Karla M. v. West Virginia Department of Human Services, Bureau for Social Services

IN THE INTERMEDIATE COURT OF APPEALS OF WEST VIRGINIA

FILED
KARLA M., March 24, 2025
Appellant Below, Petitioner ASHLEY N. DEEM, CHIEF DEPUTY CLERK
INTERMEDIATE COURT OF APPEALS
OF WEST VIRGINIA
v.) No. 24-ICA-354 (Bd. of Review No. 24-BOR-2660)

WEST VIRGINIA DEPARTMENT OF
HUMAN SERVICES BUREAU FOR SOCIAL SERVICES,
Respondent Below, Respondent

MEMORANDUM DECISION

Petitioner Karla M.1 appeals the July 26, 2024, dismissal order of the West Virginia
Office of Inspector General Board of Review (“Board of Review”). Respondent West
Virginia Department of Human Services Bureau for Social Services (“Department”) filed
its response.2 No reply was filed. The issue on appeal is whether the Board of Review erred
in dismissing Karla M.’s administrative appeal without granting her a hearing.

This Court has jurisdiction over this appeal pursuant to West Virginia Code § 51-
11-4 (2024). After considering the parties’ arguments, the record on appeal, and the
applicable law, this Court finds there is error in the Board of Review’s decision, but no
substantial question of law. This case satisfies the “limited circumstances” requirement of
Rule 21(d) of the Rules of Appellate Procedure for reversal in a memorandum decision.
For the reasons set forth below, the Board of Review’s decision is reversed, and this case
is remanded for further proceedings consistent with this decision.

At the outset, we note that the administrative record in this matter is exceedingly
sparse, so much of the factual recitation is taken from Karla M.’s brief. She alleges that in
2019, she filed a “Request for Hearing” seeking to have a 1999 Child Protective Services’
(“CPS”) substantiation of maltreatment removed from her administrative record. She states
that the request was prompted by CPS refusing her temporary placement of her
grandchildren when their parents’ home was deemed unsafe. Karla M. claims that the

1
Consistent with our 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, 256 n.1, 773 S.E.2d 20, 22 n.1 (2015).
2
Karla M. is self-represented. The Department is represented by Angela Marie
Alexander, Esq.

1
parents quickly remedied their home, and the children were returned to them, so she did
not pursue the request for the hearing.

However, due to her failure to appear for the hearing, an “Order of Abandonment”
was entered on April 29, 2019. The order states that Karla M. failed to appear for the
administrative hearing on April 10, 2019, and goes on to say,

Notice was sent advising of the opportunity to have the hearing rescheduled
if the Appellant replied in writing within 10 days and established good cause
for the failure to appear. There having been no response from the Appellant,
it is hereby ORDERED that the February 21, 2019 request for hearing is
ABANDONED.

Karla M. alleges that on June 20, 2024, CPS placed two of her grandchildren in her
physical custody under a temporary protection plan and emergency custody order while
neglect proceedings were underway against the children’s parents. She claims that CPS
was aware of the 1999 substantiation when they placed the children with her and when,
shortly thereafter, she completed a home study application. She alleges that CPS advised
her to submit a request for a variance with the home study application and to seek
administrative removal of the substantiation from her record in order to keep her
grandchildren. She claims that CPS changed its position on July 10, 2024, when CPS
removed the grandchildren from her custody and claimed her home was not a stable
environment because her then-husband filed for divorce. After that point, she claims CPS
told her they could not consider her for future placement until the maltreatment
substantiation was removed from her record.

Accordingly, Karla M. submitted a new hearing request on July 11, 2024, again
seeking the removal of the 1999 CPS substantiation from her administrative record. On the
hearing request form, she explained the reason for her request by stating, “[m]y
grandchildren have been placed with me by CPS, this occurred in 1999, and it was an
uneducated mistake I never repeated.” On Part II of the form, which indicates it is to be
completed by department district/regional staff, Department Representative Felicia
Ketterman wrote that the investigation occurred in Morgan County, the Intake Number was
10059295, and the type and date of findings were “Abuse – hitting instrument –
12/3/2009.”3 Ms. Ketterman checked the box for “Copy unavailable” next to “Notice of
Findings Issued” and checked the box for “No” in response to whether the finding was
adjudicated or pending in a court of law. The form was marked “Request of Reversal
Denied” by Ms. Ketterman, and the date of reconsideration was listed as July 23, 2024.

