In re A.L. ( 2020 )

STATE OF WEST VIRGINIA
SUPREME COURT OF APPEALS
FILED
In re A.L. April 6, 2020
EDYTHE NASH GAISER, CLERK
No. 19-0646 (Mineral County 18-JA-5) SUPREME COURT OF APPEALS
OF WEST VIRGINIA
MEMORANDUM DECISION
Petitioner Father L.L., by counsel Ramon Rozas III, appeals the Circuit Court of Mineral
County’s June 7, 2019, order terminating his parental rights to A.L. 1 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, Kelley A. Kuhn, filed a
response on behalf of the child in support of the circuit court’s order. Petitioner filed a reply. On
appeal, petitioner argues that the circuit court erred in permitting his service by publication and
finding that petitioner abandoned the child.
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 January of 2018, the DHHR filed an abuse and neglect petition against the mother and
her partner alleging that they physically and emotionally abused the child. Although the family
had recently moved from Maryland, the DHHR alleged that the circuit court had jurisdiction
because the child had lived in Mineral County, West Virginia, for the preceding six months. The
DHHR also alleged that petitioner was the father of the child, but noted that his location was
unknown. As of the mother’s adjudicatory hearing in March of 2018, petitioner had not appeared
at any hearings, but counsel represented him. In November of 2018, the circuit court found that
the mother failed to complete her improvement period and terminated her parental rights.
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).
1
The DHHR moved to terminate petitioner’s parental rights based upon abandonment in
December of 2018. The circuit court instructed the DHHR to file an amended petition alleging
abandonment and authorized service upon petitioner by way of publication. On March 16, 2019,
petitioner’s counsel filed a motion to dismiss for lack of personal jurisdiction. On May 31, 2019,
the DHHR filed an amended petition alleging that petitioner abandoned the child, his address
was unknown, and the DHHR had served him notice by publication.
In June of 2019, the circuit court first held an adjudicatory hearing, and then went
forward with a dispositional hearing. Petitioner did not appear, but counsel represented him. The
circuit court heard petitioner’s arguments in support of his motion to dismiss, but denied the
same. The DHHR worker testified that she neither knew where petitioner lived nor whether he
knew of the child’s existence or whereabouts. She further testified that she tried to locate
petitioner’s address through the Maryland Department of Social Services, child support
databases, and social media sites, but she was unsuccessful. She also testified that the mother did
not provide any information regarding petitioner’s whereabouts. The DHHR provided the circuit
court with proof of publication in a local newspaper in Mineral County, West Virginia. The
DHHR argued in favor of terminating petitioner’s parental rights based upon abandonment and
noted that the parents’ parental rights to other children in Maryland had also been terminated.
Ultimately, the circuit court found that the child had never met petitioner, whose whereabouts
were unknown, and petitioner had abandoned the child. The circuit court noted that petitioner
never appeared for any hearing and had not contacted the DHHR. Further, the circuit court found
that the DHHR made reasonable efforts to locate petitioner and effected proper service upon him
by publication. Ultimately, the circuit court terminated petitioner’s parental rights by order
entered on June 7, 2019. It is from the dispositional order that petitioner appeals. 2
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).
2
The mother’s parental rights were also terminated. The permanency plan for the child is
adoption in her current foster home.
2
Syl. Pt. 1, In re Cecil T., 228 W. Va. 89, 717 S.E.2d 873 (2011).
On appeal, petitioner alleges that the circuit court erred in relying upon West Virginia
Code § 49-4-601(e)(4) to provide service, notice, and jurisdiction over petitioner because the
circuit court had no personal jurisdiction over him as he had no minimum contacts with the State
of West Virginia. 3 Further, petitioner argues that the notice provisions of West Virginia Code §
59-3-1(b), which required service by publication in a “qualified newspaper” in Mineral County,
West Virginia, was not “reasonably calculated, under all circumstances, to apprise” petitioner of
the child abuse and neglect proceedings. We disagree and find petitioner’s arguments without
merit.
Petitioner concedes that the circuit court had proper subject matter jurisdiction over the
child in Mineral County, West Virginia. However, petitioner’s contention that the circuit court
lacked personal jurisdiction over him has no bearing on the circuit court’s authority to determine
a child’s custody, which by its nature may include the adjudication of a parent’s parental rights.
Under the West Virginia Uniform Child Custody Jurisdiction and Enforcement Act
(“UCCJEA”), West Virginia was the “home state” for the child in this matter as she had lived in
West Virginia for the preceding six months. See W. Va. Code § 48-20-102(g) (“‘Home state’
means the state in which a child lived with a parent or a person acting as a parent for at least six
consecutive months immediately before the commencement of a child custody proceeding.”); In
re J.C., 242 W. Va. 165, --, 832 S.E.2d 91, 97 (2019) (“Pursuant to W. Va. Code § 48-20-
201(a)(1), a circuit court has subject matter jurisdiction under the UCCJEA if West Virginia is
the ‘home state’ of the child when an abuse and neglect petition was filed.”). After making an
initial custody determination, the circuit court has “exclusive, continuing jurisdiction.” W. Va.
Code § 48-20-202. Finally, pursuant to the UCCJEA, “[p]hysical presence of, or personal
jurisdiction over, a party or a child is not necessary or sufficient to make a child custody
determination.” Id. at § 48-20-201(c). On appeal, petitioner fails to attack the validity of the
UCCJEA and ignores the Court’s holding in In re J.C., which found that child abuse and neglect
proceedings fall within the UCCJEA’s definition of a “child custody proceeding.” J.C., 242 W.
