STATE OF WEST VIRGINIA 

SUPREME COURT OF APPEALS
 

FILED 

In re A.L. October 19, 2018 

EDYTHE NASH GAISER, CLERK 

No. 18-0254 (Hampshire County 17-JA-38) SUPREME COURT OF APPEALS 

OF WEST VIRGINIA 

MEMORANDUM DECISION 

Petitioner Father S.L., by counsel Jeremy B. Cooper, appeals the Circuit Court of 

Hampshire County’s February 9, 2018, order terminating his parental rights to A.L.1 The West 

Virginia Department of Health and Human Resources (“DHHR”), by counsel Lee Niezgoda, 

filed a 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 in support of the circuit court’s order. On 

appeal, petitioner argues that the circuit court erred in terminating his parental rights instead of 

continuing the dispositional hearing. 

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. 

On June 29, 2016, the DHHR filed a petition against the mother alleging that she abused 

and neglected children that are not at issue in this appeal. At the time the petition was filed, the 

mother reported that petitioner was the biological father of one of the children. However, 

petitioner was later dismissed from the petition upon the return of paternity test results that 

showed no probability that he was the biological father of that child. In June of 2017, the mother 

gave birth to petitioner’s child, A.L. The child was born addicted to Suboxone due to the 

mother’s substance abuse during her pregnancy. The DHHR filed an amended petition that 

named petitioner as the respondent father of A.L. and alleged that he had knowledge of the 

mother’s substance abuse during her pregnancy. 

On July 25, 2017, the circuit court held an adjudicatory hearing during which petitioner 

stipulated to the allegations of abuse and neglect. Accordingly, petitioner was adjudicated as an 

abusing parent and the circuit court granted him a post-adjudicatory improvement period. On 

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). 

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November 29, 2017, the circuit court held a status hearing. The DHHR informed the circuit court 

that petitioner continued to test positive for illegal substances and that if he continued to test 

positive the DHHR would file a motion to terminate his improvement period. The circuit court 

admonished petitioner for his continued substance abuse. According to the DHHR, following the 

November 29, 2017, hearing, petitioner continued to test positive for Suboxone without a 

prescription. 

On February 5, 2018, the circuit court held a dispositional hearing. Petitioner did not 

appear for the hearing, but his counsel explained that he had received actual notice of the 

hearing. The mother testified that she informed petitioner of the February 5, 2018, hearing date. 

She further testified that petitioner told her that he had not heard anything from his attorney. The 

circuit court denied counsel’s motion for a continuance upon its finding that petitioner had actual 

notice of the hearing and chose not to appear. The circuit court also noted that petitioner failed to 

appear at the last hearing in the matter. Over the objection of petitioner’s counsel, the circuit 

court proceeded with the dispositional hearing. 

The DHHR presented testimony that petitioner’s adult life skills and individualized 

parenting sessions were terminated due to his noncompliance in January of 2018. A DHHR 

worker testified that she explained to petitioner that his services would be terminated if he 

continued to fail to attend sessions, and, in response, petitioner told her that he thought Child 

Protective Services (“CPS”) was not “going to give him his daughter anyway.” Next, the DHHR 

presented testimony that petitioner tested positive for substances on all but one screen between 

July and December of 2017. Petitioner consistently tested positive for Suboxone but did not have 

a prescription for that drug. Petitioner completed a ten-day detoxification program but declined 

to enter into an inpatient treatment program. A CPS worker further testified that petitioner 

cancelled several visits with the child. She explained that petitioner would provide transportation 

for the mother to visit the child but failed to attend his own visits. 

Following the testimony, the circuit court found that petitioner had an addiction to 

controlled substances that seriously impaired his parenting skills. The circuit court also found 

that petitioner failed to participate in the family case plan and services. In its dispositional order, 

the circuit court found that the child’s mother “provided testimony that she told [petitioner] about 

[the dispositional] hearing and he told her that he was not coming because his lawyer did not tell 

him about the hearing.” Further, the circuit court found that a DHHR worker advised the circuit 

court that a service provider “sent her a message advising her that [petitioner] was aware of [the 

dispositional] hearing.” Ultimately, the circuit court found that there was no reasonable 

likelihood that petitioner could substantially correct the conditions of abuse and neglect in the 

near future and that termination of his parental rights was in the child’s best interests. Petitioner’s 

parental rights were terminated in the circuit court’s February 9, 2018, order.2

 It is from this 

order that petitioner appeals. 

The Court has previously established the following standard of review: 

2

According to the respondents, the child’s mother is currently participating in an 

improvement period. The permanency plan is reunification with the mother and the concurrent 

permanency plan for the child is adoption in her current foster home. 

2 
“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, this Court 

finds no error in the proceedings below. 

On appeal, petitioner argues that the circuit court erred in denying his motion for a 

continuance of the dispositional hearing because he alleges that he did not receive notice of the 

hearing pursuant to Rule 31 of the West Virginia Rules of Child Abuse and Neglect Proceedings. 

This rule provides that “[n]otice of the date, time, and place of the dispositional hearing shall be 

given to all parties, their counsel, and persons entitled to notice and the right to be heard.” In 

support, petitioner argues that this Court has stated, in part, that “[c]ircuit courts must provide the 

parties with notice of the disposition hearing prior to actually holding the hearing.” In re Travis 

W., 206 W.Va. 478, 483, 525 S.E.2d 669, 674 (1999). Although it is true that petitioner did not 

receive notice from the circuit court or from his attorney, it is clear from the record that he had 

actual notice of the hearing. The child’s mother testified that she informed petitioner of the 

February 5, 2018, dispositional hearing. According to the mother, petitioner informed her that he 

had not heard from his attorney. However, there is no evidence in the record that petitioner ever 

tried to contact his attorney, the circuit court, or any DHHR worker to inquire about the 

dispositional hearing. Further, counsel was present at the February 5, 2018, dispositional hearing 

to represent petitioner’s interests. 

