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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 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). 

FILED 

November 21, 2018 

EDYTHE NASH GAISER, CLERK 

SUPREME COURT OF APPEALS 

OF WEST VIRGINIA
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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. 

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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). 

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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 

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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