                                                      STATE OF WEST VIRGINIA
                                                    SUPREME COURT OF APPEALS
                                                                                          FILED
In re H.H., D.B., and P.M.                                                           November 19, 2018
                                                                                        EDYTHE NASH GAISER, CLERK
                                                                                        SUPREME COURT OF APPEALS
No. 18-0504 (Ritchie County 17-JA-11, 17-JA-12, and 17-JA-13)                               OF WEST VIRGINIA 




                                                          MEMORANDUM DECISION
        Petitioner Father J.M., by counsel Carl P. Bryant, appeals the Circuit Court of Ritchie
County’s May 3, 2018, order terminating his parental, custodial, and guardianship rights to H.H.,
D.B., and P.M.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”) for H.H., B. Scott Wolfe, filed a response on behalf of that child in support of
the circuit court’s order. The guardian for P.M., Katrina M. Christ, filed a response on behalf of
that child also in support of the circuit court’s order. On appeal, petitioner argues that the circuit
court erred in terminating his parental rights and denying him post-termination visitation with the
children.

        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 2017, the DHHR filed a child abuse and neglect petition against petitioner and
the mother, alleging that they abused drugs and that their drug abuse negatively impacted their
ability to parent the children.2 Specifically, the DHHR alleged that the two older children ran
away from home and, after they were recovered, reported that they did so because they
overheard petitioner say he was “going to get rid of them.” Both a school counselor and a Child
Protective Services (“CPS”) worker interviewed H.H., who consistently reported that his mother
abused drugs and disclosed the location of her drugs within the home. Law enforcement officers
searched the home and located drug paraphernalia and methamphetamine, as described by H.H.
Upon speaking to an officer, petitioner admitted that he used illegal drugs and requested

                                                            
              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).
              2
                  Petitioner is the biological father of P.M. and the stepfather of H.H. and D.B.
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treatment. As such, the DHHR concluded that petitioner abused and/or neglected the children
through his use and possession of illegal substances while caring for the children.

        Petitioner filed a written stipulation in May of 2017 and was adjudicated as an abusing
parent. He was subsequently granted a post-adjudicatory improvement period in July of 2017. As
part of the terms and conditions of his improvement period, petitioner was required to complete a
drug and alcohol assessment and follow the resulting recommendations, submit to random drug
screens, maintain suitable housing and employment, attend individual counseling, maintain
contact with the DHHR, participate in supervised visitation with the children, and participate in
parenting and adult life services classes. As ordered, petitioner subsequently underwent a drug
and alcohol assessment, which determined that he was at high risk for future drug abuse without
proper treatment. Thereafter, petitioner entered into a substance abuse detoxification program,
which he successfully completed, but failed to continue with a long-term inpatient rehabilitation
program upon his release.

        In October of 2017, the circuit court held a review hearing wherein it noted that the
DHHR and guardians ad litem had filed a motion to revoke petitioner’s improvement period due
to his noncompliance. However, because petitioner had recently admitted himself to an inpatient
treatment program, the circuit court deferred any decision regarding termination of his
improvement period and continued the proceedings.

        The DHHR filed a summary report with the circuit court in January of 2018, indicating
that petitioner did not pay attention to the children during supervised visits, failed to submit to
drug screens consistently throughout the case, tested positive for methamphetamine on one
occasion when he did submit to a screen, and was homeless. Accordingly, the DHHR
recommended that petitioner’s post-adjudicatory improvement period be terminated and the case
set for disposition.

        In February of 2018, the circuit court held a dispositional hearing. Petitioner failed to
attend and his counsel requested a continuance. Despite finding that petitioner had notice of the
hearing and failed to maintain contact with his counsel, the circuit court granted the request.

        The circuit court reconvened the dispositional hearing in March of 2018. Petitioner again
failed to appear, but was represented by counsel. The DHHR presented the testimony of several
witnesses who testified as to petitioner’s noncompliance with his improvement period.
Specifically, petitioner failed to participate in parenting and adult life skills classes, was absent
from those classes more than fifteen times, and refused to participate in services entirely in
December of 2017. Petitioner also failed to submit to random drug and alcohol screens and
participate in substance abuse treatment and individualized counseling. Although petitioner
completed a detoxification program and eventually entered into an inpatient substance abuse
treatment program, he voluntarily left the program prematurely and failed to seek further
treatment. From October of 2017 until January of 2018, petitioner failed to submit to drug and
alcohol screens on nineteen separate occasions. Further, petitioner failed to attend multiple visits
with the children, even though he confirmed the appointments twenty-four hours in advance.
Testimony established that his failure to attend these visits had negative psychological and
emotional impacts on the children, leading to the suspension of petitioner’s supervised visitation


