1 

### STATE OF WEST VIRGINIA SUPREME COURT OF APPEALS

In re B. J. and M. B

.

No. 22

- 0 379 ( Wood County 20

- JA

- 146 and 20

- JA

- 147 )



### MEMORANDUM DECISION

Petitioner Mother C.J

. 1 appeals the Circuit Court of Wood County’s April 2 8 , 20 22, or der terminating h er parental rights to B.J. and M.B

. 2 Upon our review, we determine that oral argument is unnecessary and that a memorandum decision affirming the circuit court’s order is appropriate. See W. Va. R. A pp

. P

. 21

.

T he proceedings g iving ris e to this appe al be gan in July of 2020, when the DHHR filed a petition alleging that petitioner was in possession of d rugs and under the influence when she gave birth to B.J., who had to undergo non pharmaceutical treatment for drug exposure

. Durin g the DHH R ’ s investigation, petitioner indicated that she received her mail at her father ’ s home in Belpre

, Ohio , although she “ co nfirmed she reside s

. . . in Parkersbur g, ” West Virginia , along with her older child, M.B

. The DHHR inspected the home i n Par k ersbur g a nd found many of M.B

. ’ s belongings there. Additionally, p etitioner indicated th at she previously “ signed guardianship [of M.B.] over to her best friend

. ” According to petitioner, M.B. ’ s legal guardian cared for the child in West Virginia for appr o ximate ly four years while petitioner was homeless

, although petit ioner claimed to have re obtained custody of M.B. in Se ptember of 2019

. At the preliminary hearing in July of 2020, petitioner object ed to jurisdiction in West Virginia un der the Unif or

m Ch ild C u sto dy Jurisdiction and Enforcement Act ( “ UCCJEA ” ) as set forth in West Virgi nia Code § 48

- 20

- 1 01 through § 48

- 20

- 404

. At the time, petitioner argued that she lived with M.B

. in Ohio for at least ten months pr ior to the filing of the petition. Petit io ner

1 Petitioner ap pe ars by counsel Nancy L. McGhee

. The Wes t Virginia Department of Health and Human Resources (“DHHR”) appears by counsel Attorney General Patrick Morrisey and Assis tant Attorney General Katica Ribel

. Debra L. Steed appears as the children’s g uardi an ad litem

.

2 We u se initials where necessary to pro tect t he identities of those involved in this case. See W. Va. R. App. P . 40(e). 

### FILED February 7 , 2023

EDYTHE NASH GAISER, CLERK
SUPREME COURT OF APPEALS
OF WEST VIRGINIA2 di d n ot , however, ob ject to the West Virginia DHHR retaining temporary custody while the juris dictional issue was a ddress ed , so the court set the matter for adjudication in the interim.

During a hearing in August of 2020
, the parties presented the cour t wi th a n a greed order finding that Washington County, Ohio, had subject matter jurisdiction because Ohio was the home sta te of both children. According to the order, “ [t]he [c]ourt heard evidence that the Ohio DHHR . . . declined to take this case at the ti m e o f the incident that led to the filing of the

ra tification, ” but the order stressed that no court had declined such jurisdictio n. Th is order was then sent to the Washington County Court of Common Pleas for a ruling on juri sdiction. However
, by order ent e r ed o n Septem ber 1, 2020, the Ohio court declined to exercise jurisdi ction, finding that “ Wood County, West Virginia, would be a more convenient forum to hear the issues as one child has been in foster care in West Virginia for a considerable per io d of ti m e an d the other child who was born in Woo d County, West Vir ginia [
, ] . . . has been in foster care in West Virginia since his bi rth. ”

In October of 2020, petitioner stipulated t hat her substance abuse prevented her from
appropr iately caring for the child r e n. T he court accepted the stipulation and a dju dicated petitioner as an abusi ve and neglectful parent. The court then terminate d her parental rights to both children by order e ntered on April 28, 202 2
, as a result of her continued substance a buse, missed d r ug s creens, and other failures to remedy the conditions of a buse and neglect at iss ue

. 3 On appeal, petitione r is clear that sh e is not challenging her adjudication or the termination of her parental rights. H o wever, she does challenge the ci rcuit court ’ s d eni a l of her request for post

termination visitation in regard to M.B . only. In denying post

- termination visitat ion, the court noted that p etitioner did not “ make her child ren her numb er one priority

