STATE OF WEST VIRGINIA
SUPREME COURT OF APPEALS
FILED
October 11, 2016
In re: K.M. and A.M. RORY L. PERRY II, CLERK
SUPREME COURT OF APPEALS
OF WEST VIRGINIA
No. 16-0109 (Wood County 15-JA-19 & 15-JA-20)
MEMORANDUM DECISION
Petitioner Father D.M., by counsel Courtney L. Ahlborn, appeals the Circuit Court of
Wood County’s December 29, 2015, order terminating his parental rights to three-year-old K.M.
and one-year-old A.M.1 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, George M. Torres, filed a response on behalf of the children also in
support of the circuit court’s order. On appeal, petitioner argues that (1) the circuit court denied
him a fair and impartial proceeding because his motion to disqualify the circuit court judge was
denied; (2) his due process rights were violated; (3) the circuit court committed reversible error
by releasing his juvenile records; (4) the circuit court erred in denying his motion for an
improvement period; and (5) the circuit court erred in terminating his parental rights.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.
In February of 2015, petitioner was arrested for and charged with the murder of his wife,
prompting the DHHR to file a petition seeking the removal of the children. According to the
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
We note that West Virginia Code §§ 49-1-1 through 49-11-10 were repealed and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 on May 20, 2015. In this memorandum decision, we apply the statutes as they
existed during the pendency of the proceedings below. It is important to note, however, that the
abuse and neglect statutes underwent minor stylistic revisions and the applicable changes have
no impact on the Court’s decision herein.
1
petition, the children were in the home at the time of the shooting. Petitioner admitted that he and
the mother smoked Roxycodone just before the shooting but maintained that the shooting was
accidental. That same month, petitioner waived his right to a preliminary hearing in the ensuing
abuse and neglect proceeding.
In a separate criminal proceeding, petitioner pled guilty to involuntary manslaughter,
possession of a firearm, wanton endangerment involving a firearm, and possession of a
controlled substance with the intent to deliver. Petitioner was subsequently sentenced to seven
years of incarceration for these offenses.
At an adjudicatory hearing held on May 14, 2015, petitioner stipulated to the allegations
as set forth in the petition and moved the circuit court for a post-adjudicatory improvement
period. The circuit court scheduled a hearing on petitioner’s motion and ordered that he undergo
psychological and parental fitness evaluations. The circuit court also ordered the release of
petitioner’s records from any prior juvenile proceedings for the parties’ review.3 Following
petitioner’s adjudication, the circuit court scheduled a dispositional hearing and a hearing on his
motion for an improvement period for June of 2015. Although the circuit court began a hearing
in June of 2015, the circuit court learned at that time that petitioner’s psychological and parental
fitness evaluations had not been completed. The circuit court rescheduled the petitioner’s
psychological and parental fitness evaluations for July of 2015, and scheduled the remainder of
the proceedings for September of 2015.
Subsequent to the entry of the circuit court’s order releasing petitioner’s juvenile records,
he filed a motion in the circuit court to disqualify the judge because the judge had presided over
his juvenile proceedings. Petitioner claimed that the judge’s prior knowledge of petitioner’s
juvenile proceedings caused him to be biased or prejudiced against petitioner in the abuse and
neglect proceedings. The circuit court’s response to petitioner’s motion that there was no
evidence that the circuit court’s evidentiary ruling proves that it was biased or prejudiced against
petitioner. This Court, by order entered on June 8, 2015, denied petitioner’s motion.
In September of 2015, the circuit court held a hearing on petitioner’s motion for an
improvement period. Petitioner failed to appear and his counsel represented that he was not
aware of petitioner’s location. Counsel also reported that petitioner entered guilty pleas in his
criminal proceedings, remained on bond, and was scheduled for sentencing in October of 2015.
