                             STATE OF WEST VIRGINIA
                           SUPREME COURT OF APPEALS
                                                                                 FILED
                                                                              June 15, 2020
In re: S.J. and L.J.                                                            released at 3:00 p.m.
                                                                            EDYTHE NASH GAISER, CLERK
No. 19-0702 (Mingo County 18-JA-67 and 18-JA-69)                            SUPREME COURT OF APPEALS
                                                                                 OF WEST VIRGINIA




                              MEMORANDUM DECISION

        Petitioner, J.J., appeals the July 10, 2019 dispositional order of the Circuit Court of
Mingo County that terminated his parental rights. 1 Respondent, West Virginia Department
of Health and Human Resources (“DHHR”), 2 and Guardian Ad Litem, Cullen C. Younger,
Esq., filed response briefs in support of the circuit court’s termination.

        Having thoroughly reviewed the appendix record, the parties’ briefs and oral
arguments, the applicable law, and all other matters before the Court, we conclude that
plain error permeated this case. The circuit court attempted to adjudicate Petitioner as an
abusing and neglectful parent before he was served with notice of the action and later
terminated Petitioner’s parental rights without concluding his adjudicatory hearing.
Accordingly, we vacate the circuit court’s dispositional order and remand Petitioner’s case
for a full adjudicatory hearing and appropriate subsequent proceedings. Because this case
presents no new or substantial question of law, its proper disposition is by memorandum
decision as contemplated by Rule 21(d) of the West Virginia Rules of Appellate Procedure.

       Petitioner is the father of two small children, S.J. and L.J., who were found locked
in a camper at the home of an alleged drug dealer on July 15, 2018. The children had spent
two nights in the camper, without running water, and were in danger when they were
rescued by a relative.




       1
        Petitioner is represented by Susan J. Van Zant, Esq., in this appeal. Consistent
with our long-standing practice in cases with sensitive facts, we use initials where
necessary to protect the identities of those involved. See In re K.H., 235 W. Va. 254, 773
S.E.2d 20 (2015); Melinda H. v. William R., 230 W. Va. 731, 742 S.E.2d 419 (2013).
       2
         DHHR is represented by Patrick Morrisey, Attorney General, and Mindy M.
Parsley, Assistant Attorney General, in this appeal.
                                             1
       A different relative reported these issues to Child Protective Services (“CPS”), and
on July 18, 2018, DHHR filed a petition for immediate custody of the children. 3 The
petition requested custody of the children “due to the mother taking the children . . . to an
alleged drug dealer’s home and [leaving] them, where they were later locked in a
camper[,]” and due to Petitioner being “currently incarcerated for a probation violation that
began from drug charges.” The circuit court granted the petition on July 18, 2018, and
appointed counsel for Petitioner.

       The circuit court held a preliminary hearing on July 24, 2018. Petitioner did not
appear for the hearing and was not served with notice of the petition or the hearing. The
following exchange occurred during the hearing regarding service of process:

              [PETITIONER’S ATTORNEY]: Your honor, it’s my understanding
       that [Petitioner] is incarcerated in Pike County, Kentucky.

                 ....

                 THE COURT: Has he been served?

                 [PROSECUTOR]: We’ll need to publish.

                 THE COURT: All right[.] . . .

                 Any other preliminary matters?

              [PROSECUTOR]: Your Honor, as far as service he is incarcerated,
       but we’ve served his attorney and she is present. I think we decided the other
       day that was the equivalent of appointing . . . a guardian ad litem.

                 THE COURT: They call it warning order attorneys in Kentucky.

                 Is that correct, [Petitioner’s attorney]? Do you have service for your
       client?

                 [PETITIONER’S ATTORNEY]: I do, Your Honor.

                 THE COURT: All right. Call your [i.e., DHHR’s] first witness.


       3
         The petition named a third child, P.M., as an infant respondent, and P.M.’s non-
offending father, J.W., joined DHHR as a co-petitioner. Neither P.M. nor his father, J.W.,
are subjects of this appeal.
                                             2
        DHHR’s first and only witness at the preliminary hearing was the investigating CPS
worker, who described how the children came to be found and testified that the mother
admitted to taking Suboxone without a prescription, to leaving the children with someone
else, and to having “no idea what happened to her kids.” The CPS worker presented little
testimony about Petitioner except to state that he was incarcerated and that—to her
knowledge—he had done nothing to protect the children. On cross-examination by
Petitioner’s counsel, the worker admitted that Petitioner could not control the mother while
he was in jail. After further cross-examination on other matters, DHHR rested, and the
other parties offered no further witnesses. On this evidence, the circuit court found
“probable cause to believe the respondents have neglected and failed to protect the children
from neglect” and, further, that Petitioner “failed to take any steps to protect his children.”
Petitioner’s attorney raised no objection to the circuit court’s findings.

