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### STATE OF WEST VIRGINIA

SUPREME COURT OF APPEALS

In re M.H. and B.H.

No. 18-0578 (Raleigh County 2017-JA-135-B and 2017-JA-137-B)



### MEMORANDUM DECISION

Petitioner Father J.H., by counsel Daniel J. Burns, appeals the Circuit Court of Raleigh County’s June 1, 2018, order terminating hi s parental rights to M.H. and B.H. 1 The West Virginia Department of Health and Human Re sources (“DHHR”), by counsel Mindy M. Parsley, filed a response in support of th e circuit court’s order. Responde nt R.R., legal guardian of B.H., by counsel Matthew A. Victor, f iled a response in support of th e 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-adjudicat ory improvement period; (2) terminating his parental rights without imposing a less-restrictive dispositional a lternative; (3) failing to hold a timely preliminary hearing; (4) and failing to re quire 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 deci sional process would not be significantly aided by oral argument. Upon consideration of the st andard of review, the briefs, and the record presented, the Court finds no substantial questi on of law and no prejudicial error. For these reasons, a memorandum decision affi rming the circuit court’s order is appropriate under Rule 21

of the Rules of A ppellate Procedure.

In May of 2017, the DHHR filed a petition alleging th at petitioner engaged in domestic violence in the presence of M.H. Specifical ly, 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 moth er while brandishing a knife. According to the DHHR, th e mother obtained a domestic viol ence 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). 

### FILED

November 21, 2018

EDYTHE NASH GAISER, CLERK

SUPREME COURT OF APPEALS

OF WEST VIRGINIA2 of 2017, the DHHR amended the petition to incl ude allegations of abandonment and that petitioner left B.H. in the cust ody of his legal guardian, R.R., w ithout 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 fo r June of 2018. The circuit court continued the hearing twice due to a scheduling conflict w ith a criminal trial and unavailability of the

circuit court. 2 Ultimately, petitioner waiv ed the preliminary hearing when the parties reconvened on August 29, 2017. Thereafter, the ci rcuit 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 c ourt continued the hearing to allow counsel to prepare the stipulation. Additi onally, 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 vis itation and services. The court summary also provided that B.H. did not wish to visit with petitioner. In December of 2017, the circuit court he ld a second adjudicatory hearing and petitioner presented his written stipul ation to the allegations of abuse and neglect. Following this stipulation, the circuit court found that petiti oner was an abusing parent. Petitioner moved for a post-adjudi catory improvement period and th e circuit court granted that

motion.

The circuit court held a revi ew hearing in March of 2018; petitioner did not appear, but was represented by counsel. The circuit court considered a DHHR cour t 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 pa rental rights alleging that petitioner failed to fully participate in dr ug 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 fi nal dispositional hearin g and heard evidence regarding petitioner’s particip ation in his post-adjudicatory improvement period. A DHHR worker testified that the partie s met for a multidisciplinary team (“MDT”) meeting in January of 2018 and agreed that petitioner w ould participate in anger manage ment classes, outpatient drug rehabilitation, supervised visitation, random drug and alcohol screenin g, and obtain suitable housing. According to the worker, petitioner had not participated in a ny services since the inception of his improvement period. The worker i ndicated that he was aw are 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 servic es in the physical rehabilitation center where petitioner was expect ed to live while recovering from his ailment.

2 The parties appeared in person on the original hear ing date to resche dule; petitioner did not object to the continuance or indicate that he wished to waive his preliminary hearing.3 However, petitioner left that facility against medi cal 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 petiti oner never contacted him regarding services or visitations with his children. However, the provide r 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 sta y, petitioner explained that he left the rehabilitation facility after th ree days to live with a childhood friend. Petitioner stated that he lived with this person through April of 2018 and ha d 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, peti tioner orally requested an exte nsion 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 fo und that there was no re asonable likelihood that petitioner could correct the conditi ons of abuse and neglect because of his lack of interest in participating in the terms of his case plan. Acco rdingly, 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 establishe d 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 sh all 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. Th ese findings shall not be set aside by a reviewing court unless cl early erroneous. A finding is clearly erroneous when, although there is evidence to support the finding, the revi ewing 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 diffe rently, 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 termin ated 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 cu rrent foster placement a nd the permanency plan for M.H. is continuation in her mother’s custody.4 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 circu it court erred in denying his motion to extend his post-adjudicatory improvement period despite substantial, compelling circumstances that prevented his participation. Petitio ner asserts that his illness and subsequent hospital stay in

December of 2017 “lasted for several weeks to mo re 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 responde nt has substantially complied with the terms of the improvement period,” he argues that the ci rcuit court should have granted his motion for an extension because of this medical emergency. We disagree.

