                                                      STATE OF WEST VIRGINIA 

                                                    SUPREME COURT OF APPEALS

                                                                                         FILED
In re L.L.                                                                             April 9, 2018
                                                                                     EDYTHE NASH GAISER, CLERK
No. 17-0950 (Ohio County 16-CJA-129)                                                 SUPREME COURT OF APPEALS
                                                                                         OF WEST VIRGINIA 




                                                          MEMORANDUM DECISION
        Petitioner Mother, A.C., by counsel P. Zachary Stewart, appeals the Circuit Court of
Ohio County’s September 19, 2017, order terminating her parental rights to L.L.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 order. The guardian ad litem (“guardian”),
Joseph J. Moses, 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 (1) failing to hold the dispositional hearing
within thirty days of the termination of petitioner’s post-adjudicatory improvement period, (2)
failing to order the DHHR to file a unified child and family case plan pursuant to West Virginia

                                                            
              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, petitioner’s counsel filed the appellate brief in accordance with Rule
10(c)(10)(b) of the West Virginia Rules of Appellate Procedure, which provides that

              [i]n extraordinary circumstances, if counsel is ethically compelled to disassociate
              from the contentions presented in the brief, counsel must preface the brief with a
              statement that the brief is filed pursuant to Rule 10(c)(10)(b). Counsel should not
              inject disclaimers or argue against the client’s interests. If counsel is ethically
              compelled to disassociate from any assignments of error that the client wishes to
              raise on appeal, counsel must file a motion requesting leave for the client to file a
              pro se supplemental brief raising those assignments of error that the client wishes
              to raise but that counsel does not have a good faith belief are reasonable and
              warranted.

Per this Rule, petitioner’s counsel filed a motion requesting leave for petitioner to file a pro se
supplemental brief. This motion was granted, and petitioner filed a supplemental pro se brief on
December 6, 2017.

        Finally, petitioner does not raise a specific assignment of error concerning the circuit
court’s termination of her parental rights.
                                                                   1

 
Code § 49-4-408; (3) weighing evidence from the visitation provider; and (4) failing to properly
weigh the totality of the 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 August of 2016, the DHHR filed an abuse and neglect petition that alleged petitioner
abused the child by virtue of the fact that L.L. was born with Subutex, marijuana, and
methamphetamine in her system. The child was initially discharged from the hospital shortly
after birth, but was later readmitted and treated for symptoms of drug withdrawal, among other
issues. Ultimately, the child required the administration of morphine to ease her symptoms. The
petition further alleged that petitioner previously voluntarily relinquished her parental rights to
two older children in order to avoid termination of her parental rights upon allegations of
substance abuse. Finally, the petition alleged that the father abused and neglected the child by
virtue of his substance abuse.

         Following an adjudicatory hearing in December of 2016, petitioner was adjudicated of
abuse and neglect based upon her substance abuse. Thereafter, the circuit court granted petitioner
a post-adjudicatory improvement period in January of 2017. According to the order granting the
improvement period, petitioner was required to “rectify the conditions of abuse and neglect, as
previously adjudicated,” by complying with the following terms and conditions, among others:
(1) maintain sobriety from alcohol and illicit drugs; (2) participate in random drug screening as
directed by the DHHR; (3) exhibit negative test results on the random drug and alcohol screens;
(4) not knowingly associate with persons who actively abuse drugs and/or alcohol; (5) actively
pursue treatment and counseling for any drug addiction or substance abuse issues from which she
may suffer; (6) participate in individual therapy sessions to address her mental health issues; (7)
maintain suitable housing and employment; (8) actively participate in supervised visitation, adult
life skills classes, and parenting classes; (9) attend all court hearings and multidisciplinary team
(“MDT”) meetings, unless excused; (10) provide for the child’s physical, emotional, and health
needs at all times; and (11) obey all state and federal laws.

