STATE OF WEST VIRGINIA
SUPREME COURT OF APPEALS
FILED
In re S.H.-1, S.H.-2, K.H.-1, and M.B.
April 9, 2018
EDYTHE NASH GAISER, CLERK
No. 17-1002 (Wood County 16-JA-193, 194, 195, and 196) SUPREME COURT OF APPEALS
OF WEST VIRGINIA
MEMORANDUM DECISION
Petitioner Father K.H.-2, by counsel Justin M. Raber, appeals the Circuit Court of Wood
County’s October 11, 2017, order terminating his parental rights to S.H.-1, S.H.-2, K.H.-1, and
M.B.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. The guardian ad litem
(“guardian”), Debra L. Steed, filed a response on behalf of the children also in support of the
circuit court’s order. On appeal, petitioner argues that the circuit court erred in (1) denying him
an extension of his post-adjudicatory improvement period, (2) terminating his parental rights
upon an erroneous finding that there was no reasonable likelihood that the conditions of abuse
and neglect could be corrected and when less-restrictive alternatives were available, and (3)
failing to consider the wishes of M.B. regarding termination of petitioner’s parental rights.
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 November of 2016, the DHHR filed an abuse and neglect petition against the parents
after learning that petitioner allowed S.H.-1, S.H.-2, and K.H.-1 to stay with the mother on
weekends, despite knowing that her custodial rights to the children had been involuntarily
terminated during abuse and neglect proceedings in 2012. Petitioner was a party to prior abuse
and neglect proceedings in 2007 and 2012, but the children were returned to his care after both
instances. The DHHR further alleged that petitioner dropped the children off at the mother’s
house in October of 2016 and had not returned for them. In November of 2016, the mother filed
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). Additionally, because two of the children share the same
initials, we will refer to them as S.H.-1 and S.H.-2, respectively, throughout this memorandum
decision. Further, another child and petitioner share the same initials and so we will refer to them
as K.H.-1 and K.H.-2, respectively, throughout this memorandum decision.
1
a domestic violence protective order against petitioner after he threatened to shoot her, S.H.-1,
SH.-2, and K.H.-1. The DHHR attempted to put a safety plan in place but could not locate
petitioner.
The circuit court held an adjudicatory hearing in January of 2017, during which petitioner
stipulated to the allegations contained in the petition. The circuit court accepted petitioner’s
stipulation, adjudicated him as an abusing parent, and granted him a post-adjudicatory
improvement period. The DHHR filed an amended petition in February of 2017, alleging that
petitioner tested positive for methamphetamine, amphetamines, and marijuana subsequent to the
adjudicatory hearing.
The circuit court held a dispositional hearing in August of 2017. Petitioner failed to
appear but was represented by counsel, who indicated that she had no knowledge of petitioner’s
whereabouts. The DHHR requested a continuance, which the circuit court granted.
In September of 2017, the circuit court reconvened the dispositional hearing. Petitioner
again failed to appear but was represented by counsel, who advised the circuit court that she had
not heard from petitioner but requested that the hearing be continued. The circuit court denied
petitioner’s counsel’s request, noting that petitioner also failed to attend the prior hearing. A
DHHR report and a Court Appointed Special Advocates (“CASA”) report were submitted into
evidence. The DHHR proffered that petitioner failed to comply with the terms of his post-
adjudicatory improvement period, had not provided drug screens, and had not kept in contact
with the DHHR. As such, the DHHR did not believe that there was a substantial likelihood of
change for petitioner. The circuit court found that petitioner continued to use controlled
substances and did not follow through with any services, other than supervised visitation for a
short period of time, and, as such, had not completed his post-adjudicatory improvement period.
The circuit court found that there was no reasonable likelihood that petitioner could substantially
correct the conditions of abuse and neglect in the near future and that termination was necessary
for the children’s welfare. It is from the October 11, 2017, dispositional order terminating his
parental rights that petitioner appeals.2
The Court has previously established the following standard of review in cases such as
this:
“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,
2
The circuit court also terminated the parental rights of the mother of S.H.-1, S.H.-2, and
K.H.-1 during the proceedings below. According to the guardian, these children are currently
placed with a non-adoptive foster family while the DHHR searches for a suitable permanent
placement, as the permanency plan is adoption. The mother of M.B. is a non-abusing parent and
the permanency plan for M.B. is to remain in the care of her mother.