3
Karla M. asserts that the date written by Ms. Ketterman is 12/3/2009, though it
may be 12/3/2004. Because the date is hand-written, it is plausibly susceptible to either
interpretation.
2
Part III of the form, to be completed by the Board of Review, indicates the action
was “dismissed” and states that the decision was completed and sent by certified mail on
July 26, 2024. The attached “Dismissal Order,” signed by the Board of Review’s
Administrative Law Judge, states that the Department received a request for removal of
CPS maltreatment findings, reviewed the findings, and denied reversal. The request was
then sent to the Board of Review. The “Dismissal Order” goes on to state,

Matters raised by the Appellant regarding intake number 10059295 were
previously adjudicated by the Board of Review on April 29, 2019, as
abandoned (attached). In consideration of the fact that this matter has
previously been ruled on by the Board of Review, the July 12, 2024 hearing
request is DISMISSED.

It is from this order that Karla M. now appeals. This appeal is governed by the
following standard of review:

The court may affirm the order or decision of the agency or remand the case
for further proceedings. It shall reverse, vacate, or modify the order or
decision of the agency if the substantial rights of the petitioner or petitioners
have been prejudiced because the administrative findings, inferences,
conclusions, decision, or order are:
(1) In violation of constitutional or statutory provisions;
(2) In excess of the statutory authority or jurisdiction of the agency;
(3) Made upon unlawful procedures;
(4) Affected by other error of law;
(5) Clearly wrong in view of the reliable, probative, and substantial evidence
on the whole record; or
(6) Arbitrary or capricious or characterized by abuse of discretion or clearly
unwarranted exercise of discretion.

W. Va. Code § 29A-5-4(g) (2021); accord W. Va. Code § 16B-2-2(c) (2024) (designating
West Virginia Code § 29A-5-4 as governing standard of review for Board of Review
appeals); W. Va. Code § 49-4-601b(b) (2023) (a person has right to appeal Board of
Review decision to court designated under West Virginia Code § 29A-5-1 to -5).

Karla M. argues that the Board of Review erred in dismissing her claim without a
hearing and a final adjudication on the merits, citing only the prior order that dismissed her
hearing request due to abandonment. She argues that the prior order did not dismiss her
claim, it only dismissed her hearing request; the prior order was not entered with prejudice;
and she was not notified that it constituted a final order that would result in her inability to
request another hearing or an adjudication on the merits. Accordingly, she claims that the
Board of Review’s dismissal for “abandonment” violates her due process rights and right
to a full and fair opportunity to be heard. See W. Va. Code § 16B-2-2(a) (“The Board of

3
Review shall provide a fair, impartial, and expeditious grievance and appeal process . . . to
all parties of contested cases arising under § 29A-5-1 et seq.”) She asserts further that she
never received notice of the alleged 2009 substantiation of maltreatment, in violation of
West Virginia Code § 49-4-601b(a) (2023), which requires, “when the department
substantiates an allegation of abuse . . ., but there is no judicial finding of abuse . . ., the
department shall provide written notice of the substantiation . . .” Finally, Karla M. argues
that pursuant to West Virginia Code § 49-4-601b(d)(1) (2023), the substantiation of
maltreatment in her record should have been sealed, and any inquiry of the Department
about her having a record of child abuse and/or neglect for purposes of possible
employment, including as a foster parent or kinship care provider, must be answered in the
negative.

In response, the Department argues that Karla M. failed to appear for her first
requested hearing and failed to respond to the abandonment letter that gave her ten days to
establish good cause for her failure to appear, stating that if she had responded, the hearing
would have been rescheduled in 2019. In its brief, the Department relies on its Common
Chapters Manual, § 730.19 for its authority to dismiss a hearing based on the prior
abandonment of a matter. However, the provisions of the Common Chapters Manual §
730.19 are facially inapplicable to hearings involving CPS. As the title states, “730 Subpart
C – Fair Hearings for Bureau for Child Support Enforcement” pertains to child support
hearings, not CPS hearings.4

Conversely, Common Chapters Manual § 720.10, found under “Subpart C –
Administrative Hearings Pertaining to Social Services Provided by the Department of
Human Services,” clearly states that hearings involving CPS “are subject to the
Administrative Procedures Act” found in West Virginia Code § 29A-5-1, et seq. Notably,
we can find no provisions in the Administrative Procedures Act or any of its corresponding
rules5 providing that a request for a hearing can be considered “abandoned” such that a
future request for a hearing should be dismissed with prejudice.

