### STATE OF WEST VIRGINIA
SUPREME COURT OF APPEALS

FILED

In re O.S. 

### October 19, 2018

EDYTHE NASH GAISER, CLERK
No. 18-0402 (Cabell County 17-JA-238) SUPREME COURT OF APPEALS

OF WEST VIRGINIA



### MEMORANDUM DECISION

Petitioner Father D.K., by counsel Neil Bouc hillon, appeals the Circuit Court of Cabell County’s March 27, 2018, order termina ting his parental rights to O.S. 1 The West Virginia Department of Health and Human Resources (“DHHR”), by counsel Mindy M. Parsley, filed a response in support of the circui t court’s order. The guardian ad litem (“guardian”), Cathy L. Greiner, filed a response on behalf of the child also in support of the circuit court’s order. Petitioner filed a reply. On app eal, petitioner argues that the circuit court erred in proceeding to disposition at a review hearing and fail ing to appoint him a guardian ad litem.

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 September of 2017, the DHHR filed a child abuse and neglect petition against petitioner and the mother. 2 Specifically, the DHHR alleged that the mother ha d a history of depression and refused to properly care for the children. Petitioner did not live in the home with his child but was the subject of separate family court proceedings due to the mother having filed a domestic violence protective order against him. The DHHR alleged that petitioner had issues with anger and domestic violence. One referral indicated that petitioner hit the mother in the presence of D.S. and threw a car seat onto the porch with his then two-week-old O.S. strapped inside. The DHHR alleged that peti tioner failed to support the chil d emotionally or financially.

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 The mother has two children, D.S. and O.S. Pe titioner is the biologic al father of O.S., the only child at issue on appeal.

1Of note, several referrals received by the DHHR indicated that petitioner was intellectually “lower functioning.”

The circuit court held an ad judicatory hearing in Novemb er of 2017, wherein petitioner stipulated to the allegations regarding domestic violence and admitted that domestic violence affected his ability to parent the child. Th e circuit court accepted pe titioner’s stipulation, adjudicated him as an abusing parent, and granted him a post-adjudicatory improvement period. As part of his improvement period, petitioner was granted a psychological evaluation, parenting and adult life skills classes, and supervised visitation.

In December of 2017, the circuit court held a review hearing regarding petitioner’s post

adjudicatory improvement period. After hearing evidence, the ci rcuit court determined that petitioner had not completed paren ting education classes. While petitioner did attend the classes, he was unable to demonstrate appropriate caretak ing skills and the serv ice provider expressed concern regarding petitioner’s in tellectual capacity. The hearing was continued so that the multidisciplinary team could discuss providing anger management services to petitioner.

As part of his post-adjudicatory im provement period, petitioner underwent a psychological evaluation in January of 2018. The evaluator determined that petitioner was not able to independently care for the child and th at it was not likely he would benefit from any services designed to allow him to attain mini mally adequate parenting. As such, petitioner’s prognosis was determined to be poor, largely due to his “low frustration tolerance and lack of alternative mechanisms for managing anger, his in ability to relate to the child and demonstrate appropriate caregiver skills, and the likelihood that [petitioner] will not de rive sufficient benefit from . . . services.” Finally, while the evalua tor noted that petitioner’s testing suggested borderline intellectual functioning, she found that he demonstrated a general understanding of the proceedings and an ability to assist his attorney in his defense.

In February of 2018, the DHHR filed a notice of intent to terminate petitioner’s parental rights at a March 5, 2018 hearing, which the circuit court had orig inally scheduled as a review hearing. 3 At this hearing, as indicate d in its notice, the DHHR recomm ended that the circuit court terminate petitioner’s post-adjudicatory im provement period based upon the psychological evaluation, the suspension of petitioner’s supervised visitation with the ch ild, and his continued inability to demonstrate or implement caretakin g skills, and further recommended termination of his parental rights.

At the hearing, petitioner voluntarily relinquis hed his parental rights to the child. He testified that he understood the relinquishment form s, was not threatened or promised anything in

3 The notice stated,

[p]lease take notice that the above-styled case is set down for hearing on the 5th day of March, 2018 at 9:00 a.m. . . at which time [the DHHR] does intend to move to terminate the parental rights of [petitioner] . . . at which time you may appear to protect your inte rests should you so desire.

2return for his signature, and wa s not under the influence of drugs . The circuit court found that petitioner, having had ample time to consult hi s attorney about the ma tter, voluntarily and intelligently relinquished his parental rights and accepted the relinquishment. It is from the March 27, 2018, dispositional orde r that petitioner appeals. 4

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).

Syl. Pt. 1, In re Cecil T ., 228 W.Va. 89, 717 S.E.2d 873 (2011).

On appeal, petitioner argues that the circuit court erred in failing to appoint him a guardian ad litem prior to accepting his voluntary relinquishment of parental rights to the child. 5 We find no merit to petitioner’ s argument. The psychological ev aluation report indicated that petitioner demonstrated a general understanding of the proceedings and an ability to assist his attorney in his defense. The circ uit court found that petitioner appear ed to be orient ed to time and place and understood his actions at the time of the dispositional hearing. At no time did petitioner request the appointment of a guardian ad litem and, as such, the circuit court had no opportunity to rule on the same. Therefore, we find that petitioner has waived his right to raise this issue on appeal and is entitled to no relief in this regard. See State v. Jessie , 225 W.Va. 21,

4 The mother’s parental rights were terminated below. The child was placed in a foster home and the permanency plan is adoption therein.

