1 

### STATE OF WEST VIRGINIA

SUPREME COURT OF APPEALS

In re M.H.

- 1 and P.H.

No. 20

- 0737 ( Cabell County 19

- JA

- 64 and 19

- JA

- 65 )



### MEMORANDUM DECISION

Petitioner Father M.H.

- 2 , by counsel Todd R. Meadows , appeal s the Circuit Court of

Cabell County’s August 21, 2020 , order terminating his parental rights to M.H.

- 1 and P.H

. 1 The West Virginia Department of Health and Human Resources (“DHHR”), by counsel S.L. Evans

, filed a response in support of the circuit court’s order. The guardian ad litem

, Allison K. Huson

, filed a response on behalf of the child ren also in support of th e circuit court’s order. On appeal, petitioner argues that the circuit court erred in terminating his parental rights rather than placing the children in guardianship with out

- of

- state relatives.

This Court has considered the parties’ briefs and the record on appeal. The facts and legal arguments are adequately presented, and the decisional process would not be significantly aided by oral argument. Upon consideration of the standard of review, the briefs, and the record presented, the Court finds no substantial question of law and no prejudicial error. For these reasons, a memorandum decision affirming the circuit court’s order is appropriate under Rule 21 of the Rules of Appellate Procedure.

In April of 2019, t he DHHR filed an abuse and neglect petition alleging that petitioner arranged for his live

- in girlfriend, T.B., to care for M.H.

- 1 and P.H. while he was in jail and that the girlfriend severely physically abused the children. Two

- year

- old M .H.

- 1 suffered two subdermal hemorrhages, a fractured skull, and pneumonia

, and a doctor determined that the child suffered injuries likely caused by being violently sh a k en and thr own. According to the petition, the girlfriend blamed her own five

- year

- old child for M.H.

- 1’s injuries. Additionally, t hree

- year

old P.H. was found to be severely malnourished and suffer ing from a fractured skull and broken clavicle. The DHHR alleged that pet itioner neglected the children by placing them in the care of

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). Additionally, because one of the children and petitioner share the same initials, we refer to them as M.H.

- 1 and M.H

. - 2, respectively, throughout this memorandum

decision. 

### FILED
April 20, 2021

EDYTHE NASH GAISER , CLERK

SUPREME COURT OF APPEALS

OF WEST VIRGINIA2 an inappropriate caregiver and that he failed to support his children financially and emotionally.

Th at same month , petitioner was released from incarceration on a pretrial bond and then waived his preliminary hearing.

The circuit court held an adjudicatory hearing in June of 2019 , wherein petitioner stipulated to the allegations in the petition. Petitioner further stated that the children had last been in his care between August and Nov ember of 2018, and that since that time the children had been living with

a sister in Michigan until petitioner’s girlfriend brought t he children to West Virginia in March of 2019. The circuit court accepted petitioner’s stipulation and adjudicated him as an abusing parent.

At a dispositional hearing in September of 2019, the circuit court terminated the mother’s parental rights. At th at hearing, the DHHR presented evidence that petitioner was arrested and incarcerated in early August of 2019 for new charges of burglary, strangulation, violation of a domestic violence protective order, and domestic battery. These charges resulted from p etitioner attacking his girlfriend, who sustained a collapsed lung and other injures. Petitioner testified that

he recently pled guilty to drug charges in early August of 2019 and was serving probation when he was arrested for these new charges a few days later. Petitioner also stated that since adjudication

, he had tested positive for marijuana or missed some drug screen s but remained employed

. The DHHR worker explained that she contacted two different family member s for which petitioner gave her contact information and that both members declined to take both children.

