### STATE OF WEST VIRGINIA
SUPREME COURT OF APPEALS

FILED In re A.L. 

### March 12, 2018

EDYTHE NASH GAISER, CLERK No.) 17-0573 (Fayette County 16-JA-04) SUPREME COURT OF APPEALS

OF WEST VIRGINIA



### MEMORANDUM DECISION

Petitioner Father G.W., by counsel Marc A. Mo ore, appeals the Circuit Court of Fayette County’s May 23, 2017, order termina ting his parental rights to A.L. 1 The West Virginia Department of Health and Human Resources (“ DHHR”), by counsel S.L. Evans, filed a response in support of the circuit court’s order. The guardian ad litem (“guardian”), Allison R. Taylor, filed a response on behalf of the child in suppor t of the circuit court’s order and a supplemental appendix. On appeal, petitioner argues that the circuit court erred in (1) finding that the stipulated admissions met the requirements for adjudication, (2) granting petitioner’s counsel’s
motion to withdraw at the onset of the di spositional hearing and proceeding with the dispositional hearing after counsel withdrew , and (3) finding that there was no reasonable likelihood that the conditions of abuse and neglect could be substantially corrected in the near
future. 2

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 affirms the circuit court’s ad judication of petitioner, but vacates the circuit court’s May 23, 2017, dispositional order and rema nds the case to the circuit court for the appointment of counsel for petitioner and the holding of a dispositional hearing. This case satisfies the “limited circumstances” requirement of Rule 21(d) of the West Virginia Rules of Appellate Procedure, and a memorandum decision is appropriate to resolve the issues presented.

On January 29, 2016, the DHHR filed an abuse and neglect petition alleging the child, who lived with the mother and her ex-husband, was abused and/or neglected due to substance abuse, domestic violence, and exposure to a methamphetamine laboratory, among other

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 On appeal, petitioner raises multiple assignments of error regarding his counsel’s
withdrawal and the circuit court’s decision to proceed with the dispositional hearing when petitioner was not represented by counsel. We address the arguments together.

1allegations. As to petitioner, the DHHR alleged that the circumstances of his care posed an imminent danger to the child’s physical well-be ing. Petitioner was appointed an attorney and later waived the preliminary hearing.

On April 12, 2016, the DHHR filed an amended petition alleging that petitioner missed a visit with the child on March 18, 2016, and that the child reported to the guardian that he had not seen petitioner in years “until the last year or so.” The amended petiti on also alleged that the child exhibited signs of severe emotional dist ress. On April 19, 2016, the circuit court held an adjudicatory hearing wherein petitioner stipulat ed to neglecting the chil d and that the child’s physical and/or mental health was threatened by his inabil ity to supply the child with a stable and healthy environment. Petitioner moved for a post-adjudicatory improve ment period, which the
circuit court denied. The circuit court entered an order on June 1, 2016, adjudicating petitioner as an abusing parent.

The dispositional hearing was scheduled for J une 2, 2016. However, at this hearing, the circuit court granted petitioner a post-adjudicatory improvement period. Pursuant to the terms and conditions of the improvement period, pe titioner was required to follow any and all recommendations of the DHHR, sever all connections with the mother, fully participate in all visitation opportunities with the child, fully comply with all requests for information by the DHHR and the guardian, and submit to random dr ug screens as requested by the DHHR and the guardian.

On September 23, 2016, the guardian filed a motion to terminat e petitioner’s post

adjudicatory improvement period and his parental rights. The guardian argued in her motion that petitioner failed to comply with the terms and conditions of his post-adjudicatory improvement period due to contact with the child’s mother. One week prior to the scheduled dispositional hearing, petitioner’s counsel sought to withdraw from representa tion of petitioner based upon an alleged inability to have a productive attorney/c lient relationship due to petitioner’s repeated refusal to follow counsel’s lega l advice and petitioner’s insist ence upon taking action in which counsel could not, in good faith, participate.

On May 4, 2017, the circuit court held a dispositional hearing. At the outset of the hearing, the circuit court granted petitioner’s co unsel’s motion to withdraw upon finding that the attorney/client relationship had b een broken to the point that couns el could not proceed and that petitioner “is without counsel due to his own fau lt in refusing to take the advice of counsel.”
Petitioner voiced his concerns a bout continuing with the dispos itional hearing without counsel. Further, petitioner did not indicate that he wished to represent himself. The circuit court proceeded to hear testimony and took judicial notice of prior te stimony. Petitioner addressed the
court and advised that he wanted custody of his child. He further de nied all the allegations in the CPS worker’s testimony. Ultimately, the circuit cour t terminated petitioner’s parental rights in its May 23, 2017, order. 3 It is from the dispositional order that peti tioner appeals.

