                            STATE OF WEST VIRGINIA
                          SUPREME COURT OF APPEALS
                                                                                 FILED
In re: S.C., K.M. II, and D.M.                                              September 6, 2016
                                                                               RORY L. PERRY II, CLERK
                                                                             SUPREME COURT OF APPEALS
No. 16-0426 (Mineral County 15-JA-11, 15-JA-13, & 15-JA-14)                      OF WEST VIRGINIA




                              MEMORANDUM DECISION
        Petitioner Father K.M., by counsel Nicholas T. James, appeals the Circuit Court of
Mineral County’s April 15, 2016, order terminating his parental rights to nine-year-old S.C.,
eight-year-old K.M. II, and seven-year-old D.M.1 The West Virginia Department of Health and
Human Resources (“DHHR”), by counsel Lee Niezgoda, filed its response in support of the
circuit court’s order. The guardian ad litem (“guardian”), Meredith H. Hines, filed a response on
behalf of the children also in support of the circuit court’s order. Petitioner filed a reply. On
appeal, petitioner argues that the circuit court erred in finding that he abandoned his children,
and holding an accelerated dispositional hearing, and failing to make appropriate adjudicatory
findings.2

        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 2013, the DHHR filed a petition for abuse and neglect against the children’s biological
mother alleging that she failed to properly supervise the children and that the children committed
sexual acts against and/or with each other. The mother was granted services to address these
issues. Ultimately, the children were returned to the mother’s custody.


       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
         We note that West Virginia Code §§ 49-1-1 through 49-11-10 were repealed and
recodified during the 2015 Regular Session of the West Virginia Legislature. The new
enactment, West Virginia Code §§ 49-1-101 through 49-7-304, has minor stylistic changes and
became effective ninety days after the February 19, 2015, approval date. In this memorandum
decision, we apply the statutes as they existed during the pendency of the proceedings below.


                                                1


        In May of 2015, the DHHR filed a second abuse and neglect petition against the
children’s mother alleging that she failed to appropriately supervise and protect the children. The
petition contained additional allegations that the mother admitted that a prior abuse and neglect
proceeding had been initiated because the children were perpetrating sexual acts with and/or
against one another. Initially, petitioner was considered a non-offending parent because he was
incarcerated in the State of Florida.3 The petition notes that the Circuit Court of Mineral County
previously ordered that petitioner was prohibited from contacting his children until he properly
petitioned the circuit court.

        Petitioner was released from incarceration in August of 2015.4 The circuit court then
appointed petitioner counsel who filed a motion for visitation on the grounds that petitioner was
a non-offending parent and was no longer incarcerated. In November of 2015, the DHHR filed
an amended petition for abuse and neglect against petitioner alleging that he was incarcerated at
the time of the original petition, that he had not had contact with his children since before his
incarceration, and that he does not have a bond with his children. The DHHR also alleged that
petitioner was required to register as a sex offender stemming from his conviction of aggravated
criminal sexual abuse in Illinois.

        Two months later, the circuit court held a hearing on the amended petition during which
petitioner moved for a continuance so that he could appear in person.5 By order entered February
12, 2016, the circuit court granted petitioner’s motion for a continuance. Importantly, the circuit
court ordered that “[t]he matter shall come on for an adjudicatory/dispositional hearing on
the Amended Petition regarding [petitioner] on March 8, 2016[.]” (Emphasis in original).

        On March 8, 2016, the circuit court held a combined adjudicatory and dispositional
hearing during which the DHHR proffered that petitioner has not had contact with his children
because he was previously incarcerated and that reunification efforts were not required.
Thereafter, a DHHR worker testified that petitioner failed to contact the DHHR since the
amended petition was filed and objected to any visitation with the children because it was not in
their best interests, and that petitioner does not have a bond with the children. Petitioner admitted

