance of impropriety does not rise to the level of a
       fundamental defect in due process requiring a new trial. Absent a showing of bias
       or prejudice, a new trial is unwarranted when (1) there has been a full trial on the
       merits, (2) there is no obvious error during the original proceedings, (3) the record
       shows it is extremely unlikely the prejudice could have affected the trial, and (4)
       the failure to disclose facts leading to a disqualification motion was inadvertent.

Syl. Pt. 3, Id. In order to be entitled to a new trial, petitioner was required to show “bias or
prejudice.” After a review of petitioner’s brief and the appendix record, petitioner failed to
demonstrate any actual bias or prejudice affecting his substantial rights. The evidence of neglect
presented at the adjudicatory hearing was overwhelming. As noted above, the testimony
established that petitioner left his children with an inappropriate caregiver (that he knew was not
allowed to have any contact with the children), that he abandoned his children, and that he failed
to take responsibility for the underlying issues of neglect. Additionally, a new trial was not
warranted because the four-factor test set forth in Tennant was satisfied. First, it is undisputed
that petitioner was granted a full adjudicatory hearing on the merits and a hearing on his motion
for an improvement period. Next, there was no obvious error during the underlying proceedings.
As stated above, the evidence presented at the adjudicatory hearing was overwhelming. Further,
the DHHR was not required to make efforts to preserve the family based upon a finding of
abandonment. See W.Va. Code § 49-6-5(a)(7)(a). Third, the record shows that prejudice could
not have affected the trial. The record shows that Judge Keadle thoroughly reviewed the
transcripts of the prior hearings and Judge Wilfong’s orders before taking judicial notice of the
underlying orders. Finally, any facts that Judge Wilfong allegedly failed to disclose was
inadvertent. Petitioner’s counsel was well aware of any potential conflict because he was one of
several members of the West Virginia State Bar that filed an ethics complaint against Judge
Wilfong. The Randolph County Prosecutor’s Office, who represented the DHHR, and the
guardian were similarly situated because they also filed a judicial ethics complaint against Judge
Wilfong. Importantly, the record is devoid of any evidence that shows Judge Wilfong failed to
disclose any facts that could have led to a disqualification. For these reasons, we find no error.

       For the forgoing reasons, we affirm.

       4
         By order entered January 28, 2015, this Court took judicial notice of the portion of Judge
Wilfong’s Response to the Judicial Investigation Commission’s Formal Statement of Charges
that involved petitioner’s counsel.

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                                        Affirmed.

ISSUED: March 16, 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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