In re L.M., 20-0921

CourtSupreme Court of West Virginia
Writing for the CourtWALKER, Justice
Citation245 W.Va. 751,865 S.E.2d 493
Parties IN RE L.M.
Docket NumberNo. 20-0921,20-0921
Decision Date05 November 2021

245 W.Va. 751
865 S.E.2d 493

IN RE L.M.

No. 20-0921

Supreme Court of Appeals of West Virginia.

Submitted: October 5, 2021
Filed: November 5, 2021


Elliott E. Workman, Esq., Madison, West Virginia, Counsel for Petitioner.

Patrick Morrisey, Esq., Attorney General, Mindy M. Parsley, Esq., Assistant Attorney General, Charleston, West Virginia, Counsel for Respondent West Virginia Department of Health and Human Resources, L. Scott Briscoe, Esq., Madison, West Virginia, Guardian ad Litem.

WALKER, Justice:

865 S.E.2d 495

Petitioner M.M. appeals the termination of his parental rights to his child L.M., contending that he was not afforded notice of the proceedings when he was served by publication in a Boone County newspaper.1 Even though the West Virginia Department of Health and Human Resources (DHHR) argues that Petitioner had family in Boone County and his child resided there, the record is clear that DHHR knew that Petitioner was in North Carolina and not West Virginia. And, by the time DHHR apparently served Petitioner by publication in a North Carolina newspaper, the circuit court had already adjudicated Petitioner.

Applying Rule 21 of the West Virginia Rules of Procedure for Child Abuse and Neglect Proceedings, which prohibits adjudication before the answer time frame as set forth in the notice of publication has expired, we conclude that the circuit court erred in adjudicating Petitioner's rights without proper service. Service by publication only in Boone County despite all evidence that Petitioner was in North Carolina was not reasonably calculated to afford Petitioner notice of the proceedings, and so violated his due process rights. The circuit court's order terminating Petitioner's parental rights is thus vacated, and we remand the matter for further proceedings.

I. FACTS AND PROCEDURAL HISTORY

L.M. was in the primary custody of his mother, T.S., when DHHR substantiated a referral and planned to implement an in-home safety plan. Before that plan could be put in place, however, T.S. died unexpectedly. DHHR then filed an abuse and neglect petition in March 2019, largely documenting T.S.’s conduct and inability to control her daughter, as well as significant truancy issues, but also seeking to take custody of L.M. and his sister.2 The petition alleged that L.M.’s father, Petitioner M.M., had not had contact with L.M. for six months, was $16,911.89 in arrears for child support payments, and had legally abandoned the child as defined by West Virginia Code § 49-1-201 (2018). The circuit court transferred custody to DHHR, and L.M. was placed with his paternal aunt. Between March 2019 and October 2019, the circuit court held various status conferences and received status updates from DHHR.

865 S.E.2d 496

Then, on October 29, 2019, DHHR filed an amended petition reiterating that Petitioner had abandoned L.M. In a status summary filed on December 2, 2019, DHHR acknowledged that there was no service on Petitioner. A copy of the original petition had been sent by certified mail to Petitioner's last known address in Wilmington, North Carolina, but was returned as "Attempted/Unknown." On December 6, 2019, the circuit court issued an order of publication, permitting DHHR to serve the amended complaint on Petitioner by publication pursuant to West Virginia Code § 49-4-601(e)(4) (2019)3 , and that order was forwarded to the Charleston Gazette to be published for two consecutive weeks. The order of publication did not give an answer period, but listed the adjudicatory hearing date of January 6, 2020; notified Petitioner of a right to counsel; provided information to obtain a copy of the petition; and indicated that Petitioner's parental rights may be terminated upon final disposition.

On January 7, 2020, the circuit court received a status report that the prosecutor's office was checking on proof of publication for Petitioner. On January 27, 2020, the status summary indicated that there was still no proof of publication, but that a new, possible address had been obtained through the Bureau of Child Support Enforcement (BCSE). That address was also in Wilmington, North Carolina. Likewise, the North Carolina Department of Public Safety Website listed Petitioner as being on probation/parole in North Carolina. A copy of the petition was sent by certified mail to the new Wilmington address on February 4, 2020, but as of February 7, 2020 there was no proof of service return. DHHR contacted the North Carolina Department of Public Safety to obtain an address but apparently was told that information could not be divulged.

