                                STATE OF WEST VIRGINIA
                              SUPREME COURT OF APPEALS


In re N.C.-1                                                                              FILED
                                                                                        April 6, 2020
No. 19-0615 (Wood County 18-JA-6)                                                     EDYTHE NASH GAISER, CLERK
                                                                                      SUPREME COURT OF APPEALS
                                                                                          OF WEST VIRGINIA




                                 MEMORANDUM DECISION



         Petitioner Father N.C.-2., by counsel Eric K. Powell, appeals the Circuit Court of Wood
County’s June 5, 2019, order terminating his parental rights to N.C.-1. 1 The West Virginia
Department of Health and Human Resources (“DHHR”), by counsel Brandolyn N. Felton-Ernest,
filed a response in support of the circuit court’s order. The guardian ad litem, Debra L. Steed, filed
a response on behalf of the child in support of the circuit court’s order. Petitioner filed a reply. On
appeal, petitioner argues that the circuit court erred in terminating his parental rights and in denying
his motion for post-termination visitation.

       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 January of 2018, the DHHR filed an abuse and neglect petition against petitioner and
N.C.-1’s mother due to the birth of a drug-exposed infant, who is not at issue in this appeal. 2 The
petition alleged the mother tested positive for methamphetamine, amphetamine, and
benzodiazepine during a drug screen taken contemporaneously with the infant’s birth. As such, the
mother’s substance abuse constituted an imminent danger to the older child, N.C.-1. Further, 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 the child and petitioner share the same
initials, we will refer to them as N.C.-1 and N.C.-2, respectively, throughout this memorandum
decision.
       2
           N.C.-2 is not alleged to be the father of the infant, who is not at issue in this appeal.
                                                     1
DHHR alleged that petitioner was homeless and had untreated mental health issues which rendered
him unable to provide shelter or care to N.C.-1 after the mother’s substance abuse was discovered.
As noted, petitioner was homeless at the filing of the petition and his address was listed as
unknown. In response, the circuit court ordered the DHHR to publish the initial order upon filing
of the petition “in accordance with the West Virginia Code to effect appropriate service” on
petitioner. The circuit court also ordered the DHHR to begin providing services to petitioner as
soon as possible, including convening a multidisciplinary treatment team (“MDT”). “All parties,”
including petitioner, were ordered to participate with the MDT, and any reports were to be
provided to the circuit court prior to any hearing.

        Beginning in January of 2018, the circuit court held a series of preliminary and adjudicatory
hearings. Petitioner was not present at these hearings but was represented by counsel. The circuit
court granted several motions by petitioner’s counsel to continue these hearings because petitioner
was absent and his location was unknown. At one such hearing, in July of 2018, the circuit court
ordered petitioner to submit to paternity testing. In August of 2018, the DHHR informed the circuit
court that it had been unable to obtain the necessary biological sample from petitioner. The circuit
court ordered arrangements to collect the sample from petitioner, who was located—for the first
time in the entire proceedings—because he had been recently incarcerated. In October of 2018,
petitioner was released from incarceration and made his first appearance in person for a status
hearing.

        In December of 2018, the DHHR filed an amended petition against petitioner, asserting
that in the eleven months since the initial petition was filed, petitioner had not had any contact
with N.C.-1 and had not otherwise attempted to contact the DHHR to inquire about him. The
DHHR further alleged petitioner failed to provide the necessary financial support for the child as
well as any food, clothing, or shelter. Petitioner also failed to provide medical, educational, or
emotional support. As a result, the DHHR alleged that petitioner “had demonstrated his settled
purpose to forego his parental rights and duties” to N.C.-1. In its initial order upon the filing of the
amended petition, the circuit court again ordered petitioner to participate in an MDT, with any
reports to be presented at future hearings. Petitioner was homeless and could not be located again
upon the filing of the amended petition, and the circuit court ordered the DHHR to publish notice
to effect appropriate service in accordance with the law.

