                              STATE OF WEST VIRGINIA
                            SUPREME COURT OF APPEALS

In re B.H.                                                                            FILED
                                                                                   April 19, 2019
No. 18-1058 (Mingo County 18-JA-49)                                              EDYTHE NASH GAISER, CLERK
                                                                                 SUPREME COURT OF APPEALS
                                                                                     OF WEST VIRGINIA




                               MEMORANDUM DECISION


         Petitioner Father M.H., by counsel Cullen C. Younger, appeals the Circuit Court of Mingo
County’s October 25, 2018, order terminating his parental rights to B.H.1 The West Virginia
Department of Health and Human Resources (“DHHR”), by counsel Brandolyn N. Felton-Ernest,
filed a response in support of the circuit court’s order. The guardian ad litem (“guardian”), Susan
J. Van Zant, filed a response on behalf of the child in support of the circuit court’s order. On appeal,
petitioner argues that the circuit court erred in terminating his parental rights and denying him
post-termination visitation.

       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 May of 2018, the DHHR filed an abuse and neglect petition against the parents that
alleged the child was born exhibiting symptoms of drug exposure and withdrawal, including
“excessive high pitch crying, markedly hyper active [M]oro reflex, mild tremors undisturbed,
increased muscle tone, molting, poor feeding, feeding infrequent and uncoordinated.”2 The child’s
umbilical cord blood additionally tested positive for buprenorphine, cocaine, and THC. According
to the petition, the mother tested positive for “THC, . . . Subutex, [and] Gabapentin” upon the
child’s birth. The petition further alleged that the mother tested positive for cocaine and other drugs
during her pregnancy and had track marks on her arms when she arrived at the hospital to give
birth. Although petitioner and the mother were initially present at the hospital, when the petition

       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).
       2
        The document was styled as an “Amended Petition,” but it is unclear from the record
whether a prior petition was filed.
                                                   1
was filed, the DHHR was unable to make contact with them in order to conduct an interview. The
DHHR attempted a home visit and also scheduled a meeting with the parents over the phone, but
the parents did not appear as scheduled. Further, the petition alleged possible domestic violence in
the home based upon the mother reporting to the hospital “covered in bruises.” As to petitioner,
the DHHR alleged that he failed to protect the child from abuse and neglect.3

         In June of 2018, the circuit court held a preliminary hearing.4 During the hearing, the
DHHR presented evidence from a Child Protective Services (“CPS”) worker that petitioner
“admitted that he knew of [the mother’s] drug use.” In fact, the witness testified that petitioner
“wanted to know if it would hurt him getting his child back or not after he’d already admitted to
knowing of her drug use.” On cross-examination, the witness indicated that petitioner claimed he
did not know about the mother’s cocaine use, but reiterated that he admitted that he knew about
the THC and buprenorphine. At that time, the DHHR requested that petitioner submit to paternity
testing. At the conclusion of the preliminary hearing, the circuit court found probable cause to
support the child’s removal and ordered that both parents submit to drug screens that same day.
The circuit court also ordered the parents to attend inpatient rehabilitation. According to the record,
the child’s guardian ad litem contacted a rehabilitation facility one day prior to the hearing and the
facility had openings to accept the parents.

        In August of 2018, the circuit court held an adjudicatory hearing. Petitioner did not attend,
but was represented by counsel. Counsel informed the circuit court that petitioner was supposed
to check into a detoxification program that day, but, despite requesting confirmation of petitioner’s
submission to this program, counsel had not received any such confirmation. The circuit court took
judicial notice of all prior testimony in the matter and found clear and convincing evidence existed
that petitioner “abused and neglected the subject[] child[].”