        On July 26, 2018, Petitioner’s attorney filed a response to the petition and a request
for an improvement period. 4 The response was unverified, however, and was not otherwise
signed by Petitioner. 5

       The circuit court convened an adjudicatory hearing on August 29, 2018. Petitioner
did not appear for the hearing. Once again, Petitioner was not served with notice of the
petition or the hearing. DHHR moved the court “to take judicial notice of all prior
testimony, findings of fact, and conclusions of law,” and the circuit court agreed. None of
the parties presented any witnesses or any further evidence, and the court announced its
decision, finding “that the children . . . have been abused and neglected, as defined by the
Code” and that “[t]he respondents have neglected and failed to protect these children from
neglect.”

        At this juncture, the mother’s attorney said that there was no indication that her
client had been served. Petitioner’s attorney observed the same: “I’m in the same situation.
I was trying to see if he’d been served and I’m not sure he has.” This colloquy followed:

             [PROSECUTOR]: Your Honor, I believe [Petitioner] had been, but
       I’m not showing anything regarding [the mother]. Do we need to publish on
       her?

       4
        Although Petitioner’s response was not originally included in the appendix record
submitted by the parties, this Court obtained a copy from the circuit court clerk. See W.
Va. R. App. P. 6(a) [2010] (“The record consists of the papers and exhibits filed in the
proceedings in the lower tribunal, the official transcript or recording of proceedings, if any,
and the docket entries of the lower tribunal.”).
       5
        Cf. W. Va. R. P. Child Ab. & Negl. P. 17(b) [2016] (“Each respondent shall file
and serve a verified answer[.]” (emphasis added)).
                                            3
             THE COURT: Yes. Do we have to go backwards or can we go on to
      disposition?

            [PROSECUTOR]: I think we’ll have to hold the adjudicatory in
      abeyance.

             [MOTHER’S ATTORNEY]: My notes from the preliminary hearing
      indicate that my client was present, but I don’t know if she had been served.

                 [PROSECUTOR]: That’s correct, Your Honor.

            [MOTHER’S ATTORNEY]: . . . It 6 says that [Petitioner’s attorney],
      as counsel for [Petitioner], accepted service.

                 [PETITIONER’S ATTORNEY]: I would never do that.

                 THE COURT: All right. Let’s publish it and come back on October
      10 .  th



             [PROSECUTOR]: Your Honor, we can go forward on the
      adjudicatory. She 7 was here.

                 THE COURT: I know, but we’re talking about [Petitioner] now.
      Right?

                 ....

             [PROSECUTOR]: And I believe you held that . . . counsel being
      served was sufficient.

                 THE COURT: It was sufficient?

             [PETITIONER’S ATTORNEY]:               I would not have voluntarily
      accepted service.




      6
           From context, we assume that “it” refers to counsel’s notes from the preliminary
hearing.
      7
           From context, we assume that “she” refers to the mother.
                                             4
              [PROSECUTOR]: It would be the same as having [a] guardian ad
       litem appointed for him.

              (Off-the-record discussion)

              THE COURT: All right. Serve it. Let’s come back on the 10th [of
       October] and finish the adjudication. That will be in abeyance. We’ll get on
       the same track.

(Footnotes added.)

        On August 31, 2018, the circuit clerk entered an order of publication as notice to
Petitioner and the children’s unknown father (if any), 8 and the prosecutor filed a copy of a
letter to a newspaper requesting publication. 9 No proof of publication appears on the
docket sheet, verifying that the newspaper published the order. 10

        When the parties returned to court on October 10, 2018, the circuit court observed
that the case was set for adjudication. The prosecutor, however, mistakenly believed that
the case was set for disposition. Because the guardian ad litem was absent, the court
continued the case to November and set the case for disposition.

        On October 30, 2018, Petitioner filed a verified response to the petition. 11 The
response denied all allegations of abuse and neglect and moved that the case be dismissed
or, in the alternative, that Petitioner be granted a pre-adjudicatory improvement period.