Based on petitioner’s absence, the DHHR moved the circuit court to continue the hearing and
reschedule it for the same time as petitioner’s dispositional hearing. Petitioner’s counsel did not
object to the motion. The circuit court granted the DHHR’s motion and scheduled both hearings
for a later date.
3
According to the adjudicatory hearing transcript, petitioner was twenty-one years old at
the time of the hearing and the circuit court ordered the release of petitioner’s juvenile records
because the circuit court believed that his involvement in the juvenile system and his access to
juvenile services was relevant to the granting of petitioner’s motion for an improvement period.
2
In November of 2015, the circuit court held a dispositional hearing wherein petitioner’s
counsel stated that she did not timely receive petitioner’s case plan. Counsel moved the circuit
court to continue the final disposition to allow for review of the case plan and the lodging of any
objections. K.M.’s therapist appeared at the same hearing and testified that she diagnosed the
child with post-traumatic stress disorder based upon his having witnessed the chronic domestic
violence in the home and on his having experienced the aftermath of his mother’s shooting. The
therapist also testified that the child was severely traumatized by the shooting and needed
continued treatment. She further testified that K.M. displayed aggressive behaviors toward his
sibling, A.M., because K.M. had witnessed domestic violence in the home. She recommended
that K.M. have no contact with petitioner.4
In December of 2015, the circuit court held a final dispositional hearing wherein
petitioner admitted that he had been sentenced to a term of incarceration of seven years pursuant
to the guilty plea described above and that he abused illegal drugs. According to petitioner’s
psychological and parental fitness evaluations, he admitted to long-term drug abuse, admitted to
shooting the children’s mother, displayed a lack of appreciation for the effect of the shooting on
the children, and denied engaging in domestic violence with the mother, despite records to the
contrary. At the close of evidence, the circuit court found that, according to petitioner’s
psychological and parental fitness evaluations, he was resistant to authority, had “a poor
prognosis for change,” and was intoxicated daily. The circuit court further found that the children
suffered trauma as a result of petitioner’s killing the children’s mother while they were present in
the home. Based upon its findings, the circuit court determined that there was no reasonable
likelihood that the conditions of abuse and neglect could be substantially corrected in the near
future and termination of petitioner’s parental rights was in the children’s best interests. The
circuit court terminated petitioner’s parental rights by order entered on December 29, 2015. It is
from this 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,
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).
4
The therapist noted that she did not provide treatment to A.M. because he was only two
months old at the time of the shooting.
3
Syl. Pt. 1, In re Cecil T., 228 W.Va. 89, 717 S.E.2d 873 (2011).
On appeal, petitioner first contends that he did not receive a fair or impartial adjudication
because the circuit court judge who terminated his parental rights also presided over his past
juvenile proceedings. The Court, however, does not agree. West Virginia Trial Court Rule 17.01
provides that “[u]pon a proper disqualification motion, as set forth in this rule, a judge shall be
disqualified from a proceeding only where the judge’s impartiality might reasonably be
questioned, in accordance with the principles established in Canon [2.11] of the Code of Judicial
Conduct.” Canon 2.11(A)(1) of the West Virginia Code of Judicial Conduct provides that “[a]
judge shall disqualify himself or herself in any proceeding in which the judge’s impartiality
might reasonably be questioned, including but not limited to the following circumstances: [t]he
judge has a personal bias or prejudice concerning a party or a party’s lawyer . . . .”
Petitioner presents no evidence that the judge had any actual bias or prejudice against
him. Further, the Court has already addressed this matter. In May of 2015, petitioner filed with
this Court a motion for disqualification of the circuit court judge alleging the same facts asserted
herein. His motion was denied in an order entered on June 8, 2015, wherein the Chief Justice
found that the evidence set forth in support of petitioner’s motion to disqualify was insufficient
to warrant such disqualification. Petitioner now reiterates the same argument and, apart from the
broad contention that the circuit court judge was biased or prejudiced against him, offers no new
evidence or argument in support of his assertion that the proceedings below were not fair. As
such, we find no error.
