STATE OF WEST VIRGINIA
SUPREME COURT OF APPEALS
FILED
In Re: S.V. & H.V. October 20, 2015
RORY L. PERRY II, CLERK
SUPREME COURT OF APPEALS
No. 15-0472 (Mineral County 14-JA-2 & 14-JA-3) OF WEST VIRGINIA
MEMORANDUM DECISION
Petitioner Mother B.V., by counsel Agnieszka Collins, appeals the Circuit Court of
Mineral County’s January 28, 2015, order terminating her parental rights to S.V. and H.V. 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”), Kelley A. Kuhn, filed a response on behalf of the children supporting the circuit
court’s order. On appeal, petitioner alleges that the circuit court erred in denying her motion to
dismiss the petition, transferring legal and physical custody of the children to the DHHR without
a finding of abuse or neglect, ordering petitioner to relocate to a homeless shelter, and
terminating her post-adjudicatory improvement period.1
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 February of 2014, the DHHR filed an abuse and neglect petition against petitioner and
her husband, G.V., alleging aggravated circumstances based upon a prior involuntary termination
of their parental rights to older children. Petitioner moved to dismiss this petition on allegations
that it failed to allege abuse or neglect, but the circuit court denied this motion. The circuit court
held a preliminary hearing in February of 2014, during which petitioner indicated that she would
take the children to a shelter. Based upon this representation, the circuit court granted the family
twenty-four hours to report to a shelter where the DHHR secured beds for the family. However,
petitioner later refused to move into the shelter in favor of remaining in a hotel room, and the
circuit court issued an order requiring the parents to allow the DHHR to transport them to the
shelter. Upon arriving at the shelter, both parents tested positive for marijuana. After only one
night in the shelter, the parents contacted the DHHR and asked that the children be placed in
1
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.
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foster care because they did not want to remain in the shelter. The DHHR arranged transportation
from the shelter and placed the children in foster care.
In March of 2014, the DHHR filed an amended petition based upon the current issues of
neglect caused by the parents’ failure to provide the children with a safe home. The amended
petition also included more information regarding the prior involuntary terminations of the
parents’ parental rights based on an inability to provide the children with suitable housing, lack
of employment, and drug use. According to the amended petition, none of these conditions were
remedied. As it related to the current children, the DHHR alleged that the parents had recently
moved to West Virginia from Maryland. The petition further alleged that the parents left their
child, S.V., in the care of G.V.’s father and step-mother. According to the DHHR, G.V.’s father
is a convicted sex offender and his step-mother had her parental rights to her biological children
terminated. Both parents also admitted that G.V.’s step-mother is “drunk from morning to night”
and “yells at S.V. all of the time for absolutely nothing.” Only after the DHHR expressed
concerns about S.V. living in that home did petitioner and her husband bring the child to West
Virginia. Upon further investigation, the DHHR learned that G.V.’s uncle, with whom the family
was residing, was also a convicted sex offender. The DHHR cautioned petitioner that she was
living in an inappropriate home and needed to move to assure the children’s safety.
That same month, the circuit court held an adjudicatory hearing, during which petitioner
stipulated to the prior involuntary termination of her parental rights and that she neglected the
subject children by her failure to secure suitable housing and employment, and by her drug
abuse. The circuit court then granted petitioner a six-month post-adjudicatory improvement
period. Petitioner agreed to comply with the terms thereof, which included drug screens,
obtaining gainful employment and suitable housing, and completing parenting and adult life
skills classes.
In December of 2014, the circuit court held a hearing on the guardian’s motion to
terminate petitioner’s improvement period. The circuit court heard evidence that petitioner
refused to participate in a GED program designed to assist her in obtaining employment.
Additionally, the circuit court heard evidence that petitioner rejected offers to help find
employment and that she ultimately failed to obtain employment or housing. The circuit court
then terminated petitioner’s improvement period and set the matter for disposition. In January of
2015, the circuit court held a dispositional hearing and found there was no reasonable likelihood
that petitioner could substantially correct the issues of abuse or neglect in the near future and
terminated her parental rights. Petitioner appeals from the dispositional order.
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
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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 circuit court denying petitioner’s motion to dismiss, removing the children from
petitioner’s care, ordering petitioner to check into a homeless shelter, or terminating her post-
adjudicatory improvement period.