       8
        DHHR served “Unknown Father” because Petitioner’s name does not appear on
either child’s birth certificate, though no one denies that Petitioner is the children’s
biological father.
       9
         Although neither the publication order nor the prosecutor’s letter was included in
the appendix record submitted by the parties, this Court obtained copies from the circuit
court clerk. See supra note 4.
       10
          Cf. W. Va. R. Civ. P. 4(i) [2007] (“The person serving the process or order or
publishing a notice or order shall make proof of service of publication to the court promptly
and in any event within the time during which the person served must respond to the
process, notice, or order.”).
       11
          Although Petitioner’s second response to the petition was not included as part of
the appendix record submitted by the parties, this Court obtained a copy from the circuit
court clerk. See supra note 4.

                                             5
       On November 13, 2018, the circuit court entered a written order noting that the
adjudicatory hearing had commenced but was “held in abeyance for further investigation
and service.” Yet, when the circuit court convened for a hearing the very next day, both
the court and the parties were seemingly unaware of the posture of the case. When the
court asked, “What are we doing today?” Petitioner’s counsel replied that “this is
dispositional.” (Emphasis added.) None of the other attorneys present at the hearing
corrected her.

       The November 14, 2018 hearing was Petitioner’s first personal appearance in the
matter, and his counsel moved for an improvement period and a continuance, noting that
Petitioner had been in jail 12 “and could not participate.” The circuit court granted
Petitioner’s motion, in part, and continued the case to January 2019. The record reflects
that Petitioner’s request for an improvement period was held in abeyance at DHHR’s
request, but the circuit court never ruled on it.

        The attorneys returned to court on January 16, 2019. Both parents were believed to
be in jail, so the hearing was continued.

        The court eventually convened for a dispositional hearing on April 18, 2019.
Petitioner was present in person. DHHR moved the court “to take judicial notice of all
prior testimony, findings of fact, conclusions of law,” and moved to submit the matter on
the case plan and the guardian ad litem report. None of the parties presented any further
witnesses or evidence. On this basis, the circuit court terminated Petitioner’s (and the
mother’s) parental rights. Petitioner’s attorney raised no objection to the circuit court’s
decision, nor to the manner in which it was reached. Petitioner’s attorney merely advised
that Petitioner wished to appeal.

       Nearly three months later, on July 10, 2019, the circuit court entered a dispositional
order, declaring that Petitioner’s (and the mother’s) parental rights are terminated.
Petitioner appeals the circuit court’s dispositional order.

       Petitioner challenges a dispositional order entered in an abuse and neglect case. In
such cases, we apply 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

       12
          The attorneys’ remarks reveal that Petitioner was not actually incarcerated when
the children were locked in the camper; he was working out of state. He was, however,
subsequently incarcerated.
                                             6
       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.” Syllabus
       Point 1, In Interest of Tiffany Marie S., 196 W. Va. 223, 470 S.E.2d 177
       (1996).

Syl. Pt. 1, In re A.P.-1, 241 W. Va. 688, 827 S.E.2d 830 (2019). With this standard of
review in mind, we will consider Petitioner’s assignment of error.

       Petitioner raises a two-part assignment of error. He contends, first, that the circuit
court should not have terminated his parental rights and, second, that the circuit court
should have granted visitation. 13 From Petitioner’s arguments, however, it appears that he
wishes to challenge the entire breadth of the proceedings below, from the sufficiency of
DHHR’s petition to the termination of his rights. 14

       Petitioner’s brief makes various assertions, but he fails to support them with
appropriate citations to the law or the appendix record. W. Va. R. App. P 10(c)(7) [2016].
The Rules of Appellate Procedure expressly authorize us to “disregard errors that are not
adequately supported by specific references to the record on appeal[,]” W. Va. R. App. P.
10(c)(7), and an “issue . . . not raised below . . . is therefore not properly before this


       13
         It is not clear from the petition whether Petitioner asserts that the circuit court
should have ordered visitation while the case was pending or visitation after termination.
       14
           Petitioner’s skeletal “Argument” section asserts, among other things, (a) that
DHHR’s petition “failed to make any allegations against him that would lead to the
termination of parental rights”; (b) that DHHR failed to show that there was “no reasonable
likelihood that . . . [Petitioner could] substantially correct the condition of abuse and neglect
in the near future”; (c) that DHHR “failed to present credible evidence sufficient for the
circuit court to” find “that the children were abused by clear and convincing evidence”; (d)
that Petitioner “should have . . . been granted services and an Improvement Period once he
was released from incarceration”; (e) that “[i]t is a violation of Due Process and his
constitutional rights to be held accountable for allegations not plead [sic] in the Petition”;
and (f) that “[t]ermination of [Petitioner]’s parental rights was contrary to the best interests
of the children.”