        In February of 2017, the circuit court held a review hearing, which petitioner failed to
attend, although she was represented by counsel. In May of 2017, the circuit court held another
review hearing. According to the DHHR, petitioner provided screens positive for alcohol and
complained about the frequency with which she was required to submit to screening. At a
subsequent hearing, the circuit court was informed that petitioner admitted to drinking. At a
status hearing in July of 2017, petitioner failed to appear due to her arrest for shoplifting.2 On
appeal, petitioner alleges that the circuit court terminated her improvement period at this hearing,
although she acknowledges that the termination was “not explicitly stated in the . . . [o]rder from
the hearing.” According to the DHHR, petitioner’s improvement period was set to expire on July

                                                            
              2
                  Petitioner was represented by counsel at this hearing.
                                                               2

 
27, 2017, and the circuit court instead decided to let the improvement period conclude naturally.
Regardless, it is uncontroverted that petitioner’s post-adjudicatory improvement period ended no
later than July 27, 2017. Later in July of 2017, petitioner was again arrested for shoplifting.
According to the DHHR, petitioner attempted to steal alcohol during both of the incidents for
which she was arrested during her improvement period.

        On September 13, 2017, the circuit court held a dispositional hearing. Four days prior to
the hearing, the DHHR filed a case plan, to which petitioner did not object.3 The provider who
supervised petitioner’s visitation with the child was unable to attend the hearing due to a health
emergency. Both the DHHR and petitioner listed the provider as a witness for disposition.
Instead of rescheduling the hearing, the parties agreed to admit the provider’s records into
evidence, despite his inability to testify to them. According to the provider’s documents,
petitioner continued to exhibit issues with decision making that placed the child at risk. The
provider further noted petitioner’s poor decision making in regard to alcohol abuse and domestic
violence. The circuit court further heard testimony regarding petitioner’s positive screens,
criminal activity during the improvement period, and involvement with violent partners.
Petitioner testified and failed to take responsibility for these issues. Accordingly, the circuit court
found there was no reasonable likelihood the conditions of abuse and neglect could be
substantially corrected and that termination was necessary for the child’s welfare before
terminating petitioner’s parental rights.4 It is from the dispositional order that petitioner appeals.

              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

                                                            
              3
         Although petitioner points out that the DHHR filed its case plan four days prior to
disposition instead of the five days prior required by West Virginia Code § 49-4-604(a), she does
not contest the fact that she failed to object to the untimely filing and, further, does not assert this
failure as a discrete assignment of error in either brief submitted on her behalf. She further
presents no argument that could fairly be construed as applying to this issue. Accordingly, we
decline to address this issue on appeal, both because it is not properly briefed and because the
issue was not submitted to the lower court. See W.Va. R. App. P. 10(c)(3) (“[t]he brief opens
with a list of the assignments of error that are presented for review . . . . If the issue was not
presented to the lower tribunal, the assignment of error must be phrased in such a fashion as to
alert the Court to the fact that plain error is asserted.”)
              4
        The father’s parental rights were also terminated. The child remains in a foster home
with a permanency plan of adoption therein.
                                                               3

 
              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, the Court finds
no error in the proceedings below.

       First, petitioner argues that the circuit court erred in failing to hold the dispositional
hearing within thirty days of the expiration of her post-adjudicatory improvement period.5
According to petitioner, this delay not only violated Rule 32(a) of the Rules of Procedure for
Child Abuse and Neglect Proceedings, but further prejudiced her because it resulted in the
unavailability of her visitation provider. Petitioner argues that, had the provider’s testimony
mirrored his reports, the circuit court may have come to a different dispositional resolution. We
disagree.

              This Court has previously held that

                      “[w]here it appears from the record that the process established by the
              Rules of Procedure for Child Abuse and Neglect Proceedings and related statutes
              for the disposition of cases involving children [alleged] to be abused or neglected
              has been substantially disregarded or frustrated, the resulting order . . . will be
              vacated and the case remanded for compliance with that process and entry of an
              appropriate . . . order.” Syllabus point 5, in part, In re Edward B., 210 W.Va. 621,
              558 S.E.2d 620 (2001).