        In October of 2018, the circuit court held a dispositional hearing. Again, petitioner did not
attend, but was represented by counsel. Once again, counsel informed the circuit court that
petitioner indicated the day prior to the hearing that he was “on his way to detox.” Again, counsel
requested confirmation of petitioner’s submission to the program and received nothing in return.
A DHHR worker testified that, aside from petitioner contacting him to say he would not be present
for a hearing, petitioner failed to maintain communication with the DHHR regarding the
proceedings. According to the witness, the DHHR placed numerous calls and left messages with
petitioner in order to complete his paternity testing, but petitioner never returned the calls. The
DHHR also never received any confirmation that petitioner was enrolled in substance abuse
treatment. Finally, the DHHR indicated that petitioner had “absolutely no contact with the child”
after the child was released from the hospital. Based on this evidence, the circuit court found there


       3
          Because petitioner was not listed on the child’s birth certificate, the DHHR included an
unknown father in its petition. The unknown father remained a party to the proceedings throughout
and, ultimately, the circuit court terminated the parental rights of the unknown father, in addition
to petitioner’s parental rights. On appeal, petitioner does not dispute that he is the child’s father or
otherwise raise any argument related to this issue.
       4
        The circuit court held an earlier preliminary hearing in May of 2018, but continued the
matter upon being informed that service of the petition had not been perfected.
                                                   2
was no reasonable likelihood the conditions of abuse or neglect could be substantially corrected
and that termination of petitioner’s parental rights was necessary for the child’s welfare.
Accordingly, the circuit court terminated petitioner’s parental rights. It is from the dispositional
order that petitioner appeals.5

       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). Upon review, the Court finds no
error in the proceedings below.

        In support of his assignment of error regarding termination of his parental rights, petitioner
sets forth several arguments related to phases of the proceedings in addition to disposition. First,
petitioner argues that the evidence was insufficient to support his adjudication. Second, petitioner
argues that the DHHR failed to make reasonable efforts to preserve the family. Third, petitioner
argues that he was not provided an opportunity to participate in services and, therefore, the circuit
court could not have made a determination as to whether the circumstances of abuse and neglect
were correctable. We find no merit in these arguments and address each in turn.

        The record in this matter is clear that sufficient evidence existed to support the circuit
court’s adjudication of petitioner. As this court has held,

                 “[West Virginia Code § 49-4-601(i)], requires the [DHHR], in a child abuse
       or neglect case, to prove ‘conditions existing at the time of the filing of the petition
       . . . by clear and convincing [evidence].’ The statute, however, does not specify any
       particular manner or mode of testimony or evidence by which the [DHHR] is
       obligated to meet this burden.” Syllabus Point 1, In Interest of S.C., 168 W.Va. 366,
       284 S.E.2d 867 (1981).

Syl. Pt. 1, In re Joseph A., 199 W. Va. 438, 485 S.E.2d 176 (1997) (citations omitted). This Court
has explained that “‘clear and convincing’ is the measure or degree of proof that will produce in


       5
        All parents’ parental rights to the child have been terminated. The permanency plan is
adoption by the child’s current foster family.
                                                  3
the mind of the factfinder a firm belief or conviction as to the allegations sought to be established.”
In re F.S., 233 W. Va. 538, 546, 759 S.E.2d 769, 777 (2014) (citing Brown v. Gobble, 196 W. Va.
559, 564, 474 S.E.2d 489, 494 (1996)). Additionally, in regard to a mother’s substance abuse
during pregnancy, this Court has recently established that

              [w]hen a child is born alive, the presence of illegal drugs in the child’s
       system at birth constitutes sufficient evidence that the child is an abused and/or
       neglected child, as those terms are defined by W. Va. Code § 49-1-201 (2015)
       (Repl. Vol. 2015), to support the filing of an abuse and neglect petition pursuant to
       W. Va. Code § 49-4-601 (2015) (Repl. Vol. 2015).

Syl. Pt. 1, In re A.L.C.M., 239 W. Va. 382, 801 S.E.2d 260 (2017). The Court went on to explain
that “with respect to Father’s alleged failure to stop Mother’s illegal drug use during her pregnancy,
the statutes governing abuse and neglect proceedings allow a finding of abuse to be based upon a
parent’s knowledge that another person is harming his/her child.” Id. at 391-92, 801 S.E.2d at 269-
70.

