1

STATE OF WEST VIRGINIA

SUPREME COURT OF APPEALS

In re A.B.

No. 18-1147 (Kanawha County 18-JA-356)

MEMORANDUM DECISION

Petitioner Father J.B., by counsel Benjamin Freeman, appeals the Circuit Court of 

Kanawha County’s November 29, 2018, order terminating his parental rights to A.B.

1 The West 

Virginia Department of Health and Human Resources (“DHHR”), by counsel Melinda C. Dugas, 

filed a response in support of the circuit court’s order. The guardian ad litem, Jennifer R. Victor, 

filed a response on behalf of the child in support of the circuit court’s order. On appeal, 

petitioner argues that the circuit court erred in adjudicating him of abandonment because the 

petition was not legally sufficient and because the DHHR failed to meet its evidentiary burden.

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 2018, the DHHR filed an abuse and neglect petition that alleged petitioner 

abandoned the child due to his failure to provide the child with the necessary food, clothing, 

supervision, housing, or financial support of any kind. At the time, the child lived with his 

maternal grandmother, who assumed legal guardianship of the child after the mother voluntarily 

relinquished her parental rights during an earlier abuse and neglect proceeding. According to the 

 

1Consistent 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). 

2On appeal, petitioner raises no assignment of error concerning the termination of his 

parental rights. 

FILED

June 12, 2019

EDYTHE NASH GAISER, CLERK

SUPREME COURT OF APPEALS

OF WEST VIRGINIA
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record, petitioner retained his parental rights to the child following this prior matter. Thereafter, 

the DHHR served petitioner by publication.

In August of 2018, the circuit court held an adjudicatory hearing. Petitioner did not 

appear for the hearing, although he was represented by counsel. According to the record, 

petitioner’s attorney was informed shortly before the hearing that petitioner was incarcerated on 

unrelated criminal charges. During the hearing, the DHHR presented testimony consistent with 

the petition’s allegations. Specifically, a DHHR employee testified that the child was the subject 

of a prior abuse and neglect proceeding and that petitioner’s parental rights remained intact 

following that proceeding. Testimony further established that there was no evidence that 

petitioner provided support of any kind for the child, despite the fact that he was ordered to pay 

the child’s guardian $50 per month beginning in December of 2009. Ultimately, the circuit court 

found that petitioner abandoned the child due to his failure to provide him with the necessary 

physical, emotional, or financial support. Further, the circuit court found that “the evidence 

presented against [petitioner] was uncontroverted.” Thereafter, at a dispositional hearing in 

October of 2018, the circuit court terminated petitioner’s parental rights upon evidence that 

petitioner “has had no relationship with his child.” It is from the dispositional order that 

petitioner appeals.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). 

Syl. Pt. 1, In re Cecil T., 228 W. Va. 89, 717 S.E.2d 873 (2011). Upon review, the Court finds no 

error in the proceedings below.

Petitioner’s first assignment of error on appeal asserts that the circuit court erred in 

adjudicating him because the petition against him was legally insufficient. We note, however, 

 

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In addition to termination of petitioner’s parental rights, the child’s legal guardian’s 

rights were also terminated. The mother is deceased. According to the respondents, the 

permanency plan for the child is either adoption or legal guardianship in his current relative 

placement.
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that petitioner has provided no citation to the record to establish that he raised this issue below. 

See W. Va. R. App. Pro. 10(c)(7) (requiring a petitioner’s brief to “contain appropriate and 

specific citations to the record on appeal, including citations that pinpoint when and how the 

issues in the assignments of error were presented to the lower tribunal”). While it is true that 

petitioner contested his adjudication factually, there is nothing in the record to show that 

petitioner filed a motion to dismiss the petition or otherwise asserted in the circuit court that the 

allegations contained therein were legally deficient. “‘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, 821, 679 S.E.2d 650, 653 (2009). Because 

petitioner failed to raise this issue below, we decline to address the argument on appeal. 

Next, petitioner argues that his adjudication was erroneous because the DHHR failed to 

meet the applicable burden of proof.4In support of this assignment of error, petitioner argues that 

because the child was previously placed in a legal guardianship with his grandmother, petitioner 

could not have abandoned him. This argument, however, not only lacks a basis in the law but 

also actively undermines petitioner’s position. Indeed, this Court has held that “[t]o the extent 

that State ex rel. McCartney v. Nuzum, 161 W.Va. 740, 248 S.E.2d 318 (1978), holds that a noncustodial parent can be found not to have abused and neglected his or her child it is expressly 

overruled.” Syl. Pt. 1, in part, In re Katie S., 198 W. Va. 79, 479 S.E.2d 589 (1996). Here, 

petitioner did not exercise custody over the child, but this fact did not preclude the DHHR from 

asserting that he committed abandonment. As this Court directed, in “a situation in which 

apparently one [individual] has abused or neglected the children and [another] has abandoned the 

children, both allegations should be included in the abuse and neglect petition.” Id. 

Here, the record shows that petitioner retained his parental rights following the prior 

abuse and neglect proceeding that resulted in the child’s placement with the grandmother. Rather 

than absolving petitioner of his responsibility to provide the child with support, the placement 

 

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In support of this assignment of error, petitioner also briefly asserts that “the West 

Virginia Code requires Court[s] to consider the ‘least restrictive alternative’ in the disposition of 

abuse and neglect matters.” According to petitioner, the Code further permits a child to be placed 

in a legal guardianship at disposition, which he asserts “already happened years ago.” It appears 

that petitioner makes this argument in support of his assertion that he could not have abandoned 

the child because he was placed in a legal guardianship, as opposed to arguing that the specific 

disposition in this case was erroneous. Regardless, even assuming petitioner is arguing that 

disposition was inappropriate, we decline to address this issue because petitioner’s passing 

reference to this issue fails to comply with the applicable rules regarding appellate briefs. W. Va. 