Syl. Pt. 3, In re Emily G., 224 W.Va. 390, 686 S.E.2d 41 (2009). Under the limited
circumstances of this case, we decline to find that the circuit court’s failure to strictly comply
with the thirty-day requirement in Rule 32(a) constitutes a substantial disregard or frustration of
the applicable rules such that vacation of the dispositional order is warranted. This is especially
true in light of the fact that petitioner waived her right to assert these issues on appeal.

        “‘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, 679
S.E.2d 650 (2009). There is no indication in the record that petitioner objected to the holding of
the dispositional hearing for failure to comply with Rule 32(a). Moreover, it is important to note
that any alleged prejudice due to the provider’s unavailability, while potentially attributable to
the circuit court’s delay, was remediable by continuing the dispositional hearing to secure the
provider’s attendance. The circuit court was amenable to such a continuance, but petitioner
agreed to proceed with the hearing and permit the introduction of the provider’s records. Thus, it

                                                            
              5
         As noted above, it is unclear from the record whether the circuit court terminated
petitioner’s improvement period subsequent to a hearing in July of 2017, or permitted it to expire
naturally on July 27, 2017. Either way, it is uncontroverted that the circuit court did not hold the
dispositional hearing until September 13, 2017, more than thirty days after July 27, 2017.
                                                               4

 
is disingenuous for petitioner to now allege on appeal that she was prejudiced. For these reasons,
we decline to address this error on appeal.

        Next, petitioner argues that the circuit court erred in failing to require the DHHR to
develop and file a unified child and family case. According to West Virginia Code § 49-4-
408(a), the case plan must be filed “within thirty days of the inception of the improvement
period[.]” Here, it is undisputed that no such case plan was filed. However, the record is also
clear that the circuit court set forth numerous terms and conditions for petitioner’s improvement
period, to which petitioner did not object, that were in furtherance of the goal that petitioner
“rectify the conditions of abuse and neglect, as previously adjudicated[.]” With regard to family
case plans, this Court has stated that

                “[t]he purpose of the family case plan as set out in W.Va. Code [§] 49-6D-
       3(a) [now W.Va. Code § 49-4-408(a)] . . . is to clearly set forth an organized,
       realistic method of identifying family problems and the logical steps to be used in
       resolving or lessening these problems.” Syl. Pt. 5, State ex rel. Dep’t of Human
       Services v. Cheryl M., 177 W. Va. 688, 356 S.E.2d 181 (1987).

Syl. Pt. 2, In re Desarae M., 214 W.Va. 657, 591 S.E.2d 215 (2003).

        In support of her argument, petitioner relies heavily on our prior holding in Desarae M.
to argue that there were no standards by which to gauge her progress through the improvement
period. We do not agree, as the facts of petitioner’s case differ substantially from those in
Desarae M. Most notably, the mother in that case was complying with services during the
improvement period at issue and was actively prejudiced by the DHHR’s failure to timely file a
family case plan. Specifically, the mother in that case “allege[d] that personnel shortages within
[the] DHHR limited her success during her improvement period.” Desarae M., 214 W.Va. at
661, 591 S.E.2d at 219. These shortages resulted in the DHHR’s failure to transport the children
to the designated location for visitation after DHHR caseworkers terminated their employment
and the DHHR failed to make alternate arrangements. Id. Moreover, the DHHR requested that
the mother cease her counseling by one provider in favor of counseling with a different provider
who subsequently went on vacation for several weeks, thereby causing the mother to miss
services. Id.

