1 

### STATE OF WEST VIRGINIA

SUPREME COURT OF APPEALS

In re H.A.

No. 2 2

- 0 385 ( Ohio County 2 1

- JA

- 104 )



### MEMORANDUM DECISION

Petitioner Father J .C

. 1 appeals the Circuit Court of Ohio County’s April 19 , 2022, order

terminatin g h is p ar e ntal rights to H .A

. 2 Upon our review, we determine that oral argument is unnecessary and that a memorandum decision affirming the circuit court’s order is appropriate.

See W. V a. R. App. P . 21.

In August of 2021

, the D HHR filed a n amen ded child abuse a nd neglect petition that alleged the mother of H.A. and her b oyfriend rece ntly moved to West Virginia from Pennsylv ania where t hat s tate ’ s Child ren and Youth Services division was investigating them for

child a b use an d neglect resultin g f rom their domestic vi olence and substance ab use

. The DHHR alleged that petitioner “ had little to no invo lvemen t ” with H.A., did not support the child financially or emotionally

, and had abandoned H.A. The DHHR determ ined th at p e t itioner pled

gu ilty to three counts of burgla ry in 2016, received a n indeterminate one

- to

- fifteen

- year sentence in the penitentiary , and was granted parole in 2018. However, petitioner violated his parole and was reincarcerated in August of 2021 and remai n ed inca rcerate d thr oughout these pr oceedings.

In October of 2021, petitioner stipulated to the allegations in the petition, and the circuit cour t adjudicated him as an abusing parent.

In March of 2022, the circuit court held the final dispositional heari n g and h eard

te stimo ny from petition er, the mo the r, and a DHHR worker regardi ng petitioner ’ s prev iously

filed motion for a post

- adj udi catory improvement period and the DHHR ’ s motion to terminate

1 Petitioner appears by couns el John M. Jurco

. The West V irginia D epartm ent of Heal th

and Human Resources ( “ DHHR ” ) appears by counsel Attorney General Patric k Morri sey and Assistant Attorney General Katica Ribel

. Joseph J. M oses appears a s t he c h ild ’s guardian ad

li tem.

2 We use initials where necessary to prot ect the i d entities of t hose involved in thi s case. See W. Va . R. App. P

. 40( e). 

### FILED
February 7 , 2023

EDYTHE NASH GAISER, CLE RK

SUPREME COURT OF APPEALS

OF WEST VIRGINIA2 pet itioner ’ s par ental rights. Petitio ner admitted that he abu s ed meth ampheta mine and prescription drugs whi le on parole in 201 9 and that he had introduced the mother to methamphetamine while she was caring for her children , including H.A. Due to his illicit and prescription drug abuse, petitioner was san ctioned multi pl e tim es for parole vi olations. The

evidence sh owed that petitioner had some contact with the mother and H.A. prior to a sanction in

2019 and had limited contact with the mother ther eafter. Although it is unclear when petitioner

was released back o n paro l e, he a dmitte d that h e was sanctioned and ord ere d to participate in a

twelve

- month substance abuse treatment prog ram , which he failed to complete due to a violation

of the terms of tha t program

. The evidence further showed petitioner ’ s parole had been revo ked

in Aug ust of 2021

, and he w as “ recently d eni ed ” parole as of the Mar ch 2022 hear ing. Petitioner

testified that h e wou ld discharge his sentence in November 2024. The mother te stified that petitioner did not financially support H.A. ; d id not provid e any d a ily care for H.A. , s uch as feeding or chang ing the child when he was an infant; and did not emotionally support H.A.

Ulti mately, the circuit court found that petitioner failed to demonstrate that he was likely to fully participa te in an improvemen t perio d and denied his moti on. The court fou nd tha t

p etitioner habitually abused controlled substances to the extent that his parenting skill s had been seriously imp aired

. It further found that petitioner ’ s continued use of controlled s ubstan ces led to

hi s parol e s anctions and incar cerations, which had pr eve nted him from parenting H.A. The court

concluded that there was no reasonable likeliho od tha t the conditions of neglect and abuse could be substantially corrected in the near future a nd tha t it was nece ssary f or the c hild ’ s welfar e to
terminate pe ti tion er ’ s par ental rights. A cco rdingly , the circuit court ter minated petitioner ’ s

par ental rights to H.A. by its April 19 , 2022, order . P e titioner now ap peals that or der