R. App. Pro. 10(c)(3) (requiring a petitioner’s brief to include “a list of the assignments of error 

that are presented for review” and providing that “[t]he statement of the assignments of error will 

be deemed to include every subsidiary question fairly comprised therein”). Petitioner’s 

assignments of error concern adjudication only, and, therefore, arguments concerning disposition 

cannot be said to constitute a subsidiary question fairly comprised therein. 
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with the grandmother was simply a byproduct of petitioner’s abandonment. Although the DHHR 

chose not to seek termination of petitioner’s parental rights during the earlier proceeding, it is 

clear that he had already “demonstrate[d] the settled purpose to forego the duties and parental 

responsibilities to the child.” W. Va. Code § 49-1-201. According to the record, as early as 2009, 

petitioner was ordered to pay child support while the child was in the grandmother’s care. 

Despite this order, evidence presented during the matter on appeal established that petitioner 

never provided the child support of any kind and, in fact, “had no relationship with his child.”

Accordingly, petitioner’s argument that he could not abandon a child who was placed in the 

custody of someone else is without merit. 

In support of this assignment of error, petitioner cites to an inapplicable statute regarding 

abandonment. Rather than relying on the definition of abandonment as set forth in West Virginia 

Code § 49-1-201, governing abuse and neglect proceedings, petitioner relies on West Virginia 

Code § 48-22-306, which sets forth a situation in which abandonment is presumed for purposes 

of adoption proceedings. The latter statute is simply not controlling, although it is important to 

note that, in regard to this statute, petitioner “will not contest” the fact that he “[f]ail[ed] to 

financially support the child within the means of the birth parent.” W. Va. Code § 48-22-

306(a)(1). Simply put, in order to establish that petitioner abandoned the child, the DHHR was 

required only to prove that petitioner “demonstrate[d] the settled purpose to forego the duties and 

parental responsibilities to the child.” W. Va. Code § 49-1-201. Based on a review of the record, 

the DHHR satisfied this burden.

This Court has previously held as follows:

“[West Virginia Code § 49-4-601(i)], requires the [DHHR], in a child 

abuse or neglect case, to prove ‘conditions existing at the time of the filing of the 

petition . . . by clear and convincing [evidence].’ The statute, however, does not 

specify any particular manner or mode of testimony or evidence by which the 

[DHHR] is obligated to meet this burden.” Syllabus Point 1, In Interest of S.C., 

168 W.Va. 366, 284 S.E.2d 867 (1981). 

Syl. Pt. 1, In re Joseph A., 199 W. Va. 438, 485 S.E.2d 176 (1997) (citations omitted). On 

appeal, petitioner argues, simply, that the DHHR did not satisfy this burden because it provided 

little evidence to support its allegations against him. According to petitioner, “[t]he DHHR’s 

tepid support of their allegation consists of one question . . . , ‘Does [petitioner] provide food, 

clothing, shelter, any sort of social/emotional support for [the child] at all?’” Although petitioner 

recognizes that the witness’s response to this question was “no,” he argues this is simply 

insufficient to satisfy the burden of proof in this case. We do not agree. Simply put, the issue of 

whether petitioner abandoned the child was not complex and did not require extensive evidence. 

The facts of the case showed that petitioner never provided support of any kind to the child, even 

when required to do so by court order. There can be no more definitive proof of a parent’s 

“settled purpose to forego the duties and parental responsibilities to the child” than a total 

abdication of any responsibility for the child. The DHHR established this fact and, as the circuit 
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court found, this evidence was totally uncontroverted.5 Accordingly, we find that the DHHR 

satisfied its burden of proof and petitioner is entitled to no relief.6

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

November 29, 2018, order is hereby affirmed.

Affirmed.

ISSUED: June 12, 2019

CONCURRED IN BY:

Chief Justice Elizabeth D. Walker

Justice Margaret L. Workman

Justice Tim Armstead

Justice Evan H. Jenkins

Justice John A. Hutchison

 

5On appeal, petitioner argues that he presented evidence that “he has seen his child and 

does what he can to stay in [the child’s] life.” However, petitioner’s citation to the record in 

support of this assertion points to his testimony at the dispositional hearing. Given that this 

evidence was not presented at adjudication, it has no relevance to petitioner’s assignment of error 

on appeal. 

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In support of this assignment of error, petitioner further argues that the circuit court 

“should not have relied on the fact that the petitioner [was] incarcerated in its ruling in the 

present case.” We note, however, that the circuit court was only informed of petitioner’s 

incarceration at the outset of the adjudicatory hearing. Indeed, petitioner later confirmed that he 

was not incarcerated until August of 2018, approximately one month after the DHHR filed its 

petition. As such, it is clear that petitioner’s incarceration following the petition’s filing was 

irrelevant to the finding that petitioner’s abandonment of the child was a condition “existing at 

the time of the filing of the petition.” Indeed, a review of the record indicates that the finding of

abandonment was based only upon petitioner’s failure to provide support of any kind to the 

child, not upon his incarceration. Accordingly, we find that petitioner is entitled to no relief in 

this regard.