                             STATE OF WEST VIRGINIA                                FILED
                           SUPREME COURT OF APPEALS
                                                                                April 10, 2017
                                                                                RORY L. PERRY II, CLERK
                                                                              SUPREME COURT OF APPEALS
In re: A.F.-1, A.F.-2, J.M.-1, J.M.-2, P.S., N.M, Z.M., and A.M.                  OF WEST VIRGINIA



No. 16-0989 (Mingo County 16-JA-30, 16-JA-31, 16-JA-32, 16-JA-33, 16-JA-34, 16-JA-35, 16­
JA-36, & 16-JA-39)


                              MEMORANDUM DECISION
        Petitioner Father D.M., by counsel Jerry M. Lyall, appeals the Circuit Court of Mingo
County’s September 21, 2016, order terminating his parental rights to A.F.-1, A.F.-2, J.M.-1,
J.M.-2, P.S., N.M, Z.M., and A.M.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 and a supplemental appendix. The guardian ad litem (“guardian”), Diana Carter Wiedel,
filed a response on behalf of the children supporting the circuit court’s order. On appeal,
petitioner argues that the circuit court erred in terminating his parental rights to the children.2

        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 March of 2016, the DHHR filed an abuse and neglect petition against the parents, in
which it alleged severe drug use in the home. Specifically, according to a Child Protective
Services (“CPS”) investigation, the house contained packets of heroin residue, dirty needles, and
other paraphernalia. Further, it was alleged that the home smelled of feces and urine from two

       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 sets of children share the same
initials, we will refer to them as A.F.-1, A.F.-2, J.M.-1 and J.M.-2 throughout this memorandum
decision. Finally, we note that petitioner is not the biological father of children A.F.-1 and A.F.­
2, although he does allege status as their psychological parent.
       2
        Petitioner raises four discrete assignments of error, each of which challenge the
termination of petitioner’s parental rights and the factual findings that served as the basis for
termination. We will address the assignments of error as a single ground asserting error in the
termination of his parental rights.


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dogs therein. The mother initially denied the drug paraphernalia belonged to her, but she later
admitted it belonged to she and petitioner after a CPS worker noticed track marks on her arm.
The mother also told CPS that she was no longer with petitioner and that he lived in Ohio.
According to the petition, petitioner also abused various drugs, including, but not limited to,
prescription pills, methadone, and methamphetamine. As such, the DHHR alleged that the
parents’ drug abuse led to the children’s abuse and neglect.

       The circuit court held a preliminary hearing in April of 2016. Prior to the hearing, the
DHHR filed two amended petitions to include an additional child and three additional adult
respondents. During the hearing, the circuit court found probable cause for the children’s
removal and ordered they remain in DHHR custody. The circuit court held an adjudicatory
hearing in May of 2016, during which it found that petitioner neglected the children by virtue of
his substance abuse, among other issues.

        In August of 2016, the circuit court held a dispositional hearing. Petitioner did not attend
in person but was represented by counsel. According to a CPS worker, petitioner recently
married the mother and both were supposedly entering a substance abuse detoxification facility,
although there was no direct evidence offered to confirm the same. Testimony established that
petitioner’s compliance with services was minimal, as he was present for in-home services on
only one or two occasions and attended two or three visits with the children during the entire
proceedings. According to petitioner’s psychological evaluator, he displayed issues with
defensiveness, minimization of problem areas, and impaired problem solving. Ultimately, the
circuit court terminated petitioner’s parental rights to the children.3 It is from the resulting order
that petitioner appeals.

       3
         The parental rights of all parents to all children were terminated in the proceedings
below, with the exception of mother A.N., biological mother of A.F.-1 and A.F.-2, who was
granted an improvement period at disposition. According to the guardian and the DHHR, the
permanency plans for the children are as follows: A.F.-1 and A.F.-2 were reunited with their
mother, A.N., with a goal of remaining in the home upon successful completion of her
improvement period; J.M.-1, J.M.-2, P.S., N.M, Z.M., and A.M. are placed in two separate
relative placements with a goal of adoption in the home. A.F.-1 and A.F.-2 are not addressed in
the companion appeal by mother S.F. because she made no claim of parental, guardianship, or
custodial rights to those children and, accordingly, they were not the subject of that appeal.