. 3

On appeal from a final order in an a buse an d neglect proceeding, this Court re vie ws the

ci rcuit court’s findings of fact for clea r error and its conclusions of law de novo

. Syl. Pt. 1, In re

Cecil T

., 228 W. Va. 89, 717 S.E.2d 873 (201 1)

. P e titioner ar gues th at the circui t court erred in

ter minati n g his parental rights because the DHHR fail e d t o prov e tha t there was no reasonable

likelihood that the conditions of abuse and neglect could be substantially corrected. In petitioner ’ s view, “ it was just a matter of ti me ” before he was released fro m inca r ceration and the

cond itions of abuse a nd neg lec t were remedied. P e t itioner ignores that the circuit court ’ s termination of his parental rights w as based on his continued incarcerat ion as well as his ha bitual

subst ance a b use that seriously im pai red his parenting of H.A. 4 See W. V a. C o de § 49

- 4

- 604(c) (6) (a

uthor izing the ter minatio n of parental rights up on said findings ) ; s e e also W

. Va. Code § 49

- 4

- 604( d)( 1 ) ( prov iding that t here is no rea sonab le likelihood that the condit i ons of neglect and

3 According to the parties , the mother is pa rticipa ting in an improvement period and retains her p arental rights . The permanency plan for H.A. is reunification with the mother with a

concurrent plan of adoption in h is current foster placement.

4 This Court discussed factors to be considered w hen inc arceration is the sole issue raised at disposition in syllabus point 3 of In re C e cil T.

, 228 W. Va. 89, 717 S.E.2d 873 (201 1)

. G iv en tha t the circuit court co nsidered mor e tha n peti tioner ’ s incarce ration at disposi ti on , Cecil T. is

in applicable to the facts of this case.3 ab us e can be su bs tantiall y corrected when the p ar ent h as “ ha bit ually abused . . . controlled substances or drugs, to the extent that proper parenting skill s ha ve been seriously impaired ” and the person has n ot followed through wit h prop e r treatme nt ). The cir cu it court ’ s finding is fully supported by ev id ence that p eti tioner abuse d controlled substances despite t he terms of his parole and despite his brief participation in a substance abuse treatment facility

.

Petitioner further argues t hat be c ause the mother w as participating in an improvement period a nd H.A. could ac hieve p ermanency in th e mother ’ s custody

, termination of his parental rights wa s not necessary

. Ho wever, w e have previo usly he l d that West Virginia Code § 49

- 4

- 604 “permit s the termination of one p arent’ s parental rights while leaving the r ig hts o f the

non abusing parent completely intact, if the circumstances so warr ant.” In re Emily , 208 W. Va. 325, 3 44, 540 S.E.2d 542, 5 61 (200 0 ). In this instance, where petitioner abandoned the child

, failed to pay any child sup port

, conti nued to abus e controlle d subs tan ces , a nd resist ed treatment for his addictions, we fin d the circumstances w ar rant the termination of his parental r ights, regardles s of the mother ’ s success in her improvement period. According ly, we find n o error in

the circuit court ’ s d ecision t o term ina te petitioner ’ s pare ntal rights to the child

. See also S yl . Pt. 5, In r e Kristin Y. , 227 W. Va. 558, 712 S .E. 2d 55 ( 2 011) ( hold ing tha t “ [t] erm inat ion of parental rights . . . may be employe d w ithout the use of intervening less restrict iv e alterna tives whe n it is

fou n d that there is no reasonab le likelihood

. . . that the con ditions of neglect or abuse can be

sub s tan tia l ly co rrect ed ” ).

Fo r t he forego ing r eas on s , w e f ind no erro r in t h e de c i s i o n o f t h e cir cu it c ourt

, and its April 26

, 2 0 2 2

, o r der is h e r eby affi rmed.

Affirm e d.

ISS UED : February 7, 2023

CONCURRE D IN BY :

Chie f Ju s ti ce Elizabeth D. Walker

Ju s tice Ti m Arms t ead

Justice Jo hn A. H utch ison

Jus ti ce Willi am R. Wooton

Ju stice C. Haley Bunn