        Later, in December of 2018, petitioner made another in-person appearance in the
proceedings. The circuit court granted a motion from the DHHR to continue the hearing in light
of the recently filed amended petition. In January of 2019, the circuit court held an adjudicatory
hearing wherein petitioner stipulated that he was “homeless and unable to provide care or shelter”
to N.C.-1 and suffered from “untreated mental health issues rendering him unable to provide care.”
Additionally, petitioner stipulated he had “not had any contact with the minor child, [N.C.-1]” in
the eleven months that the petition was pending. Petitioner further stipulated he had not contacted
anyone at the DHHR “to find out how [N.C.-1 was] doing,” where he had been placed, “or if he
[could] see him.” Finally, petitioner stipulated that he “failed to provide the necessary financial
support,” as well as any “food, clothing, or shelter.” Petitioner did, however, agree “to address
parenting skills so that the child may be reunited with the family.” Accordingly, in its adjudicatory
order, the circuit court found petitioner to be an abusing parent and granted him a six-month post-
adjudicatory improvement period. Petitioner agreed in his stipulation that “issues and deficiencies

                                                   2
to be addressed” included parenting and adult life skills; being a protective parent; substance
abuse; psychological evaluation and/or parental fitness evaluation; and other issues to be
determined by the MDT. In granting his improvement period, the circuit court also ordered
petitioner to perform a drug screen and participate in future, conditional drug screening.

         On January 14, 2019—the day the circuit court granted him an improvement period—
petitioner failed to appear for his required drug screen. When petitioner complied the next day, he
tested positive for methamphetamine. Petitioner was then arrested for a bond violation and
incarcerated on January 18, 2019, and he remained incarcerated until his status hearing in March
of 2019. At the status hearing, the DHHR moved for petitioner’s improvement period to be
terminated and the matter set for disposition. The DHHR argued that petitioner was not complying
with the terms of his improvement period, largely as a result of his incarceration just two days after
the circuit court granted him an improvement period. Due to his incarceration, petitioner did not
participate in a psychological evaluation, secure housing, obtain health insurance, attend parenting
or life skills classes, visit with N.C.-1, submit to a substance abuse evaluation, participate in drug
screens, or attend individual therapy. Despite his noncompliance, petitioner asked to continue in
his improvement period “if he was accepted into drug court or at least participate in services until
the next hearing. The circuit court ordered petitioner to continue in his improvement period and
set a status hearing for two weeks later.

        In April of 2019, the circuit court held a status hearing. The DHHR again moved for
petitioner’s improvement period to be terminated and the matter set for disposition. Petitioner
moved for a continuance. At the hearing, the circuit court learned that petitioner had been denied
entrance into drug court. The circuit court found petitioner was “not complying with the terms of
his post-adjudicatory improvement period,” ordered it terminated, and set the matter for
disposition.

        In June of 2019, the circuit court held a final dispositional hearing where the DHHR sought
termination of petitioner’s parental rights. The circuit court found that there was no reasonable
likelihood petitioner could substantially correct the conditions of abuse and neglect, given
petitioner’s “lack of participation prior to his incarceration; his inability to take real steps to rectify
the issues that led to the abuse and neglect while he was incarcerated; and the speculative nature
of whether or not he will in fact be paroled.” The circuit court further considered the “almost year
[-]and[-a-]half [petitioner] has not had any contact” with N.C.-1 and found that “although a bond
may have existed in the past” between petitioner and the child “that bond does not remain.”
Accordingly, the circuit court terminated petitioner’s parental rights to the child and denied his
motion for post-termination visitation. 3 It is from the dispositional 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


        3
        The mother’s parental rights were also terminated. The permanency plan is for the child
to be adopted by his current foster family.
                                                    3
       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 first alleges that the circuit court erred in terminating his parental
rights because the DHHR “did not make reasonable efforts to preserve . . . the family, or to provide
petitioner with services during his improvement period.” Petitioner also argues that “since the
court granted [an] improvement period with knowledge of [p]etitioner’s incarceration it naturally
follows that the [circuit] court expected the DHHR to provide him services while in jail.” In light
of this, he argues that the circuit court erred in terminating his parental rights. We disagree.