Second, petitioner argues that the DHHR violated his due process rights because the
abuse and neglect proceedings were not timely, as required by West Virginia Code §§ 49-5D-3b
and 49-6-2. While petitioner assigns error to the asserted untimeliness of his preliminary hearing
and the MDT meeting, he supports this assignment of error with a more general argument: that
none of the abuse and neglect proceedings were timely and the overall untimeliness violated his
due process rights.
We begin our consideration of this assignment of error with the understanding that West
Virginia Code § 49-6-2(d) provides that
[a]ny petition filed and any proceeding held under the provisions of this article
shall, to the extent practicable, be given priority over any other civil action before
the court, except proceedings under article two-a, chapter forty-eight of this code
and actions in which trial is in progress. Any petition filed under the provisions of
this article shall be docketed immediately upon filing. Any hearing to be held at
the end of an improvement period and any other hearing to be held during any
proceedings under the provisions of this article shall be held as nearly as
practicable on successive days and, with respect to said hearing to be held at the
end of an improvement period, shall be held as close in time as possible after the
end of said improvement period and shall be held within sixty days of the
termination of such improvement period.
4
According to the record, the DHHR filed an abuse and neglect petition in February of 2015 and
the circuit court scheduled a timely preliminary hearing that same month, which petitioner
waived. Further, an adjudicatory hearing was initially scheduled for March of 2015 and was
rescheduled after petitioner was not transported from the regional jail for the hearing. The
hearing was rescheduled for April of 2015, but petitioner’s counsel requested a continuance. The
circuit court granted the continuance and rescheduled the hearing a third time. In May of 2015,
petitioner stipulated to the allegations set forth in the petition. Following petitioner’s
adjudication, the circuit court scheduled a dispositional hearing and a hearing on his motion for
an improvement period but those hearings were postponed because petitioner failed to complete
his psychological and parental fitness evaluations. The circuit court rescheduled the petitioner’s
psychological and parental fitness evaluations for July of 2015, and scheduled the remainder of
the proceedings for September of 2015. Petitioner failed to appear for the rescheduled September
of 2015 hearing. The dispositional hearing and the hearing on petitioner’s motion for an
improvement period were rescheduled twice in November of 2015 but petitioner was not
transported to the circuit court for those hearings.5 Petitioner’s dispositional hearing and the
hearing on his motion for an improvement period were completed in December of 2015. It is
apparent that each time petitioner’s adjudicatory and dispositional hearings were rescheduled
they were rescheduled at his request or for his benefit. Based on this series of events, it is clear
from the record that his abuse and neglect proceedings were conducted in a timely manner.
Having resolved petitioner’s contentions concerning the timeliness of the abuse and
neglect proceedings, we turn to the second issue within his second assignment of error: his
assertion that the scheduling of his multi-disciplinary team (“MDT”) meeting did not comport
with statutory guidelines. West Virginia Code § 49-5D-3b provides that
[w]ithin thirty days of the initiation of a judicial proceeding pursuant to article six
of this chapter, 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. The multidisciplinary team shall obtain and utilize any assessments
for the children or the adult respondents that it deems necessary to assist in the
development of such a plan.
While petitioner is correct that the initial MDT meeting took place outside of the thirty-day time
frame set forth in West Virginia Code § 49-5D-3b, he fails to present any evidence that the delay
caused him harm. We have held that
“[w]here 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
5
It is not clear from the record why petitioner was not transported. The record only
indicates that he was not transported and did not appear. Petitioner has not asserted that the
transportation failure was the fault of any other person.
5
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). It is clear from the record that
petitioner was released from incarceration before the initial MDT meeting took place in April of
2015. Petitioner benefitted from the delay because he was able to participate in the MDT
meeting. Based upon our review, it does not appear that the process for abuse and neglect
proceedings was “substantially disregarded or frustrated” by the MDT team’s decision to hold
the meeting after petitioner was released from incarceration and could participate in person.