        The Court notes that the parties and the record are silent as to a concurrent permanency
plan for children A.F.-1 and A.F.-2. Rule 28(a)(4) of the West Virginia Rules of Procedure for
Child Abuse and Neglect Proceedings requires case plans in all abuse and neglect cases to
contain “[t]he permanency plan and concurrent plan for the child, which are designed to achieve
timely permanency for the child . . . .” (emphasis added). That rule goes on to state that
“documentation must be provided to show reasonable efforts to prevent removal or to ensure
reunification within the time frames set in the plan, as well as reasonable efforts to work toward
the concurrent plan, which may be adoption, minor guardianship, another planned permanent
living arrangement (APPLA), or emancipation . . . .” (emphasis added). Because the record
contains no information regarding the concurrent permanency plan for children A.F.-1 and A.F.­
                                                                                   (continued . . . )
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       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). Upon our review, the Court finds
no error in the circuit court’s termination of petitioner’s parental rights.

        On appeal to this Court, petitioner’s entire argument is premised upon his assertion that
he submitted to substance abuse treatment below. Accordingly, petitioner argues that the circuit
court’s factual findings and termination of his parental rights were erroneous, given that he
addressed the underlying issues of substance abuse that necessitated the petition’s filing. We do
not agree. On the contrary, petitioner not only failed to attend the dispositional hearing, but he
also failed to provide evidence of his enrollment in a substance abuse treatment program. The
record shows that at disposition a CPS worker was asked if petitioner and the mother were still
together, to which worker responded that she believed they got married and “were supposed to
enter detox.” The CPS worker later made an additional statement that petitioner stole money
from the mother before going to detox. Simply put, this does not amount to evidence of
petitioner’s enrollment in, or completion of, any form of substance abuse treatment. The fact
remains that, at the time of the dispositional hearing, there was no evidence of petitioner’s
enrollment in any substance abuse treatment.



2, the Court reminds the circuit court of its duty to establish permanency for the children. See
Rule 39(b) of the Rules of Procedure for Child Abuse and Neglect Proceedings (establishing a
duty to hold a permanent placement review hearing at least once every three months until
permanent placement is achieved, among other requirements); and Rule 43 of the Rules of
Procedure for Child Abuse and Neglect Proceedings (requiring circuit courts to achieve
permanent placement of an abuse and neglected child within twelve months of disposition).
Additionally, the Court reminds the guardian that her “role in abuse and neglect proceedings
does not actually cease until such time as the child[ren are] placed in a permanent home.” Syl. Pt.
5, James M. v. Maynard, 185 W.Va. 648, 408 S.E.2d 400 (1991).



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        The record is clear that the DHHR provided petitioner with services under the family case
plan, including in-home parenting education and supervised visitation. The record is additionally
clear that petitioner’s compliance with these services was minimal. Accordingly, the circuit court
found that petitioner failed to comply with services for the first three months they were offered
and that once petitioner began complying he failed to follow through with those services. These
findings are supported by substantial evidence from petitioner’s service providers, as outlined
above. As such, it is clear that petitioner’s own failure to comply with services or follow through
with the same established that there was no reasonable likelihood he could substantially correct
the conditions of abuse and neglect in the near future.

       According to West Virginia Code § 49-4-604(c)(3), a circumstance in which there is no
reasonable likelihood the conditions of abuse and neglect 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
       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 failed to comply with the services offered, as evidenced by his non-compliance and the
fact that he provided no evidence of his substance abuse treatment at the dispositional hearing.
Further, the circuit court heard testimony about concerns from petitioner’s psychological
evaluator regarding his ability to correct the conditions of abuse and neglect. As such, it is clear
that the circuit court was presented with sufficient evidence upon which to find that there was no
reasonable likelihood that petitioner could substantially correct the conditions of abuse or
neglect. Moreover, the circuit court also found that reunification with petitioner was not in the
children’s best interests. Pursuant to West Virginia Code § 49-4-604(a)(6), circuit courts are
directed to terminate parental rights upon these findings.

      For the foregoing reasons, we find no error in the decision of the circuit court, and its
September 21, 2016, order is hereby affirmed.


                                                                                         Affirmed.

ISSUED: April 10, 2017


CONCURRED IN BY:

Chief Justice Allen H. Loughry II
Justice Robin Jean Davis
Justice Margaret L. Workman
Justice Menis E. Ketchum
Justice Elizabeth D. Walker


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