        In the present case, the record is clear that the DHHR’s failure to timely file a case plan
did not prejudice petitioner. In fact, the DHHR accommodated petitioner extensively, despite the
fact that she showed only limited compliance with the terms and conditions of her improvement
period. While it is true that petitioner was able to attain some of the circuit court’s goals, the
record further shows that petitioner missed hearings without an excuse, continued to abuse
alcohol, and was arrested twice for shoplifting alcohol. Moreover, the record also shows that,
instead of taking responsibility for her actions, petitioner blamed others for her situation.

        At disposition, the circuit court found that petitioner violated numerous terms of her
improvement period and failed to attend many of the child’s “numerous and frequent medical
appointments” that resulted from her “significant and profound medical problems[.]” As a result,
the circuit court found that petitioner was “simply incapable of providing for” the child’s needs

                                                5

 
or otherwise able to make the child “the priority in her life.” While petitioner argues that the
DHHR’s lack of a family case plan left her with no clear path to reunification, the record is clear
that petitioner was well aware of what was required of her in order to remedy the conditions of
abuse and neglect in the home. As such, under the limited circumstance of this case, the DHHR’s
failure to timely file a family case plan had no prejudicial impact on petitioner’s failure to
remedy the conditions of abuse and neglect in the home.

         Finally, we find no error in the circuit court’s consideration of certain evidence.
According to petitioner, the circuit court failed to acknowledge the weight of the supervision
provider’s notes and reports, given that the provider would have spent the most time with
petitioner during the proceedings. First, it is important to note that petitioner ignores the fact that
the provider’s reports included significant concerns about her ability to properly parent the child.
While petitioner is correct that the provider discussed her compliance with services and her
ability to care for the child during supervised visitation, among other positive factors, she fails to
acknowledge that the provider also indicated that petitioner continued to exhibit issues with
decision making and her ability “to evaluate situations before making decisions that could
negatively affect the safety of her home environment.” This ultimately led the provider to
conclude that petitioner had not obtained the skills necessary to secure the child’s safety absent
supervision. Accordingly, we cannot find that the circuit court improperly weighed the evidence
at issue or that any of its findings in regard to this evidence were clearly erroneous such that they
should be set aside. Cecil T., 228 W.Va. at 91, 717 S.E.2d at 875, Syl. Pt. 1. As such, we find no
error in this regard.

        Similarly, we find no error in the circuit court’s general weighing of the evidence.
According to petitioner, the circuit court gave an improper weight to certain issues, such as her
arrests and failed alcohol screens, without giving proper consideration to her negative drug
screens, continued substance abuse treatment, and stable housing, among other issues. According
to petitioner, given the fact that the DHHR failed to properly file a case plan, the circuit court
should have given more weight to her compliance with services. However, petitioner fails to
recognize that “[i]n making the final disposition in a child abuse and neglect proceeding, the
level of a parent’s compliance with the terms and conditions of an improvement period is just
one factor to be considered. The controlling standard that governs any dispositional decision
remains the best interests of the child.” Syl. Pt. 4, In re B.H., 233 W.Va. 57, 754 S.E.2d 743
(2014). While petitioner’s compliance with certain terms and conditions of her improvement
period was admirable, the record supports the circuit court’s finding that petitioner ultimately
failed to establish that she could properly care for the child or otherwise remedy the conditions of
abuse and neglect. As such, we find that petitioner is entitled to no relief in this regard.

      For the foregoing reasons, we find no error in the decision of the circuit court, and its
September 19, 2017, order is hereby affirmed.


                                                                                            Affirmed.

ISSUED: April 9, 2018



                                                  6

 
CONCURRED IN BY:

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

DISSENTING:
Justice Menis E. Ketchum
        I would remand this case for further development. The circuit judge failed to require the
DHHR to formulate and file a case plan following the granting of the mother’s post-adjudicatory
improvement period and failed to hold the dispositional hearing within thirty days of the
expiration of that improvement period. I believe these failures clearly violate West Virginia Code
§ 49-4-408(a) and Rule 32(a) of the Rules of Procedure for Child Abuse and Neglect
Proceedings.




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