       3
         Petitioner was convicted of aggravated criminal sexual abuse in the Illinois in 1999. He
was sentenced to a term of incarceration of thirty months and, upon his release, was required to
register as a sex offender for a period of ten years. Upon his release, petitioner moved to the
Florida. In 2012, petitioner was arrested for grand theft auto in the Florida and released on
probation. Thereafter, he was arrested for violating his probation for driving on a suspended
license. Petitioner was incarcerated for approximately four years related to his grand theft auto
conviction and probation violation.
       4
        The mother’s parental rights were terminated by order entered on August 24, 2015. This
Court affirmed the termination of the mother’s parental rights by order entered on February 26,
2016. See In re D.C., S.C., K.M., and D.M., No. 15-0908, 2016 WL 634566 (W.Va. Feb. 16,
2016)(memorandum decision).
       5
        Petitioner needed additional time to make arraignments to travel from Florida to West
Virginia.


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that he had not had contact with his children for four years. Petitioner also testified that, in
addition to being convicted of aggravated criminal sexual abuse, he had also been convicted of
driving under the influence, grand theft auto, and forgery. By order entered March 29, 2016, the
circuit court found that petitioner abandoned his children and the circuit court terminated his
parental rights. Thereafter, petitioner filed a motion for reconsideration and for post-termination
visitation. Following a hearing on these motions, the circuit court denied petitioner’s motions.
This appeal followed.

       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).

       On appeal, petitioner argues that the circuit court erred in finding that he abandoned his
children. In support of this argument, petitioner argues that he did not fail to support or
communicate with his children for six consecutive months immediately before the DHHR filed
its amended petition in November of 2015. Furthermore, petitioner argues that the circuit court’s
order preventing him from contacting his children and his incarceration present “compelling
circumstances” to rebut the presumption that he abandoned his children. See W.Va. Code § 48­
22-306.6

       6
       West Virginia Code § 48-22-306 provides that a child over the age of six is presumed to
be abandoned when the birth parent:

                   [f]ails to financially support the child within the means of the birth
                   parent; and [f]ails to visit or otherwise communicate with the child
                   when he or she knows where the child resides, is physically and
                   financially able to do so and is not prevented from doing so by the
                   person or authorized agency having the care or custody of the child:
                   Provided, That such failure to act continues uninterrupted for a period
                   of six months immediately preceding the filing of the adoption
                   petition.

                                                                                   (continued . . .)
                                                3


        Upon examining petitioner’s argument and the relevant statutory law, we find petitioner’s
reliance upon West Virginia Code § 48-22-306 to be misplaced. First, West Virginia Code § 48­
22-306 and its related provisions specifically govern adoptions, rather than child abuse and
neglect proceedings. Furthermore, in West Virginia, child abuse and neglect proceedings are
governed by their own statutory scheme. See generally W.Va. Code § 49-1-101 et seq. In child
abuse and neglect proceedings “‘[a]bandonment’ means any conduct that demonstrates the
settled purpose to forego the duties and parental responsibilities to the child[ren.]” W.Va. Code §
49-1-201.

        Upon our review of the record on appeal, the Court finds no error in the circuit court’s
finding that petitioner abandoned his children. As previously noted, we “must affirm a finding if
the circuit court’s account of the evidence is plausible in light of the record viewed in its
entirety.” In re Cecil T., 228 W.Va. at 91, 717 S.E.2d 875. Further, we have long held that “in
the context of abuse and neglect proceedings, the circuit court is the entity charged with
weighing the credibility of witnesses and rendering findings of fact.” In re Emily, 208 W.Va.
325, 339, 540 S.E.2d 542, 556 (2000) (citing Syl. pt. 1, in part, In re Travis W., 206 W.Va. 478,
525 S.E.2d 669 (1999)); see also Michael D.C. v. Wanda L.C., 201 W.Va. 381, 388, 497 S.E.2d
531, 538 (1997) (stating that “[a] reviewing court cannot assess witness credibility through a
record. The trier of fact is uniquely situated to make such determinations and this Court is not in
a position to, and will not, second guess such determinations.”). Specifically, the circuit court
heard testimony from a DHHR worker that petitioner failed to contact the DHHR after the
amended petition was filed and that petitioner does not have a relationship with his children.
Importantly, petitioner also testified that he had not seen his children for four years. This
evidence was clearly sufficient to establish that petitioner abandoned his children. Based on the
facts of this case, we find no error in this regard.

