In Re: A.L. ( 2014 )

STATE OF WEST VIRGINIA
SUPREME COURT OF APPEALS
FILED
In Re: A.L. November 24, 2014
RORY L. PERRY II, CLERK
SUPREME COURT OF APPEALS
No. 14-0573 (Wetzel County 12-JA-07) OF WEST VIRGINIA
MEMORANDUM DECISION
Petitioner Stepfather, by counsel Justin Craft, appeals the Circuit Court of Wetzel
County’s May 9, 2014, order terminating the parental rights of A.L.’s biological mother.1 The
West Virginia Department of Health and Human Resources (“DHHR”), by counsel Lee A.
Niezgoda, filed its response in support of the circuit court’s order and also filed a supplemental
appendix. The guardian ad litem, Roger Weese, filed a response on behalf of the child supporting
the circuit court’s order. On appeal, Petitioner Stepfather alleges that the circuit court erred in
amending the petition after the final adjudicatory hearing to include him as a respondent in this
matter.
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 decision is appropriate under Rule
21 of the Rules of Appellate Procedure.
In May of 2012, Petitioner Stepfather, A.L.’s mother, and A.L.’s maternal grandmother
were involved in a domestic altercation wherein Petitioner Stepfather grabbed A.L. by the arm
and forcefully dragged him across the road against his will.2 In July of 2012, the DHHR filed its
initial petition for abuse and neglect alleging that A.L.’s mother was homeless. The DHHR
subsequently filed an amended petition for the purpose of including the allegation that the
mother was charged with child neglect resulting in the risk of injury towards A.L based upon the
aforementioned domestic altercation involving Petitioner Stepfather and A.L. Petitioner
Stepfather was not named as a respondent parent in either the initial or the amended petition.
On November 9, 2012, the circuit court held an adjudicatory hearing and adjudicated
A.L.’s mother as an abusing parent within the meaning of West Virginia Code § 49-1-3 because
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A.L. was approximately four years old when the petition was filed.
2
At the time, Petitioner Stepfather and the biological mother were not married. They
married on June 4, 2012.
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she permitted Petitioner Stepfather to knowingly inflict injury upon A.L. In May of 2013, the
circuit court granted the mother an extension of her post-adjudicatory improvement period. The
circuit court’s findings reflect that Petitioner Stepfather was attending counseling with the
mother.
By order entered on September 29, 2013, the circuit court granted the biological mother a
three-month dispositional improvement period and directed the DHHR to provide Petitioner
Stepfather with all available services. For the first time, the style of the circuit court’s order
named Petitioner Stepfather as a respondent parent. Thereafter, the circuit court terminated the
mother’s parental rights because she was unable to adequately provide for A.L.’s needs and
continuation in the home was not in A.L.’s best interest. Importantly, the circuit court did not
address or terminate any parental, custodial, or guardianship rights that Petitioner Stepfather may
have had to A.L. It is from this order that Petitioner Stepfather now appeals.
Petitioner Stepfather argues that the circuit court erred in amending the case to include
him as a respondent to the abuse and neglect petition after the final adjudicatory hearing. He
further argues that he was denied the opportunity to respond to the allegations in the abuse and
neglect petition. Upon review of the record, this Court finds that Petitioner Stepfather waived this
argument because he failed to raise it during the course of the underlying proceedings. This Court
has repeatedly held that it “will not pass on a nonjurisdictional question which has not been
decided by the circuit court in the first instance.” Syl. Pt. 10, Vandevender v. Sheetz, Inc., 200
W.Va. 591, 490 S.E.2d 678 (1997). Therefore, we decline to addresses Petitioner Stepfather’s
argument in this appeal.
For the foregoing reasons, we affirm.
Affirmed.
ISSUED: November 24, 2014
CONCURRED IN BY:
Chief Justice Robin Jean Davis
Justice Brent D. Benjamin
Justice Margaret L. Workman
Justice Menis E. Ketchum
Justice Allen H. Loughry II
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