                                                      STATE OF WEST VIRGINIA
                                                    SUPREME COURT OF APPEALS
                                                                                     FILED
In re M.H. and B.H.                                                             November 21, 2018
                                                                                 EDYTHE NASH GAISER, CLERK
                                                                                 SUPREME COURT OF APPEALS
No. 18-0578 (Raleigh County 2017-JA-135-B and 2017-JA-137-B)                         OF WEST VIRGINIA 




                                                          MEMORANDUM DECISION
         Petitioner Father J.H., by counsel Daniel J. Burns, appeals the Circuit Court of Raleigh
County’s June 1, 2018, order terminating his parental rights to M.H. and B.H.1 The West
Virginia Department of Health and Human Resources (“DHHR”), by counsel Mindy M. Parsley,
filed a response in support of the circuit court’s order. Respondent R.R., legal guardian of B.H.,
by counsel Matthew A. Victor, filed a response in support of the circuit court’s order. The
guardian ad litem (“guardian”), Vickie L. Hylton, filed a response on behalf of the children in
support of the circuit court’s order. On appeal, petitioner argues that the circuit court erred in (1)
denying his motion to continue his post-adjudicatory improvement period; (2) terminating his
parental rights without imposing a less-restrictive dispositional alternative; (3) failing to hold a
timely preliminary hearing; (4) and failing to require a multidisciplinary team (“MDT”) meeting
within thirty days of the filing of the petition. Petitioner also argues that the DHHR’s failure to
file a family case plan within thirty days of adjudication is reversible error.

        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 May of 2017, the DHHR filed a petition alleging that petitioner engaged in domestic
violence in the presence of M.H. Specifically, the DHHR alleged that petitioner burned the
mother with a lit cigarette, pushed the mother to the ground while she was holding M.H. and
attempting to leave the home, and threatened to kill himself and the mother while brandishing a
knife. According to the DHHR, the mother obtained a domestic violence protective order. The
DHHR alleged that petitioner was later arrested for violating that protective order. Later in May
                                                            
              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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of 2017, the DHHR amended the petition to include allegations of abandonment and that
petitioner left B.H. in the custody of his legal guardian, R.R., without maintaining contact with
R.R or B.H. Moreover, the DHHR alleged that petitioner called only once in December of 2016
to check on B.H. and failed to provide any financial support for B.H.

        The circuit court set a preliminary hearing for June of 2018. The circuit court continued
the hearing twice due to a scheduling conflict with a criminal trial and unavailability of the
circuit court.2 Ultimately, petitioner waived the preliminary hearing when the parties reconvened
on August 29, 2017. Thereafter, the circuit court ordered petitioner to participate in drug and
alcohol screening and a psychological examination.

        In October of 2017, the circuit court held an adjudicatory hearing and petitioner indicated
that he intended to stipulate to the allegations in the petition. However, petitioner’s written
stipulation had not been prepared. The circuit court continued the hearing to allow counsel to
prepare the stipulation. Additionally, a court summary prepared by the DHHR and dated October
31, 2017, reported that petitioner “has been completely unreachable” after numerous attempts to
contact him regarding visitation and services. The court summary also provided that B.H. did not
wish to visit with petitioner. In December of 2017, the circuit court held a second adjudicatory
hearing and petitioner presented his written stipulation to the allegations of abuse and neglect.
Following this stipulation, the circuit court found that petitioner was an abusing parent.
Petitioner moved for a post-adjudicatory improvement period and the circuit court granted that
motion.

        The circuit court held a review hearing in March of 2018; petitioner did not appear, but
was represented by counsel. The circuit court considered a DHHR court summary, dated March
19, 2018, that reported petitioner had not exercised any visitation with his children or contacted
his service provider. The DHHR filed a motion to terminate petitioner’s parental rights alleging
that petitioner failed to fully participate in drug and alcohol screening, that he tested positive for
THC on one occasion and on another occasion positive for THC and cocaine, that he failed to
exercise any visitation with M.H., and that he had not signed the case plan due to his
unavailability.

