Rebecca C. v. West Virginia Department of Health and Human Resources

IN THE INTERMEDIATE COURT OF APPEALS OF WEST VIRGINIA

FILED
REBECCA C., November 1, 2023
Petitioner Below, Petitioner EDYTHE NASH GAISER, CLERK
INTERMEDIATE COURT OF APPEALS

vs.) No. 22-ICA-319 (Bd. of Review No. 22-BOR-2508) OF WEST VIRGINIA

WEST VIRGINIA DEPARTMENT OF
HEALTH AND HUMAN RESOURCES,
Respondent Below, Respondent

MEMORANDUM DECISION

Petitioner Rebecca C. 1 appeals the November 21, 2022, dismissal order of the West
Virginia Department of Health and Human Resources’ Board of Review (“Board of
Review”). Respondent West Virginia Department of Health and Human Resources
(“Department”) filed its response. 2 Rebecca C. filed a reply. The issue on appeal is whether
the Board of Review erred in dismissing Rebecca C.’s administrative appeal based on
untimeliness.

This Court has jurisdiction over this appeal pursuant to West Virginia Code § 51-
11-4 (2022). After considering the parties’ arguments, the record on appeal, and the
applicable law, this Court finds no substantial question of law and no prejudicial error. For
these reasons, a memorandum decision affirming the Board of Review’s order is
appropriate under Rule 21 of the Rules of Appellate Procedure.

On June 2, 2015, the Department received a referral regarding alleged abuse and/or
neglect by Rebecca C. upon a child in her home. By letter dated October 21, 2015, the
Department notified Rebecca C. that an investigation had substantiated a finding of
maltreatment against her, resulting in a case being opened, with the Department to provide
services in the home. 3 This letter also explained that Rebecca C. had a right to contest these

1
To protect the confidentiality of the juveniles involved in this case, we refer to the
parties’ last names by the first initial. See, e.g., W. Va. R. App. P. 40(e); State v. Edward
Charles L., 183 W. Va. 641, 645 n.1, 398 S.E.2d 123, 127 n. 1 (1990).
2
Rebecca C. is self-represented. The Department is represented by Angela
Alexander Walters, Esq.
3
The nature or extent of these services is unclear from the record, but this lack of
clarity has no bearing on our decision herein.
1
findings by filing an administrative appeal within sixty days of the date of the letter, and
that if she failed to timely file an appeal, she would be waiving her right to the same. No
appeal was filed by Rebecca C. within the sixty-day timeframe, and her receipt of the letter
is not in dispute.

According to Rebecca C., she was under the impression that the substantiation was
removed from her record following a family court hearing in March of 2016. Rebecca C.
claims she first learned that the finding of maltreatment was still on her record when her
employer discovered it following a background check. Rebecca C. works in the healthcare
field as a certified nursing assistant (“CNA”) and maintains that this adverse finding
threatens her livelihood.

On November 16, 2022, Rebecca C. filed her request for an administrative hearing
with the Department regarding the 2015 maltreatment substantiation. On November 21,
2022, the Board of Review entered a dismissal order, concluding that it lacked authority to
address the finding of maltreatment. The Board of Review found that Rebecca C. had failed
to file her appeal within sixty days, despite having notice of this appeal deadline in the
October 21, 2015, letter. It is from this order that Rebecca C. 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 § 16-1-22a(c) (2023) (designating
West Virginia Code § 29A-5-4 as governing standard of review for Board of Review
appeals); W. Va. Code § 49-4-601b(b) (2020) (a person has right to appeal Board of
Review decision to court designated under West Virginia Code § 29A-5-1 to -5).

As a preliminary matter, we note that Rebecca C.’s appeal contains several
assignments of error related to the merits of the Department’s substantiation itself,
including that she had no contact from the Department following receipt of its letter in

2
October of 2015. However, because the Board of Review’s order does not rule on the
merits, but rather, dismisses her administrative appeal as untimely filed, our review is
limited solely to whether the Board of Review erred in finding her administrative appeal
was time barred.

On this issue, Rebecca C. argues a timely appeal would have been filed if she had
known that the maltreatment finding was still on her record. Based on her understanding
of an agreement made in family court, she believed those findings had been removed from
her record. 4 It was also averred that this finding was not found on her record when she
renewed her CNA certification in 2018, nor was it discovered through other employer
background checks since 2015. In sum, Rebecca C. concedes that the appeal should have
been filed within sixty days, but due to her mistaken belief that the matter had been
resolved, she did not timely file an administrative appeal. 5

From the outset, we find Rebecca C.’s argument that she was under the mistaken
belief that the matter was resolved in family court to be unavailing. First, there is nothing
in the record that expressly supports this contention. Next, family courts are courts of
limited jurisdiction and do not have jurisdiction over abuse and neglect matters, including
the Department’s finding of maltreatment. See W. Va. Code § 51-2A-2 (2018) (setting forth
family courts are courts of limited jurisdiction and establishing scope of family courts’
authority); Leann H. v. Theophilus C., No. 22-ICA-65, 2023 WL 152885, at *3 (W. Va. Ct.
App. Jan. 10, 2023) (memorandum decision) (discussing limited authority of family
courts). Instead, circuit courts have exclusive jurisdiction over child abuse and neglect
matters, and the family courts are required to defer to the circuit courts in such matters. See
generally In re J.L., 234 W. Va. 116, 120-121, 763 S.E.2d 654, 658-659 (2014). Further,
Rebecca C. fails to cite to any authority that her mistaken belief excuses her failure to
timely file her appeal.

The record does not provide any specifics about the nature of this alleged
4

agreement, i.e., the parties to the agreement or the terms of the same.
5
Rebecca C. also argues that following her receipt of the Department’s letter in
October of 2015, she had no further contact with the Department and no services were
offered, despite Department policy requiring those services commence within thirty days;
and throughout her appeal, she repeatedly quotes that “[t]o close a case ongoing, CPS must
make a definitive determination that a safe home exists.” However, Rebecca C. fails to cite
the source of these purported authorities as required by our Appellate Rules. See W. Va. R.
App. P. 10(c). Further, in both instances, Rebecca C. fails to articulate how these arguments
apply to the relevant issue on appeal, viz. the timeliness of her appeal. Nevertheless, we
find neither argument has any bearing on our decision herein.

3
Upon review, we find no error in the Board of Review’s dismissal of Rebecca C.’s
administrative appeal based on untimeliness. West Virginia Code of State Rules §§ 78-27-
1 to -7 (2021) establish the procedure to contest Department substantiations of
maltreatment. 6 West Virginia Code of State Rules § 78-27-6.1.2 requires the appeal to be
filed with the Department within sixty days of receipt of the notice of substantiated
maltreatment. In this case, Rebecca C. does not dispute receipt of notice and concedes that
she was aware of the sixty-day appeal deadline. Despite this knowledge, she waited over
seven years to file her appeal. Consequently, after the expiration of the sixty-day
timeframe, the Board of Review no longer had jurisdiction over an appeal of this decision.
Therefore, the Court finds the Board of Review properly dismissed the matter as untimely
filed.

Accordingly, we affirm the Board of Review’s November 21, 2022, dismissal order.

Affirmed.
ISSUED: November 1, 2023

CONCURRED IN BY:

Chief Judge Daniel W. Greear
Judge Thomas E. Scarr
Judge Charles O. Lorensen

6
Although these rules were not effective until July 1, 2021, West Virginia Code of
State Rules § 78-27-4 (2021) provides that these rules apply to all Department
substantiations of maltreatment on or before July 1, 2021.

4