                            STATE OF WEST VIRGINIA

                          SUPREME COURT OF APPEALS


Melissa C.
Plaintiff Below, Petitioner                                                       FILED
                                                                                May 20, 2016
vs) No. 15-0863 (Kanawha County 14-C-567)                                      RORY L. PERRY II, CLERK
                                                                             SUPREME COURT OF APPEALS
                                                                                 OF WEST VIRGINIA
West Virginia Department of Health & Human
Resources; Bureau of Children & Families
Protective Services, a/k/a Child Protective
Services; Douglas Robinson, Commissioner;
Toby Lester, Policy Director; and Tammy
Bailey, Investigator/Agent
Defendants Below, Respondents


                              MEMORANDUM DECISION
        Petitioner Melissa C.1, by counsel Todd W. Reed, appeals the July 7, 2015, order of the
Circuit Court of Kanawha County granting respondents’ motion to dismiss. Respondents West
Virginia Department of Health & Human Resources (“DHHR”), Bureau of Children & Families
Protective Services a/k/a Child Protective Services (“CPS”), Douglas Robinson, Toby Lester,
and Tammy Bailey, by counsel Kelly C. Morgan and Betsy L. Stewart, filed a response in
support of the circuit court’s order.

        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.

       Petitioner’s claims herein arise from respondents’ identification of petitioner as a
“substantiated child abuser” in the Families and Children Tracking System (“FACTS”).2 While

       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); In re Jeffrey R.L., 190 W.Va. 24, 435 S.E.2d 162 (1993); State v.
Edward Charles L., 183 W.Va. 641, 398 S.E.2d 123 (1990).
       2
        FACTS system is a statewide automated child welfare information system established by
the West Virginia Department of Health and Human Resources (“DHHR”) for administration of
Title IV-E child welfare programs. FACTS was designed and developed “based on the
(continued . . .)
                                                1

petitioner acknowledges that, in 2000-2003, respondents investigated multiple allegations that
petitioner’s children were abused and/or neglected by petitioner’s former boyfriend (and father
of her youngest child), she argues that there were no substantiated allegations of child abuse
made against her to justify her identification as a substantiated child abuser in the FACTS
system.

        It was not until February of 2012 that petitioner discovered she had been identified as a
substantiated child abuser in the FACTS system, when a routine background check (completed in
conjunction with an employment application) revealed the information.3 Upon learning of her
identification as a child abuser, petitioner filed an administrative grievance against the DHHR. A
hearing was held on the grievance on March 27, 2012, after which the grievance was denied.4

        On March 20, 2014, Petitioner filed the instant claims against respondents in Kanawha
County Circuit Court. In her complaint, petitioner alleged intentional infliction of emotional
distress, negligent infliction of emotional distress, deprivation of her rights, and false light.
Petitioner sought compensatory damages (namely those associated with the loss of her
employment), immediate removal of her name from the FACTS system, punitive damages, and
costs. On August 4, 2014, respondents filed a motion to dismiss petitioner’s claims. In its
motion to dismiss, respondents argued that they were entitled to qualified immunity as to
petitioner’s claims. Petitioner filed a response to the motion to dismiss and a hearing was held on
the motion on October 14, 2014. By order entered December 1, 2014, the circuit court denied
respondents’ motion to dismiss.

        On February 27, 2015, respondents filed a second motion to dismiss, in which they
argued that petitioner’s claims were not proper as they were filed at a time outside of the
applicable statute of limitations. Further, respondents argued that the circuit court lacked
jurisdiction over petitioner’s claims because petitioner failed to provide notice of her claims to
respondents (as required by West Virginia Code § 55-17-3(a)(1)). On May 19, 2015, a hearing
was held on respondents’ motion to dismiss. On July 7, 2015, the circuit court entered its order
granting respondents’ motion to dismiss on the sole ground of petitioner’s failure to provide pre-
suit notice to respondents. The circuit court declined to rule on respondents’ statute of limitations
argument and noted that such an issue would be addressed when and if the case was refiled by


requirements established by the U.S. Department of Health and Human Services, Administration
for Children and Families,” to support the state’s federal reporting for adoption and foster care
analysis and reporting system as well as the National Child Abuse and Neglect Data System.
       3
         As a result of the identification of her as a substantiated child abuser, petitioner alleges
that she was terminated from her paid position as a home health provider for her daughter.
Previous to her termination, petitioner had worked, without incident, as a home health provider
for her daughter through West Virginia Waiver Services.
       4
        The hearing examiner found that the DHHR followed policy and regulations in
investigating petitioner and making the report to FACTS that petitioner was a substantiated child
abuser.