        Next, petitioner argues that the circuit court failed to make appropriate findings of fact
and conclusions of law on the record that his children were abused and/or neglected prior to
terminating his parental rights. We disagree. Rule 27 of the Rules of Procedure for Child Abuse
and Neglect Proceedings provides that “[a]t the conclusion of the adjudicatory hearing, the court
shall make findings of fact and conclusions of law, in writing or on the record, as to whether the
child is abused and/or neglected in accordance with W. Va. Code § 49-4-601(i).” (Emphasis
added). Upon review of the record, the circuit court’s written order included appropriate findings
of fact and conclusions of law that petitioner’s children were abused and/or neglected.
Specifically, the circuit court found that petitioner had no contact with his children during the


                   ...

                   (d) Notwithstanding any provision in this section to the contrary, any
                   birth parent shall have the opportunity to demonstrate to the court the
                   existence of compelling circumstances preventing said parent from
                   supporting, visiting or otherwise communicating with the child:
                   Provided, That in no event may incarceration provide such a
                   compelling circumstance if the crime resulting in the incarceration
                   involved a rape in which the child was conceived


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pendency of the underlying case, that petitioner did not have a bond with his children, and had
not had contact with his children for a period of four years.

        Finally, petitioner argues that the circuit court erred in holding an accelerated
dispositional hearing on March 8, 2016, because it denied him the opportunity to be heard and
prevented him from moving for an improvement period. We disagree. As to the accelerated
dispositional hearing, the Court recognizes that the specific requirements set forth in Rule 32(b)
of the West Virginia Rules of Procedure for Child Abuse and Neglect Proceedings were not met.
Specifically, in order to hold a dispositional hearing immediately after an adjudicatory hearing,
among other requirements, all parties must agree. Specifically, we have 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). Nonetheless, based upon our
review, it does not appear that the process for abuse and neglect proceedings was “substantially
disregarded or frustrated” by the circuit court’s decision to hold an accelerated dispositional
hearing. See Id. This is true in light of several factors. First, petitioner specifically requested that
the February 8, 2016, hearing be continued so that he could appear in person. As such, the circuit
court entered an order that provided petitioner with clear notice that the March 8, 2016, hearing
“shall come on for an adjudicatory/dispositional hearing on the Amended Petition[.]”
(Emphasis in original). Additionally, it is clear that petitioner was given the opportunity to be
heard during the combined hearing in that he testified on his own behalf and counsel was
allowed to cross-examine witnesses.

        Further, the Court finds no merit in petitioner’s argument that the accelerated disposition
hearing denied him an opportunity to move for an improvement period. Petitioner had
approximately one month from the time he requested a continuance until the properly noticed
adjudicatory/dispositional hearing on March 8, 2016, in which he could have filed a motion for
an improvement period. We further observe that the DHHR was not required to make reasonable
efforts to preserve the family. West Virginia Code § 49-4-604(b)(7) provides, in relevant part,
that “the [DHHR] is not required to make reasonable efforts to preserve the family if the court
determines . . . [t]he parent has subjected the child . . . to aggravated circumstances which
include, but are not limited to, abandonment [or] has been required by state or federal law to
register with a sex offender registry[.]” Here, the circuit court explicitly found that petitioner
abandoned his children. Furthermore, it is undisputed that petitioner was required to register as a
sex offender upon his conviction for aggravated criminal sexual abuse in the State of Illinois.
Therefore, the DHHR was not required to make reasonable efforts to preserve the family. Based
on the facts of this case, we find no error.




                                                   5


       For the foregoing reasons, we find no error in the circuit court’s April 15, 2016, order,
and we hereby affirm the same.


                                                                                      Affirmed.

ISSUED: September 6, 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




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