1 

### STATE OF WEST VIRGINIA

SUPREME COURT OF APPEALS

In re D.H. and H.H.

No. 18-0829 (Raleigh County 16-JA-156-B and 16-JA-157-B)



### MEMORANDUM DECISION

Petitioner Grandfather E.H., by counsel Thad A. Bowyer, appeals the Circuit Court of Raleigh County’s August 30, 2018, order terminati ng his custodial rights to D.H. and H.H. 1 The West Virginia Department of Health and Hu man Resources (“DHHR”), by counsel S.L. Evans, filed a response in sup port of the circuit court’s order. The guardian ad li tem (“guardian”), Shannon L. Baldwin, filed a response on behalf of the children also in support of the circuit court’s order. The mother, K.C., by counsel Mary Beth Chapman, filed a response in support of the circuit court’s order. Finally, the father, J. H., by counsel, Reginald D. Henry, filed a response taking no position. On appeal, petitioner argues that the circuit court erred in proceeding to disposition without proper not ice, denying him an improvement period, and terminating his custodial rights.

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 that the circuit court below erred in fail ing to provide petitioner notice of a dispositional hearing. Accordingly, this case satisfies the “limited circumstances” requirement of Rule 21(d) of the West Virg inia Rules of Appellate Procedure, and a memorandum decision is appropriate to resolve the issu es presented.

This matter previously came before this C ourt when the guardian appealed the circuit court’s December 13, 2017, order declining to ad judicate petitioner as an abusing guardian. See

In re D.H.-1 and H.H. , No. 18-0032, 2018 WL 2945426, at *1 (W.Va. Jun. 11, 2018) (memorandum decision). Upon our review, we found sufficient evid ence existed to adjudicate petitioner and we remanded the matter with instructions to

enter an order adjudicating D.H.[] and H.H. as abused childre n and the respondent grandparents as abusing guardians, to fo rthwith hold a dispos itional hearing in compliance with Chapter 49 of the West Virginia Code and the West Virginia

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
February 15, 2019

EDYTHE NASH GAISER, CLERK

SUPREME COURT OF APPEALS

OF WEST VIRGINIA2 Rules of Procedure for Child Abuse and Neglect Proceedings, and for further proceedings consistent with this memorandum decision.

Id. at *6.

Subsequently, the circuit court noticed a hearing to be held on August 28, 2018, wherein it would “take up the issues set forth in th e Memorandum Order of the Supreme Court of Appeals . . . in Docket No. 18-0032.” At the hear ing, the circuit court ad judicated petitioner as having abused and/or neglected the children. The ci rcuit court then denied petitioner’s motion for an improvement period and immediately proceeded to terminate his custodial rights. It is from the August 30, 2018, dispositional order that petitioner appeals.

The Court has previously established the follo wing standard of review in cases such as

this:

“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 th at the circuit court erred in proceeding to disposition without properly providing him notice of the same. We agree. 2

When this Court previously remanded this matte r, we instructed the circuit court to enter an order adjudicating pe titioner as an abusing guardian an d to “hold a dispositional hearing in compliance with Chapter 49 of the West Virginia Code and the West Virginia Rules of Procedure for Child Abuse and Neglect Proceedings , and for further proceedings consistent with this memorandum decision.” (Emphasis added). Rule 31 of the West Virginia Rules of Procedure for Child Abuse and Neglect Proceedings sets forth th at “[n]otice of the date, time, and place of the disposition hearing shall be given to all parties, their counsel, a nd persons entitled to notice and

2 Petitioner also argues that the circuit court erred in terminating his custodial rights.

Because we find that the circuit court erred in proceeding to an accelerated disposition and are vacating the order terminating petitioner’s custodial rights for that reason, we decline to address this assignment of error.3 the right to be heard.” Here, th e circuit court noticed the heari ng as a hearing wherein it would “take up the issues” set forth in the Memorandum Decision. Our in structions primarily regarded entering an order adjudicating petitioner as an abusing guardian and then proceeding with disposition in compliance with the laws of this St ate. As such, we find th at the language of the notice provided by the circuit cour t was insufficient to alert peti tioner that disposition of his custodial rights would oc cur at that hearing.

Further, although the West Vi rginia Rules of Procedure for Child Abuse and Neglect Proceedings do provide that a circuit court ma y proceed to disposi tion immediately following adjudication, there are certain re quirements that must be met. Ru le 32(b) of the West Virginia

Rules of Procedure for Child Abuse and Ne glect Proceedings sets forth as follows:

The disposition hearing imme diately may follow the adjudication hearing if:

(1) All the parties agree;

(2) A child’s case plan meeting the requi rements 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 provided to or waived by all parties as required by these Rules.

We have previously held that

“[w]here it appears from the record that the process established by the

Rules of Procedure for Child Abuse and Ne glect 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 complian ce 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). Here, the record demonstrates that the circuit court proceeded to disposition an d failed to determine whether the parties were in agreement in proceeding to do so or whether notice was waived. By proceeding immediately to disposition in the case, the circuit court ignor ed Rules 31 and 32, as set forth above. We have previously held that notice of the dispositional hearing is manda tory and that an accelerated dispositional hearing may be held only wh en the conditions of Rule 32 are met. See In re Travis

W. , 206 W.Va. 478, 483, 525 S.E.2d 669, 674 (1999) (holdi ng that a circuit court’s failure to comply with Rules 31 and 32 of the West Virg inia Rules of Procedure for Child Abuse and Neglect Proceedings was a substantial disregar d of process and require d remand.) Accordingly,

we find that because the circuit court substan tially disregarded the process established by the rules, the resulting dispositional order must be vacated, and the case must be remanded for compliance with that process.4 Petitioner also argues that the circuit court erred in denying his motion for an improvement period. Due to our decision to vacate the circuit court’s final order, we decline to address this assignment of error at this time. However, we alert the circuit court that it provides no findings of fact or conclusions of law in its or der to aid this Court in reviewing the denial of petitioner’s request for an improvement peri od. Accordingly, upon remand, should the circuit court again deny petitioner’s motio n for an improvement period, we order the circuit court to make appropriate findings of fact regarding the denial.

For the foregoing reasons, we vacate the dis position portion of the circuit court’s August 30, 2018, order and remand this matter to the circu it court for the holding of a properly noticed dispositional hearing, and for furt her proceedings consistent with the West Virginia Rules of Procedure for Child Abuse and Neglect Proceedings and Chapter 49 of the West Virginia Code. The Clerk is hereby directed to issue the mandate contemporaneously herewith.

Vacated and remanded.

ISSUED : February 15, 2019

CONCURRED IN BY :

Chief Justice Elizabeth D. Walker Justice Margaret L. Workman

Justice Tim Armstead

Justice Evan H. Jenkins

Justice John A. Hutchison