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).
On appeal, petitioner argues that the circuit court erred in denying him an extension of his
post-adjudicatory improvement period. However, a review of the record indicates that petitioner
did not request an extension to his post-adjudicatory improvement period, either in writing or
orally. As such, petitioner has waived his right to raise this issue on appeal. See State v. Jessie,
225 W.Va. 21, 27, 689 S.E.2d 21, 27 (2009) ( “This Court’s general rule is that nonjurisdictional
questions not raised at the circuit court level will not be considered to the first time on appeal.”).
Accordingly, the Court finds that petitioner is entitled to no relief in this regard.
Petitioner next argues that the circuit court erred in terminating his parental rights.
Specifically, petitioner argues that the evidence does not support 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. Additionally, petitioner argues that the circuit court erred in failing
to employ a less-restrictive alternative than termination of his parental rights. We disagree.
Pursuant to West Virginia Code § 49-4-604(b)(6), circuit courts are directed to terminate parental
rights upon findings that there is no reasonable likelihood the conditions of abuse and neglect
can be substantially corrected in the near future and when necessary for the children’s welfare.
West Virginia Code § 49-4-604(c)(3) clearly indicates that a situation in which there is no
reasonable likelihood the conditions of abuse and neglect can be substantially corrected includes
one in which
[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, as evidenced by the continuation or insubstantial
diminution of conditions which threatened the health, welfare or life of the child .
...
Contrary to petitioner’s argument that the circuit court did not receive any evidence
demonstrating petitioner’s failure to participate in services or his inability to correct his parenting
deficiencies, the record demonstrates that there was sufficient evidence upon which to base this
finding. The DHHR proffered that petitioner had not complied with services, including drug
screening and adult life skills and individualized parenting classes. In fact, the only service with
which petitioner complied was supervised visitation and his compliance with that service was
minimal and ceased as the case progressed. Further, the guardian, the DHHR, and CASA
submitted reports into evidence substantiating petitioner’s failure to comply with any aspect of
his improvement period and their determination that termination of petitioner’s parental rights
3
was in the children’s best interest. Petitioner intentionally chose not to attend either dispositional
hearing and failed to present any evidence. Accordingly, the circuit court was correct to find that
there was no reasonable likelihood that petitioner could correct the conditions of abuse and
neglect and that termination was necessary for the children’s welfare. While petitioner argues
that less-restrictive alternatives were available, we have previously held that
“[t]ermination 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). Given this evidence, we find
the circuit court correctly terminated petitioner’s parental rights.
Additionally, petitioner argues that the circuit court erred in not considering M.B.’s
wishes, as she was over the age of fourteen. Pursuant to West Virginia Code § 49-4-
604(b)(6)(C), at disposition, circuit courts must consider the wishes of “a child fourteen years of
age or older or otherwise of an age of discretion as determined by the court[.]” While petitioner
argues that the circuit court did not consider M.B.’s wishes, he cites to nothing in the record
suggesting that M.B. desired petitioner’s parental rights to remain intact. To the extent petitioner
argues that the child was not asked her preference, we find no objection on this ground in the
record below.3 As noted above, this Court will not consider issues raised for the first time on
appeal.
Lastly, this Court reminds the circuit court of its duty to establish permanency for the
children. 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 children
within twelve months of the date of the disposition order. As this Court has stated,
3
While we find that petitioner is not entitled to relief in this regard because he did not
object during the proceedings below, we admonish the guardian to speak with children in abuse
and neglect proceedings who are over the age of fourteen in order to ascertain their wishes
regarding disposition pursuant to West Virginia Code § 49-4-604(b)(6)(C).
4
[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.
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
October 11, 2017, order is hereby affirmed.
Affirmed.
ISSUED: April 9, 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