                                                      STATE OF WEST VIRGINIA 

                                                    SUPREME COURT OF APPEALS


                                                                                     FILED
In re C.D.
                                                                                 March 12, 2018
                                                                                 EDYTHE NASH GAISER, CLERK
No. 17-0877 (Mineral County 17-JA-9)                                             SUPREME COURT OF APPEALS
                                                                                     OF WEST VIRGINIA 


                                                          MEMORANDUM DECISION
        Petitioner Mother K.D., by counsel Ramon Rozas, III, appeals the Circuit Court of
Mineral County’s September 27, 2017, order terminating her parental rights to C.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 order. The guardian ad litem (“guardian”),
Lauren M. Wilson, 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 adjudicating her based solely on
inadmissible hearsay.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.
                                                            
              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
         Petitioner additionally alleges that the circuit court erred in proceeding to disposition
during a hearing that was noticed only as a status hearing. According to petitioner, the decision
to proceed to disposition during this hearing violated her right to notice and certain other
information under the applicable Rules of Procedure for Child Abuse and Neglect Proceedings.
We find, however, that petitioner is not entitled to raise this issue on appeal because she failed to
object below. Specifically, after reaching its determination to terminate petitioner’s improvement
period, the circuit court indicated that it would make a final dispositional ruling. At that time,
petitioner did not object or otherwise preserve this issue for 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). Because petitioner
failed to raise this issue below, we decline to address the same on appeal. Further, beyond
asserting error in the circuit court’s procedural decision to proceed to disposition, petitioner does
not raise a specific assignment of error alleging error in the termination of her parental rights.
                                                                   1

 
        In May of 2017, the DHHR filed an abuse and neglect petition against the parents.
Specifically, the petition alleged that petitioner had a history of drug abuse that resulted in a prior
involuntary termination of her parental rights to two older children. Moreover, C.D. was born
drug-affected and tested positive at birth for multiple drugs, including morphine, amphetamine,
and cocaine. According to the petition, petitioner obtained insufficient prenatal care consisting of
only one appointment. Further, the petition alleged that, upon her admission to the hospital,
security found heroin in petitioner’s possession. Following the preliminary hearing that month,
the circuit court ordered petitioner to begin submitting to drug screens. Initially, petitioner tested
positive for cocaine, morphine, and marijuana and then failed to report for additional screens
until the dispositional hearing.

        During an adjudicatory hearing in June of 2017, petitioner’s counsel informed the circuit
court that petitioner contacted him to say she would be late for the hearing. Petitioner never
appeared for the hearing, but was represented by counsel throughout. The DHHR presented
testimony from a caseworker regarding the investigation into petitioner’s drug use while
pregnant. Petitioner objected to portions of this testimony as inadmissible hearsay, but the circuit
court overruled the same. The caseworker testified that petitioner admitted to him that she
abused drugs, was found with heroin and needles at the time she was hospitalized for the child’s
birth, and sought treatment for her issues. Ultimately, the circuit court adjudicated petitioner as
an abusing parent.

        In July of 2017, the circuit court held a dispositional hearing, during which it granted
petitioner a dispositional improvement period over objections from both the guardian and the
DHHR. Following the dispositional hearing, petitioner screened positive for cocaine, fentanyl,
and marijuana. Thereafter, petitioner (1) failed to attend a multidisciplinary team meeting, (2)
was arrested for counterfeiting in July of 2017, and (3) overdosed and was found unresponsive
by a caseworker who appeared for a home visit. As such, the guardian filed a motion to terminate
petitioner’s improvement period.

        In September of 2017, the circuit court held a hearing on the guardian’s motion. After
granting the motion, the circuit court proceeded to disposition and ultimately terminated
petitioner’s parental rights.3 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,

                                                            
              3
       According to the DHHR, the matter regarding the father is ongoing in the circuit court.
The parties indicate that, if reunification with the father is not successful, the concurrent
permanency plan is adoption by the current foster family.
                                                               2

 
              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, the Court finds
no error in the proceedings below.

        Petitioner argues that the circuit court erred in admitting certain hearsay evidence and in
adjudicating her as an abusing parent based solely on this inadmissible evidence. Specifically,
petitioner argues that the DHHR presented only one witness, a DHHR caseworker, and that the
witness was permitted to testify to information obtained from conversations with hospital staff
and petitioner, and to testify concerning certain medical records that were not introduced into
evidence. Upon our review, however, we find no error. Pursuant to West Virginia Code § 49-4-
601(k), “[t]he rules of evidence shall apply” to adjudicatory hearings. Moreover, we have
frequently held that “‘[a] trial court’s evidentiary rulings, as well as its application of the Rules
of Evidence, are subject to review under an abuse of discretion standard.’ Syl. Pt. 4, State v.
Rodoussakis, 204 W.Va. 58, 511 S.E.2d 469 (1998).” Syl. Pt. 8, State v. Blevins, 231 W.Va. 135,
744 S.E.2d 245 (2013).

