                             STATE OF WEST VIRGINIA
                           SUPREME COURT OF APPEALS

In re L.D.
                                                                                     FILED
No. 18-1064 (Hampshire County 17-JA-56)                                           June 12, 2019
                                                                                EDYTHE NASH GAISER, CLERK
and                                                                             SUPREME COURT OF APPEALS
                                                                                    OF WEST VIRGINIA


In re J.D.

No. 19-0070 (Hampshire County 18-JA-50)




                               MEMORANDUM DECISION


        Petitioner Mother C.P., by counsel Jeremy B. Cooper, appeals the Circuit Court of
Hampshire County’s October 4, 2018, order terminating her parental rights to L.D. and January 3,
2019, order terminating her parental rights to J.D.1 The West Virginia Department of Health and
Human Resources (“DHHR”), by counsel Lee Niezgoda filed a response in support of the circuit
court’s orders. The guardian ad litem, Joyce E. Stewart, filed a response on behalf of the children
in support of the circuit court’s orders. On appeal, petitioner argues that the circuit court erred in
terminating her parental rights without making a finding as to whether she was provided necessary
services under the Americans with Disabilities Act (“ADA”) when the DHHR openly refused to
provide services intended to attain reunification, and basing termination on factual findings that
did not comport with the record. Finally, petitioner alleges that she was deprived of effective
assistance of counsel during the proceedings below.

       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.

       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).


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        On August 23, 2017, the DHHR filed an abuse and neglect petition concerning L.D.
alleging that petitioner’s mental health issues prevented her from being able to adequately care for
the child. The DHHR alleged that petitioner had schizoaffective disorder and post-traumatic stress
disorder and that the Child Protective Services (“CPS”) worker suspected that she was not taking
her medication. Additionally, the DHHR alleged that, on one occasion, while petitioner and the
father smoked marijuana together, petitioner abruptly cut her own wrist and stabbed the father,
cutting his hand in four places. When police and emergency medical service personnel arrived,
petitioner assaulted them as well. She was subsequently hospitalized due to her psychiatric issues.
Petitioner later explained that she did not remember much of the incident with the father and
admitted that her “meds were off.” Upon filing the instant petition, the DHHR requested only legal
custody of the child, with L.D. continuing in the care of her father. The DHHR requested that
petitioner have no visitation with the child pending further order of the circuit court. On August
29, 2017, the circuit court held a status hearing which petitioner did not attend due to her
hospitalization, but she was represented by counsel. The circuit court ordered that L.D. remain in
the legal custody of the DHHR and the physical custody of her father.

        Petitioner appeared for a hearing on September 19, 2017, and moved for visitation with
L.D., which the circuit court granted so long as the visits were supervised by the father. The
adjudicatory hearing was continued. However, prior to the next adjudicatory hearing, the DHHR
filed an amended petition alleging that the father repeatedly left the child in the unsupervised care
of petitioner in violation of the circuit court’s previous order. The circuit court held a final
adjudicatory hearing on November 2, 2017, during which petitioner stipulated that her mental
health issues led her to neglect L.D., that she attempted to cut the father, and that she drank dish
liquid while L.D. was in her care. Petitioner moved for a post-adjudicatory improvement period
and the circuit court ordered the multidisciplinary team (“MDT”) to meet and create a case plan.

         In December of 2017, the circuit court held a review hearing to approve the family case
plan. The DHHR advised the circuit court that it was in agreement with the MDT to grant petitioner
an improvement period for the purpose of determining whether visitation would be appropriate.
Petitioner expressed her wishes to be reunited with the child; however, the DHHR opposed
reunification. Counsel for petitioner explained to her that the disposition of the matter was
ultimately up to the circuit court to decide. Thereafter, under oath, petitioner agreed to the terms
of the case plan as presented. She was granted a post-adjudicatory improvement period. On March
12, 2018, the circuit court held a review hearing in regard to petitioner’s post-adjudicatory
improvement period. The DHHR reported that petitioner failed to attend her psychological
evaluation at Eastern Psychological Associates, but that she subsequently secured her own
evaluator and completed a psychological evaluation with that provider. However, the MDT had
not yet met to discuss the recommendations of that evaluation. Petitioner advised the circuit court
that she was working full time, had a driver’s license and a vehicle, and that she wanted to prove
to the circuit court that she was stable and could raise the child. She also explained that she tried
to obtain social security disability benefits due to her mental health issues and sciatica, but was
denied. At the conclusion of the hearing, the circuit court ordered that petitioner’s post-
adjudicatory improvement period continue. The circuit court held a review hearing on April 9,
2018, during which the MDT recommended that petitioner’s improvement period continue. The
circuit court found that the DHHR was “making reasonable efforts to achieve permanent placement



                                                 2
for L.D., by providing services to [petitioner] for reunification of the child with a biological
parent.”

