1 

### STATE OF WEST VIRGINIA

SUPREME COURT OF APPEALS

In re G.M. and M.M.

No. 2 1

- 0 7 1 5 ( Marion County 2 1

- JA

- 38 and 2 1

- JA

- 39 )



### MEMORANDUM DECISION

Petitioner Father D.M.

, by counsel Jas on T. Gain

, appeal s t he Circui t Co urt o f Mari on County’s Jul y 2 0

, 20 2 1 , order terminating h is parental , custodia l, and guardianship rights to
G.M. and M.M. 1 The West Virginia Department of Health and Human Resources ( “DHHR”), by counsel Pat ri ck Morrisey and Lee A. Niezgoda , f iled a respon se in suppo rt of t he c ircui t

co urt’s o rde r

. The guardian ad li tem ( “ guardian ” )

, Tiffany Kent

, filed a response on the

chil d ren ’s behalf in support of the circuit court’s orde r

. Petitioner replied. On appeal, petitioner

argues that the circuit court erred in accept ing hi s stipulated a djudication

. Pet itioner also asserts

that he re ceived ineffective assistance of counsel. 2

Thi s Cou r t has considered the parties’ bri efs and the record on appeal. The facts and legal

a rguments are adequately presented, and the decisi onal pro ce s s would no t be si gni fican tly aid ed

b y oral argu ment. Upon consideration of the standa rd of review, the bri e fs, a nd the record

present ed, the Cour t finds no substantial question of law and no preju dicial error. For these

reasons, a memorand um dec ision af fi r m ing th e c ir cuit cou rt’s order i s ap propriate u nder Rule 21 of the Rules of Appellate Procedure.

In April of 2021, the DHHR fil ed a child abuse and neglect petition alleging that petitioner had a bandoned then three

- year

- old G.M. and then two

- year

- old M.M

. by his

1 Con sis te nt w ith our l o ng

- sta n d ing practice in cases wi th sens i tive facts, we use initials

wh ere ne c essary to prot ect t he identi ti e s of those inv olved in this case

. See In re K.H.

, 2 3 5 W

. V a

. 2 5 4, 773 S .E. 2d 2 0 (2015); Mel ind a H. v. W illiam R. II , 230 W. Va . 7 31, 7 42 S .E.2d 419 (2013) ; State v. Brandon B. , 218 W. Va. 324, 624 S.E.2d 76 1 (2005); St ate v. Edward Charles

L.

, 183 W. Va

. 6 41 , 3 98 S.E .2d 123 (1990).

2 Petitioner does not challenge the termination of h is par e ntal

, custod ial, and gua rdianship rights. 

### FILED
March 9, 2022

EDYTHE NASH GAISER, CLERK

SUPREME COURT OF APPEALS

O F WEST VIRGINIA2 incarceration 3 and that the children were vulnerable to abuse and neglect by their mother an d her

bo yfriend. The D HHR alleged that a referr al was filed after G.M. stabbed M.M. with a knife

while in the fa mily home. During the DHHR ’ s invest i g at ion of the incident, the children disclosed that the mother and her boyfriend were abusing controlled substances in the hom e, and the DHHR determined that emergency removal of the children was necessary. The DHHR alleged that during an interview with t h e m other, she stated that petit ioner once “ attempted to kill

her

, ” which was confirmed by t hen eight

- year

- old A.M., who stat ed that she witnessed petitioner

“ punch [] ” the mother and “ le [ave] her in a di tch to die. ” 4

The circuit court held a n adjudicator y hea r ing in June of 202 1

. Petitione r moved to
sti pulate to adjud ication

. The circuit cour t engaged petitioner in a collo quy and determined that he had freely , voluntarily, and intelligently decided to make admissions and wa ive his right to an adjudicatory h ear i ng. Petitioner ad m i tted that h e was unable to protect G.M. and M.M. due to his

incarceration

, that the children we re left “ in a mor e v ul nerable state ” due to his incarceration,

and that it was in the childr en ’s best interests for the circuit court to a cce p t his stipu lation. The circuit court adjudicated petitioner as an abusing parent and the children as neglected children. Additionally, the circuit court heard evidence and found that the mother and her boyfriend had neglected the children

.