5 Petitioner relies on Matter of Lindsey C. , 196 W.Va. 395, 473 S.E.2d 110 (1995), wherein this Court held that “[i]n abuse and ne glect proceedings the appointment of a guardian ad litem is required for adult respondents who ar e involuntarily hospitalized for mental illness, whether or not such adult respondents have also been adjudicated incompetent.” Lindsey C. , 196 W.Va. at 396, 473 S.E.2d at 111, Syl. Pt. 3. Howeve r, petitioner cites to no portion of the record demonstrating that he has been involuntarily hos pitalized for mental illness. Accordingly, we

find that Lindsey C. is inapplicable to the case at bar.

327, 689 S.E.2d 21, 27 (2009) (“This Court’s general ru le is that nonjurisdi ctional questions not
raised at the circuit court level will not be considered to the firs t time on appeal.”).

Petitioner next alleges that the circuit court erred in “posturing [the ] review hearing as a dispositional hearing.” By doing so, petitioner argue s that the circuit court failed to comply with
Rules 31 6 and 32 7 of the West Virginia Rules of Pr ocedure for Child Abuse and Neglect Proceedings. According to petitioner, at the review hearing “the [circuit c]ourt should have either terminated [petitioner’s] improvement period or c ontinued with admonishme nts and directions. It should not have been about disp osition and for example, the vol untary relinquishment of his parental rights.”

In support of his argument, petitioner heavily relies on In re Travis W. , 206 W.Va. 478, 525 S.E.2d 669 (1999), in which this Court reversed the termination of a fa ther’s parental rights

and remanded the case due to the circuit court’s failure to comply with Rules 31 and 32. In that case, the circuit court held an adjudicatory hearing in which it terminated the father’s parental rights at the close of the hear ing. 206 W.Va. at 481, 525 S.E.2d at 672. This Court found that the
father had not received notice of the intent to proceed to disposi tion, nor had any of the requirements for an accelerated disposition pursuant to Rule 32(b) been met. 206 W.Va. at 484, 525 S.E.2d at 675. Petitioner argues his case wa rrants a similar conclusion. We disagree.

6 Rule 31 of the West Virginia Rules of Procedure for Child Abuse and Neglect Proceedings sets forth that “ [n]otice of the date, time, and place of the disposition hearing shall be given to all parties, their counsel, and persons entitled to notice and th e right to be heard.”

7 Rule 32 of the West Virginia Rules of Procedure for Child Abuse and Neglect Proceedings sets forth that

(a) Time frame

. – The disposition hearing shall commen ce within forty-five (45) days of the entry of the final adjudicatory order unless an improvement period is granted pursuant to W.Va. Code § 49-4-610( 2) and then no later than thirty (30) days after the end of the improvement period.

(b) Accelerated disposition hearing . – The disposition hearing immediately may follow the adjudication hearing if:

(1) All the parties agree;

(2) A child’s case plan meeting the requir ements of W.Va. Code §§ 49-4-408 and 49

- 4-604 was completed and provided to the c ourt or the party or the parties have waived the requirement that the child's case plan be submitted prior to disposition;

and

(3) Notice of the disposition hearing was pr ovided to or waived by all parties as required by these Rules.

4Travis W. is distinguishable becaus e Rules 31 and 32(b) of the West Virginia Rules of Procedure for Child Abuse and Neglect Proceedings were not implicated in the instant case. First, Rule 32(b) has no applicability to th e instant proceedings given that no accelerated disposition occurred. Second, petitio ner’s assertion that the circuit court “postur[ed] [the] review hearing as a dispositional hearin g” is entirely wit hout merit. The record shows that the DHHR

filed a notice that it intended to seek termination of petitioner’s parental rights at this hearing, not

that the circuit court intended to treat it as anything other than a review hearing. On the contrary, petitioner informed the circuit court at the begi nning of the review heari ng that he wished to voluntarily relinquish his parental rights to the child, thus dictati ng the direction of the hearing toward a finality of the proceedings. Furthe r, petitioner testified that he understood the relinquishment forms and that no one threatened him or promised him anything in exchange for his signature. Lastly, petitioner was provided ample time to disc uss the matter with his counsel. Accordingly, the circuit court found that pet itioner voluntarily and intelligently made his decision and accepted his voluntary relinquishment. Petitioner’s voluntarily relinquishment of his parental rights precluded the need to proceed to a dispositional hear ing and made the notice requirements of Rule 31 inapplicable. Moreover , petitioner’s argument that the circuit court should have either terminated his improvement pe riod or continued the pr oceedings, rather than terminate his parental rights, is unpersuasive in li ght of the fact that petitioner himself requested to voluntarily relinquish his parent al rights at that time. Further, we note that petitioner did not object to the circuit court’s alleged lack of notice or its acceptance of his voluntary relinquishment of parental rights . As such, petitioner waived any right to raise this issue on appeal due to his failure to object. See Jessie , 225 W.Va. at 27, 689 S.E.2d at 27.

For the foregoing reasons, we find no error in the decision of the circuit court, and its March 27, 2018, order is hereby affirmed.

Affirmed.

ISSUED : October 19, 2018

CONCURRED IN BY :

Chief Justice Margaret L. Workman

Justice Elizabeth D. Walker

Justice Paul T. Farrell sit ting by temporary assignment

Justice Tim Armstead

Justice Evan H. Jenkins

Justice Allen H. Loughry II suspende d and therefore not participating

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