        In May of 2018, the circuit court held the final dispositional hearing and heard evidence
regarding petitioner’s participation in his post-adjudicatory improvement period. A DHHR
worker testified that the parties met for a multidisciplinary team (“MDT”) meeting in January of
2018 and agreed that petitioner would participate in anger management classes, outpatient drug
rehabilitation, supervised visitation, random drug and alcohol screening, and obtain suitable
housing. According to the worker, petitioner had not participated in any services since the
inception of his improvement period. The worker indicated that he was aware petitioner suffered
from some illness and was briefly hospitalized as a result. The worker explained that at the MDT
meeting, he advised petitioner that the DHHR could provide services in the physical
rehabilitation center where petitioner was expected to live while recovering from his ailment.
                                                            
              2
        The parties appeared in person on the original hearing date to reschedule; petitioner did
not object to the continuance or indicate that he wished to waive his preliminary hearing.



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However, petitioner left that facility against medical advice and the worker testified that he had
not heard from petitioner since that time.

        A service provider testified and corroborated petitioner’s lack of participation in services.
The provider explained that petitioner never contacted him regarding services or visitations with
his children. However, the provider indicated that petitioner did contact him in February of 2018
to request contact information for the Child Protective Services hotline. According to the
provider, petitioner visited M.H.’s mother’s home and believed it was not suitable for M.H.
Finally, petitioner testified that he suffered from a debilitating pain and required hospitalization
in December of 2018. Following his hospital stay, petitioner explained that he left the
rehabilitation facility after three days to live with a childhood friend. Petitioner stated that he
lived with this person through April of 2018 and had no access to a telephone in order to contact
the DHHR or his service provider. Petitioner also admitted that he did not participate in drug
screening, did not have stable housing, and would “probably not” pass a drug screen. Following
the presentation of evidence, petitioner orally requested an extension of his post-adjudicatory
improvement period.

        Ultimately, the circuit court found that petitioner had failed to participate in his
improvement period. Further, the circuit court found that there was no reasonable likelihood that
petitioner could correct the conditions of abuse and neglect because of his lack of interest in
participating in the terms of his case plan. Accordingly, the circuit court terminated petitioner’s
parental rights. The circuit court memorialized its decision in its June 1, 2018, order. Petitioner
now appeals that order.3

              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).

                                                            
              3
       B.H.’s mother’s parental rights were terminated in a prior proceeding. M.H.’s mother
was a nonabusing parent and maintains custody of M.H. According to the parties, the
permanency plan for B.H. is adoption in his current foster placement and the permanency plan
for M.H. is continuation in her mother’s custody.



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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.

       On appeal, petitioner argues that the circuit court erred in denying his motion to extend
his post-adjudicatory improvement period despite substantial, compelling circumstances that
prevented his participation. Petitioner asserts that his illness and subsequent hospital stay in
December of 2017 “lasted for several weeks to more than a month” and rendered him unable to
attend services or otherwise participate in his improvement period. Although petitioner
acknowledges that an extension should only be granted when “a respondent has substantially
complied with the terms of the improvement period,” he argues that the circuit court should have
granted his motion for an extension because of this medical emergency. We disagree.

        The circuit court correctly denied petitioner’s motion to extend his post-adjudicatory
improvement period because petitioner did not substantially comply with the terms of the
improvement period. West Virginia Code § 49-4-610(6) provides that a circuit court may extend
a post-adjudicatory improvement period

               when the court finds that the respondent has substantially complied with
       the terms of the improvement period; that the continuation of the improvement
       period will not substantially impair the ability of the department to permanently
       place the child; and that the extension is otherwise consistent with the best interest
       of the child.