3 The mother voluntarily relinquished her parental rights to the child in 2016. According to the DHHR and the guardian, the child is cu rrently placed in a group home and behavioral health facility in Fayetteville, West Vi rginia. The permanency plan is adoption.

2The 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 th at the circuit court erred in finding that his stipulated admissions were sufficient to uphold his adjudica tion because the description of his actions was “inadequately vague” and the written stipulation fa iled to conform with th e requirements of Rule 26(a) of the Rules of Procedure for Child Abus e and Neglect Proceedings. However, the Court finds that petitioner is not entitled to challeng e the sufficiency of his adjudication on appeal because he stipulated to the same. We have long held that, “when nonjurisdictional questions
have not been decided at the trial court level and are then first rais ed before this Court, they will not be considered on appeal.” Whitlow v. Bd. of Educ. of Kanawha Cty., 190 W.Va. 223, 226, 438 S.E.2d 15, 18 (1993). We decline to address this argument as it is clear from the record in this matter that petitioner voluntarily stipulated to the adjudication against him. Accordingly, we

find that the circuit court di d not err in adjudicating petitioner as an abusing parent.

Next, petitioner argues that the circuit court erred in not appointing him counsel at every stage of the abuse and neglect proceedings, in granting counsel’s motion to withdraw at the outset of the dispositional hearing, and in proceeding with the dispositional hearing absent appointed counsel. We agree.

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).

3Syl. Pt. 3, In re Emily G. , 224 W.Va. 390, 686 S.E.2d 41 (2009). Here, petitioner was represented by counsel throughout the proceedings , with the exception of the dispositional hearing. Approximately one week before the dis positional hearing, petitio ner’s counsel filed a motion to withdraw, which the circuit court grante d at the beginning of th e dispositional hearing. The circuit court based this ruling, in part, upon a finding that because counsel felt that he could not advocate for petitioner in good faith, “[counsel’s] professional reputation and [his] license to practice law in the state of West Vi rginia is far more valuable to [him] than a few dollars in this case.” As a result, petitioner wa s left without representation at disposition. Petitioner did not have an opportunity to retain new counsel before the circuit cour t proceeded with the dispositional hearing and there is no indication in the record that petitioner waived his right to counsel or agreed to continue pro se. Accordi ngly, the circuit court clearly disregarded West Virginia Code § 49-4-601(f)(1), which provides that a parent in an abuse and ne glect case has the right to be represented by couns el at every stage of the pro ceedings. Moreover, “[i]n child neglect proceedings which may re sult in the termination of pare ntal rights to the custody of natural children, indigent pare nts are entitled to the assistan ce of counsel because of the requirements of the Due Process clauses of the West Virginia and United States Constitutions.” Syl. Pt. 1, State ex rel. Lemaster v. Oakley , 157 W.Va. 590, 203 S.E.2d 140 (1974). We find that the circuit court erred in granting counsel’s motion to withdraw without continuing the dispositional hearing to appoint new counsel for petitioner.

Finally, petitioner argues that the circuit court erred in finding that there was no

reasonable likelihood that the conditi ons of abuse and neglect could be substantially corrected in the near future. Because the dispositional order containing this finding is being vacated and the abuse and neglect proceedings remanded, it is unn ecessary to address petitioner’s assignment of error regarding the circuit court’ s findings at the dispos itional hearing. We remand this case to the circuit court for the appointment of counsel for petitioner and di rect the circuit court to hold a dispositional hearing as e xpeditiously as possible.

For the foregoing reasons we vacate the ci rcuit court’s May 23, 2017, dispositional order and remand the matter, with instructions for th e circuit court to appoin t counsel to represent petitioner at the dispositional hearing.

Affirmed, in part, and vacat ed and remanded, in part.

ISSUED : March 12, 2018

CONCURRED IN BY :

Chief Justice Margaret L. Workman
Justice Robin Jean Davis
Justice Menis E. Ketchum Justice Allen H. Loughry II
Justice Elizabeth D. Walker

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