In March of 2020, t he circuit court held a contested dispositional hearing. Petitioner

remained incarcerated but appeared for the hearing

. The DHHR presented evidence of petitioner’s extensive criminal history and repeated incarceration s , the issues surrounding his current criminal charges, his lack of a bond and relationship with the children, and complete lack of cooperation with the DHHR throughout the proceedings. Specifically, while petitioner was released on probation, he failed to attend a multidisciplinary team meeting to develop a family case plan, refused to provide an address to the DHHR and be truthful that he had been living with his girlf riend , and violated a court’s no contact order with her

. Petitioner also tested positive for marijuana and sporadically submitted to drug screens. Petitioner testified that he had no anger management issues and had “ no problems whatsoever ” regarding his pa renting abilities. He further

stated that if the children were reunified with him, they would not live with him but instead would

live with his cousin in Michigan.

Additionally, a large portion of the evidence presented was devoted to the permanent placement of the children. Petitioner argued that an Interstate Compact on the Placement of Children (“ICPC”) home study should have been performed on his cousin ’s home in Michigan and

t hat his cousin should obtain guardianship of the children. The DHHR worker explained that she had attempted to implement an ICPC home study with the cousin in September of 2019 and that

she had met the cousin once and communicated with her several times. H owever, the worker stopped the ICPC home study process when she learned that the children had no relationship with

the cousin as they had only stayed in her home for one week in the summer of 2018. She further explained that at that point the children had lived with the foster family for more than six months

and had formed more of a relationship with the foster parents than with petitioner’s cousin . Also,

the worker stated that due to M.H.

- 1’s severe physical abuse, h e had extensive specialized medical

need s , which w ere being met by the current foster family

.3 The circuit court recessed for final arguments which were held in June of 2020. Petitioner moved for a post

- dispositional improvement period . The DHHR argued against the granting of an improvement period, citing petitioner’s noncompliance while released from incarceration and his inability to participate due to his reincarceration . T he circuit court denied petitioner’s motion for

a post

- dispositional improvement period based upon hi s failure to cooperate with the DHHR to develop a case plan and his inability to participate in an improvement period

. The DHHR also

stated that the children had been in DHHR custody and placed with the same foster family for over

fourteen months and that it was seeking the termination of petitioner’s parental rights. Having reviewed the evidence presented and heard the augments of counsel, t he circuit court concluded that the children were in petitioner’s care only two months during the previous two years; petitioner abdicated his parental responsibilities by placing the children with numerous alternative caregivers, the last of which severel y physically abused the children; petitioner was aware that his girlfriend was violent with the children yet did nothing to have the m removed from her care; petitioner’s repeated criminal actions and resultant incarcerations prevented him f rom caring for

a nd protecting the children; and that petitioner’s arrests after adjudication prevented him from participating in an improvement period or supervised visitation with the children. Most importantly, the circuit court noted that prior to petitioner’s most rec ent arrest and incarceration,

he had not consistently drug screen ed

, obtained housing, engaged in therapy or any instruction to help his parenting deficits, and generally failed to comply with any of the DHHR’s requests. Accordingly, the circuit court foun d that there was no reasonable likelihood that petitioner could correct the conditions of abuse or neglect in the near future and that termination of hi s parental rights was necessary for the child ren ’s welfare. The circuit court terminated petitioner’s parental rights by its order entered on August 21, 2020 . Petitioner appeals the dispositional order

. 2

The Court has previously established the following 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 shall make a determination based upon the evidence and shall make findings of fact and conclusions of law as to whether such

child is abus ed or neglected. These findings shall not be set aside by a reviewing court unless clearly erroneous. A finding is clearly erroneous when, although there is evidence to support the finding, the reviewing court on the entire evidence is left

with the defini te 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 differently, and it must affirm a finding if the circuit court’s account of the evidence is plausi ble 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).

2 The mothe r’s parental rights were terminated below. The permanency plan for the children is adoption by their foster family.4 On appeal, petitioner argues that the circuit co urt erred in terminating his parental rights rather than employing a less

- restrictive dispositional alternative by placing the children in a legal guardianship with his cousin pursuant to West Virginia Code § 49

- 4

- 604( c )(5)

. In support, petitioner contends that the DHHR “conducted an incomplete investigation into the guardianship placement of the children with family in Michigan.” According to petitioner, placing the children

in a legal guardianship was in their best interests and not the terminatio n of petitioner’s parental rights. Petitioner claims that the DHHR “engaged in no concurrent planning with available family placement and only demonstrated that [p]etitioner was unlikely to remedy the conditions” of abuse and neglect.

