1 STATE OF WEST VIRGINIA

SUPREME COURT OF APPEALS

In Re: P.H.-1, P.H.-2, and H.H.

No. 13-0613 (Wood County 11-JA-01, 11- JA-02, and 11-JA-03)

MEMORANDUM DECISION

Petitioner Father filed this appeal , by counsel Ernest M. Dougl ass, from the Circuit Court of Wood County, which terminated his pa rental rights to the subject children 1 by order entered on May 13, 2013. The guardian ad litem for the child ren, James M. Bradley Jr, filed a response supporting the circuit court’s order. The De partment of Health and Human Resources (“DHHR”), by its attorney Lee A. Niezgoda, also filed a response in support of the circuit court’s order. In response to the guardian ad litem and the DHHR , petitioner filed a reply.

This Court has considered the parties’ briefs and the record on appeal. The facts and legal arguments are adequately presented, and the deci sional process would not be significantly aided by oral argument. Upon consideration of the st andard of review, the briefs, and the record presented, the Court finds no substantial questi on of law and no prejudicial error. For these reasons, a memorandum decision is appropriate under Rule 21 of the Rules of Appellate

Procedure.

In January of 2011, the DHHR filed the abus e and neglect petition that initiated the instant case. The petition alleged incidents of domestic violence at home and discussed petitioner’s issues with substance abuse. One of the domestic violence incidents included an episode in 2009 for which petitioner was charge d with two counts of battery against his exgirlfriend’s son and another indivi dual, and at which the subject children were present in the

home. Petitioner waived his ri ghts to a preliminary heari ng and, at adjudi cation, entered stipulations that (1) there was an episode of domestic violence in the home in the presence of the children, and (2) that petitioner ha s an alcohol abuse problem that has affected his ability to properly parent and supervise his children. The circuit court granted petitioner a postadjudicatory improvement period directed w ith terms and conditions and, in late 2011, it extended petitioner’s improvement period. Despit e this extension, peti tioner did not fully participate with services, maintained minimal c ontact with the children, and was charged with aggravated DUI (driving under the influence) in January of 2012. Following the dispositional hearing in July of 2012, the circuit court termin ated petitioner’s parent al rights, but allowed

visitation with P.H.-1 and P.H.-2. From this termination order, petitioner now appeals.

The Court has previously establishe d the following standard of review:

1 Because two of the children in this case have the same initials, we have distinguished each of them using numbers 1 and 2 after their initials in th is Memorandum Decision. The circuit court case numbers also serve to distinguish each child. 

### FILED

October 21, 2013
RORY L. PERRY II, CLERK

SUPREME COURT OF APPEALS

OF WEST VIRGINIA2 “Although conclusions of law reached by a circuit court are subject to de novo review, when an action, such as an abus e 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. Th ese findings shall not be set aside by a reviewing court unless cl early erroneous. A finding is clearly erroneous when, although there is evidence to support the finding, the revi ewing 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 diffe rently, and it must affirm a finding if

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).

Petitioner claims the circuit court erred in three ways: (1) termin ation was not necessary for the children’s welfare because permanency was achieved through their placements with their respective mothers; (2) petitioner substantially completed his improvement period and corrected the conditions that led to the children’s negl ect; and (3) the circuit court erred by accepting petitioner’s stipulation to negl ect when the circuit court faile d to adequately examine him, pursuant to Rule 26 of the West Virginia Rule s for Child Abuse and Neglect Proceedings, to

determine if he understood the content a nd consequences of the stipulation.