, ” a s evidence d by t he fact that she had r ecently “ comp l e tel y stopped drug screening. ” The court noted that there was

“ some bond ” between petitioner and M. B., who was then nine years old, althou gh the court fu rther exp ressed that “ at some point, [M.B .] will need to move on and achieve permanency

. ” Initially

, t h e co u rt expressed a wil lingness to permit petitioner to visit M.B. in the short

- term while “ re

- address[ing] that upon adoption of the child, because the child will need permanency

a nd to have a new life and stable environment with a new famil y. ” Howev er, u p on b eing reminded that petitioner had not had visits with M.B . for approxi matel y four months, the court ultimately d enied post

- termina tion visitation with petitioner. Specifically, the court found that “ it would not be in the child ’ s best in terests to re i n tro d uce [petitioner] into the child ’ s life only to, if th e child is adopted,

. . . be taking her back out. ” It is from the dispos itional order that petitioner appeals.

On appeal from a final order in an abuse and neglect proceeding, th is C ourt reviews t h e

c i rcuit court’s findings of fact for clear error and its conclusions of law de novo. Syl. Pt. 1, In re Cecil T

., 228 W. Va. 89, 717 S.E.2d 873 (2011). On appeal, petitioner first argues that the circuit court erred in ass uming jurisdiction over the chi l d ren un der the UCCJEA

. However, the record

3 The court also terminated the respective fa ther s ’ parental rights to the child ren . The permanency plan for the chi ld ren is adop tion i n the current p lacement.3 shows that an Ohio court declined to exercise jurisdiction over the children, thereby granting W est Vi rg inia jurisdiction under West Virginia Code § 48

- 20

- 201(a)(3)

. According to West Virginia Code § 48

- 20

- 201 ( a )

,

a court of this state has jurisdiction to make an initial child custody determination only if: (1) This state is the home state of th e child on the date of the commencement of the proceeding, or was the home state of the child within six months before t he

c ommencement of the proceeding, and the child is absent from this state but a parent or person acting as a parent continues to live i n this state; (2) A court of another state does not have jurisdiction under subdivision (1) of this subse ction, or a c o u rt o f the home state of the child has declined to exercise jurisdiction on the ground that this state is the more appropriate forum unde r section 20

- 207 or 20

- 208, and: (A) The child and the child ’ s parents, or the child and at least one par ent or a pers o n ac t ing as a parent, have a significant connection with this state other than mere physical presence; and (B) Substantial evidence is av ai lable in this state concerning the child ’ s care, protection, training and personal relationships; (3) A ll courts hav i n g j u risdiction under subdivision (1) or (2) of this subdivision have declined to exercise jurisdiction on the ground that a court of this state is the more appropriate forum to determine the custody of the child under section 20

- 207 or 20

- 20 8; or (4) No c o urt of any other state would have jurisdiction under the criteria specified in subdivision (1), (2) or (3) of this subsection.

Petitione r ma kes much of the fact that the Ohio court ’ s order acknowledged that it “ may have jurisdiction over th e children

, ” b u t t h is fact does nothing to bolster her position be fore t his Court. Indeed, the plain language of West Virginia Code § 48

- 20

- 201(a)(3) con templates a court having jurisdiction nonetheless de clin ing to exercise that jurisdiction, which is exactly what hap p e ned below.

Petitione r also alleges that the Ohio court ’ s determination that West Virginia was the more appropriate forum was based up on a m aterial mistake of fact. Specifically, petitioner takes issue with th e Ohio court ’ s finding tha t M.B. had “ been i n fo s ter car e in West Virg inia for a considerable period of time. ” Accordin g to petitioner, M.B. “ was not and never had been in foster care in West Virginia. ” This argument, however, ignores the fact that at the time the Oh io court made t his finding, M .B. h ad b een in foster care in West Virginia for two months pursuant to thi s very proceeding. 4 It is puzzling why petitioner would argue on appeal that t he child was

4 Petit ion er rep eatedly stresses that “ the child ’ s living arra ngements after the commencement of the proceeding

. . . are not relevant to the determination of whether the court has home state subject matter juri sdiction

. ” Sy l . Pt. 7
, in part, In re Z.H. , 245 W. Va. 456, 8 59

(continued . . . )4 not in foster care in t his state w hen the record clearly shows that the DHHR removed M.B. fro m her custody at the outset of the proceedings and placed the child in foster care throughout the

case ’ s duration. P etitioner appears to be argu ing that the Ohio court mis takenly believe d that M.B. was in foster care in West Virginia befor e the filing of t h e pe t ition, but there is nothing to suggest that petitioner ’ s interpretation of this fin ding is correct. 5 Simply pu t, the Ohio court declined jurisd iction upon accurate f acts ; that M.B. ha d been in foster care in this state for a conside rable period and t h a t B

. J. had been in foster care in this state for that child ’ s entire life.