The circuit court correctly denied petitione r’s motion to extend hi s post-adjudicatory improvement period because peti tioner did not substantially co mply with the terms of the improvement period. West Virginia Code § 49-4-610( 6) provides that a ci rcuit court may extend a post-adjudicatory improvement period

when the court finds that the respon dent has substantially complied with the terms of the improvement period; th at the continuation of the improvement period will not substantially impair the ab ility of the department to permanently place the child; and that the extension is ot herwise consistent with the best interest

of the child.

Petitioner did not demonstrate compliance with any of the terms of his improvement period, despite attempted accomm odations by the DHHR. In res ponse to petitioner’s hospital stay, the DHHR indicated that it would provi de services while petitioner underwent physical rehabilitation. However, peti tioner left the faci lity without notifying the DHHR and did not attempt to contact the DHHR afte rwards. West Virginia Code § 49-4-610(4)(A) specifies that “the respondent shall be responsible for the in itiation and the completi on of all terms of the improvement period.” Yet, it is clear from the re cord that petitioner made no attempt to initiate

services with the DHHR or on hi s own. Accordingly, we find that th e circuit court did not err in denying petitioner’s motion to extend his post-adjudicatory improvement period.

Petitioner also argues that the circuit court er red in terminating his parental rights without imposing a less-restrictive dispositional alterna tive. However, we find no error in the circuit court’s termination of petitioner’s parental righ ts. West Virginia Code § 49-4-604(b)(6) provides that a circuit court may terminate parental ri ghts upon findings that “there is no reasonable likelihood that the conditions of neglect or abus e 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 reasona ble 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 rehabilitativ e efforts of social, medical, mental health or other re habilitative agencies designed to reduce or prevent the abuse or neglect of the child.”5 The circuit court’s finding that there was no reasonable likelihood that the conditions of abuse and neglect could be substa ntially corrected in the near fu ture 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 effo rt 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 hi s or her children while they are out of the parent’s cust ody is a significant fact or in determining the parent’s potential to improve sufficiently and achieve minimu m 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, petiti oner blames his empl oyment for multiple missed visitations, petitioner never produced any ev idence that his work interfered with the visitation. Moreover, the service pr ovider testified that petitioner ra rely contacted him in order to

schedule visitation with his child. Fi nally, 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 rest rictive 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 ne glect 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 thro ughout the case supports the circuit court’s finding th at there was no

reasonable likelihood that the conditi ons 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 fail ing to comply with certain statutory time constraints. Although these three assignment s of error will be addressed individually, these assertions share a comm on basis in this Cour t’s prior holdings.

“Where it appears from the record that the process established by the

Rules of Procedure for Child Abuse and Ne glect 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 complian ce 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 he aring as provided in West Virginia Code § 49-4- 601(c). This statute provides “the preliminary hear ing shall be held within ten days of the order continuing or transferring custody, unless a continuance for a reasonab le time is granted to a date6 certain, for good cause shown.” Howe ver, petitioner never objected to the continuan ces 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 non jurisdictional questions .

. . raised for the first time on a ppeal, 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 belo w and ultimately waived his prel iminary hearing, he has waived his assignment of error. Accordingly, petitioner is enti tled 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 re quested a continuance of the adjudicatory hearing from October of 2017 to December of 2017 in order to prepare his st ipulation. Moreover, the October 31, 2017, court summary provides that the DHHR attempted to cont act petitioner regarding services and visits with his children, but that petitioner was “completely unreachable.” It is a pparent from the record that petitioner’s noncompliance with the DHHR wa s 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 adhe re to West Virginia Code § 49-4-405 constitutes a violation of his due pr ocess 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 Hea lth and Human Servi ces shall convene a multidisciplinary treatment team to assess, plan and implement a comprehensive, individualized service plan for children who are victim s of abuse or neglect and

their families.

Petitioner asserts that the firs t MDT meeting occurred in January of 2018. As a result of this delay, petitioner argues that he had “no clear objectives” re garding 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 “h e has attended the preliminary hearing and the MDT held in this matter.” Clearly, petitione r misstates the facts below. Additionally, the record is clear that pe titioner was noncompliant w ith services a nd visitation before January of 2018. Therefore, we do not find that a delay in th e holding of an MDT in this case substantially frustrated or disregarded the Rules of Child Abus e and Neglect Proceedings such that vacation is

warranted. The circuit court did not err.

Finally, petitioner argues that the DHHR failed to file a fam ily 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 recodifi ed in 2016 and the applicable code section is §49-4-408.7 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 pe titioner’s case plan was filed, petitioner never attempted to comply with services or vis itations provided by the DHHR. Even if the family case plan was not filed until January of 2018 as pe titioner asserts, petitioner had clear direction from the DHHR for the remainder of his improve ment 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 th e 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 sit ting by temporary assignment