(Cabell County 18-JA-2, 18-JA-4, and 18-JA-5)
Mother A.W., by counsel Cathy L. Greiner, appeals the Circuit
Court of Cabell County's January 16, 2019, order
terminating her parental rights to S.P., M.S., and
The West Virginia Department of Health and Human Resources
("DHHR"), by counsel Mindy M. Parsley, filed a
response in support of the circuit court's order. The
guardian ad litem, Allison K. Huson, filed a response on
behalf of the children in support of the circuit court's
order. On appeal, petitioner argues that her actions
subsequent to the dispositional hearing rendered termination
of her parental rights erroneous.
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.
January of 2018, the DHHR filed an abuse and neglect petition
that alleged petitioner tested positive for cocaine upon
delivery of S.P. and had prior positive screens for Subutex,
cocaine, and opiates during pregnancy. As a result of
petitioner's drug abuse, the child was born drug exposed.
Additionally, the petition alleged that petitioner admitted
she was homeless. Petitioner thereafter waived her right to a
preliminary hearing and then stipulated to adjudication on
the basis that her substance abuse negatively affected her
ability to parent the children.
hearing in April of 2018, the circuit court found that
petitioner was substantially compliant with the terms of her
case plan and granted her an improvement period. However, at
a review hearing in August of 2018, the circuit court found
that petitioner was minimally compliant with the terms of her
improvement period, given her continued use of cocaine,
failure to undergo drug screening, and an overdose in June of
2018, among other issues. At a review hearing in September of
2018, the circuit court terminated petitioner's
improvement period due to noncompliance.
circuit court held a dispositional hearing in November of
2018. Petitioner did not attend, but was represented by
counsel. A DHHR employee testified to petitioner's
noncompliance with services and that petitioner's last
contact with the DHHR was approximately five months prior to
the hearing. Accordingly, the circuit court terminated
petitioner's parental rights. It is from the
dispositional order that petitioner appeals.
Court has previously established the following standard of
"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
Syl. Pt. 1, In re Cecil T., 228 W.Va. 89, 717 S.E.2d
sole argument on appeal is that her entry into substance
abuse treatment in December of 2018, approximately one month
after the dispositional hearing in this matter, warrants
reconsideration of the termination of her parental rights.
According to petitioner, because she has maintained her
sobriety since entering the program, "she should be
given additional time in which to rectify the . . .
conditions" of abuse and neglect. We find, however, that
this argument cannot be considered on appeal as it was not -
and, in fact, could not have been - presented to the circuit
court during the proceedings below. "'Our general
rule is that nonjurisdictional questions . . . raised for the
first time on appeal, will not be considered.'
Shaffer v. Acme Limestone Co., Inc., 206 W.Va. 333,
349 n. 20, 524 S.E.2d 688, 704 n. 20 (1999)." Noble
v. W.Va. Dep't of Motor Vehicles, 223 W.Va. 818,
821, 679 S.E.2d 650, 653 (2009). Moreover, because petitioner
provides no argument regarding how she contends the circuit
court's disposition in this matter was erroneous, she is
entitled to no relief. See W.Va. R. App. Pro.
10(c)(7) (requiring that "[t]he argument [in a
petitioner's brief] must contain appropriate and specific
citations to the record on appeal, including citations that
pinpoint when and how the issues in the assignments of error
were presented to the lower tribunal").
foregoing reasons, we find no error in the decision of the
circuit court, and its January 16, 2019, order is hereby
CONCURRED IN BY: Chief Justice Elizabeth D. Walker Justice
Margaret L. Workman Justice Tim Armstead Justice Evan ...