         On May 7, 2018, the circuit court held a dispositional hearing regarding the father and
ultimately terminated his parental rights to L.D. Petitioner did not appear for this hearing and it
was reported that her whereabouts were unknown at that time. In June of 2018, petitioner wrote a
letter to the circuit court explaining that she had obtained employment and “maintained compliance
with drug court as well as counseling services during this time.” She further alleged that she did
not “feel that either the DHHR or [her] lawyer have made ‘diligent efforts’ to encourage and
strengthen the parental bond” due to the DHHR stating that it was their goal to terminate
petitioner’s parental rights “in direct conflict with higher case law.” Lastly, petitioner alleged that
the DHHR ignored her requests to install a safety monitor in her home, a reasonable means of
accommodation of her disability. On June 13, 2018, the DHHR filed a revised case plan requesting
the termination of petitioner’s parental rights due to her failure to safely manage her mental health
issues. The case plan also noted that the services recommended by petitioner’s updated
psychological evaluation were implemented, but that petitioner failed to fully comply with those
services as well as the other terms and conditions of her improvement period, including drug
screens, parenting and adult life skills training, and participation in visitation with L.D.

         In July of 2018, petitioner gave birth to J.D. in a Maryland hospital. Petitioner failed to
inform the DHHR that she was pregnant and she placed the child in the care of her parents once
released from the hospital. After the DHHR became aware of the birth of J.D., a second amended
petition was filed and the child was placed in the legal and physical custody of the DHHR. On
August 20, 2018, the circuit court held an adjudicatory hearing regarding J.D. and a dispositional
hearing regarding petitioner’s parental rights to L.D. In its October 4, 2018, order, the circuit court
found that petitioner neglected J.D. by attempting to hide her pregnancy and the birth of the child,
by failing to have proper prenatal care during the pregnancy, and by failing to take proper steps to
secure a medical card so that the child could receive treatment for his double cleft palate. The
circuit court noted that petitioner previously disclosed a history of abuse and neglect in her parents’
home and inappropriately placed the child with her parents. The circuit court found that petitioner,
“by her own actions . . . demonstrated that she did not feel she was capable of caring for her son.”
The circuit court also found that petitioner demonstrated an inadequate capacity to solve the
problems of abuse and/or neglect on her own or with help and that petitioner failed to respond or
follow through with the terms of a reasonable family case plan and rehabilitative efforts to address
her mental health issues and deficiencies. Specifically, petitioner “failed to consistently participate
in and avail herself of the following services, which were offered to her in an effort to remedy the
[circuit c]ourt’s findings of abuse and/or neglect: Adult Life Skills, Individualized Parenting
Classes, and services offered through South Branch Valley Day Report Center.” The circuit court
further found that petitioner failed to manage her mental health issues, which threatened the safety,
health, and welfare of the children. The circuit court specifically noted that “while [petitioner] has
participated in counseling services for an extended period of time, she is unable to successfully
manage her mental health needs and maintain emotional and mental stability on a long-term basis.”
In sum, the circuit court found no reasonable likelihood that petitioner could substantially correct
the conditions of abuse and neglect in the near future and that the termination of her parental rights
to L.D. was necessary for the child’s welfare. Petitioner’s parental rights to L.D. were terminated
in the circuit court’s October 4, 2018, dispositional order.