        Here, petitioner admitted to his knowledge of the mother’s substance abuse.6 Petitioner
attempts to mitigate this testimony by pointing out that he was “only . . . aware of [the mother’s]
use of Suboxone7 and marijuana” and not her use of cocaine. This distinction is immaterial, as
marijuana is still an illegal drug and there was never any evidence introduced that the mother had
a valid prescription for Suboxone. Petitioner further argues that the CPS worker testified that “she
did not know if [petitioner] was aware of the . . . [m]other’s drug use at the time of the filing of
the [p]etition” and that she only offered speculation. This argument, however, is unsupported by


       6
         In his petition for appeal, petitioner asserts that the CPS worker testified at the preliminary
hearing that she had not spoken to petitioner at the time the petition was filed. Petitioner appears
to attempt to rely on this testimony to support his argument that the DHHR did not satisfy its
burden of proof at adjudication related to establishing “conditions existing at the time of the filing
of the petition.” This argument lacks merit for two reasons. First, in regard to whether there existed
probable cause to remove the child from petitioner’s care as the circuit court found at the
preliminary hearing, it was uncontested that the parents left the child at the hospital suffering from
drug withdrawal and could not be located by the DHHR when it attempted to schedule an interview
with the parents. This alone was sufficient to show that the child was in imminent danger and that
removal was proper. See W. Va. Code § 49-1-201 (“‘Imminent danger to the physical well-being
of the child’ means an emergency situation in which the welfare or the life of the child is
threatened.”); Id. at § 49-4-602 (permitting a child to be placed in the DHHR’s care, custody, and
control upon the filing of a petition constituting “imminent danger to the physical well-being of
the child” when no reasonable alternative is available). Second, the burden of proof petitioner
references regarding evidence of the conditions that existed at the time of the petition’s filing
applies to adjudication, not the preliminary hearing. As such, any argument that the DHHR did not
have sufficient evidence to support adjudication at the time of the preliminary hearing lacks a basis
in the law and, as more fully explained above, the specific facts of this case.
       7
         Suboxone is a specific product that contains the drug buprenorphine, which was found in
testing of the child’s umbilical cord blood.
                                                   4
the record. At adjudication, petitioner’s counsel questioned the CPS worker about when she
learned that petitioner knew of the mother’s drug use. During questioning, the following exchange
occurred:

       Q:      What I’m asking you is did you know whether he had knowledge or not of
               the circumstances at the time of the filing of the petition?

       A.      No.

       Q:      So you did not know if he had knowledge of it. Is that correct?

       A:      I would say he did because the nurses had spoke with the family and stated
               there was drug use.

       Q:      So your testimony was he subsequently came in and spoke to you at the
               Department. Correct?

       A:      Yes.

       Q:      And you said that he admitted that he knew about the drug use?

       A:      He did admit that he knew of [the mother’s] drug use.

Despite the witness’s reference to nurses speaking with the family at the hospital, it is clear that
these questions were not related to when petitioner became aware of the mother’s drug use, but,
rather, when the CPS worker became aware that petitioner knew of the mother’s drug use. Simply
put, there is nothing in the record to support petitioner’s assertion that the evidence shows he
became aware of the drug use after the mother gave birth. On the contrary, the totality of the
evidence shows that petitioner was aware of the mother’s drug use during pregnancy. This includes
the fact that petitioner admitted to the DHHR that he was aware of the drug use and the evidence
surrounding the child’s birth, including the mother testing positive for drugs during the pregnancy
and appearing at the hospital to give birth with visible track marks and testing positive for multiple
drugs at that time. Accordingly, we find no error in this regard.

         We further find that petitioner is entitled to no relief in regard to his argument that the
DHHR did not make reasonable efforts to preserve the family. In support, petitioner argues that he
was provided no services and was required to submit to substance abuse treatment despite there
being no allegations of substance abuse against him. We find these arguments to be without merit
and initially note that petitioner raised no objection to the circuit court’s requirement that he submit
to substance abuse treatment. “Our 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)). Accordingly, we will not consider this issue
on appeal. Further, the record shows that petitioner was provided services and failed to comply
with even the most basic orders of the circuit court. At the preliminary hearing, the circuit court
ordered petitioner to submit to a drug screen, yet there is no evidence in the record that petitioner

                                                   5
complied with this order. Moreover, the DHHR offered petitioner paternity testing by attempting
to contact him on multiple occasions and leaving messages, yet petitioner never returned the
DHHR’s calls. As such, it is clear that the DHHR satisfied its statutory responsibility to make
reasonable efforts to preserve the family prior to termination. See W. Va. Code § 49-4-604(a)
(requiring the DHHR to make reasonable efforts to “prevent removal or to make it possible for a
child to return to the care of his or her parent(s) safely”). Given that petitioner could not comply
with these basic requests, it is clear that additional services were not warranted. This is especially
true in light of the fact that petitioner represented to his counsel on two separate occasions that he
would attend substance abuse treatment, but failed to provide any corroboration for his enrollment
in such treatment. Accordingly, petitioner is entitled to no relief.

