                             STATE OF WEST VIRGINIA

                           SUPREME COURT OF APPEALS

                                                                                   FILED
                                                                                January 17, 2014
In Re: E.T. & R.B. Jr.                                                       RORY L. PERRY II, CLERK
                                                                           SUPREME COURT OF APPEALS
No. 13-0687 (Logan County 11-JA-102 & 11-JA-103)                               OF WEST VIRGINIA




                                 MEMORANDUM DECISION

        Petitioner Father, by counsel K. Brian Adkins, appeals the Circuit Court of Logan
County’s order entered on June 10, 2013, terminating his parental rights to his children, E.T. and
R.B. Jr. The West Virginia Department of Health and Human Resources (“DHHR”), by Michael
L. Jackson, its attorney, filed its response. The guardian ad litem, Allison Dingess, filed a
response on behalf of the children in support of the circuit court’s order. On appeal, petitioner
argues that the circuit court erred by denying him a dispositional improvement period after it
received evidence that he partially complied with his adjudicatory improvement period.

        As more fully explained herein, the Court is of the opinion that the circuit court erred in
failing to adjudicate the children to be abused or neglected. Because the issue before this Court is
limited to the circuit court’s failure to comply with the requirements of Rule 27 of the West
Virginia Rules of Procedure for Abuse and Neglect Proceedings, the decision of the Court is set
forth in a memorandum decision rather than an opinion. As noted below, this Court has held that
when these rules “[have] been substantially disregarded or frustrated,” any resulting order “will
be vacated and the case remanded for compliance with that process and entry of an appropriate . .
. order.” Syl. Pt. 3, In re Emily G., 224 W.Va. 390, 686 S.E.2d 41 (2009) (quoting Syl. Pt. 5, in
part, In re Edward B., 210 W.Va. 621, 558 S.E.2d 620 (2001)). Accordingly, this case satisfies
the “limited circumstance” requirement of Rule 21(d) of the Rules of Appellate Procedure and it
is appropriate for the Court to issue a memorandum decision rather than an opinion.

        The DHHR filed the underlying abuse and neglect petition against Petitioner Father and
the children’s mother in November of 2011.1 The petition alleged that petitioner abused drugs
and physically abused the children. Petitioner was alleged to have been involved in a domestic
assault with the children’s mother when he pulled her into the bedroom, hit her in the face, and
“busted her nose.” After arriving, the Child Protective Services (“CPS”) worker found needles
and a plate with blue powder drug residue, as well as a straw and credit card, all within reach of
the children. The children’s mother appeared to be impaired due to her manner of speaking and
drowsy eyes, and petitioner was no longer present. The children were put into the DHHR’s
custody as a result of this incident. In January of 2012, petitioner denied having a substance
abuse problem. However, the circuit court did not make any finding regarding whether the
children were abused or neglected. In May of 2012, the circuit court required petitioner to


1
  A putative father to one of the children was included in the initial petition but was later
dismissed after a DNA test revealed that petitioner was the father of both children.
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complete a substance abuse evaluation and random screens, among other requirements.2 Again,
no findings were made regarding the children or whether petitioner was an abusing parent. In
August of 2012, a paternity test established that both children are petitioner’s biological children,
so the putative father was dismissed from the case. Over the ensuing six months, petitioner failed
to follow through with all required drug screens and visitations and had only sporadic contact
with his attorney. By order entered June 10, 2013, following a dispositional hearing, the circuit
court terminated the parents’ parental rights to the children, finding that he failed to comply with
in-home services and failed to correct the situation that led to the filing of the petition. The
circuit court further found that the DHHR made reasonable efforts to preserve the family,
prevent removal, and promote reunification, but that termination was the least restrictive
alternative. It is from this order that petitioner appeals.3

       The Court has previously established the following standard of review:

       “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 abused 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 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 differently, 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 he was entitled to a dispositional improvement period,
based upon the fact that he took part in an initial improvement period and that poverty
exacerbated his situation due to changing housing and transportation issues. A review of the
record reveals that petitioner failed to comply with the terms of his post-adjudicatory
improvement period due to his failure to address the issues that led to the filing of the petition
and comply with in-home services. We hold that the circuit court had an adequate basis for
finding that there was no reasonable likelihood that the conditions of neglect or abuse could be
substantially corrected in the near future and that termination was necessary for the welfare of

2
  The order making these requirements explicitly stated that the children’s mother was granted an
improvement period but did not do so for petitioner. We assume, however, that the circuit court
intended for petitioner to be granted an improvement period as well, as both parents were given
essentially the same requirements and their parental rights were later terminated on the same date
for essentially the same reasons.
3
  The children’s mother appealed the termination of her parental rights to the children in Case
No. 13-0625.
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the children. Pursuant to West Virginia Code § 49-6-5(a)(6), circuit courts are directed to
terminate parental rights upon such findings.

       The circuit court below, however, never adjudicated the children as abused or neglected.

       In any [abuse or neglect proceeding], the party or parties having custodial or other
       parental rights or responsibilities to the child shall be afforded a meaningful
       opportunity to be heard, including the opportunity to testify and to present and
       cross-examine witnesses. . . . At the conclusion of the hearing, the 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. . . . The
       findings must be based upon conditions existing at the time of the filing of the
       petition and proven by clear and convincing proof.

W.Va. Code § 49-6-2(c). Here, while the circuit court ordered an improvement period that was
labeled “post-adjudicatory,” there was no adjudication nor any finding of fact that shows an
adjudication in the record. We hold that the circuit court, therefore, must enter an order
adjudicating E.T. and R.B. Jr. to be abused or neglected children based on sufficient findings of
fact and conclusions of law.

        For the foregoing reasons, we affirm the portion of the circuit court’s order terminating
petitioner’s parental rights to E.T. and R.B. Jr., but remand for entry of an order in compliance
with the statute, including appropriate findings of fact.

                                                        Affirmed in part and remanded in part.


ISSUED: January 17, 2014


CONCURRED IN BY:
Chief Justice Robin Jean Davis
Justice Brent D. Benjamin
Justice Menis E. Ketchum

CONCURRING IN PART AND DISSENTING IN PART:

Justice Margaret L. Workman
Justice Allen H. Loughry II




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No. 13-0687 – In Re: E.T. & R.B. Jr.

Loughry, Justice, concurring in part and dissenting in part:

       I concur with the majority’s decision in this case insofar as it concludes that there
was sufficient evidence for the circuit court to find that there was no reasonable
likelihood that the conditions of neglect or abuse could be substantially corrected in the
near future and that termination of the petitioner’s parental rights was necessary for the
welfare of the children. I dissent, however, from the majority’s decision to remand this
case for entry of an adjudicatory order because the record shows that the petitioner
admitted that he neglected the children. Specifically, the May 10, 2010, order of circuit
court, which was included in the appendix record submitted to this Court, states:
“Respondent, Ronald B. admitted on the record that he resided in an environment in
which his child was living at the time of the removal was neglectful to the childs [sic]
needs.”1 Given this admission that was memorialized in the May 10, 2010, order, I do
not believe that there is any basis to conclude that the circuit court failed to comply with
the requirements of Rule 27 of the Rules of Procedure for Child and Abuse Neglect
Proceedings. Accordingly, I would have affirmed the decision of the circuit court.

       I am authorized to state that Justice Workman joins me in this separate opinion.




1
 At the time this order was entered, it had not yet been determined that Ronald B. was the
father of both children.

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