Having determined that petitioner’s due process rights were not violated by the timing of his
initial MDT meeting, we find no error.
Petitioner next argues that the circuit court committed reversible error by releasing his
juvenile records. Petitioner contends that the disclosure of his juvenile records violated the intent
of West Virginia Code § 49-5-101, because the disclosure of juvenile records in an abuse and
neglect proceeding is not one of the enumerated exceptions under the statute, and the disclosure
“was highly prejudicial to his abuse and neglect proceeding.” First, West Virginia Code § 49-5
101(b)(4) provides, broadly, that juvenile records may be disclosed “[p]ursuant to an order of a
court of record. However, the court shall review the record or records for relevancy and
materiality to the issues in the proceeding and safety, and may issue an order to limit the
examination and use of the records or any part thereof.” While releasing juvenile records in an
abuse and neglect proceeding is not specifically permissible under the statutory exceptions, upon
our review of the record on appeal, the Court finds no error in the circuit court’s disclosure of
petitioner’s juvenile records. The circuit court limited the release solely to the parties involved in
the abuse and neglect proceeding and for the limited purpose of reviewing information relevant
to petitioner’s motion for an improvement period. Based on the facts of this case, we find no
error in this regard.
Next, petitioner argues that the circuit court erred in denying his motion for an
improvement period because he expressed remorse for killing the children’s mother. Upon our
review, we find no error in the circuit court’s denial of petitioner’s motion for a post
adjudicatory improvement period. Pursuant to West Virginia Code § 49-4-610(2), a circuit court
may only grant a post-adjudicatory improvement period when a parent “demonstrates, by clear
and convincing evidence, that the [parent] is likely to fully participate in the improvement period
. . . .” In the instant matter, the circuit court denied petitioner’s motion for a post-adjudicatory
improvement period upon finding that, according to the psychological and parental fitness
evaluations, he is resistant to authority, did not show remorse for the shooting, denied a history
of domestic violence, and admitted to daily intoxication. While petitioner argues that he was
remorseful for the shooting, the record clearly shows that, at the dispositional hearing, petitioner
continued to display a lack of appreciation for the effect the shooting had on the children.
Moreover, West Virginia Code § 49-4-610(2) provides circuit courts with discretion in ruling on
motions for improvement periods. As such, we find no error in the circuit court’s denial of
petitioner’s motion for a post-adjudicatory improvement period.
Finally, petitioner argues that the circuit court erred in terminating his parental rights to
the children. Pursuant to West Virginia Code § 49-4-604(c)(5), a situation in which there is no
6
reasonable likelihood that the conditions of abuse or neglect can be substantially corrected
includes one in which a respondent parent has
repeatedly or seriously injured the child physically or emotionally, or [has]
sexually abused or sexually exploited the child, and the degree of family stress
and the potential for further abuse and neglect are so great as to preclude the use
of resources to mitigate or resolve family problems or assist the abusing parent or
parents in fulfilling their responsibilities to the child.
In the proceedings below, the circuit court specifically made the finding that petitioner seriously
emotionally injured the children based upon his stipulation to shooting the children’s mother
while the children were present in the home. The circuit court also found that termination of his
parental rights was necessary for the children’s well-being. Pursuant to West Virginia Code § 49
4-604(b)(6), circuit courts are directed to terminate parental rights upon these findings. For these
reasons, we find no error in the circuit court’s order terminating petitioner’s parental rights.
For the foregoing reasons, the circuit court’s December 29, 2015, order terminating
petitioner’s parental rights to the children is hereby affirmed.
Affirmed.
ISSUED: October 11, 2016
CONCURRED IN BY:
Chief Justice Menis E. Ketchum
Justice Robin Jean Davis
Justice Brent D. Benjamin
Justice Margaret L. Workman
Justice Allen H. Loughry II
7