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In re R.R.

Supreme Court of West Virginia

March 12, 2018

In re R.R.

         Raleigh County 16-JA-146

          MEMORANDUM DECISION

         Petitioner Mother C.R., by counsel Steven K. Mancini, appeals the Circuit Court of Raleigh County's September 13, 2017, order terminating her parental rights to R.R.[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"), Matthew B. Fragile, 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 finding that she abandoned her child, in not requiring the amended petition to be verified, and in denying her a preliminary hearing on the amended petition.[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 September of 2016, the DHHR filed a petition alleging that after petitioner gave birth to R.R., the child tested positive for opiates. Petitioner was incarcerated at the time of birth due to a probation violation, so she agreed to give legal and physical custody of R.R. to the DHHR. The father also was not in a position to take custody of the child. Before the preliminary hearing, petitioner was released from incarceration and moved into an inpatient substance abuse treatment facility. Petitioner waived her right to a preliminary hearing, orally stipulated to neglect caused by substance abuse and orally moved for an improvement period. The circuit court deferred ruling on petitioner's motion for an improvement period until both the stipulation and motion could be submitted in writing.[3] Petitioner continued in the substance abuse treatment facility as a term of her probation.

         Before the adjudicatory hearing, petitioner left the treatment facility against medical advice and a warrant was issued for her arrest.[4] The DHHR filed an amended petition alleging that petitioner did not contact the DHHR after leaving the facility to inquire about her daughter and that petitioner abandoned R.R. Later, the circuit court held a hearing regarding the amended petition. Petitioner did not appear but was represented by counsel.

         In May of 2017, the circuit court held an adjudicatory hearing. Petitioner did not appear but was represented by counsel. The DHHR presented testimony that petitioner had not contacted the case worker or visitation provider since she left the treatment facility in November of 2016. Further, petitioner did not provide any financial support or have meaningful contact with the child. Ultimately, the circuit court adjudicated petitioner as having abandoned R.R. and set the case for a dispositional hearing.

         In August of 2017, the circuit court held a dispositional hearing. Again, petitioner did not appear but was represented by counsel. The case workers testified that there was no change in the case; petitioner had not contacted the DHHR about her daughter nor had she provided support for her daughter. Ultimately, the circuit court found petitioner's "continued abandonment was clearly and convincingly established by unrefuted evidence" and, given the findings of abandonment, the DHHR was not required to make reasonable efforts to preserve the family. The circuit court terminated petitioner's parental rights to R.R in its September 13, 2017.[5] It is from the dispositional order that petitioner appeals.

         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 our review, this Court finds no error in the proceedings below.

         Petitioner first argues that the circuit court erred in finding she abandoned her child because she did not have legal or actual custody of the child and, therefore, could not abandon her. Specifically, petitioner argues that she voluntarily gave custody of R.R. to the DHHR because she was incarcerated and when she transferred custody she was no longer "obligated by any 'duties' to R.R." Petitioner relies on State ex rel. McCartney v. Nuzum, 161 W.Va. 740, 248 S.E.2d 318 (1978), which holds that a parent cannot abuse or neglect a child when they do not have actual custody of that child. Petitioner argues that In re Katie S., 198 W.Va. 79, 479 S.E.2d 589 (1996), which overrules that holding in McCartney, should be modified. We disagree.

         We have previously held that

[w]hen the Department of Health and Human Services finds a situation in which apparently one parent has abused or neglected the children and the other has abandoned the children, both allegations should be included in the abuse and neglect petition filed under W.Va. Code 49-6-1(a) (1992). Every effort should be made to comply with the notice requirements for both parents. To the extent that State ex rel. McCartney v. Nuzum,161 W.Va. 740, 248 S.E.2d 318 (1978), holds ...

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