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petitioner. It is from the July 7, 2015, order that petitioner now appeals.

        “Appellate review of a circuit court’s order granting a motion to dismiss a complaint is de
novo.” Syl. Pt. 2, State ex rel. McGraw v. Scott Runyan Pontiac-Buick, 194 W.Va. 770, 461
S.E.2d 516 (1995). “The trial court, in appraising the sufficiency of a complaint on a Rule
12(b)(6) motion, should not dismiss the complaint unless it appears beyond doubt that the
plaintiff can prove no set of facts in support of his claim, which would entitle him to relief.
Conley v. Gibson, 355 U.S. 41, 45-6, [78 S.Ct. 99, 2 L.E.2d 80] (1957).” Syl. Pt. 3, Chapman v.
Kane Transfer Co., Inc., 160 W.Va. 530, 236 S.E.2d 207 (1977).

        On appeal, petitioner asserts two assignments of error. First she argues that the circuit
court erred in granting respondents’ motion to dismiss because she was entitled to offer evidence
to support her constitutionally protected claims. Second, petitioner contends that the circuit court
erred in dismissing her claims by applying a statute of limitations to her constitutional and
equitable claims. We will address each of petitioner’s assignments of error in turn.

        In her first assignment of error, petitioner contends that she was denied fundamental
constitutional protections when the circuit court ignored all the “operative facts” alleged in her
complaint and granted summary judgment to respondents. Petitioner argues that her
constitutional rights were violated in three ways: 1) she was not presented with a charging
instrument setting forth any allegations of abuse and neglect; 2) she was not provided a hearing
on the issue of whether she abused or neglected her children; and 3) she was not assigned or
provided competent counsel to assist and defend her in any abuse and neglect proceeding.

        Respondents argue that the circuit court’s dismissal of petitioner’s claims was proper as
petitioner did not allege any facts that could have stated a claim upon which relief would be
granted because petitioner admittedly failed to provide the mandatory pre-suit notice to
respondents. As such, the circuit court lacked jurisdiction over petitioner’s claims and such
claims were properly dismissed. Based upon our review of the record before us, we agree.

        We begin by examining West Virginia Code § 55-17-3(a)(1), which provides, in pertinent
part, that

               [n]otwithstanding any provision of law to the contrary, at least
               thirty days prior to the institution of an action against a
               government agency, the complaining party or parties must provide
               the chief officer of the government agency and the Attorney
               General written notice, by certified mail, returned receipt
               requested, of the alleged claim and the relief desired. . . .

         This Court has previously addressed pre-suit notification requirements and held that
“[c]ompliance with the pre-suit notification provisions set forth in W. Va. Code § 55-17-3(a)
(2002) is a jurisdictional pre-requisite for filing an action against a State agency . . .” Syl. Pt. 3,
in part, Motto, et al. v. CSX Transportation, Inc., et al, 220 W.Va. 412, 647 S.E.2d 848 (2007).

       In the instant case, petitioner does not dispute that her complaint was an “action” as

                                                  3

defined by West Virginia Code § 55-17-2(1),5 or that the respondents were a government agency
or individuals working in their official capacities for a government agency under West Virginia
Code § 55-17-2(2).6 Further, there is no dispute that petitioner did not provide the required
notice. As such, the circuit court’s dismissal of petitioner’s action against respondents was
mandatory and the circuit court’s July 7, 2015, order must be affirmed.

        Petitioner’s second assignment of error is based upon the erroneous premise that the
circuit court dismissed petitioner’s claims herein by application of a statute of limitations. A
review of the record reveals that during the hearing on respondents’ second motion to dismiss,
the circuit court explicitly ruled that respondents’ “ . . . motion on the grounds of pre-suit, it’s
granted. I’m not going to get into the statute of limitations at this time. If the case gets refiled or
whatever, then you can go there.” Therefore, in accord with our long held precedent, because this
issue was not decided by the trial court, the same is not properly before this Court for review.7

       For the foregoing reasons, we affirm.

                                                                                            Affirmed.

ISSUED: May 20, 2016

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




       5
       West Virginia Code § 55-17-2(1) defines action as a “proceeding instituted against a
governmental agency in a circuit court . . . .”
       6
        West Virginia Code § 55-17-2(2) defines government agency as a “constitutional officer
or other public official named as a defendant or respondent in his or her official capacity, or a
department, division, bureau, board, commission or other agency . . . .”
       7
         See Syl. Pt. 2, Sands v. Security Trust Co., 143 W.Va. 522, 102 S.E.2d 733 (1958),
(“This Court will not pass on a nonjurisdictional question which has not been decided by the trial
court in the first instance.”)


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