On appeal, petitioner ar gues, w ithout citation to any authority

, that the circuit court

“ sho uld have essentially remanded the [o]rder to the Ohio court with a correct sta tement o f fa c ts and asked the court to reco nsi der its [o]rder. ” Aside from the fact that petitioner can point to no authority permitting a cir cuit court to “ remand ” an order to a court from another state once it declines to exercise juris diction, we again stress t h at , based upon the record before us, we will not accept petition er ’ s interpretation of the Ohio court ’ s findings as erroneous

. P e titioner also argues that the circuit court erred in failing to address ju risdiction again upon he r motion at the disposition al he a ring, but we find no merit to this argument as the matter had been settled and the circuit court was under no require ment to address jurisdiction anew after Ohio ’ s declination

. Because the Ohio court declined juris diction , we find no error in the cir cu it c ourt assuming jurisdiction pu rsuant to West Vir ginia Code § 48

- 2 0

- 201(a)(3) , and petitioner is entitled to no

r eli e f.

Having found no error in the circuit court ’ s exercise of j urisdiction, all th at remains is to addre ss petitioner ’ s argument that i t w a s error to deny her request f or post

- termination visitation with M.B. According to petitioner, she and the child shared a strong bond that should have permitted her to continue visita tion after term ination of her parenta l rights.

As we have exp lai ne d,

“ [w] hen parental rights are terminated due to neglect or abuse, the circuit court may nevertheless in appropriate case s consider whether continued visitation or other contact with the abusing paren t is in the best inter est of the child. Among other th ing s , the circuit court should c onsider whether a close emotional bond has

S.E.2d 399 (2021) (emphasis added). This ho lding has no bearing on the circuit court ’ s

a ssumption of jurisdiction in this matter , however, as it did not do so in accordance with home state sub ject matter j urisdi ct ion

, as set forth in Wes t Vi rginia Code § 48

- 20

- 201(a)(1) , but

, rather, declination jur isdicti on under (a)(3 )

.

5 In support of her assertion that this finding is erron eous, petitioner cites to correspondence between the DHHR and the Oh io court, in add iti on to dis cussion during a hearing be fore t he circuit court regarding the alleged “ misunde rstanding. ” I t must be stressed

, however, that none of the evidence to which petitioner cites demonstra tes that the Ohio court intended this finding to mean that M.B. wa s in foster care before the ins tan t proc eedings

commen ced.5 been established between parent and child and th e child’s wishes, if he or she is of appropriate maturity to make such request. The evidence must ind icate that such visitation or co nti n ued contact would not be det rimental to the child’s well being and would be in the child’s best interest.” Syl. Pt. 5, In re Christina L. , 194 W.Va. 446, 460 S.E.2d 692 (1995).

Syl. Pt. 11, In re D aniel D. , 211 W. Va. 7 9, 562 S.E.2d 147 (2002). As o ut lin e d ab ove, the circuit court n oted petition er ’ s lack of effort in ensuring that she was entitled to visitation throughout the proceedings in denying p ost

- te rmination visitation, as petitioner had not visited the child for approximately four mo nths beca us e s h e tested positive for metham phetamine . The court also explicitly found that visitation would not be in the child ’ s best interests because she required stability, which would be undermined by reintroducing petitioner into her life only to have petitio ne r r e moved again up on the child ’ s eventu al ado ption. Because the recor d shows that post

- termin ation visitation would have been d et rimental and against M.B. ’ s best interest, we find

no error.

For the f oregoing reasons, w e find no error in the decision of t he c ircuit court, and its April 2 8 , 202 2, order is hereby affirmed.

Affirmed.

ISSUED : February 7, 2023

CONCURRED IN BY :

Chief Justice Elizabeth D. Walker Justice Tim Armstead Justice John A. Hutchison Justice Wi lliam R. Wooton Jus tice C. Haley Bunn