       Petitioner specifically objected to the caseworker’s testimony regarding certain
admissions that petitioner made. However, it is clear that this testimony is specifically excluded
from hearsay under Rule 801(d)(2) of the West Virginia Rules of Evidence as a statement from
an opposing party.4 Petitioner was a named respondent to the proceedings below and, thus, her
statements to the DHHR caseworker were properly introduced into evidence. According to the
record, the DHHR caseworker testified that petitioner admitted to abusing drugs during her
pregnancy with the child, having heroin and drug paraphernalia in her possession upon
admission to the hospital, and seeking treatment for her drug use. Accordingly, we find that this
testimony was properly admitted into evidence below.

              We have held that

                      “W.Va.Code [§] 49-6-2(c) [now West Virginia Code § 49-4-601(i)],
              requires the [DHHR], in a child abuse or neglect case, to prove ‘conditions
              existing at the time of the filing of the petition . . . by clear and convincing
              [evidence].’ The statute, however, does not specify any particular manner or mode
              of testimony or evidence by which the [DHHR] is obligated to meet this burden.”
              Syllabus Point 1, In Interest of S.C., 168 W.Va. 366, 284 S.E.2d 867 (1981).

                                                            
              4
        “A statement that meets the following conditions is not hearsay: . . . [t]he statement is
offered against an opposing party and . . . was made by the party in an individual or
representative capacity[.]” W.Va. R. Evid. 801(d)(2)(A).


                                                               3

 
Syl. Pt. 1, In re Joseph A., 199 W.Va. 438, 485 S.E.2d 176 (1997) (citations omitted). West
Virginia Code § 49-1-201, in relevant part, defines a “[n]eglected child” as one “[w]hose
physical or mental health is harmed or threatened by a present refusal, failure or inability of the
child’s parent, guardian or custodian to supply the child with necessary food, clothing, shelter,
supervision, medical care or education[.]” Based on the testimony concerning petitioner’s
admissions to her substance abuse, it is clear that the circuit court had sufficient evidence upon
which to adjudicate petitioner as neglecting the child, given the fact that her failure to properly
care for the child resulted in his physical harm. As such, we find no error in the circuit court
adjudicating petitioner as an abusing parent.5

        Lastly, because the proceedings regarding the father are ongoing, this Court reminds the
circuit court of its duty to establish permanency for the child. Rule 39(b) of the Rules of
Procedure for Child Abuse and Neglect Proceedings requires:

              At least once every three months until permanent placement is achieved as
              defined in Rule 6, the court shall conduct a permanent placement review
              conference, requiring the multidisciplinary treatment team to attend and report as
              to progress and development in the case, for the purpose of reviewing the progress
              in the permanent placement of the child.

Further, this Court reminds the circuit court of its duty pursuant to Rule 43 of the Rules of
Procedure for Child Abuse and Neglect Proceedings to find permanent placement for the child
within twelve months of the date of the disposition order. As this Court has stated,

                      [t]he [twelve]-month period provided in Rule 43 of the West Virginia
              Rules of Procedures for Child Abuse and Neglect Proceedings for permanent
              placement of an abused and neglected child following the final dispositional order
              must be strictly followed except in the most extraordinary circumstances which
              are fully substantiated in the record.

Cecil T., 228 W.Va. at 91, 717 S.E.2d at 875, Syl. Pt. 6. Moreover, this Court has stated that

                      [i]n determining the appropriate permanent out-of-home placement of a
              child under W.Va.Code § 49-6-5(a)(6) [1996] [now West Virginia Code § 49-4-
              604(b)(6)], the circuit court shall give priority to securing a suitable adoptive
              home for the child and shall consider other placement alternatives, including
              permanent foster care, only where the court finds that adoption would not provide
              custody, care, commitment, nurturing and discipline consistent with the child’s
              best interests or where a suitable adoptive home can not be found.



                                                            
              5
        Given that we find the testimony concerning petitioner’s admissions to the DHHR
caseworker is sufficient upon which to adjudicate petitioner of neglect, it is unnecessary to
analyze the additional evidence that petitioner alleges was erroneously admitted below.
                                                               4

 
Syl. Pt. 3, State v. Michael M., 202 W.Va. 350, 504 S.E.2d 177 (1998). Finally, “[t]he guardian
ad litem’s role in abuse and neglect proceedings does not actually cease until such time as the
child is placed in a permanent home.” Syl. Pt. 5, James M. v. Maynard, 185 W.Va. 648, 408
S.E.2d 400 (1991).

      For the foregoing reasons, we find no error in the decision of the circuit court, and its
September 27, 2017, order is hereby affirmed.


                                                                                     Affirmed.

ISSUED: March 12, 2018


CONCURRED IN BY:

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




                                              5

 