                                               7
Court[,]” State ex rel. Lewis v. Hall, 241 W. Va. 355, 359, 825 S.E.2d 115, 119 (2019).
Nevertheless, when justice requires this Court has the authority to “notice plain error.” Syl.
Pt. 1, in part, State v. Myers, 204 W.Va. 449, 513 S.E.2d 676 (1998). Plain error is error
that is plain, that affects substantial rights, and that seriously affects the fairness, integrity,
or public reputation of the judicial proceedings. Syl. Pt. 7, State v. Miller, 194 W. Va. 3,
459 S.E.2d 114 (1995). 15 We find that Petitioner’s case is rife with plain error.

        The West Virginia Code authorizes DHHR or any “reputable person [who] believes
that a child is neglected or abused” to file a petition in circuit court and directs the circuit
court to “set a time and place for a hearing[.]” W. Va. Code § 49-4-601(a) and (c) (2015). 16
The statute further directs that “[t]he petition and notice of the hearing shall be served upon
both parents . . . , giving . . . at least five days’ actual notice of a preliminary hearing and
at least ten days’ notice of any other hearing.” W. Va. Code § 49-4-601(e)(1) (emphasis
added). When parents cannot be served in person in West Virginia, the statute provides
for service by certified mail or, failing that, service by publication. W. Va. Code § 49-4-
601(e)(3) and (4).


       15
            As this Court noted in In re Timber M., 231 W.Va. 44, 60, 743 S.E.2d 352, 368
(2013):

       [T]his Court has previously addressed matters not raised in the appeal of
       cases involving the welfare of children. See In re Jonathan Michael D., 194
       W.Va. 20, 27, 459 S.E.2d 131, 138 (1995) (“On the issue of the improvement
       period, we sua sponte address an issue of particular concern to this Court.”);
       In re Jamie Nicole H., 205 W.Va. 176, 183, 517 S.E.2d 41, 48 (1999) (“While
       Appellant has not raised the sufficiency of the trial court's dispositional order,
       we address this issue sua sponte.”). Cf. In re K.R., 229 W.Va. 733, 744 n.
       23, 735 S.E.2d 882, 893 n. 23 (2012) (“While neither party assigned this
       specific ruling as error, this does not affect this Court's ability to determine
       it to be error: [I]t is within the authority of this Court to “sua sponte, in the
       interest of justice, notice plain error.” Cartwright v. McComas, 223 W.Va.
       161, 164, 672 S.E.2d 297, 300 (2008) (quoting Syl. Pt. 1, in part, State v.
       Myers, 204 W.Va. 449, 513 S.E.2d 676 (1998).”)); Ringer v. John, 230
       W.Va. 687, 742 S.E.2d 103 (2013) (Court deciding case on the basis of an
       issue not raised by the parties).

(Footnotes omitted.)
       16
          The Legislature amended Section 601 in 2019, Acts 2019, 1st Ex. Sess., c. 28,
but the amendments have no bearing on this case. The 2015 version of the statute is
applicable here.

                                                8
       It is clear that this process was not followed in the instant case. The DHHR filed
the petition on July 18, 2018. Less than a week later, on July 24, 2018, the circuit court
held the preliminary hearing, and about a month later, on August 29, 2018, the circuit court
attempted to hold an adjudicatory hearing, going even so far as to announce its finding that
Petitioner “neglected and failed to protect” his children. Only then did the circuit court
determine that Petitioner had never been served. An order directing service upon Petitioner
by publication was entered two days later. 17

        Service on Petitioner was no minor detail. Without proper service, the circuit court
lacked jurisdiction to adjudicate his rights. Overfield v. Collins, 199 W. Va. 27, 34 n.5,
483 S.E.2d 27, 34 n.5 (1996) (“Our case law is clear: a court that enters a judgment where
there has been insufficient service of process is without jurisdiction to enter said
judgment[.]”). Proceeding without service also violated Petitioner’s due process right to
“a fair decision-making process, including the right to receive written notice of the attempt
to affect [his] liberty interest [in his children], the right to present evidence, and the right
to obtain a decision from a neutral, detached person or tribunal.” Id. at 34, 483 S.E.2d at
34. Although Petitioner was eventually served, it was plain error for the circuit court to
begin the adjudicatory hearing and make any findings on the record prior to service being
properly established.

