                                                      STATE OF WEST VIRGINIA
                                                    SUPREME COURT OF APPEALS
                                                                                    FILED
In re K.C., K.T-G., K.T., K.G.-1, and K.G.-2.                                   October 19, 2018
                                                                                EDYTHE NASH GAISER, CLERK
No. 18-0326 (Wood County 16-JA-60, 61, 62, 63, and 17-JA-265)                   SUPREME COURT OF APPEALS
                                                                                    OF WEST VIRGINIA 




                                                          MEMORANDUM DECISION
        Petitioner Father A.G., by counsel Ernest M. Douglass, appeals the Circuit Court of
Wood County’s March 27, 2018, order terminating his parental rights to K.C., K.T-G., K.T.,
K.G.-1, and K.G.-2.1 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”), Eric K. Powell, filed a response on behalf of the child in support
of the circuit court’s order. On appeal, petitioner argues that the circuit court erred in temporarily
suspending visitation with the children during the proceedings due to his alleged conduct toward
a visitation supervisor, not allowing him to visit with K.T-G. during the proceedings, and
terminating his parental rights.

        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.

       On May 19, 2016, the DHHR filed an abuse and neglect petition alleging that petitioner
and his girlfriend were arrested and incarcerated for delivery of heroin and that they abused and
sold heroin in the home they shared with the children.2 The DHHR also alleged that the home
was unsafe and unsanitary for the children. Petitioner waived the preliminary hearing. On June 2,
2016, the circuit court held an adjudicatory hearing during which petitioner stipulated to the
                                                            
              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 two of the children share the same
initials, they will be referred to as K.G.-1 and K.G.-2, respectively, throughout this memorandum
decision.
              2
         At the time the original petition was filed, petitioner and his girlfriend had one child
together, K.G.-1. Petitioner is also the biological father of K.T. and claimed to be the
psychological father of K.C. and K.T-G. Petitioner is also the father of K.G.-2, who was born
after the original petition was filed. K.T. and K.T-G. share the same mother.
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allegations of abuse and neglect. The circuit court granted petitioner a six-month post-
adjudicatory improvement period and ordered him to complete parenting and adult life skills
classes and comply with drug screens and treatment for his addiction. However, due to
petitioner’s incarceration until December of 2016, he was delayed in beginning services.

         On February 21, 2017, the circuit court held a review hearing and granted petitioner an
extension of his post-adjudicatory improvement period due to his earlier incarceration. However,
the circuit court admonished petitioner based upon a report that petitioner did not attend
parenting and adult life skills services from February 2, 2017, to February 13, 2017, and that he
produced two abnormal drug screens during that same time period. Petitioner moved for
supervised visitation with all of the children, but informed the circuit court that, according to the
guardian, K.T-G. did not want to visit with petitioner “due to the abuse that he suffered at the
hands of [petitioner].” The guardian informed the circuit court that K.T-G. did not want to return
to petitioner’s home because the child had received “a pretty violent hand slap to the face,
leaving a bruise or a red mark” from petitioner. The circuit court did not order visitation between
petitioner and K.T-G. The DHHR was ordered to request a report from the child’s therapist. On
April 28, 2017, the circuit court held a review hearing. Petitioner renewed his motion for
visitation with K.T-G., but the circuit court denied the motion because no report from his
therapist had been received. Petitioner was ordered to continue participating in services and the
matter was scheduled for further review in June of 2017. On June 2, 2017, the circuit court held a
review hearing where it found that petitioner was compliant with his improvement period. The
circuit court granted petitioner an additional six-month improvement period.

        On August 23, 2017, the circuit court held a review hearing. The DHHR reported that
petitioner had several abnormal diluted screens, as well as one positive screen for opiates in July
of 2017. The guardian reported that during one of petitioner’s visits with the children, one of the
children disclosed that petitioner “punched or hit or struck [K.G.-1] in the face.” According to
the guardian, the child also reported allegations of “drug activity” in the home. The circuit court
suspended visitation with the children until petitioner could produce “a series of clean and
normal drug screens.” Following the hearing, during a forensic interview, the child again
disclosed that petitioner was packaging drugs in the home during an unsupervised visit.