         Petitioner did not demonstrate compliance with any of the terms of his improvement
period, despite attempted accommodations by the DHHR. In response to petitioner’s hospital
stay, the DHHR indicated that it would provide services while petitioner underwent physical
rehabilitation. However, petitioner left the facility without notifying the DHHR and did not
attempt to contact the DHHR afterwards. West Virginia Code § 49-4-610(4)(A) specifies that
“the respondent shall be responsible for the initiation and the completion of all terms of the
improvement period.” Yet, it is clear from the record that petitioner made no attempt to initiate
services with the DHHR or on his own. Accordingly, we find that the circuit court did not err in
denying petitioner’s motion to extend his post-adjudicatory improvement period.

        Petitioner also argues that the circuit court erred in terminating his parental rights without
imposing a less-restrictive dispositional alternative. However, we find no error in the circuit
court’s termination of petitioner’s parental rights. West Virginia Code § 49-4-604(b)(6) provides
that a circuit court may terminate parental rights upon findings that “there is no reasonable
likelihood that the conditions of neglect or abuse can be substantially corrected in the near
future” and that termination is necessary for the welfare of the children. West Virginia Code §
49-4-604(c)(3) provides that there is no reasonable likelihood that the conditions of abuse and
neglect can be substantially corrected when “[t]he abusing parent . . . [has] not responded to or
followed through with a reasonable family case plan or other rehabilitative efforts of social,
medical, mental health or other rehabilitative agencies designed to reduce or prevent the abuse or
neglect of the child.”




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         The circuit court’s finding that there was no reasonable likelihood that the conditions of
abuse and neglect could be substantially corrected in the near future is supported by the record.
Petitioner admitted that he engaged in serious acts of domestic violence against the mother of
M.H. Despite his admission, petitioner made no effort to remedy his conduct through services or
counseling. Further, petitioner frequently missed visitations with M.H. “We have previously
pointed out that the level of interest demonstrated by a parent in visiting his or her children while
they are out of the parent’s custody is a significant factor in determining the parent’s potential to
improve sufficiently and achieve minimum standards to parent the child.” In re Katie S., 198
W.Va. 79, 90, n.14, 479 S.E.2d 589, 600, n.14 (1996)(citing Tiffany Marie S., 196 W.Va. at 228
and 237, 470 S.E.2d at 182 and 191; State ex rel. Amy M. v. Kaufman, 196 W.Va. 251, 259, 470
S.E.2d 205, 213 (1996)). Although, on appeal, petitioner blames his employment for multiple
missed visitations, petitioner never produced any evidence that his work interfered with the
visitation. Moreover, the service provider testified that petitioner rarely contacted him in order to
schedule visitation with his child. Finally, we have held as follows:

               “Termination of parental rights, the most drastic remedy under the
       statutory provision covering the disposition of neglected children, W. Va.Code [§]
       49-6-5 [now West Virginia Code § 49-4-604] . . . may be employed without the
       use of intervening less restrictive alternatives when it is found that there is no
       reasonable likelihood under W. Va.Code [§] 49-6-5(b) [now West Virginia Code
       § 49-4-604(c)] . . . that conditions of neglect or abuse can be substantially
       corrected.” Syllabus point 2, In re R.J.M., 164 W.Va. 496, 266 S.E.2d 114 (1980).

Syl. Pt. 5, In re Kristin Y., 227 W.Va. 558, 712 S.E.2d 55 (2011). Petitioner’s failure to comply
with any services throughout the case supports the circuit court’s finding that there was no
reasonable likelihood that the conditions of abuse and neglect could be substantially corrected in
the near future. Accordingly, we find no error in the termination of petitioner’s parental rights.

        Finally, petitioner argues that the circuit court erred in failing to comply with certain
statutory time constraints. Although these three assignments of error will be addressed
individually, these assertions share a common basis in this Court’s prior holdings.

               “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 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).