                                                  3
        On November 13, 2018, the circuit court held a dispositional hearing regarding petitioner’s
parental rights to J.D. and addressed placement for the children. The circuit court entered a
dispositional order on January 3, 2019, and reiterated the findings in the previous dispositional
order. Additionally, the circuit court found that there was no substantial improvement in
petitioner’s circumstances since the termination of her parental rights to L.D. In fact, her
circumstances worsened since the prior dispositional hearing, as she had been terminated from
Home Base services due to her noncompliance with service providers and failure to attend multiple
visits with the child. In regard to the visits she did attend, the circuit court noted that the visits were
“replete with instances of noncompliance and lack of progress in implementing parenting skills
training provided” in two prior CPS cases. Additionally, petitioner “failed to bring necessary items
such as food and diapers; and, she has demonstrated an inability to handle the behaviors” of the
child. The circuit court found that petitioner “requires ongoing psychiatric treatment with
medications and therapy support to maintain her emotional stability, improve her self-esteem,
address anger management, and, in order to develop problem resolution skills.” Further, the circuit
court noted that petitioner was “inconsistent with following through with and availing herself of
treatment and services, to include services which were left in place to assist” her even after her
parental rights to L.D. were terminated and while the case remained open to address her parental
rights to the minor child, J.D. The circuit court found no reasonable likelihood that petitioner could
substantially correct the conditions of abuse and neglect in the near future and that J.D.’s welfare
necessitated the termination of her parental rights, especially in light of his tender age and his
“paramount need of safety, stability, continuity, and permanency.” The circuit court terminated
petitioner’s parental rights to J.D. in its January 3, 2019, dispositional order.2 Petitioner appeals
the October 4, 2018, and January 3, 2019, dispositional orders terminating her parental rights to
the children.

        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 our review, this Court finds
no error in the proceedings below.

        The children’s father’s parental rights were terminated below. According to respondents,
        2

the permanency plan for the children is adoption in their current placement.

                                                    4
        First, petitioner argues that the circuit court erroneously terminated her parental rights
without making a finding as to whether she was provided necessary services under the ADA.3
Petitioner asserts that no findings regarding ADA compliance were made following the
preliminary hearing pursuant to West Virginia Code § 49-4-602(b). Yet, petitioner failed to raise
any objection to, or otherwise challenge, the circuit court’s alleged lack of findings during the
proceedings. In fact, she did not raise any ADA issues until she wrote a letter to the circuit court
in June of 2018, nearly a year into the proceedings, and still made no mention of the circuit court’s
failure to make certain findings. “‘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). Therefore, we decline to address this argument
on appeal.
        Next, in support of her argument that the circuit court erroneously terminated her parental
rights, petitioner asserts that the DHHR “openly refused to provide services intended to attain
reunification.” In support, petitioner contends that the DHHR “never intended to reunify the
family, and the [c]ircuit [c]ourt was openly aware of that fact.” She also argues that there were no
aggravated circumstances present that would relieve the DHHR of its requirement to make
reasonable efforts to preserve the family. See W. Va. Code 49-4-604(b)(7). Petitioner’s argument
lacks factual basis in the record.
         The record shows that during the December 14, 2018, hearing, the DHHR informed the
circuit court that it was in agreement with the MDT to recommend that petitioner participate in a
post-adjudicatory improvement period to determine what level of contact she should have with the
child, if any. Petitioner expressed her desire for reunification with L.D. and her attorney explained
to her that it was ultimately up to the circuit court to determine the outcome of the case depending
on her level of compliance and ability to improve the conditions of abuse and neglect. Petitioner
agreed to the terms of the family case plan as it was presented. The record shows that petitioner
was afforded services such as drug screens, parenting and adult life skills training, and visitation
with the child. During a review hearing in April of 2018, the MDT recommended that petitioner’s
improvement period continue. Also during this hearing, the circuit court found that the DHHR was
“making reasonable efforts to achieve permanent placement for [L.]D., by providing services to
[petitioner] for reunification of the child with a biological parent.” (Emphasis added). However,
in June of 2018, the DHHR moved for the termination of petitioner’s parental rights due to her
noncompliance with services. The DHHR alleged that petitioner failed to fully participate in the
services recommended by her psychological evaluation, as well as other terms and conditions of
her post-adjudicatory improvement period. Later, following the dispositional hearings, the circuit
court found that petitioner was unable to manage her mental health issues and failed to avail herself
to services during her post-adjudicatory improvement period. This evidence clearly demonstrates


       3
         In support of this argument, petitioner alleges that the circuit court did not hold a
preliminary hearing. However, petitioner does not raise a specific assignment of error regarding
this allegation, nor did she object to the circuit court proceeding to adjudication after she was
served with the petition. Therefore, we will not address this argument on appeal. See Noble, 223
W. Va. at 821, 679 S.E.2d at 653.