At the outset , we ad dress petitioner’s arguments that the children should have been placed with a relative in Michigan. We have previously held that

“[t]raditionally, courts have been reluctant to allow persons to claim standing to vindicate the rights of a third party on th e grounds that third parties are generally the most effective advocates of their own rights and that such litigation will result in an unnecessary adjudication of rights which the holder either does not wish to assert or will be able to enjoy regardless of the outcome of the case.” Snyder v. Callaghan , 168 W.Va. 265, 279, 284 S.E.2d 241, 250 (1981) (citation omitted).

Kanawha Cty. Pub. Library Bd. v. Bd. of Educ. of Cty. of Kanawha , 231 W. Va. 386, 398, 745 S.E.2d 424, 436 (2013). This concept has been recognized in regard to parties of child abuse and neglect proceedings as well. See In re J.G. , No. 16

- 0337, 2016 WL 4611246, at *3 (W. Va. Sept. 6, 2016)(memorandum decision) (recogn izing that petitioner father lacked standing to appeal limitation on mother’s visitation). Here, petitioner’s cousin could have moved to intervene in the proceedings but did not. The record shows that the cousin was fully aware of the proceedings

, met
with the DHHR worker at least once , and was present in the courthouse for one hearing

. Permanent placement of the child ren in the cousin ’s home is a privilege that s he , not petitioner, would enjoy

and it is s he who must advocate for that position. Petitioner does not have standing to advocate on

L.H. ’s behalf and, therefore, is entitled to no relief on appeal. Even more importantly, the record clearly shows that the DHHR investigated placement with petitioner’ s cousin and learned that the children had no bond or relationship with her. As such, we find no error in the circuit court’s determination that placement of the children in their current foster home was in their best interests, especially given the fact t hat M.H.

- 1 requires specialized care due to the extensive physical abuse and that the foster family is equipped to provide this heightened care.

Next, we address the termination of petitioner’s parental rights. West Virginia Code § 49

- 4

- 604(c)(6) provid es that circuit courts are to terminate parental rights upon finding that there is “no reasonable likelihood that the conditions of neglect or abuse can be substantially corrected in the near future” and that termination is necessary for the child ren ’ s wel fare. West Virginia Code § 49

- 4

- 604(d) (3) provides that a circuit court may find that there is no reasonable likelihood that the conditions of abuse and neglect can be substantially corrected when the abusing parent has

not responded to or followed throu gh with a reasonable family case plan or other rehabilitative efforts of social, medical, mental health, or other rehabilitative agencies designed to reduce or prevent the abuse or neglect of the child, as5 evidenced by the continuation or insubstantial dim inution of conditions which threatened the health, welfare, or life of the child

.

With these parameters in mind, it is clear that the record supports the circuit court’s finding

that there was no reasonable likelihood that petitioner could substantially c orrect the conditions of

abuse and neglect, given h is complete failure to cooperate with the DHHR to formulate a family case plan or comply with services offered by the DHHR. The goal of the family case plan “ should be the development of a program designed to assist the parent(s) in dealing with any problems

which interfere wit h his ability to be an effective parent and to foster an improved relationship between parent and child with an eventual restoration of full parental rights a hoped

- for result.” In

Interest of Carlita B

. , 185 W. Va. 613, 625, 408 S.E.2d 365, 377 (1991)

. W h ile it is true that petitioner was arrested and reincarcerated in August of 2019, he was free and serving probation

f or approximately f ive months prior to his arrest. During that time, he failed to attend a n MDT meeting, did not consistently drug screen, tested positive for marijuana, refused to provide an

address to the DHHR

, did not obtain stable housing, violated a court’s order when he a ttacked his girlfriend , violated the terms of his probation for his criminal charges in Ohio, and otherwise failed to cooperate with the DHHR to address the issues of abuse and neglect. Most importantly, petitioner testified that he had no parenting defici encies and that if the children were returned to him, he would again leave t hem with another caregiver and abdicate his parenting responsibilities. We have long held that “ [i] n order to remedy the abuse and/or neglect problem, the problem must

first be acknowledged .” In re Timber M. , 231 W. Va. 44, 55, 743 S.E.2d 352, 363 (2013) (citation omitted).