        All of this evidence similarly supports the circuit court’s termination of petitioner’s
parental rights. Petitioner argues that, because he was not allowed to participate in services, the
circuit court could not have found that there was no reasonable likelihood the conditions of abuse
and neglect could be substantially corrected. We do not agree because, as outlined above, petitioner
was provided the opportunity to participate in the most basic services available, yet failed to
establish a single instance of compliance. According to West Virginia Code § 49-4-604(c)(2), a
situation in which there is no reasonable likelihood that conditions of neglect or abuse can be
substantially corrected includes one in which “[t]he abusing parent . . . [has] willfully refused or
[is] presently unwilling to cooperate in the development of a reasonable family case plan designed
to lead to the child’s return to their care, custody and control[.]” The record supports a finding that
there was no reasonable likelihood the conditions of abuse and neglect could be corrected in the
near future, based on petitioner’s complete failure to participate in any aspect of the proceedings,
including the formulation of a family case plan designed to reunify him with the child.

        Further, West Virginia Code § 49-4-604(b)(6) permits a circuit court 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 welfare
of the child. As set forth above, the circuit court had ample evidence upon which to base its finding
that there was no reasonable likelihood the conditions of neglect could be substantially corrected.
Similarly, there was ample evidence to support the circuit court’s finding that termination of
petitioner’s parental rights was necessary for the child’s welfare, especially considering the drastic
medical condition of the child and petitioner’s absence following her birth.

       This Court has held as follows:

              “Termination 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). Further, “[c]ourts are not
required to exhaust every speculative possibility of parental improvement . . . where it appears that
the welfare of the child will be seriously threatened.” Cecil T., 228 W. Va. at 91, 717 S.E.2d at

                                                  6
875, syl. pt. 4 (quoting syl. pt. 1, in part, In re R.J.M., 164 W. Va. 496, 266 S.E.2d 114 (1980)).
Based on the foregoing, it is clear that substantial evidence existed to support these findings.
Accordingly, we find no error in the circuit court’s termination of petitioner’s parental rights.

        Finally, petitioner argues that the circuit court erred in ordering that he have no contact
with the child following disposition. In support of this assignment of error, petitioner simply
reiterates arguments provided in support of his preceding assignment of error, such as his
allegation that he was denied services and that, by denying him contact with his child during the
proceedings, he was “improperly denied the opportunity to produce evidence that contact with his
child would be in said child’s best interests.” These arguments are not compelling. As petitioner
acknowledges,

                “[w]hen parental rights are terminated due to neglect or abuse, the circuit
       court may nevertheless in appropriate cases consider whether continued visitation
       or other contact with the abusing parent is in the best interest of the child. Among
       other things, the circuit court should consider whether a close emotional bond has
       been established between parent and child and the child’s wishes, if he or she is of
       appropriate maturity to make such request. The evidence must indicate that such
       visitation or continued contact would not be detrimental to the child’s well being
       and would be in the child’s best interest.” Syl. Pt. 5, In re Christina L., 194 W.Va.
       446, 460 S.E.2d 692 (1995).

Syl. Pt. 11, In re Daniel D., 211 W. Va. 79, 562 S.E.2d 147 (2002). Petitioner admits that he did
not have a bond with the child, although he argues that this lack of bonding was created by the
DHHR’s inappropriate actions in the case. Given that petitioner has failed to establish any error
on the part of the circuit court related to these proceedings, it is clear that this argument has no
merit. Because petitioner had no bond with the child, we find no error in the circuit court’s order
denying contact between petitioner and the child following disposition.

      For the foregoing reasons, we find no error in the decision of the circuit court, and its
October 25, 2018, order is hereby affirmed.

                                                                                         Affirmed.

ISSUED: April 19, 2019


CONCURRED IN BY:

Chief Justice Elizabeth D. Walker
Justice Margaret L. Workman
Justice Tim Armstead
Justice Evan H. Jenkins
Justice John A. Hutchison




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