1 

### STATE OF WEST VIRGINIA
SUPREME COURT OF APPEALS

In re H.H., D.B., and P.M.

No. 18-0504 (Ritchie County 17-JA-11, 17-JA-12, and 17-JA-13)



### MEMORANDUM DECISION

Petitioner Father J.M., by couns el Carl P. Bryant , appeals the Circuit Court of Ritchie County’s May 3, 2018, order terminati ng his parental, custod ial, and guardianship rights to H.H., D.B., and P.M. 1 The West Virginia Department of Health and Human Resources (“DHHR”), by counsel Lee Niezgoda, filed a response in support of the circuit court’s order. The guardian ad litem (“guardian”) for H.H., B. Sc ott Wolfe, filed a response on beha lf of that child in support of the circuit court’s order. The guardian for P.M., Katrina M. Christ, filed a response on behalf of that child also in support of the circuit court’s order. On appeal, petitioner argues that the circuit court erred in terminating his pa rental rights and denyi ng him post-termination visitation with the
children.

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 affi rming the circuit court’s order is appropriate under Rule 21

of the Rules of A ppellate Procedure.

In April of 2017, the DHHR f iled a child abuse and neglect petition against petitioner and the mother, alleging that they abused drugs and that their drug abuse negatively impacted their ability to parent the children. 2 Specifically, the DHHR alleged th at the two older children ran away from home and, after they were recovered, reported that they did so because they overheard petitioner say he was “ going to get rid of them.” Both a school counselor and a Child Protective Services (“CPS”) worker interviewed H. H., who consistently reported that his mother abused drugs and disclosed the location of her drugs within th e home. Law enforcement officers searched the home and located drug paraphernalia and methamphetamine, as described by H.H. Upon speaking to an officer, petitioner admitted that he used illegal drugs and requested

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 Petitioner is the biological father of P.M. and the stepfather of H.H. and D.B. 

### FILED
November 19, 2018

EDYTHE NASH GAISER, CLERK

SUPREME COURT OF APPEALS

OF WEST VIRGINIA2 treatment. As such, the DHHR concluded that pe titioner abused and/or neglected the children through his use and possession of illegal s ubstances while caring for the children.

Petitioner filed a written stipulation in Ma y of 2017 and was adjudicated as an abusing parent. He was subsequently granted a post-adj udicatory improvement period in July of 2017. As part of the terms and conditions of his improvement period, petiti oner was required to complete a drug and alcohol assessment and follow the resulting recommendations, submit to random drug screens, maintain suitable housing and employ ment, attend individual counseling, maintain contact with the DHHR, par ticipate in supervised vi sitation with th e children, and participate in parenting and adult life services classes. As ordered, petitione r subsequently underwent a drug and alcohol assessment, which determined that he was at high risk for future drug abuse without proper treatment. Thereafter, peti tioner entered into a substan ce abuse detoxification program, which he successfully completed, but failed to con tinue with a long-term i npatient rehabilitation program upon his release.

In October of 2017, the circuit court held a review heari ng wherein it noted that the DHHR and guardians ad litem had filed a motion to revoke petitioner’s improvement period due to his noncompliance. However, because petitioner had recently admitted himself to an inpatient treatment program, the circuit court deferred any decision regarding termination of his improvement period and continued the proceedings.

The DHHR filed a summary report with the circuit court in Janua ry of 2018, indicating that petitioner did not pay attention to the childr en during supervised vis its, failed to submit to drug screens consistently thr oughout the case, tested positiv e for methamphetamine on one occasion when he did submit to a screen, and was homeless. Accordingly, the DHHR recommended that petitioner’s post-adjudicatory improvement period be terminated and the case set for disposition.

In February of 2018, the circuit court held a dispositional h earing. Petitioner failed to attend and his counsel requested a continuance. Despite finding th at petitioner had notice of the hearing and failed to maintain contact with his counsel, the circuit court granted the request.

The circuit court reconvened the dispositiona l hearing in March of 2018. Petitioner again failed to appear, but was represented by counsel . The DHHR presented the testimony of several
witnesses who testified as to petitioner’s noncompliance with his improvement period. Specifically, petitioner failed to participate in pa renting and adult life skills classes, was absent from those classes more than fifteen times, and refused to participate in services entirely in
December of 2017. Petitioner also failed to subm it to random drug and alcohol screens and participate in substance abuse treatment a nd individualized counseling. Although petitioner completed a detoxification program and eventually entered into an inpatient substance abuse treatment program, he voluntarily left the progr am prematurely and failed to seek further treatment. From October of 2017 until January of 2018, petitioner failed to submit to drug and alcohol screens on nineteen separate occasions. Further, petitioner fa iled to attend multiple visits with the children, even though he confirmed th e appointments twenty-four hours in advance. Testimony established that his failure to attend these visits had negative psychological and emotional impacts on the children, leading to the su spension of petitioner’s supervised visitation3 in January of 2018. After hearing evidence, the circuit court found that there was no reasonable likelihood that petitioner could corre ct the conditions of abuse and neglect in the near future and that termination of his parental , custodial, and guardianship rights was in the children’s best interests. It is from the May 3, 2018, dis positional order that petitioner appeals. 3

The Court has previously established the follo wing standard of review in cases such as
this:

“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 sh all 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).

On appeal, petitioner argues that the circuit co urt erred in terminati ng his parental rights
when less-restrictive alternatives were available. He asserts that he participated in services including adult life skills and pa renting classes, entered into an inpatient drug treatment program, and visited with the children, all of which demonstr ate that he attempted to correct the issues of abuse and neglect. According to petitioner, the mother was granted a less-restrictive disposition and, based upon his similar performance during the underlying proceedings, he is entitled to the same. We disagree.