        Following the birth of K.G.-2 in September of 2017, the DHHR filed an amended petition
alleging, among other things, that the mother used heroin throughout her pregnancy with K.G.-2
and that petitioner knew of her substance abuse but did nothing to stop it. On October 20, 2017,
the circuit court held a review hearing, and the DHHR reported that petitioner continued to test
positive for illicit substances and was seeking inpatient treatment. On November 7, 2017,
petitioner did not appear for what was scheduled as an adjudicatory hearing on the amended
petition, but was represented by counsel. The DHHR reported that a family member informed the
DHHR that petitioner had overdosed on November 2, 2017, and was revived with Narcan. On
December 20, 2017, the circuit court held an adjudicatory hearing on the amended petition, and
petitioner admitted to knowing the mother was using heroin during her pregnancy with K.G.-2.
Petitioner was adjudicated of abuse and neglect as to K.G.-2 and the continued abuse and neglect
of his other children based upon his drug abuse and packaging drugs in the children’s presence.




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        On February 23, 2018, the circuit court held a dispositional hearing. The DHHR reported
that petitioner continued to use illegal substances. The DHHR presented evidence that petitioner
had been drug screening at the day report center since January of 2017, and since that time, he
had around one hundred negative screens; however, he had missed thirty screens, tested positive
on twenty-five screens, and twelve of the screens were diluted. Petitioner tested positive for
amphetamines, methamphetamines, and morphine on February 13, 2018, and then produced a
diluted drug screen on February 20, 2018.

         Petitioner testified that he continued to use illegal substances and was seeking inpatient
treatment. Petitioner admitted to completing only five days of inpatient treatment in October of
2017 before he was discharged without completing the program. He explained that in January of
2018, he began participating in an intensive outpatient program. Petitioner also testified that his
visits with the children were suspended due to a visitation supervisor’s “false statements;” the
visits were allegedly suspended because petitioner made the supervisor feel uncomfortable.
However, the supervisor denied this allegation under oath and said that she stopped working on
petitioner’s case because she took a different job. Following petitioner’s testimony, the DHHR
argued that the children had been in the DHHR’s custody for twenty-one months, and that,
during that time, petitioner failed to complete substance abuse treatment. Following counsels’
arguments, the circuit court noted that the children were in need of continuity of care and
caretakers and that returning to petitioner’s home was not in the children’s best interests. The
circuit court found that the DHHR made reasonable efforts during the proceedings to reunify the
family. It further found no reasonable likelihood that petitioner could substantially correct the
conditions of abuse and neglect. Petitioner’s request for post-termination visitation was denied.
Ultimately, the circuit court terminated petitioner’s parental rights in its March 27, 2018, order.3
It is from this order that petitioner appeals.

              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


                                                            
              3
         The parental rights of the respective mothers of all the children were terminated.
Additionally, the parental rights of the respective fathers of K.C. and K.T-G. were also
terminated. According to respondents, the permanency plan for K.T-G. and K.T. is continuation
in the legal guardianship of their maternal grandparents. The permanency plan for K.C., K.G.-1,
and K.G.-2 is adoption by their maternal aunt.
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       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). Upon our review, this Court
finds no error in the proceedings below.

        First, petitioner argues that the circuit court erred in temporarily suspending visitation
with the children due to a visitation supervisor’s allegedly false statements that petitioner made
her feel uncomfortable. However, this argument is not supported by the record. The record is
devoid of any order suspending visitation due to statements made by a visitation supervisor. In
fact, at the dispositional hearing, the visitation supervisor denied making any allegations that
petitioner made her feel uncomfortable during visits and stated that she stopped working on
petitioner’s case and supervising visits because she took a different job. On the contrary, the
record shows that visitation was suspended following the August 23, 2017, hearing due to
petitioner’s positive and abnormal drug screens. Additionally, according to one of the children,
petitioner was packaging drugs in the home and hit K.G.-1 during an unsupervised visit.
Nevertheless, the circuit court ordered that petitioner’s visitation with the children be restored if
he could produce a series of clean and normal drug screens. Petitioner failed to do so from the
time of the August 23, 2017, hearing until the dispositional hearing in February of 2018, at
which time his parental rights were terminated. Therefore, we find petitioner is entitled to no
relief.