        Petitioner is correct that, unless certain conditions not applicable to this appeal exist, the
DHHR is required to make “reasonable efforts to preserve and reunify the family.” W. Va. Code
§ 49-4-604(b)(6)(C)(iv). Further, “[i]n determining whether or not parental rights should be
terminated, the court shall consider the efforts made by the department to provide remedial and
reunification services to the parent.” Id. at (b)(6)(C).

        Here, petitioner’s allegation that the DHHR failed to provide him services because he was
granted an improvement period confuses the statutory role of the DHHR in abuse and neglect cases
generally. Indeed, the record shows that the DHHR’s attempts to provide petitioner with services
began as early as the filing of the initial petition in January of 2018. Petitioner’s case began with
a case plan, including an MDT where the circuit court ordered his participation. Even without
petitioner’s input or attendance, the MDT and DHHR continued attempts to provide services
throughout the case. The circuit court ordered petitioner to submit to random drug tests and
paternity testing. Petitioner failed to comply with these orders. For instance, petitioner did not
participate in paternity testing on his own accord. This resulted in the circuit court requiring that
necessary arrangements be made to collect a sample from him and conduct the testing.
Additionally, petitioner failed to participate in a required drug screen on the very day he was orally
granted an improvement period. When petitioner did finally participate the following day, he tested
positive for controlled substances. All the while, the circuit court found that the DHHR was
continuing in its efforts to reunify N.C.-1 with petitioner throughout the proceedings, and held
several hearings for petitioner, despite his absence. As such, petitioner is incorrect to assert that
the granting of an improvement period was a triggering event mandating the DHHR to provide
services, when the record shows that the DHHR attempted to provide remedial services from the
outset of the case.

       Petitioner was also receiving these services when he was granted an improvement period.
The circuit court first orally granted petitioner an improvement period at a hearing on January 14,

                                                  4
2019, after accepting his stipulation of neglecting N.C.-1. Petitioner was not incarcerated and
appeared in person for the hearing. When the circuit court granted petitioner an improvement
period, it was expected that petitioner would begin compliance right away. Indeed, the circuit court
readily expected petitioner to start abiding by the terms of his improvement period when it ordered
a drug screen on the same day the circuit court granted his improvement period. Petitioner,
however, failed to appear. When petitioner took a screen the following day, he tested positive for
methamphetamine. Then, on January 16, 2019—just two days after the circuit court orally granted
petitioner an improvement period—he was arrested for a bond violation. Thereafter, petitioner
remained incarcerated until his improvement period was terminated by the circuit court in April of
2019.

        Petitioner notes that he was already incarcerated when his improvement period formally
began by court order on January 18, 2019. Petitioner argues that because he was incarcerated when
his improvement period began, the DHHR had a duty to provide services while he remained
incarcerated. Petitioner, however, misstates and conflates the DHHR’s statutory duty to provide
reunification services in such proceedings generally and the individual burden that rests on
petitioner to comply with an improvement period. As noted above, it is the duty of the DHHR to
make reasonable efforts to reunify the family, absent certain circumstances. Conversely, it is
within the discretion of the circuit court to grant an improvement period and, if granted, is
conditioned on petitioner’s ability to fully participate in the improvement period. See West
Virginia Code § 49-4-610(4)(A) (parents “shall be responsible for the initiation and completion of
all terms of the improvement period”). Petitioner asserts that “[n]o parent can comply with services
that are not offered to him” and “the very granting of an improvement period is a directive to the
WVDHHR to comply with its statutory duties.” Both statements are incorrect. As noted above, the
DHHR complied with its duty to provide petitioner services and did so before his improvement
period was ever granted. Further, petitioner fails to address his statutory duty to complete all terms
of his improvement period.