       First, petitioner argues that the circuit court violated his due process rights by failing to
adhere to the time constraint for a preliminary hearing as provided in West Virginia Code § 49-4-
601(c). This statute provides “the preliminary hearing shall be held within ten days of the order
continuing or transferring custody, unless a continuance for a reasonable time is granted to a date

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certain, for good cause shown.” However, petitioner never objected to the continuances in this
case and, ultimately, waived his preliminary hearing. Also, petitioner does not assert any
prejudice as a result of these continuances. “‘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 it is clear that petitioner did not
object to these continuances below and ultimately waived his preliminary hearing, he has waived
his assignment of error. Accordingly, petitioner is entitled to no relief.

         Further, petitioner asserts that he was not granted an improvement period until December
of 2017 and that the delay caused him to miss visits with his children. Yet, it is clear from the
record that petitioner requested a continuance of the adjudicatory hearing from October of 2017
to December of 2017 in order to prepare his stipulation. Moreover, the October 31, 2017, court
summary provides that the DHHR attempted to contact petitioner regarding services and visits
with his children, but that petitioner was “completely unreachable.” It is apparent from the record
that petitioner’s noncompliance with the DHHR was a more significant barrier to services and
visitations than the continuation of hearings in this case. Therefore, we do not find a substantial
frustration or disregard for the Rules of Child Abuse and Neglect proceedings such that vacation
is warranted.

       Next, petitioner argues that the circuit court’s failure to adhere to West Virginia Code §
49-4-405 constitutes a violation of his due process rights. This statute provides

              [w]ithin thirty days of the initiation of a judicial proceeding pursuant to part six,
              of this article, the Department of Health and Human Services shall convene a
              multidisciplinary treatment team to assess, plan and implement a comprehensive,
              individualized service plan for children who are victims of abuse or neglect and
              their families.

Petitioner asserts that the first MDT meeting occurred in January of 2018. As a result of this
delay, petitioner argues that he had “no clear objectives” regarding the DHHR’s requirements for
parental improvement. However, in petitioner’s motion for a post-adjudicatory improvement
period, filed on December 22, 2017, he asserts that “he has attended the preliminary hearing and
the MDT held in this matter.” Clearly, petitioner misstates the facts below. Additionally, the
record is clear that petitioner was noncompliant with services and visitation before January of
2018. Therefore, we do not find that a delay in the holding of an MDT in this case substantially
frustrated or disregarded the Rules of Child Abuse and Neglect Proceedings such that vacation is
warranted. The circuit court did not err.

       Finally, petitioner argues that the DHHR failed to file a family case plan within thirty
days of the adjudicatory hearing as required by West Virginia Code §49-4-408.4 Petitioner notes
                                                            
              4
        Petitioner cites to “W.Va. Code 49-6-2(b)” as authority for this requirement. However,
Chapter 49 of the West Virginia Code was recodified in 2016 and the applicable code section is
§49-4-408.



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that “[t]he purpose of the family case plan . . . is to clearly set forth an organized, realistic
method of identifying family problems and the logical steps to be used in resolving or lessening
these problems.” Syl. Pt. 5, State ex rel. W.Va. Dep’t of Human Servs. v. Cheryl M., 177 W.Va.
688, 356 S.E.2d 181 (1987). However, despite when petitioner’s case plan was filed, petitioner
never attempted to comply with services or visitations provided by the DHHR. Even if the family
case plan was not filed until January of 2018 as petitioner asserts, petitioner had clear direction
from the DHHR for the remainder of his improvement period and did not pursue the goals agreed
upon in that case plan. Accordingly, we find that the late filing of petitioner’s family case plan
did not substantially frustrate or disregard the Rules of Child Abuse and Neglect Proceedings
such that vacation is warranted in this case. The circuit court did not err.

        For the foregoing reasons, we find no error in the decision of the circuit court, and its
June 1, 2018, order is hereby affirmed.


                                                                                        Affirmed.

ISSUED: November 21, 2018


CONCURRED IN BY:

Chief Justice Margaret L. Workman
Justice Elizabeth D. Walker
Justice Tim Armstead
Justice Evan H. Jenkins
Justice Paul T. Farrell sitting by temporary assignment




 




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