       Even more troublesome is the circuit court’s failure to adjudicate Petitioner as an
abusing or neglectful parent before it terminated his parental rights. “[O]ur statutes, cases,
and rules instruct that a circuit court may not terminate parental rights at a § 49-4-604
disposition hearing without first finding that the parent abused or neglected the child in
question at a § 49-4-601 adjudicatory hearing.” In re A.P.-1, 241 W. Va. at 693, 827 S.E.2d
at 835 (emphasis added). Indeed, we have held that adjudication “is a prerequisite to
further continuation of the case[,]” Syl. Pt. 1, in part, State v. T.C., 172 W. Va. 47, 303
S.E.2d 685 (1983), and that bypassing the adjudicatory phase is an error of constitutional
dimension that undermines the circuit court’s jurisdiction. In re A.P.-1, 241 W. Va. at 693–
94, 827 S.E.2d at 835–36. 18 This adjudication-first rule is so fundamental that it defines




       17
         When the matter was addressed at the adjudicatory hearing, Petitioner’s counsel
denied accepting service on Petitioner’s behalf.
      18
         In re A.P.-1, we stated that

               the primary purpose of making an initial finding of abuse or neglect
       is to protect the interest of all parties and to justify the continued jurisdiction
       of the court. The two-stage process supports the constitutional protections


                                               9
what a dispositional hearing is: “the hearing . . . that is held after a child has been adjudged
to be abused and/or neglected[.]” W. Va. R. P. Child Ab. & Negl. P. 3(i) [2015] (emphasis
added).

        “Where 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 . . . has been substantially disregarded or frustrated,” we will vacate “the resulting
order of disposition” and remand “the case . . . for compliance with that process[.]” Syl. Pt.
5, in part, In re Edward B., 210 W.Va. 621, 558 S.E.2d 620 (2001). On the record in this
case, we find that the circuit court plainly and substantially disregarded and frustrated the
orderly process of adjudication and disposition established in Chapter 49, Article 4, Part
VI of the West Virginia Code and our Rules of Procedure for Child Abuse and Neglect
Proceedings. The circuit court never concluded the adjudicatory hearing in this matter and
never entered the written adjudicatory order required by W. Va. Code § 49-4-601(i) 19 and
W. Va. R. P. Child Ab. & Negl. P. 27 [2015]. 20 Despite the fact that the court lacked any
of the necessary testimony or evidence to adjudicate Petitioner, shockingly, the circuit
court, without any objection whatsoever from his counsel, moved forward to conduct a
dispositional hearing and terminate Petitioner’s parental rights. While the facts
surrounding the alleged abuse of the children by the mother in this case are undoubtedly
horrific, and we are concerned by the evidence of Petitioner’s failure to protect the children,
we cannot ignore the fact that the record and the circuit court’s findings with respect to
Petitioner are grossly underdeveloped in this case. We are deeply concerned with the
disorganized, slipshod manner in which this case was handled by both the circuit court and
the parties, and the fact that this matter proceeded to disposition terminating Petitioner’s
parental rights in spite of these glaring procedural inadequacies. We therefore find that the


       afforded to parents in permanent child removal cases—constitutional rights
       guaranteed by the Due Process Clause of the Fourteenth Amendment.

241 W. Va. at 693–94, 827 S.E.2d at 835–36 (alteration removed) (quoting In re K.H., No.
18-0282, 2018 WL 6016722, at *5 (W. Va. Nov. 16, 2018) (memorandum decision)).
       19
          W. Va. Code § 49-4-601(i) provides that, “[a]t the conclusion of the adjudicatory
hearing, the court shall make a determination based upon the evidence and shall make
findings of fact and conclusions of law . . . , all of which shall be incorporated into the
order of the court.”
       20
         W. Va. R. P. Child Ab. & Negl. P. 27 provides that, “[a]t the conclusion of the
adjudicatory hearing, the court shall make findings of fact and conclusions of law” and
requires the court to “enter an order of adjudication . . . within ten (10) days of the
conclusion of the hearing[.]”

                                              10
circuit court’s errors in this respect were obvious and that they seriously affected both
Petitioner’s substantial rights and the fairness, integrity, and public reputation of the circuit
court’s proceedings. See Syl. Pt. 7, Miller, 194 W. Va. at 7, 459 S.E.2d at 118.

       For all of the foregoing reasons, we vacate the circuit court’s July 10, 2019
dispositional order and remand Petitioner’s case for a full adjudicatory hearing and
appropriate subsequent proceedings.

                                                                      Vacated and Remanded.

ISSUED: June 15, 2020

CONCURRED IN BY:

Chief Justice Tim Armstead
Justice Elizabeth D. Walker
Justice Evan H. Jenkins
Justice John A. Hutchison

Justice Margaret L. Workman not participating.




                                               11