Upon our review of the record, we find no error or abuse of disc retion by the circuit court regarding the issues raised by petitioner. First, the record suppo rts the circuit court’s decision to terminate petitioner’s parental rights de spite the fact that the children have achieved permanency. “‘Although parents have substantial ri ghts that must be pr otected, the primary goal in cases involving abuse and neglect, as in all fa mily law matters, must be the health and welfare of the children.’ Syl. Pt. 3, In re Katie S., 198 W.Va. 79, 479 S.E.2d 589 (1996).” Syl. Pt. 2, In re

Timber M. , 231 W.Va. 44, 743 S.E.2d 352 (2013). The childr en’s guardian ad litem asserts that, despite the circuit court’s permission for petiti oner to visit with P.H.-1 and P.H.-2 after termination, petitioner has not contacted the children in over a year, nor have the children

contacted him with a desire for visitation. Our revi ew of the record further provides that, prior to termination, petitioner had not been in contact with the children for over one year. The guardian ad litem’s response on appeal provides that the subject children are thriving in their respective mothers’ homes. Petitioner has failed to articulate how preserving his parental rights to the children would promote th eir best interests.

Second, the record supports the circuit court’ s basis for termination on petitioner’s failure to substantially comply with his improvement period. West Virginia Code § 49-6-12(d) provides that, “When any improvement period is granted to a respondent pursuant to the provisions of this section, the respondent [parent] sh all be responsible for the initia tion and completion of all terms of the improvement period . . . .” Further, West Virginia Code § 49-6-5(b)(3) provides that a respondent parent’s failure to follow through with a reasonable family case plan warrants3 circumstances in which there is no reasonable li kelihood that conditions of neglect or abuse can be substantially corrected. After previously extending petitioner’s imp rovement period, the

circuit court made clear and thor ough findings at disposition that petitioner failed to follow the case plan and that his absence from his children’s lives had a negative impact. Petitioner’s failure to complete his improvement period was demonstr ated by his arrest for aggravated DUI and his failure to attend therapy and Alcoholics Anonym ous and Narcotics Anonymous meetings. Our review of the dispositional hear ing transcript also reflects that petitioner has not taken full responsibility for his issues, has failed to pay ordered child support, and has failed to complete directed services as part of his improvement period.

Finally, we find no error in the circuit court’s acceptance of petitioner’s stipulation to neglect at adjudication. Rule 26 of the West Virginia Rules of Procedure for Abuse and Neglect Proceedings outlines the procedure under which a respondent parent must voluntarily enter stipulations to abuse and/or neglect. 2 The record includes copies of petitioner’s written stipulation to neglect, the circui t court’s adjudicatory order that entered petitioner’s stipulation, and a copy of the hearing transcript at which petit ioner orally entered his stipulations. All three documents reflect petitioner’s comprehension of his stipulation to neglect. For instance, the transcript includes an assertion by petitioner’s attorney that he and petitioner discussed petitioner’s right to have a full hearing concerni ng the petition’s allegations and that petitioner agreed to stipulate to neglect. The transcript re flects that the circuit court determined petitioner understood the content and conseque nces of his decision to stipulate to neglec t. We find that the

circuit court satisfied the requirements of Rule 26.

Having reviewed of the record and the issues petitioner raises on appe al, we find that the circuit court’s findings support its conclusions that there was no reasonable likelihood to believe

that the conditions of abuse and neglect could be substantially co rrected in the near future, and that the termination was necessary for the children’ s welfare. Pursuant to West Virginia Code § 49-6-5(a)(6), circuit courts are directed to terminate pa rental rights upon such findings.

For the foregoing reasons, we affirm.

2 Rule 26 provides, in part: “(a) Required information. – Any stipulated or uncontested adjudication shall include the following inform ation: (1) Agreed upon facts supporting court involvement regarding the respond ent’s(s’) problems, conduct, or condition; and (2) A statement of respondent’s(s’) problems or deficiencies to be addressed at the final disposition.” Subsection (b) provides the following:

Voluntariness of consent. – Before accepting a stipulated or uncontested adjudication, the court shall determine that the parties understand the content and consequences of the admission or stipulat ion, the parties voluntarily consent, and that the stipulation or unc ontested adjudication meets th e purposes of these rules and controlling statute and is in th e best interests of the child.4 Affirmed.

ISSUED: October 21, 2013

CONCURRED IN BY:

Chief Justice Brent D. Benjamin

Justice Robin Jean Davis Justice Margaret L. Workman

Justice Menis E. Ketchum Justice Allen H. Loughry II