         Petitioner next argues that the circuit court erred in not allowing him to visit with K.T-G.
during the proceedings. We disagree. Pursuant to Rule 15 of the Rules of Procedure for Child
Abuse and Neglect Proceedings, “[i]n determining the appropriateness of granting visitation
rights to the person seeking visitation, the court shall consider . . . the overall effect granting or
denying visitation will have on the child’s best interests.” Although the circuit court did not
receive a recommendation from K.T-G.’s therapist as requested, the record indicates that
petitioner struck or hit the child on at least one occasion. Also, the guardian reported that the
child did not want to visit with petitioner because of the abuse he had suffered while in
petitioner’s care. Therefore, it was clearly not in the best interest of the child to have visits with
petitioner. We find that the circuit court did not abuse its discretion in denying petitioner
visitation with K.T-G.

        Next, petitioner argues that the circuit court erred in terminating his parental rights. In
support, he argues that he “substantially successfully completed his improvement period.” 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 likelihood that the conditions of neglect
or abuse can be substantially corrected in the near future” and that termination is necessary for
the children’s welfare. West Virginia Code § 49-4-604(c)(3) indicates that a situation where
there is no reasonable likelihood the conditions of abuse and neglect can be substantially
corrected includes one in which

       [t]he abusing parent . . . [has] not responded to or followed through 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

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       abuse or neglect of the child, as evidenced by the continuation or insubstantial
       diminution of conditions which threatened the health, welfare or life of the child. .
       ..

         Petitioner substantially complied with the terms and conditions of his improvement
periods early in the proceedings. However, at the August 23, 2017, review hearing, the DHHR
reported that petitioner had produced some abnormal drug screens and that there had been drug
activity in the home. Additionally, evidence was presented that one of the children reported that
petitioner struck K.G.-1 in the face during a visit. Between the August 23, 2017, hearing and the
dispositional hearing, petitioner failed to appear for several drug screens and also produced
abnormal and positive drug screens. Just ten days before the dispositional hearing, petitioner
tested positive for amphetamines, methamphetamines, and morphine. He then produced a diluted
screen three days prior to the dispositional hearing. While petitioner participated in outpatient
substance abuse treatment, he continued to abuse substances and was discharged from an
inpatient treatment program in October of 2017, after only five days of treatment. Petitioner
failed to complete an inpatient treatment program, as required by his case plan. While petitioner
also argues that the DHHR did not provide the services necessary to reunify his family or
facilitate his entry into long-term drug treatment, this assertion is not supported by the record. In
fact, the record shows that, during the proceedings, petitioner participated in drug screens,
visitations with the children, and parenting and adult life skills classes. Further, at the
dispositional hearing, the circuit court found that the DHHR made reasonable efforts during the
proceedings to reunify the family. Based on this evidence, it is clear there was no reasonable
likelihood that petitioner could substantially correct the conditions of abuse and neglect in the
near future and that termination of petitioner’s parental rights was in the children’s best interest.
Therefore, we find no error in the termination of petitioner’s parental rights.

      For the foregoing reasons, we find no error in the decision of the circuit court, and its
March 27, 2018, dispositional order is hereby affirmed.


                                                                                          Affirmed.



ISSUED: October 19, 2018


CONCURRED IN BY:

Chief Justice Margaret L. Workman
Justice Elizabeth D. Walker
Justice Paul T. Farrell sitting by temporary assignment
Justice Tim Armstead
Justice Evan H. Jenkins
 
Justice Allen H. Loughry II suspended and therefore not participating

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