                             STATE OF WEST VIRGINIA
                           SUPREME COURT OF APPEALS
                                                                                  FILED
In re T.H.                                                                    January 14, 2019
                                                                               EDYTHE NASH GAISER, CLERK
No. 18-0719 (Mercer County 11-JA-234-MW)                                       SUPREME COURT OF APPEALS
                                                                                   OF WEST VIRGINIA




                              MEMORANDUM DECISION
        Petitioner Mother E.W., by counsel P. Michael Magann, appeals the Circuit Court of
Mercer County’s June 22, 2018, order denying her motion to modify the dispositional order
terminating her custodial rights to the child.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 guardians ad litem (“guardians”), Catherine Bond
Wallace and Andrew Waight, filed a response on behalf of the child in support of the circuit
court’s order. Respondent stepmother E.S., by counsel William O. Huffman, also filed a
response in support of the circuit court’s order. On appeal, petitioner argues that the circuit court
erred in denying her request to restore her custodial rights to the child and by failing to consider
the child’s wishes.

        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 2011, an abuse and neglect petition was filed against petitioner. Upon
removal from petitioner’s home, the child was placed with her father and stepmother. Petitioner
was adjudicated as an abusing parent in 2012 and participated in a post-adjudicatory
improvement period. Subsequently, the circuit court terminated her custodial rights to the child
in 2013.

       In January of 2016, petitioner filed a motion to modify the dispositional order. In support
of her motion, petitioner argued that she had experienced a material change in circumstances in

       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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accordance with West Virginia Code § 49-4-606(a). She explained that she was released from
incarceration and placed on parole in 2014, which she completed in April of 2015; she remained
on probation and was in compliance with the terms of probation; completed a drug treatment
program and had been drug free since 2012; was employed; obtained housing independently; and
maintained regular telephone contact with the child.

         In August of 2017, petitioner filed a supplemental motion to modify the dispositional
order and informed the circuit court that she had remarried. She also informed the circuit court
that, although the father and the stepmother had previously separated, the child continued to live
with her stepmother. However, the father died in June of 2017. She also explained that a
multidisciplinary treatment team meeting was held to discuss visitation with the child and a visit
was scheduled, but petitioner was unable to attend that visit. She also explained that she and the
child continued to have regular telephone contact.

        In June of 2018, the DHHR prepared a summary for the circuit court. In the summary, the
DHHR stated that petitioner was participating in a Suboxone program, was on probation, and
that she and her husband were complying with random drug screens. Petitioner’s drug screens
were negative; however, the DHHR was concerned that petitioner’s husband was screening
positive for alcohol. The DHHR recommended that the child remain in the custody of her
stepmother. Also, in June of 2018, the guardians submitted a recommendation report to the
circuit court. The guardians recommended that the child continue to live with her stepmother and
that petitioner should receive visitation. The circuit court held a hearing on petitioner’s motion
on June 18, 2018. During the hearing, one guardian testified that petitioner failed to comply with
services in the months prior to the hearing. The guardian also testified regarding concerns with
petitioner’s husband. According to the guardian, the child had a strong bond with both petitioner
and her stepmother and was torn between who she wanted to live with. The judge met with the
child in his chambers and took the matter under advisement.

        In its June 22, 2018, order, the circuit court noted that petitioner participated in one
overnight visit with the child in January of 2017 at the maternal grandmother’s home. The circuit
court acknowledged the progress that petitioner made. However, the circuit court found that
petitioner “failed to take the necessary steps to substantially correct the conditions of abuse and
neglect that led to the termination of her custodial rights” due to her recent marriage to an
“uncertain partner, recent participation in a suboxone program, along with the lack of safe
housing, reliable transportation, and reliable phone service.” According to the circuit court, these
issues showed that petitioner was not able to provide a stable environment for the child. The
circuit court granted petitioner visitation during the summer and holidays. Ultimately,
petitioner’s motion to modify the dispositional order was denied by the circuit court in its June
22, 2018, order. It is from this 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

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       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.

        First, petitioner argues that the circuit court erred in denying her request for the
restoration of her custodial rights. Petitioner contends that her custodial rights to the child should
be reinstated because she experienced a change in circumstances. Petitioner was released from
incarceration, was employed, and obtained housing. However, we do not find this argument
persuasive. West Virginia Code § 49-4-606(a) provides, in relevant part, that

       [u]pon motion of a child, a child’s parent or custodian or the department alleging
       a change of circumstances requiring a different disposition, the court shall
       conduct a hearing pursuant to section six hundred four of this article and may
       modify a dispositional order if the court finds by clear and convincing evidence a
       material change of circumstances and that the modification is in the child’s best
       interests.

        Here, the circuit court recognized the progress that petitioner had made since she
voluntarily relinquished her custodial rights. However, the record shows that petitioner was
unable to provide a stable home for the child due to her lack of safe housing, reliable
transportation, and telephone service. Additionally, respondents voiced numerous concerns about
petitioner’s new husband, who had a criminal history, anger issues, and tested positive for
alcohol on numerous occasions. Modification of the dispositional order must be in the child’s
best interests and petitioner was unable to demonstrate that restoring her custodial rights was in
the child’s best interests. The record shows that remaining in the stable home with her
stepmother and siblings and having visitation with petitioner was in the child’s best interests.
       While she also argues that the circuit court erred in not restoring her custodial rights
because petitioner is the sole remaining natural parent of the child and because the stepmother
was not established as a psychological parent of the child, petitioner failed to raise this issue
below. “‘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, petitioner is not entitled to relief.
        Next, petitioner argues that the circuit court erred by not taking into consideration the
wishes of the child. This argument is meritless. The record shows that the circuit court spoke to
the child and took her wishes into consideration. There is no evidence in the record to show that

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the child expressed specific wishes to live with petitioner. According to the record, the child was
conflicted regarding whether she wanted to live with petitioner or her stepmother. Ultimately, the
circuit court found that the child’s welfare was best served by remaining with the stepmother and
having visits with petitioner. “‘In a contest involving the custody of an infant the welfare of the
child is the polar star by which the discretion of the court will be guided.’ Syl. Pt. 2, State ex rel.
Lipscomb v. Joplin, 131 W.Va. 302, 47 S.E.2d 221 (1948).” Syl. Pt. 3, In re S.W., 233 W.Va. 91,
755 S.E.2d 8 (2014). Therefore, petitioner is entitled to no relief.

       For the foregoing reasons, we find no error in the decision of the circuit court, and its
June 22, 2018, order is hereby affirmed.


                                                                                            Affirmed.




ISSUED: January 14, 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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