STATE OF WEST VIRGINIA 

SUPREME COURT OF APPEALS FILED 

In re: S.W. 

November 23, 2015 

RORY L. PERRY II, CLERK 

SUPREME COURT OF APPEALS 

OF WEST VIRGINIA 

No. 15-0328 (Grant County 13-JA-7, 13-JA-8, 13-JA-9, 13-JA-10, & 14-JA-17) 

MEMORANDUM DECISION 

Petitioner Father J.W., by counsel Jeremy B. Cooper, appeals the Circuit Court of Grant 

County’s March 11, 2015, order terminating his parental rights to S.W.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 (“guardian”), Joyce E. 

Stewart, filed a response on behalf of the child supporting the circuit court’s order. Petitioner 

filed a reply. On appeal, petitioner alleges that the circuit court erred in proceeding to disposition 

once his whereabouts became known without giving him actual notice of the proceedings.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 June of 2014, the DHHR filed an abuse and neglect petition against petitioner alleging 

abandonment. At the time, the DHHR was aware that petitioner had recently been released from 

incarceration in Delaware, but was unaware of his exact location. The circuit court appointed 

counsel for petitioner while the DHHR continued to investigate his current address. The 

following month, the circuit court held an adjudicatory hearing. At that time, petitioner’s counsel 

announced that he had not yet located his client, but had information that petitioner was living in 

the Grant County area. Based upon this information, the parties agreed to a continuance to 

provide petitioner notice. Thereafter, the DHHR effectuated service on petitioner by publication 

in Grant County. However, petitioner failed to appear for the rescheduled adjudicatory hearing. 

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The proceedings in the circuit court included several other children that were not 

petitioner’s biological children. On appeal, petitioner raises assignments of error relating solely 

to the termination of his parental rights to his biological child, S.W. As such, this memorandum 

decision concerns only the circuit court’s findings and rulings regarding that child. 

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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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At that point, the circuit court recognized proper service and proceeded to hear evidence of 

petitioner’s abandonment. Petitioner was represented by counsel throughout the hearing. 

Ultimately, the circuit court adjudicated petitioner of abandonment and found that petitioner had 

not seen the child in approximately five years or provided the child with financial support. 

In December of 2014, the circuit court held a dispositional hearing. Petitioner did not 

attend this hearing but was again represented by counsel. Immediately prior to the dispositional 

hearing, the DHHR caseworker handling the matter was informed by the DHHR’s economic 

services division that an individual applied for economic assistance and listed petitioner as a 

member of her household in November of 2014. The applicant resided in Upshur County. The 

caseworker was not personally aware of this information until just prior to the dispositional 

hearing. Upon hearing this testimony, petitioner’s counsel moved for a continuance. The circuit 

court denied the motion and terminated petitioner’s parental rights. It is from the dispositional 

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). 

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 proceeding to disposition without providing petitioner actual notice 

of the proceedings. 

On appeal, petitioner does not dispute that the DHHR achieved service on him by 

publication. Pursuant to West Virginia Code § 49-6-1(b), “[i]f service [of the petition and notice 

of the hearing] cannot be obtained by personal service or by certified mail, notice shall be by 

publication as a Class II legal advertisement in compliance with the provisions of article three, 

chapter fifty-nine of this code.” In this matter, the record shows that the DHHR initially had no 

information concerning petitioner’s specific address and that “service of the petition . . . was 

made on [petitioner] by publication.” Additionally, petitioner does not allege that the DHHR’s 

publication did not comply with the provisions of article three, chapter fifty-nine of the West 

Virginia Code. Instead, petitioner urges the Court to find that, despite proper service, his due 

process rights were violated when the DHHR obtained information concerning his whereabouts 

on the eve of the dispositional hearing. We decline to do so. 

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Pursuant to Rule 21 of the West Virginia Rules of Procedure for Child Abuse and 

Neglect Proceedings, “[t]he judge may permit the civil protection proceeding to go forward after 

one parent personally is served, if it is established on the record that there have been diligent but 

unsuccessful efforts to serve all other parties . . .” and the DHHR has complied with the 

applicable statutes governing service. It is undisputed that S.W.’s mother was personally served, 

and the circuit court correctly allowed the proceedings to continue because of the DHHR’s 

efforts to achieve service on petitioner. Moreover, petitioner’s absence in the abuse and neglect 

proceedings below only underscores the allegations of abuse and neglect against him; namely, 

abandonment. Ultimately, we find no error in the circuit court proceeding to disposition upon 

valid service by publication upon petitioner. This is especially true in light of our prior direction 

that “[c]hild abuse and neglect cases must be recognized as being among the highest priority for 

the courts’ attention. Unjustified procedural delays wreak havoc on a child’s development, 

stability and security.” Syl. Pt. 1, in part, In Interest of Carlita B., 185 W.Va. 613, 408 S.E.2d 

365 (1991). 

For the foregoing reasons, we find no error in the decision of the circuit court, and its 

March 11, 2015, order is hereby affirmed. 

Affirmed. 

ISSUED: November 23, 2015 

CONCURRED IN BY: 

Chief Justice Margaret L. Workman 

Justice Brent D. Benjamin 

Justice Allen H. Loughry II 

DISSENTING: 

Justice Robin Jean Davis 

Justice Menis E. Ketchum 

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