A status summary filed on March 13, 2020, in anticipation of the adjudicatory hearing to be held on March 16, 2020, states that a publication order was published in the Coal Valley News and ran on February 26, 2020, and March 4, 2020.4 The status summary reflects some reservations on behalf of the CPS worker that the service by publication in Boone County alone was sufficient: "CPSW Belcher emailed [Assistant Prosecuting Attorney (APA)] Anderson to see if the publishing would suffice due to [Petitioner] residing in North Carolina. Worker did explain ... that [Petitioner] does have family in Boone County as that is who the child [L.M.] resides [with]. APA Anderson to check into worker's inquiry and respond."

During the adjudicatory hearing held on March 16, 2020, DHHR represented to the circuit court that service had been achieved through publication in the Coal Valley News, noting that there was proof of publication. Despite those assertions, no proof of publication in the Coal Valley News is contained in the appendix record or on the docket sheet. DHHR called only one witness, CPS Worker Brandi Belcher. Ms. Belcher testified that Petitioner had not been to any of the hearings; had not contacted her; and as of the time of filing the amended petition, had not paid any child support since 2016.

Petitioner's court-appointed attorney then focused her cross-examination of Ms. Belcher on the efforts to find and serve Petitioner. During questioning, it was established that DHHR had found Petitioner on North Carolina's offender search website and concluded he had been in jail and was on probation there. Ms. Belcher also testified that she took no further steps, such as speaking to the prosecutor or seeking a court order to obtain

865 S.E.2d 497

Petitioner's address from authorities in North Carolina.

In arguing that service was not made on Petitioner and that he would have had no notice of the proceeding, Petitioner's counsel argued that all of the information available pointed to Petitioner residing in North Carolina. In response, DHHR stated that publication was made in Boone County, where the child lives, and that there was no way to know which North Carolina newspaper was the appropriate one for publication. Finally, DHHR argued that "[Petitioner] has some burden of responsibility of stepping up and taking care of his child ... [i]t is more than just the fact that he may or may not have known about these proceedings. He has not been involved in the child's life at all." The circuit court found that because the child had resided in Boone County, publication in the Coal Valley News was sufficient for purposes of service and notice and entered its adjudicatory order to that effect.

The circuit court then entered an amended adjudicatory order on June 10, 2020. The amended adjudicatory order states that "[DHHR] reports that the Adult Respondent[ ] [M.M.] has been served via publication in the Wilmington Newspaper and the proof of the publication is in the file." The order then concludes that the Wilmington newspaper publication was sufficient notice of the hearing and reiterates its prior findings without holding a new adjudicatory hearing. Notably, there is neither a new order of publication for the Wilmington newspaper nor any proof of publication in the appendix record or on the docket sheet.

On June 24, 2020, the circuit court proceeded to disposition and terminated Petitioner's parental rights to L.M., but the order was not entered at that time.5 In September 2020, the circuit court held a status hearing, during which Petitioner's counsel stated to the circuit court that Petitioner had contacted her out of the blue, contending that he had been incarcerated in North Carolina and knew nothing about the proceedings. Petitioner appeared with counsel and stated that though he lived out of state, he talked on the phone frequently with L.M., and had messages to prove his relationship with him if the circuit court would reopen the case to allow him to present his evidence. The circuit court denied Petitioner's motion to reopen the case and reaffirmed its prior ruling terminating Petitioner's parental rights. That ruling was reduced to the order entered October 7, 2020 that Petitioner challenges on appeal.6

II. STANDARD OF REVIEW

Petitioner's appeal raises both a lack of notice of the proceedings and failure to employ a less-restrictive alternative to the termination of his parental rights. In reviewing those alleged errors, the following standard guides our 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
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