                                                 5
that the DHHR provided services aimed at reunification and petitioner failed to consistently
participate in those services. Therefore, we find petitioner is entitled to no relief.
        Petitioner next argues that the circuit court erred in terminating her parental rights “based
on factual findings that did not comport with the record.” Specifically, petitioner alleges that the
circuit court erroneously found that she hid her pregnancy with J.D. from the DHHR because a
DHHR worker testified that she knew of petitioner’s pregnancy about six or seven months into the
pregnancy. Petitioner also argues that the circuit court erroneously found that she placed J.D. in
danger by leaving him with her parents based upon prior disclosures of domestic violence in her
parents’ home. Petitioner misstates the circuit court’s findings. First, the circuit court found that
petitioner “attempted to hide her pregnancy and the circumstances of the birth of the minor child,
J.D.” from the DHHR. (Emphasis added). This finding was supported by petitioner’s own
testimony that she failed to disclose her pregnancy to the DHHR and the MDT, that she went to
Maryland to deliver the child, and that she planned to “sign custody over” to her parents so that
the DHHR would not take the child. In regard to petitioner leaving J.D. with her parents, the circuit
court found that petitioner previously made disclosures regarding her parents, including a history
of domestic violence. Based upon those disclosures, the circuit court found that petitioner
“inappropriately placed the minor child, J.D., with her parents.” Based upon the evidence
presented, we find no error in these findings. Further, the circuit court relied on additional,
substantial evidence to find that petitioner failed to correct the issues of abuse and neglect.
        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. West Virginia Code § 49-4-604(c)(3) provides that a situation in which there is no
reasonable likelihood the conditions of abuse and neglect can be substantially corrected includes
one in which the 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.
        As discussed above, the record shows that petitioner failed to consistently participate in
services. Although she participated in counseling, the circuit court found that she was unable to
“manage her mental health needs and maintain emotional and mental stability on a long-term
basis.” Despite continued services after her parental rights to L.D. were terminated in October of
2018, petitioner’s circumstances only worsened and she was terminated from Home Base services
due to her noncompliance with service providers and failure to attend multiple visits with the
children. “We have previously pointed out that the level of interest demonstrated by a parent in
visiting his or her children while they are out of the parent’s custody is a significant factor in
determining the parent’s potential to improve sufficiently and achieve minimum standards to
parent the child.” In re Katie S., 198 W. Va. 79, 90 n.14, 479 S.E.2d 589, 600 n.14 (1996) (citing
Tiffany Marie S., 196 W. Va. at 228 and 237, 470 S.E.2d at 182 and 191; State ex rel. Amy M. v.
Kaufman, 196 W. Va. 251, 259, 470 S.E.2d 205, 213 (1996)). The visits that she did attend were
problematic as the record shows that petitioner was unable to demonstrate proper parenting skills

                                                  6
or properly handle the children’s behaviors. She also failed to bring necessary items to visits such
as food and diapers.
        Petitioner also asserts that the circuit court ignored the recommendations of her most recent
psychological evaluation, which suggested reunification with additional support to assist her in
controlling her mental illness. However, the recommendation also stated that petitioner would
benefit from parenting training, psychiatric treatment, medication, and therapy, all of which were
provided to petitioner during her post-adjudicatory improvement period. As discussed, petitioner
did not consistently participate in those services. Additionally, the evaluation provided that
petitioner “may at some point” be able to demonstrate emotional stability. However, this prognosis
clarifies that petitioner was unlikely to remedy the conditions of abuse and neglect in the near
future. Based on this evidence, it is clear that there was no reasonable likelihood that petitioner
could substantially correct the conditions of abuse and neglect in the near future and that the
termination of her parental rights was in the children’s best interests. The circuit court specifically
noted that the children’s welfare necessitated the termination of petitioner’s parental rights,
especially in light of J.D.’s young age and his “paramount need of safety, stability, continuity, and
permanency.” As such, we find no error in the circuit court’s termination of petitioner’s parental
rights.
        Lastly, petitioner argues that she was deprived of effective assistance of counsel during the
proceedings below. It is important to note that this Court has never recognized a claim of
ineffective assistance of counsel in an abuse and neglect proceeding and we decline to do so here.
      For the foregoing reasons, we find no error in the decision of the circuit court, and its
October 4, 2018, and January 3, 2019, dispositional orders are hereby affirmed.


                                                                                            Affirmed.




ISSUED: June 12, 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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