        Petitioner even recognized his incarceration was a barrier to participating in his
improvement period when he asked the circuit court in March of 2019 to continue his improvement
period until he was admitted into drug court. While the DHHR opposed petitioner’s request, the
guardian ad litem supported it at the time, believing “that [petitioner] would be released to
participate in drug court.” Despite the DHHR’s objection, the circuit court agreed and continued
petitioner’s improvement period. Petitioner, however, was never admitted into drug court and
remained incarcerated throughout the proceedings. At the dispositional hearing terminating
petitioner’s parental rights, the circuit court considered petitioner’s incarceration and “the
speculative nature of whether or not he will, in fact, be paroled later this year” as a factor in
terminating his rights. Additionally, Rule 5 of the Rules of Procedure for Child Abuse and Neglect
Proceedings is clear that “[u]nder no circumstances shall a civil child abuse and neglect be delayed
pending the initiation, investigation, prosecution, or resolution of any other proceeding, including,
but not limited to, criminal proceedings.” As such, petitioner’s indefinite incarceration proved an
insurmountable barrier to participating in his improvement period. Based on the foregoing, we find
no error in regard to either the DHHR making reasonable efforts to reunify the child with petitioner
or in the termination of petitioner’s improvement period due to his noncompliance.




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        Next, petitioner alleges that the circuit court should have imposed a less-restrictive
dispositional alternative pursuant to West Virginia Code § 49-4-604(b)(5), however, the evidence
set forth above supports the termination of petitioner’s parental rights. West Virginia Code § 49-
4-604(b)(6) permits a circuit court 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 welfare of the child. The circuit court
considered several factors when terminating petitioner’s parental rights, including his “lack of
participation prior to his incarceration; his inability to take real steps to rectify the issues of abuse
and neglect while he was incarcerated; and the speculative nature” of whether he would be released
on parole. The circuit court also considered the “length of time,” specifically the “almost year[-
]and[-a-]half” that petitioner had no contact with the child. “We have previously pointed out that
the level of interest demonstrated by a parent in visiting his or her children while they are out of
the parent’s custody is a significant factor in determining the parent’s potential to improve
sufficiently and achieve minimum standards to parent the child.” In re Katie S., 198 W. Va. 79, 90
n.14, 479 S.E.2d 589, 600 n.14 (citations omitted).

        With these parameters in mind, the record clearly supports the circuit court’s finding that
there was no reasonable likelihood petitioner could substantially correct the conditions of neglect.
Notably, petitioner does not dispute the circuit court’s finding that he had a “lack of participation”
in the case prior to his incarceration. He only argues that he had not been properly served notice,
despite the circuit court’s attempts to effectuate service. 4 Petitioner also does not dispute that he
made no attempts to contact N.C.-1, during the eleven months when the first petition was pending.
Further, petitioner failed to avail himself of the DHHR’s services in the proceedings prior to his
incarceration. Even once incarcerated, petitioner “did not request in person or through counsel . .
. services be provided at the jail or that he be transported to attend those services.” Despite this,
petitioner claims that he should have been granted a less-restrictive disposition because he might
eventually be able to correct the conditions of abuse and neglect, but we have previously held that
“[c]ourts are not required to exhaust every speculative possibility of parental improvement . . .
where it appears that the welfare of the child will be seriously threatened.” Cecil T., 228 W. Va. at
91, 717 S.E.2d at 875, syl. pt. 4, in part (citation omitted). Further, 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(c)] 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).


        4
         Petitioner argues the initial petition was not served on him and “it is unclear if or when it
was ever served on him.” As discussed previously, petitioner was homeless throughout much of
the proceedings and thus his address was listed as unknown. The circuit court, however, twice
ordered the DHHR to publish the matter “in accordance with the West Virginia Code to effect
appropriate service” on petitioner. Additionally, it is undisputed that petitioner had actual notice
of the proceedings as early as October of 2018. The record shows that despite this notice, petitioner
failed to participate in services for the intervening three months prior to his incarceration.
                                                   6
Syl. Pt. 5, In re Kristin Y., 227 W. Va. 558, 712 S.E.2d 55 (2011). As such, we find no error in the
termination of petitioner’s parental rights.