Considering petitioner’s complete failure to cooperate with the DHHR ’s offered services

or follow through with a family case plan, it is clear that that there was no reasonable likelihood

that petitioner could substantially correct the conditions of abuse and neglect

. Additionally, because the circuit court properly made such a finding, it was not required to implement a less

restrictive dispositional alternative such as a guardianship of the children pursuant to West Virginia Code § 49

- 4

- 604(c)(5) . We have held that

“ [t] ermination of parental rights, the most drastic remedy under the

statutory provision covering the disposition of neglected children, [West Virginia Code § 49

- 4

- 604] may be employed without the use of intervening less restrictive alternatives when it is found that there is no reasonable likelihood under [West Virginia Code § 49

- 4

- 604( d )] that conditions of neglect 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).

In support of this argument , petitioner cites S yllabus P oint T hree of In re Cecil T

. , 228 W.

Va. at 89, 717 S.E.2d at 873 , which provides in relevant part that

[w] hen no factors and circumstances other than incarceration are raised at a disposition hearing in a child abuse and neglect proceeding with regard to a parent’s ability to remedy the condition of abuse and neglect in the near future

, the circuit6 court shall evaluate whether the best interests of a child are served by terminating the rights of the biological parent in light of the evidence before it

.

However, as more fully discussed above, the record is clear that the circuit court considered evidence other than petitioner’s incarceration at the time of the dispositional hearing when it terminated his parental rights. Therefore, the analysis described in Cecil T. was not required below and petitioner is entitled to no relief in this regard.

Regarding petitioner’s argument that the termination of his parental rights w as not in the children’s best interest, he offers nothing in support of this argument other than his assertion that

the children should be with family and that these children have been raised by various relatives throughout their lives. However, petitioner ignores the children’s needs for contin uity in care and a stable living environment and that these children had lived with the same foster family for over

fourteen months by the time of the final dispositional hearing

— the longest stint they had lived in the same place with the same caregiver s i n their young lives. He further ignores M.H.

- 1’s long

term medical needs and potential disability as a result of his severe injuries from physical abuse. As we have previously noted

,

the early, most formative years of a child’ s life are crucial to his or her development. There would be no adequate remedy at law for these children were they permitted to continue in this abyss of uncertainty. We have repeatedly emphasized that children have a right to resolution of their life sit uations, to a basic level of nurturance, protection, and security, and to a permanent placement.

State ex rel. Amy M. v. Kaufman , 196 W. Va. 251, 257

- 58, 470 S.E.2d 205, 211

- 12 (1996).

Insofar as petitioner argues that he should have been given more tim e to correct the conditions of abuse and neglect while the children remain in limbo, we have previously held t he following:

“ [C] ourts are not required to exhaust every speculative possibi lity of parental improvement . . . where it appears that the welfare of the child will be seriously threatened, and this is particularly applicable to children under the age of three years who are more susceptible to illness, need consistent close interaction with fully committed adults, a nd are likely to have their emotional and physical development retarded by numerous placements.” Syl. Pt. 1, in part, In re R.J.M., 164 W.Va. 496, 266 S.E.2d 114 (1980).

Cecil T. , 228 W. Va. at 91, 717 S.E.2d at 875, syl. pt. 4

. Accordingly, we find no er ror in the circuit court’s finding that the termination of petitioner’s parental rights was necessary for the children’s

welfare.

For the foregoing reasons, we find no error in the decision of the circuit court, and its August 21, 2020 , order is hereby affirmed.

Affirmed.7 ISSUED : April 20, 2021

CONCURRED IN BY :

Chief Justice Evan H. Jenkins

Justice Elizabeth D. Walker

Justice Tim Armstead

Justice John A. Hutchison

Justice William R. Wooton