First, there is simply no merit to petitioner’s argument that the circuit court erred in
denying her motion to dismiss the initial petition. Petitioner asserts that the petition lacked any
facts that would constitute abuse or neglect, but this argument ignores both the statutes
governing circumstances when a petition is required and the specific facts of the case. Petitioner
does not dispute that her parental rights to older children were involuntarily terminated in
previous proceedings. Pursuant to West Virginia Code § 49-6-5b(a)(3), the DHHR is required to
“file or join in a petition . . . in any pending proceeding to terminate parental rights . . . [i]f a
court has determined the . . . parental rights of the parent to a sibling have been terminated
involuntarily.” As such, it is clear that the DHHR had a statutory duty to file the initial petition in
this matter.
Further, the DHHR’s allegation that petitioner’s parental rights to older children were
previously involuntarily terminated is sufficient to constitute an allegation of present conditions
of abuse or neglect in accordance with West Virginia Code § 49-6-1(a). We have previously held
that
[w]here there has been a prior involuntary termination of parental rights to a
sibling, the issue of whether the parent has remedied the problems which led to
the prior involuntary termination sufficient to parent a subsequently-born child
must, at minimum, be reviewed by a court, and such review should be initiated on
a petition pursuant to the provisions governing the procedure in cases of child
neglect or abuse set forth in West Virginia Code §§ 49–6–1 to –12 (1998).
Although the requirement that such a petition be filed does not mandate
termination in all circumstances, the legislature has reduced the minimum
threshold of evidence necessary for termination where one of the factors outlined
in West Virginia Code § 49–6–5b(a) (1998) is present.
In re Kyiah P., 213 W.Va. 424, 427, 582 S.E.2d 871, 874 (2003) (quoting Syl. Pt. 2, In the
Matter of George Glen B., 205 W.Va. 435, 518 S.E.2d 863 (1999)). It is clear that when the
DHHR alleges that a parent’s parental rights have previously been involuntarily terminated, such
an allegation is sufficient to allege present abuse or neglect to subsequently-born children, thus
necessitating a new adjudicatory hearing wherein the DHHR is required to establish that the prior
conditions of abuse and neglect have not been corrected or that newer conditions of abuse or
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neglect exist. For these reasons, the circuit court did not err in denying petitioner’s motion to
dismiss the amended petition.
As to petitioner’s argument that the circuit court erred in failing to dismiss the amended
petition because it was not verified as required by West Virginia Code § 49-6-1(a), the Court
declines to address this issue on appeal. The circuit court entered its order denying petitioner’s
motion to dismiss on March 4, 2014. The DHHR did not move the circuit court to allow the
petition’s amendment until March 5, 2014. Because petitioner’s motion to dismiss was fully
resolved prior to the amended petition’s filing, petitioner did not argue that a lack of verification
necessitated dismissal. The record is further clear that petitioner never later raised this issue
below. This Court has often held that it will not consider issues raised for the first time on
appeal. See In re Michael Ray T., 206 W.Va. 434, 444, 525 S.E.2d 315, 325 (1999) (stating that
“a constant refrain of this Court is that we will not consider, for the first time on appeal, a matter
that has not been determined by the lower court from which the appeal has been taken.”); see
also Syl. Pt. 1, Mowery v. Hitt, 155 W.Va. 103, 181 S.E.2d 334 (1971) (holding that “this Court
will not decide nonjurisdictional questions which were not considered and decided by the court
from which the appeal has been taken.”). More importantly, the record is clear that petitioner
later stipulated to allegations in the amended petition, further reinforcing the fact that petitioner
is entitled to no relief in this regard.
Petitioner’s second assignment of error is also without merit. Specifically, petitioner
argues that the circuit court erred in transferring legal and physical custody of the children to the
DHHR without making a finding of abuse or neglect. This argument again misstates the
applicable law governing imminent danger. Pursuant to West Virginia Code § 49-6-3(a)(1) and
(2), when a petition is filed
the court may order that the child alleged to be an abused or neglected child be
delivered . . . into the custody of the [DHHR] . . . if it finds that . . . [t]here exists
imminent danger to the physical well being of the child; and . . . [t]here are no
reasonably available alternatives to removal of the child . . . .