In July o f 20 2 1, th e circ uit court he l d t he final dispositional hearing. Petitioner moved to continue the proceedings until his parole hearing in November of 2021, to which bot h the DHHR and guardian o bjected. The circuit court denied petitioner ’s motion because it w oul d cause an indeterminate delay of permanency for the children as petitioner ’s rel ease from incarceration was not guaranteed. The circuit c ourt found that it was in the children ’s best interest to have stability and permanency and that there was no reas o nab le likeliho od that pe titioner could substantially correct the conditions of neglect or abuse in the near future. Accordingly, the circuit court
termi nated petitioner’s parental rights by its July 2 0 , 202 1, order. Petitioner now appeals that

order. 5

T he Co urt has previou sly he ld :

“Although conclusions of law re ached by a circ u i t cou rt ar e subject to de

novo rev ie w, wh e n an ac tion

, suc h as an a buse a nd negle ct c ase , i s tried upo n the

3 The c riminal conviction for which petitioner was inc arcerated

, as well as the sentence imposed for that convic tion

, is unclear from the record on appeal

.

4 In addition to G.M. and M.M., the DHHR also named t wo other children, A.M. an d

F. M., as infant r espondent s. These children are not petitioner ’ s biological children , and he does not challenge the circuit court ’ s ruling s regarding those children on appeal

.

5 G.M. and M.M. ’ s mother passed awa y during th e pro ceedings. According to t he part ies, the permanency plan for the chil d ren is adoption by relatives.3 f ac ts w itho ut a j ury, th e c ircuit court shall m a k e a determ in ation ba sed u pon the

evidenc e an d shall make fin dings of fact and conc lusions of law a s t o w hethe r such child is abused o r negle c te d. Th ese fi ndi n g s shall not b e set as id e by a

r ev iewing co u rt unl es s cl earl y er ro neous. A f inding is clearly e r r o neo us when

, altho ugh ther e is evidence t o su pp ort the findin g, the reviewing court on the entire

e v id enc e is left with the de finite a nd firm co nvi ct ion th at a mi stake has b een

comm it t e d. Ho w ev er, a rev i ewing co ur t may not ov erturn a f inding simply

becau s e it would h av e dec ide d the case different ly, an d it must affi rm a finding if

the ci rcuit court’s a c c ou nt of th e evidence is pl ausible in ligh t o f t he rec or d

v i e we d in its e n tirety.” S y l . P t. 1, In In ter e st of Ti ff

an y Ma rie S. , 196 W .Va . 223,

470 S.E.2d 1 7 7 (19 96).

Sy l. Pt . 1

, In re Cecil T

., 22 8 W. V a. 89, 717 S.E .2d 873 (2011).

On appeal, petitio ner argues that the circuit co urt erred in a ccept ing hi s v oluntary stipul a tion to the petition. Petitioner asserts t hat the DH HR alleg ed tha t he had aba ndoned the

children due to his incarceration . In petitioner ’ s view, this allegation is tantamount to alleging

that he abused a nd neglect ed his child ren simply be cause he was inc a rcerated , which he argue s cannot form the sole basis for termination of his parental rig hts. Petitioner further argues tha t

,

un der Rule 26 (b) of the West Vi rg inia Rules of Pr oce dure for Chi ld Abuse and Negle c t Proceedings, the circuit court ha s an ob li gation t o determine w hether “ the stipulation or

uncontested adjudication meets the purpo s es of these rules and control ling statute and is in the best interests of the child[ren]. ” T hus, petitio ner argues, the ci r cuit court erred in accept ing his

admission to the allega tions in the petition because the allegation does not constitute abuse or

n e gle ct of the children. We find petitioner is entitled to no relief on appeal.

Pursuant to W est Virginia Code § 49

- 4

- 601 (i )

, following the filing of a child abuse and neglect petitio n, “ the co urt shall make a determination based upon t he evidence and shal l ma ke findings of fact and conclusions of law as to whether the child [ren] [are] abused or n eglected. ” A

“ neglected child ” is a child “ [w] hose ph ysical or mental health is harmed or threatened by a present refusal, failure or inability of the child ’ s pare n t .

