In re S.L. ( 2018 )

STATE OF WEST VIRGINIA
SUPREME COURT OF APPEALS
FILED
In re S.L.
October 19, 2018
EDYTHE NASH GAISER, CLERK
No. 18-0452 (Mineral County 17-JA-31) SUPREME COURT OF APPEALS
OF WEST VIRGINIA
MEMORANDUM DECISION
Petitioner Mother C.L., by counsel Jeremy B. Cooper, appeals the Circuit Court of
Mineral County’s April 3, 2018, order terminating her parental rights to S.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”), Kelley A.
Kuhn, filed a response on behalf of the child in support of the circuit court’s order. On appeal,
petitioner argues that she was never personally served with the petition and, therefore, the circuit
court lacked the appropriate jurisdiction to hear the case.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 December of 2017, the DHHR filed a petition alleging that petitioner and her husband
were addicted to controlled substances and that their addiction negatively affected their
parenting. Additionally, the DHHR alleged that petitioner and her husband were recently arrested
on criminal charges and incarcerated. Finally, the DHHR alleged that the child missed an
excessive amount of school. Petitioner appeared for the preliminary hearing in December of
2017 and waived her right to that hearing.
The circuit court held an adjudicatory hearing in January of 2018 and counsel moved to
continue the hearing due to petitioner’s indictment on criminal charges. The circuit court granted
petitioner’s motion to continue.
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
Petitioner asserts no assignment of error regarding the termination of her parental rights.
1
In February of 2018, the circuit court held an adjudicatory hearing; petitioner was present
with counsel. The DHHR presented evidence from five witnesses, who were subject to cross-
examination. Petitioner presented no evidence on her behalf. Ultimately, the circuit court
adjudicated petitioner as an abusing parent.
In March of 2018, the circuit court held a dispositional hearing. Petitioner moved to
continue the hearing until her criminal charges were resolved. The DHHR and guardian objected
to the motion. The circuit court heard argument and denied petitioner’s motion. The DHHR
moved the circuit court to consider the evidence presented at the adjudicatory hearing for
disposition. The circuit court granted that motion. Petitioner presented no evidence, but was
given an opportunity to present argument in support of her position. Ultimately, the circuit court
found that petitioner could not participate in services due to her incarceration and that
termination of her parental rights was necessary for the child. Accordingly, the circuit court
terminated her parental rights in its April 3, 2018, order. Petitioner now appeals that order.3
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.
On appeal, petitioner argues that she was never properly personally served with the
petition and, therefore, the circuit court could not exercise jurisdiction over her parental rights.
At the outset of the case, petitioner was incarcerated and could not be personally served.
According to petitioner, the DHHR mailed certified copies of the petition to petitioner’s trial
counsel who signed for those copies. Petitioner argues that this service was ineffective and
against West Virginia Code § 49-4-601(e) which details the proper methods to serve respondents
of abuse and neglect petitions. However, it is clear from the record that petitioner had actual
3
The father’s parental rights were also terminated by this order. According to the parties,
the permanency plan for the child is adoption in the current foster placement.
2
notice of the proceedings and was able to fully and meaningfully participate. As this Court has
recognized, “[m]ost errors, including constitutional ones are subject to harmless error analysis.”
State ex. Rel. Waldron v. Scott, 222 W.Va. 122, 126, 663 S.E.2d 576, 580 (2008). Petitioner was
present in person and by counsel for every proceeding. Petitioner was given an opportunity to
cross-examine witnesses and present evidence at every proceeding. Additionally, petitioner was
clearly aware of the allegations in the petition as her cross-examination was tailored to address
those issues. Petitioner does not assert any prejudice as a result of the manner of service.
Therefore, the error identified by petitioner, if any, is harlmess. Accordingly, we find under the
limited circumstances of this case that petitioner was not prejudiced by the DHHR’s failure to
effectuate service and therefore the circuit court did not err in presiding over these proceedings.
For the foregoing reasons, we find no error in the decision of the circuit court, and its
April 3, 2018, 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.
3