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 Neglect 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 compliance 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). While petitioner is correct that 

the Rules of Procedure for Child Abuse and Neglect Proceedings required that he receive notice 

of the dispositional hearing, we find that petitioner’s actual notice of the hearing mitigates 

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against vacating the dispositional order. While petitioner argues that he should have been granted 

a continuance of the dispositional hearing due to his alleged lack of notice, we have also held 

that “[w]hether a party should be granted a continuance for fairness reasons is a matter left to the 

discretion of the circuit court, and a reviewing court plays a limited and restricted role in 

overseeing the circuit court’s exercise of that discretion.” Tiffany Marie S., 196 W.Va. at 235, 

470 S.E.2d at 189. As such, we find petitioner is entitled to no relief. 

Further, we find no error in the circuit court’s termination of petitioner’s parental rights. 

West Virginia Code § 49-4-604(b)(6) provides that circuit courts are to terminate parental rights 

upon findings that there is “no reasonable likelihood that the conditions of neglect or abuse can 

be substantially corrected in the near future” and that termination is necessary for the children’s 

welfare. West Virginia Code § 49-4-604(c)(3) indicates that a situation where there is no 

reasonable likelihood the conditions of abuse and neglect can be substantially corrected includes 

one in which 

[t]he abusing parent . . . [has] not responded to or followed through with a 

reasonable family case plan or other rehabilitative efforts of social, medical, 

mental health or other rehabilitative agencies designed to reduce or prevent the 

abuse or neglect of the child, as evidenced by the continuation or insubstantial 

diminution of conditions which threatened the health, welfare or life of the child. . 

. . 

Here, petitioner failed to comply with services during his post-adjudicatory improvement 

period. In fact, his parenting and life skills sessions and drug screening services were terminated 

due to his noncompliance. Petitioner also tested positive for illegally obtained Suboxone on all 

but one of his drug screens. Although he completed a ten-day detoxification program, petitioner 

resumed his illegal use of Suboxone and refused to enter an inpatient treatment facility as 

recommended by his case plan. Further, petitioner missed several visits with the child. 

Interestingly, he transported the mother to several of her visits but failed to attend many of his 

own visits. “We have previously pointed out that the level of interest demonstrated by a parent in 

visiting his or her children while they are out of the parent’s custody is a significant factor in 

determining the parent’s potential to improve sufficiently and achieve minimum standards to 

parent the child.” In re Katie S., 198 W.Va. 79, 90, n.14, 479 S.E.2d 589, 600, n.14 (1996)(citing 

Tiffany Marie S., 196 W.Va. at 228 and 237, 470 S.E.2d at 182 and 191 (1996); State ex rel. Amy 

M. v. Kaufman, 196 W.Va. 251, 259, 470 S.E.2d 205, 213 (1996)). Based on this evidence, it is 

clear there was no reasonable likelihood that petitioner could substantially correct the conditions 

of abuse and neglect in the near future and that termination of petitioner’s parental rights was in 

the child’s best interest. Therefore, we find no error in the termination of petitioner’s parental 

rights. 

Lastly, because the child’s mother’s abuse and neglect proceedings are ongoing, this 

Court reminds the circuit court of its duty to establish permanency for the child. Rule 39(b) of 

the Rules of Procedure for Child Abuse and Neglect Proceedings requires: 

At least once every three months until permanent placement is achieved as 

defined in Rule 6, the court shall conduct a permanent placement review 

conference, requiring the multidisciplinary treatment team to attend and report as 

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to progress and development in the case, for the purpose of reviewing the progress 

in the permanent placement of the child. 

Further, this Court reminds the circuit court of its duty pursuant to Rule 43 of the Rules of 

Procedure for Child Abuse and Neglect Proceedings to find permanent placement for the child 

within twelve months of the date of the dispositional order. As this Court has stated, 

[t]he [twelve]-month period provided in Rule 43 of the West Virginia 

Rules of Procedures for Child Abuse and Neglect Proceedings for permanent 

placement of an abused and neglected child following the final dispositional order 

must be strictly followed except in the most extraordinary circumstances which 

are fully substantiated in the record. 

Cecil T., 228 W.Va. at 91, 717 S.E.2d at 875, Syl. Pt. 6. Moreover, this Court has stated that 

[i]n determining the appropriate permanent out-of-home placement of a 

child under W.Va. Code § 49-6-5(a)(6) [1996] [now West Virginia Code § 49-4-

604(b)(6)], the circuit court shall give priority to securing a suitable adoptive 

home for the child and shall consider other placement alternatives, including 

permanent foster care, only where the court finds that adoption would not provide 

custody, care, commitment, nurturing and discipline consistent with the child’s 

best interests or where a suitable adoptive home can not be found. 

Syl. Pt. 3, State v. Michael M., 202 W.Va. 350, 504 S.E.2d 177 (1998). Finally, “[t]he guardian 

ad litem’s role in abuse and neglect proceedings does not actually cease until such time as the 

child is placed in a permanent home.” Syl. Pt. 5, James M. v. Maynard, 185 W.Va. 648, 408 

S.E.2d 400 (1991). 

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

February 9, 2018, dispositional 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 sitting by temporary assignment 

Justice Tim Armstead 

Justice Evan H. Jenkins 

Justice Allen H. Loughry II suspended and therefore not participating 

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