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in January of 2018. After hearing evidence, the circuit court found that there was no reasonable
likelihood that petitioner could correct the conditions of abuse and neglect in the near future and
that termination of his parental, custodial, and guardianship rights was in the children’s best
interests. It is from the May 3, 2018, dispositional order that petitioner appeals.3

              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 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 the circuit court erred in terminating his parental rights
when less-restrictive alternatives were available. He asserts that he participated in services
including adult life skills and parenting classes, entered into an inpatient drug treatment program,
and visited with the children, all of which demonstrate that he attempted to correct the issues of
abuse and neglect. According to petitioner, the mother was granted a less-restrictive disposition
and, based upon his similar performance during the underlying proceedings, he is entitled to the
same. 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 child’s
welfare. West Virginia Code § 49-4-604(c)(3) sets forth that a situation in which there is no
reasonable likelihood the conditions of abuse and neglect can be substantially corrected includes
one in which



                                                            
              3
         The mother’s custodial rights to the children were terminated pursuant to West Virginia
Code § 49-4-604(b)(5). H.H.’s father is deceased. H.H. and petitioner’s biological child, P.M.,
were placed in the maternal grandmother’s home with a permanency plan of guardianship
therein. D.B.’s father is a nonabusing parent and the permanency plan for the child is to remain
in his care.
                                                               3
 
       [t]he abusing parent or parents have 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[.]

Here, the record demonstrates that there was no reasonable likelihood that petitioner could
correct the conditions of abuse and neglect. Petitioner was granted a post-adjudicatory
improvement period and ordered to comply with services such as parenting and adult life skills
classes, random drug screens, and supervised visitation. However, petitioner did not comply with
services. Rather, he repeatedly failed to submit to random drug screens, missing nineteen
required screens in only three months. While petitioner entered an inpatient substance abuse
treatment program, he left the program after one week and failed to seek further treatment.
Petitioner also failed to attend several supervised visits with the children and was described as
emotionally distant when he did visit. Further, he exhibited aggressive, threatening behavior to
the service providers, refused to participate in services entirely during December of 2017, and
failed to implement any teachings from his parenting and adult life skills classes. Based on the
record, it is clear that petitioner failed to respond to the services designed to reduce or prevent
the conditions of abuse and neglect.

       To the extent that petitioner argues he should be granted a less-restrictive disposition
because the mother was granted such, we note that

               “[t]ermination of parental rights, the most drastic remedy under the
       statutory provision covering the disposition of neglected children, W.Va. Code [§]
       49-6-5 [now 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 W.Va. Code [§] 49-6-5(b) [now 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).

Syl. Pt. 5, In re Kristin Y., 227 W.Va. 558, 712 S.E.2d 55 (2011). Here, the mother demonstrated
that she had a strong emotional bond with the children and, as such, the circuit court terminated
only her custodial rights to the children. To retain his parental rights, petitioner had to
demonstrate that he was able to properly care for the children. However, petitioner failed to
establish a strong bond with the children and the record further demonstrates that there was no
reasonable likelihood that petitioner could correct the conditions of abuse and that termination
was necessary for the children’s welfare. Accordingly, we find that termination of petitioner’s
parental, custodial, and guardianship rights was proper and that he is entitled to no relief in this
regard.

         Petitioner next argues that the circuit court erred in denying him post-termination
visitation. According to petitioner, he participated in visitation throughout the proceedings and
demonstrated a close emotional bond with the children. Testimony established that the children



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looked forward to their visits with petitioner and he avers that, under the circumstances,
“continued visitation . . . is appropriate.” We find no merit to petitioner’s argument.

                “When 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, post-termination
visitation was not in the children’s best interests. Testimony at the dispositional hearing
established that petitioner failed to fully participate in supervised visitation with the children.
Due to his noncompliance, petitioner was required to confirm visits with the children twenty-four
hours in advance. Despite this precautionary measure, petitioner continued to miss visits such
that they were suspended in January of 2018. Petitioner’s failure to attend the visits negatively
impacted the children psychologically and emotionally. During the visits that petitioner did
attend, he was noted to exhibit very little emotion, was withdrawn, and sat in the corner with
crossed arms. He failed to interact with the children and did not respond to their attempts to
engage with him. Accordingly, we find that the circuit court correctly denied petitioner post-
termination visitation with the children as it was clearly not in their best interests.

       For the foregoing reasons, we find no error in the decision of the circuit court, and its
May 3, 2018, order is hereby affirmed.



                                                                                         Affirmed.

ISSUED: November 19, 2018


CONCURRED IN BY:

Chief Justice Margaret L. Workman
Justice Elizabeth D. Walker
Justice Tim Armstead
Justice Evan H. Jenkins
Justice Paul T. Farrell sitting by temporary assignment




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