Va. at --, 832 S.E.2d at 96. Moreover, we have held that
[i]f a circuit court in this State acquires jurisdiction to award custody of a
child under the Uniform Child Custody Jurisdiction [Enforcement] Act, [West
Virginia Code § 48-20-101 et seq.], it may make such custody determination
notwithstanding the fact that personal jurisdiction was not acquired over a parent
who is absent from the State, and such adjudication does not violate the absent
party’s due process rights if the notice provisions of the Act have been complied
with.
3
West Virginia Code §49-4-601(e)(4) provides that “[i]f service cannot be obtained by
personal service or by certified mail, notice shall be by publication as a Class II legal
advertisement in compliance with § 59-3-1 et seq. of this code.” Further, West Virginia Code §
59-3-1(a)(1) and (b) provides, in relevant part, that a “legal advertisement” must be published in
a “qualified newspaper” in “the State of West Virginia.”
3
Syl., McAtee v. McAtee, 174 W. Va. 129, 323 S.E.2d 611 (1984). Notably, the notice provisions
of the UCCJEA are like those in West Virginia Code § 49-4-601(e)(4) in that they permit notice
by publication, and petitioner does not contend that the DHHR did not comply with the required
notice provisions. 4 According to the record, the DHHR attempted to locate petitioner through
various means and, after due diligence, was unable to locate him. Because actual notice upon
petitioner was impossible, the DHHR’s notice by publication was proper pursuant to the
UCCJEA and West Virginia Code § 49-4-601(e)(4). Accordingly, as the notice provisions of the
UCCJEA were satisfied, petitioner’s due process rights were not violated.
Next, petitioner argues that the circuit court erred in finding that he “unintentionally”
abandoned the child and argues that “West Virginia law requires that parental abandonment be
intentional.” However, petitioner’s argument misrepresents the circuit court’s finding at the
dispositional hearing that, “[petitioner has] abandoned [the child]; and I am—maybe not
voluntarily; he may not even know. I don’t know the answer to that, but . . . I’m terminating his
parental rights.” We have held that
[i]t is a paramount principle of jurisprudence that a court speaks only through its
orders. See State v. White, 188 W.Va. 534, 536 n. 2, 425 S.E.2d 210, 212 n. 2
(1992) (“[H]aving held that a court speaks through its orders, we are left to decide
this case within the parameters of the circuit court’s order.” (citations omitted));
State ex rel. Erlewine v. Thompson, 156 W.Va. 714, 718, 207 S.E.2d 105, 107
(1973).
Legg v. Felinton, 219 W. Va. 478, 483, 637 S.E.2d 576, 581 (2006). Here, the circuit court did
not make a finding that petitioner “unintentionally” abandoned the child in its dispositional
order. Rather, the circuit court clearly found that petitioner abandoned the child.
“‘Abandonment’ means any conduct that demonstrates the settled purpose to forego the duties
and parental responsibilities to the child.” W. Va. Code § 49-1-201. 5 Here, the DHHR presented
evidence that established that petitioner never provided any support for the child in any way and
4
West Virginia Code § 48-20-108(a) provides,
[n]otice required for the exercise of jurisdiction when a person is outside this state
may be given in a manner prescribed by the law of this state for service of process
or by the law of the state in which the service is made. Notice must be given in a
manner reasonably calculated to give actual notice but may be by publication if
other means are not effective.
(Emphasis added).
5
On appeal, petitioner cites an inapplicable statute, West Virginia Code § 48-22-306,
which requires the parent to have knowledge of the child’s whereabouts “in the domestic law
context.” No such equivalent exists in the definition of abandonment in child abuse and neglect
proceedings. Accordingly, the definition petitioner cites entitles him to no relief.
4
was never present in her life. Petitioner’s apparent complete abdication of parental duties to a
ten-year-old child is conduct that demonstrates the settled purpose to forego parental duties and
responsibilities. Accordingly, we find no error.
We likewise find no error in the termination of petitioner’s parental rights. West Virginia
Code § 49-4-604(b)(6) provides that a parent’s parental rights may be terminated upon findings
that “there is no reasonable likelihood that the conditions of neglect or abuse can be substantially
corrected in the near future” and when termination is “necessary for the welfare of the child.”
West Virginia Code § 49-4-604(c)(4) clearly provides that such circumstances exist when “[t]he
abusing parent or parents have abandoned the child,” as is the case here. Notably, petitioner does
not challenge the circuit court’s finding that “there is no reasonable likelihood that the conditions
of neglect or abuse can be substantially corrected in the near future.” As noted above, the
evidence supports a finding of abandonment because there is no indication that petitioner was
ever involved in the child’s life or supported her in any way. As such, it is clear there was no
reasonable likelihood that the conditions of abuse and neglect could be corrected in the near
future and that termination of petitioner’s parental rights was necessary for the child’s welfare. In
conclusion, we find no error in the circuit court’s termination of petitioner’s parental rights.
Accordingly, the circuit court’s June 7, 2019, order is hereby affirmed.
Affirmed.
ISSUED: April 6, 2020
CONCURRED IN BY:
Chief Justice Tim Armstead
Justice Margaret L. Workman
Justice Elizabeth D. Walker
Justice Evan H. Jenkins
Justice John A. Hutchison
5