In re J.M.

FILED
September 20, 2022
EDYTHE NASH GAISER, CLERK
STATE OF WEST VIRGINIA SUPREME COURT OF APPEALS
OF WEST VIRGINIA
SUPREME COURT OF APPEALS
In re J.M.
No. 22-0244 (Marshall County 19-JA-54)
MEMORANDUM DECISION
Petitioner Father T.M., by counsel R. Jared Lowe, appeals the Circuit Court of Marshall
County’s March 7, 2022, order terminating his parental rights to J.M. 1 The West Virginia
Department of Health and Human Resources (“DHHR”), by counsel Patrick Morrisey and Lee
A. Niezgoda, filed a response in support of the circuit court’s order. The guardian ad litem,
Michael B. Baum, also filed a response on the child’s behalf in support of the circuit court’s
order.
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 that the circuit court below erred and denied petitioner his right to due
process by proceeding with a dispositional hearing while petitioner was not represented by
counsel. Accordingly, this case satisfies the “limited circumstances” requirement of Rule 21(d)
of the West Virginia Rules of Appellate Procedure, and a memorandum decision is appropriate
to resolve the issues presented.
In November of 2019, the DHHR filed a petition alleging that petitioner and the mother
abused and neglected J.M.’s sibling, J.K.M., after that child was born premature with heroin and
Suboxone exposure. 2 The DHHR also alleged that petitioner failed to protect the children from
the mother’s substance abuse and failed to provide the children with necessary shelter. The
DHHR amended the petition in September of 2020, alleging that petitioner medically neglected
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
J.K.M. is not at issue on appeal.
1
then-three-year-old J.M. by failing to keep medical appointments to investigate serious physical
symptoms the child exhibited, such as her difficulty walking and a limp. These symptoms
eventually were determined to result from a rare form of cancer that required immediate medical
intervention, including surgery and chemotherapy. In April of 2021, petitioner stipulated to the
allegations in the petition, and the circuit court adjudicated him as an abusing parent.
Additionally, petitioner and the mother voluntarily relinquished their parental rights to J.K.M.
during this hearing. Later, petitioner was granted an improvement period, which was terminated
for noncompliance in November of 2021. Petitioner did not contest the termination of his
improvement period.
The circuit court convened for a dispositional hearing in January of 2022 and first
addressed petitioner’s counsel’s motion to withdraw from his representation of petitioner. The
court held an in-camera hearing with petitioner and his counsel, considered petitioner’s
complaints with contacting counsel, and, ultimately, granted the motion and relieved petitioner’s
counsel from representation. The in-camera hearing continued; petitioner asked to be appointed
new counsel and moved for a continuance. The circuit court denied petitioner’s motion to
continue, reasoning that petitioner did not come prepared with an attorney and came into court
“without a back-up plan.” It noted it did not find “that everyone else’s time [was] any less
important than [petitioner’s]” so a continuance was not warranted. The court ordered petitioner
to proceed without counsel. The court heard testimony from three DHHR witnesses, then
continued the hearing due to time constraints. The circuit court reconvened in February of 2022,
at which time petitioner appeared with newly appointed counsel. The DHHR presented
testimony from petitioner and the mother before resting. Petitioner presented no additional
evidence. Ultimately, the circuit court found that petitioner failed to respond to a reasonable
family case plan, there was no reasonable likelihood that petitioner could substantially correct
the conditions of neglect and abuse, and that termination of petitioner’s parental rights was
necessary for the child’s welfare. The court terminated petitioner’s parental rights by its March 7,
2022, order. Petitioner now appeals. 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
3
The mother’s parental rights were also terminated below. According to the parties, the
permanency plan for the child is adoption in her current placement.
2
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).
On appeal, petitioner argues that the circuit court erred in terminating his parental rights
upon insufficient evidence. However, we decline to address that argument and instead vacate the
circuit court’s dispositional order based upon its clearly erroneous decision to proceed with
disposition without affording petitioner new appointed counsel. West Virginia Code § 49-4-
601(f)(4) provides that “[a] parent, guardian, custodian . . . who is alleged to have neglected or
abused the child and who has not retained counsel and is financially unable to retain counsel
beyond the initial hearing, shall be afforded appointed counsel at every stage of the proceeding.”
This Court has long recognized that due process requires the appointment of counsel to parents
in abuse and neglect proceedings, stating
“[i]n child neglect proceedings which may result in the termination of
parental rights to the custody of natural children, indigent parents are entitled to
the assistance of counsel because of the requirements of the Due Process clauses
of the West Virginia and United States Constitutions.” Syllabus point 1, State ex
rel. LeMaster v. Oakley, 157 W.Va. 590, 203 S.E.2d 140 (1974).
Syl. Pt. 7, Matter of Lindsey C., 196 W. Va. 395, 473 S.E.2d 110 (1995). Clearly, petitioner was
not afforded counsel during the January of 2022 hearing when the circuit court granted
petitioner’s counsel’s motion to withdraw, denied petitioner’s motion for a continuance, and
ordered him to proceed without counsel. There is also no dispute that petitioner was indigent. As
a result of the circuit court’s error, we find it necessary to vacate and remand this proceeding for
a dispositional hearing wherein petitioner is represented by counsel. See Syl. Pt. 3, In re Emily
G., 224 W. Va. 390, 686 S.E.2d 41 (2009) (requiring a circuit court’s order be vacated and
remanded when “the process established by the Rules of Procedure for Child Abuse and Neglect
Proceedings and related statutes . . . has been substantially disregarded or frustrated”).
Accordingly, because the circuit court violated petitioner’s right to due process by
proceeding with a dispositional hearing without affording petitioner counsel, we vacate the
circuit court’s March 7, 2022, dispositional order and remand the matter with instructions to
appoint petitioner counsel and hold a dispositional hearing within the next sixty days.4 We
further order that, upon remand, this matter be assigned to a different circuit court judge. The
Clerk is hereby directed to issue the mandate contemporaneously herewith.
Vacated and Remanded.
4
The circuit court’s dispositional order is vacated as it relates to the termination of
petitioner’s parental rights only.
3
ISSUED: September 20, 2022
CONCURRED IN BY:
Chief Justice John A. Hutchison
Justice Elizabeth D. Walker
Justice Tim Armstead
Justice William R. Wooton
Justice C. Haley Bunn
4