. . to supply the child with necessary food, clothing, shelter, supervision , medical car e, or educat ion

. ” W. V a. Code § 49

- 1

- 201. W e have held that

“ [ West Virginia Code § 49

- 4

- 601 (i) ], requires the [DHHR], in a child abuse or neglect case, to prove ‘ con ditions existing at the time of the filing of the petition . . . by clear and convincing [evidence].’ The statute, howe v er, does not specify any particular ma nner or mode of testimony or evidence by which the [DHHR] is obligated to meet this burden.” S y lla bus 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, 4 85 S.E.2d 176 (1997) ( citations omitte d). Further, Rule 26( d) of the West Virginia Rules of P r ocedure for Child Abuse and Neglect Pr o cee dings

pro vides that “ [a] dmissions by a res pondent

. . . may be admitted into evidence at any stage of the proceedings. ”4 Here, petitioner admit ted that he failed to protect the children f rom the neglect ful actions

of their mother due to his in ca rcerat i on , and this is compelling evid ence that the children ’ s physical and mental he alth were ha rmed o r threatened by hi s inability to provide the children

ap propriate supervision. While p etitioner ’ s inability to protect the c hildren was caused in part by

his i nca rcera tion , w e have recently noted that “[c] ircuit courts should be mindful t hat In re Cecil

T. does not foreclos e a finding at the adjudicatory stage that a parent ’ s absence due to incarceration that harms or threatens the physical or mental hea lt h of t he child is neglect. ” In re

A.P.

- 1 , 241 W. V a. 688, 695 n.29, 827 S.E.2d 830, 8 37 n.29 (2019)

. Pe titioner ’ s incarce r ation

alone did not form the basis of his adjudication. Rather, the circuit court concluded that petitioner neglected the children b as ed upo n h is admitted failure to protect them. U pon our review, t h e circuit court did not err in c onclud ing th at petitione r was an abusing parent based on his admissions in these pro c eedings.

To the extent petitioner argues that the DHHR ’ s petition was i nsuffi cie nt to provide him notice of the allegations against him, p etitioner did not raise this er ror below

, and “ ‘ [ o ] ur general

rule is that nonjurisdictional questions . . . raised for the first time on appeal, will not be

considered.’ Shaffer v. Acme Li meston e C o., Inc. , 206 W.Va. 333, 349 n. 20, 524 S.E.2d 688, 704 n. 20 (1999). ” Noble v. W. Va. De p’t of Motor Vehic l es , 223 W. Va

. 818, 821, 679 S.E.2d

650 , 653 (2009). Further, while the DH HR did not specifically allege that petitioner failed to

protec t his ch ild ren and left them v ulnerable due to his absence, we co nsider that pe titioner has

invit ed this alleged error by a d mitting to facts that constitute abuse and neglect of his children

un der West Virginia law

. “ A litigant may not silently acquiesce t o an all ege d error, or actively contribute to such error, and then raise that e rror as a reason for rever sal on appeal. ” Ma p les v.

W. V a. Dep ’ t of Com., Div. of Parks & Recreation , 197 W. Va. 318, 319, 475 S.E.2d 410, 411 (1996)

. Finally, in re sponse to pe ti tioner ’ s argument that he received i neffective assistance of counsel, the Cou rt has neve r recognized a claim for ineffect i ve assistance of counsel in the

context of a n abuse and neglect matter , and we decline to do so in th is case

.

Fo r the forego ing re as on s , we fi nd no erro r in the de c isi on o f the cir cu it c ourt

, and its July 2 0

, 20 2 1 , o rder is h e reby affirme d.

Affirm e d.

ISS U ED : 

### March 9, 2022

CONCURRE D IN BY :

Chief Ju stice John A. Hutchison

Justice Elizabeth D. Walker

Jus tice Tim Armstead

Just ice Wil liam R. Wooton

Justice A lan D. Moats sitting by tem porary assignment