4
Moreover, Common Chapters Manual § 730.10 “General” states:

Scope – This procedural rule is intended to set forth the procedures for fair
hearings concerning the Bureau for Child Support Enforcement held within
the Office of Inspector General by the Board of Review. Pursuant to § 29A-
1-3(c) of the West Virginia Code, these hearings are exempt from the State
Administrative Procedures Act.
5
See West Virginia Code of State Rules §§ 69-1-1 to -10 (2015) (setting forth rules
for hearings held under the Administrative Procedures Act); see also West Virginia Code
of State Rules § 78-27-6 (2024) (setting forth procedure for grieving a maltreatment
substantiation).

4
Upon review, we also find that the Board of Review’s order does not contain the
required findings of fact and conclusions of law pursuant to West Virginia Code § 29A-5-
3.6 While the order states the factual rationale that Karla M. previously requested a hearing
but did not appear, there is no legal support for the conclusion that the prior “abandonment”
justifies dismissal of the current request.

There is also some ambiguity regarding whether there are multiple substantiations
in Karla M.’s history, which we cannot resolve with the scant record before us. Karla M.’s
hearing request form states she is seeking to have a 1999 finding removed, but the CPS
inspector lists a file number for a 2009 (or possibly 2004) substantiation on Part II of the
form. The order does not mention this discrepancy, and Karla M. denies receiving notice
of any 2009 substantiation. Notably, the Department’s Representative, Ms. Ketterman,
marked the request form “Copy unavailable” when asked if a notice of findings was issued,
a detail that may support Karla M.’s assertion that notice was not provided.7

In light of the foregoing, we find error in the Board of Review’s order and deem it
necessary to reverse the dismissal of Karla M.’s request for an administrative hearing under
the inapplicable provisions of the Common Chapters Manual.8 We remand this matter to
the Board of Review so that it may direct the Department to provide notice to Karla M. of
all maltreatment substantiations against her in its records that prevent her from being

6
“Every final order or decision rendered by any agency in a contested case shall be
in writing or stated in the record and shall be accompanied by findings of fact and
conclusions of law.” Id.
7
We note that the notice requirements for maltreatment substantiations vary
depending on whether the substantiation is adjudicated, results in a felony conviction, or if
it occurred before or after July 1, 2021. For non-adjudicated substantiations such as is
indicated on Karla M.’s request form, the rights and obligations of the parties are described
in West Virginia Code of State Rules §§ 78-27-4 and -5. However, these rules were not
effective until July 1, 2021, after Karla M. made and allegedly “abandoned” her first
request for an administrative hearing in 2019.
8
We do not reach the merits of Karla M.’s argument that the substantiation she seeks
to remove should be administratively sealed, or that such a sealing would permit her to be
considered for kinship placement of her grandchildren. Because the record regarding the
substantiation(s) at issue is unclear, we cannot determine whether the provisions of West
Virginia Code § 49-4-601b(d) are applicable. Accordingly, we decline to further interpret
the effect of this statutory language, if any, on possible kinship placement. However,
nothing in this decision is intended to prevent the parties from considering these issues on
remand.

5
approved as a foster parent/kinship care placement,9 and allow her to request and receive a
copy of her file at no charge, per West Virginia Code of State Rules § 78-27-5.3.3.
Thereafter, the Board of Review is instructed to conduct a hearing on all such maltreatment
substantiations in accordance with West Virginia Code § 29A-5-1 to -5, and West Virginia
Code of State Rules § 69-1-1 to -10, and to issue a decision containing findings of fact and
conclusions of law sufficient for judicial review, should it be necessary.

Accordingly, we reverse the Board of Review’s July 26, 2024, dismissal order, and
remand this case for further proceedings consistent with this decision.

Reversed and Remanded.

ISSUED: March 24, 2025

CONCURRED IN BY:

Chief Judge Charles O. Lorensen
Judge Daniel W. Greear
Judge S. Ryan White

9
Per West Virginia Code of State Rules § 78-27-5.2, the notice should contain the
following information regarding the maltreatment substantiation(s):

5.2.1. The name of the child the maltreater was found to have abused or
neglected;
5.2.2. The place(s) where the abuse and neglect occurred; and
5.2.3. The date(s) on which the abuse or neglect occurred.
6