This Code section is clear that no finding of abuse or neglect is required to transfer custody and,
in fact, plainly states that abuse or neglect would simply need be alleged at this stage as the
circuit court would not yet have held an adjudicatory hearing. More importantly, West Virginia
Code § 49-6-3(d)(3) specifically states that, in making such custody determinations, the DHHR
is not required to make reasonable efforts to preserve the family if “[t]he parental rights of the
parent to another child have been terminated involuntarily.” As such, it is clear that the circuit
court did not err in ordering that the DHHR have legal and physical custody of the children, and
this is especially true in light of the fact that the record shows petitioner was initially granted
placement of the children but later contacted the DHHR to voluntarily transfer them to foster
care.
Next, the Court finds no merit to petitioner’s argument that the circuit court erred in
ordering that she leave a hotel room and move into a homeless shelter. In support of this
argument, petitioner states that she deemed the shelter unsafe for her children. However, the
Court does not find this argument compelling, given that the prior termination of petitioner’s
4
parental rights to her older children was based, in part, on a failure to provide a safe and
habitable home. Further, the amended petition in this matter additionally alleged that petitioner
was unable to provide the subject children with safe and suitable housing by virtue of allowing
both children to live with convicted sex offenders. Therefore, it is clear that petitioner had
difficulty identifying an appropriate dwelling for the children and cannot rely on her own opinion
about approved housing as justification for failing to follow the circuit court’s orders. Further,
petitioner argues that the DHHR failed to provide reasonable alternatives to the children’s
removal as required by West Virginia Code § 49-6-3(a)(2). However, this argument ignores the
fact that the DHHR was not required to make reasonable efforts to preserve the family because
of petitioner’s prior involuntary termination of parental rights to older children as set forth in
West Virginia Code § 49-6-3(d)(3) as addressed above. For these reasons, the Court finds no
error in the circuit court directing petitioner to relocate to the shelter in question.
Finally, the Court finds no merit to petitioner’s argument that the circuit court erred in
terminating her improvement period upon a family case plan that was not sufficiently tailored to
her needs as to constitute reasonable efforts to reunify the family. Again, petitioner’s argument
on this issue ignores the fact that, because of the prior involuntary termination of her parental
rights to older children, the DHHR was not required to make efforts to reunify the family. In fact,
pursuant to West Virginia Code § 49-6-5(a)(7)(C), the circuit court was entitled to proceed
through disposition without such services being offered. Nonetheless, the DHHR offered
services designed to reunify the family, including a psychological evaluation, life skills training,
GED training, and assistance in seeking employment. Moreover, the record is clear that
petitioner and her counsel participated in the multidisciplinary team meeting to develop the case
plan and voiced no objection to the plan’s adoption at the May 1, 2014, hearing.
Petitioner argues, however, that the results of her psychological evaluation were not
provided until August of 2014, and that issues raised in the evaluation were not incorporated into
the case plan. In essence, petitioner argues that she did not receive additional services, again
ignoring the fact that the DHHR was not statutorily required to provide any services. Petitioner
further ignores the fact that she failed to comply with the services that were offered, the results of
the evaluation notwithstanding. We have previously held that “[i]t is within the court’s discretion
to grant an improvement period within the applicable statutory requirements; it is also within the
court’s discretion to terminate the improvement period before [it] has expired if the court is not
satisfied that the defendant is making the necessary progress.” Syl. Pt. 2, in part, In re Lacey P.,
189 W.Va. 580, 433 S.E.2d 518 (1993). The record here is clear that petitioner failed to make the
necessary progress, as evidenced by her failure to follow through with GED classes, or make
improvements in her housing or employment. For these reasons, the circuit court did not err in
terminating her improvement period.
For the foregoing reasons, we find no error in the decision of the circuit court and its
January 28, 2015, order is hereby affirmed.
Affirmed.
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ISSUED: October 20, 2015
CONCURRED IN BY:
Chief Justice Margaret L. Workman
Justice Robin Jean Davis
Justice Brent D. Benjamin
Justice Menis E. Ketchum
Justice Allen H. Loughry II
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In Re: S v. and H.V.
Combined Opinion