         Additionally, while the circuit court clearly set out its reasons for terminating petitioner’s
rights in its dispositional order, as set forth above, petitioner contends that the circuit court “failed
to make findings . . . in its dispositional order regarding the efforts made by the WVDHHR to
assist the [p]etitioner and preserve the family ties as required.” Based upon a review of the record,
the circuit court did not specifically make findings regarding the DHHR’s reunification efforts in
its dispositional order. However, the record shows that the circuit court did make these findings
when it terminated petitioner’s improvement period and set the matter for disposition. We have
held that

                “[w]here it appears from the record that the process established by the Rules
        of Procedure for Child Abuse and Neglect Proceedings and related statutes for the
        disposition of cases involving children [alleged] to be abused or neglected has been
        substantially disregarded or frustrated, the resulting order . . . will be vacated and
        the case remanded for compliance with that process and entry of an appropriate . .
        . order.” Syllabus point 5, in part, In re Edward B., 210 W.Va. 621, 558 S.E.2d 620
        (2001).
Syl. Pt. 3, In re Emily G., 224 W. Va. 390, 686 S.E.2d 41 (2009). For the reasons discussed above,
we find that the circuit court’s failure to make a finding of the DHHR’s reunification efforts in its
dispositional order does not constitute a substantial disregard of the Rules of Procedure for Child
Abuse and Neglect Proceedings and related statutes to warrant vacating and remanding the matter.
The circuit court made findings of the DHHR’s reunification efforts shortly before disposition
when petitioner’s improvement period was terminated. Thus, petitioner is entitled to no relief.

         Next, petitioner argues that the circuit court erred by failing to grant him post-termination
visitation because the DHHR “significantly contributed to any decrease in the bond between
petitioner” and N.C.-1. We disagree.

        In regard to post-termination visitation, we have previously held that

                 “[w]hen parental rights are terminated due to neglect or abuse, the circuit
        court may nevertheless in appropriate cases consider whether continued visitation
        or other contact with the abusing parent is in the best interest of the child. Among
        other things, the circuit court should consider whether a close emotional bond has
        been established between parent and child and 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, the circuit court found
that post-termination visitation was denied “for the same reasons” that support termination of
petitioner’s parental rights. Specifically, the circuit court found that “although a bond may have

                                                   7
existed in the past . . . that bond does not remain at this point.” While petitioner blames the DHHR
for not seeing the child during his incarceration, this ignores the fact that petitioner did not see
N.C.-1 during the entire abuse and neglect proceeding. Additionally, it is unclear to this Court how
petitioner is able, on the one hand, to assert that he “established a father-child relationship” with
the child by virtue of having lived with him at various times between 2011 and 2017, yet recognize
that he took no steps to be legally recognized as the child’s father at any time. We are also
unpersuaded by petitioner’s assertion that he had not seen the child since January of 2018 because
“[n]ot coincidentally, January of 2018 is when the original [p]etition was filed,” while at the same
time asserting “there was no proof that [he] knew where his son was.” It strains credulity to assume
that someone who claims to have a strong father-child relationship would find that child missing
after removal due to emergency circumstances and then take no steps to locate the child or
otherwise establish paternity so that their parental rights could be formally recognized and
protected. Accordingly, we find no error in the circuit court’s denial of petitioner’s motion for
post-termination visitation with the children.

       For the foregoing reasons, we find no error in the decision of the circuit court, and its June
5, 2019, order is hereby affirmed.



                                                                                          Affirmed.

ISSUED: April 6, 2020


CONCURRED IN BY:

Chief Justice Tim Armstead
Justice Margaret L. Workman
Justice Elizabeth D. Walker
Justice Evan H. Jenkins
Justice John A. Hutchison




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