West Virginia Code § 49-4-604(b)(6) provides that circuit courts are to terminate parental rights upon findings that there is “no reasonable li kelihood that the conditions of neglect or abuse can be substantially corrected in the near future” and that termina tion is necessary for the child’s welfare. West Virginia Code § 49-4-604(c)(3) sets forth that a s ituation in which there is no

reasonable likelihood the conditions of abuse and neglect can be s ubstantially corr ected includes
one in which

3 The mother’s custodial rights to the children were terminated pursuant to West Virginia Code § 49-4-604(b)(5). H.H.’s father is decease d. H.H. and petitioner’s biological child, P.M., were placed in the maternal grandmother’s home with a permanency plan of guardianship
therein. D.B.’s father is a nonabus ing parent and the permanency pl an for the child is to remain
in his care.4 [t]he abusing parent or pare nts have not responded to or followed through with a reasonable family case plan or other rehabilitative efforts of social, medical, mental health or other rehabilitative ag encies designed to reduce or prevent the abuse or neglect of the child, as eviden ced by the continuation or insubstantial
diminution of conditions which threatened the health, welfare or life of the child[.]

Here, the record demonstrates that there wa s no reasonable likelihood that petitioner could correct the conditions of abuse and neglect. Petitioner was granted a post-adjudicatory improvement period and ordered to comply with se rvices such as parenti ng and adult life skills classes, random drug screens, and supervised vi sitation. However, petitione r did not comply with services. Rather, he repeatedly failed to submit to random drug screens, missing nineteen required screens in only three months. While pe titioner entered an inpa tient substance abuse treatment program, he left the program after one week and failed to seek further treatment. Petitioner also failed to attend several supervised visits with the children and was described as emotionally distant when he did visit. Further, he exhibited aggressive, threatening behavior to the service providers, refused to participate in services entirely dur ing December of 2017, and failed to implement any teachings from his parenting and adult life skills classes. Based on the record, it is clear that petitioner failed to respon d to the services design ed to reduce or prevent

the conditions of a buse and neglect.

To the extent that petitioner argues he should be granted a less-restrictive disposition because the mother was granted such, we note that

“[t]ermination of parental rights, the most drastic remedy under the statutory provision covering the disposition of neglected children, W.Va. Code [§] 49-6-5 [now West Virginia Code § 49-4- 604] . . . may be employed without the use of intervening less rest rictive alternatives when it is found that there is no
reasonable likelihood under W.Va . Code [§] 49-6-5(b) [now West Virginia Code § 49-4-604(c)] . . . that conditions of ne glect or abuse can be substantially corrected.” Syllabus point 2, In re R.J.M. , 164 W.Va. 496, 266 S.E.2d 114 (1980).

Syl. Pt. 5, In re Kristin Y. , 227 W.Va. 558, 712 S.E.2d 55 (2011). Here, the mother demonstrated that she had a strong emotional bond with the children and, as suc h, the circuit court terminated only her custodial rights to th e children. To retain his parent al rights, petit ioner had to demonstrate that he was able to properly care for the children. However, petitioner failed to establish a strong bond with the ch ildren and the record further demonstrates that there was no reasonable likelihood that petitione r could correct the conditions of abuse and that termination was necessary for the children’s welfare. Accord ingly, we find that termination of petitioner’s parental, custodial, and guardianship rights was proper and th at he is entitled to no relief in this regard.

Petitioner next argues that the circuit c ourt erred in denying him post-termination visitation. According to petitioner, he participated in visitati on throughout the proceedings and
demonstrated a close emotional bond with the children. Testimony establis hed that the children5 looked forward to their visits with petitioner and he avers that, under the circumstances,
“continued visitation . . . is appropriate.” We find no mer it to petitioner’s argument.

“When parental rights are terminated due to neglect or abuse, the circuit court may nevertheless in appropriate cas es consider whether continued visitation
or other contact with the a busing parent is in the best interest of the child. Among other things, the circuit court should cons ider whether a close emotional bond has been established between parent and child a nd the child’s wishes, if he or she is of appropriate maturity to make such request . The evidence must indicate that such
visitation or continued contact would not be detrimental to the child’s well being
and would be in the child’s best interest.” Syl. Pt. 5, In re Christina L. , 194 W.Va. 446, 460 S.E.2d 692 (1995).

Syl. Pt. 11, In re Daniel D. , 211 W.Va. 79, 562 S.E.2d 147 (2002). Here, post-termination
visitation was not in the children’s best inte rests. Testimony at the dispositional hearing established that petitioner failed to fully partic ipate in supervised visitation with the children. Due to his noncompliance, petitioner was required to confirm visits with the children twenty-four hours in advance. Despite this pr ecautionary measure, petitioner continued to miss visits such that they were suspended in Ja nuary of 2018. Petitioner’s failure to attend the visits negatively impacted the children psychologi cally and emotionally. During th e visits that petitioner did attend, he was noted to exhibit very little emotion, was withdraw n, and sat in the corner with
crossed arms. He failed to interact with the chil dren and did not respond to their attempts to engage with him. Accordingly, we find that the circuit court correctly denied petitioner posttermination visitation with the children as it was clearly not in th eir best interests.

For the foregoing reasons, we find no error in the decision of the circuit court, and its May 3, 2018, order is hereby affirmed.

Affirmed.

ISSUED : November 19, 2018

CONCURRED IN BY :

Chief Justice Margaret L. Workman

Justice Elizabeth D. Walker

Justice Tim Armstead

Justice Evan H. Jenkins

Justice Paul T. Farrell sit ting by temporary assignment