                             STATE OF WEST VIRGINIA
                           SUPREME COURT OF APPEALS

                                                                                  FILED
In re: J.K., K.K, and K.H.
                                                                             November 22, 2017
                                                                               EDYTHE NASH GAISER, CLERK
No. 17-0483 (Grant County 16-JA-12, 16-JA-13, & 16-JA-19)                      SUPREME COURT OF APPEALS
                                                                                   OF WEST VIRGINIA



                              MEMORANDUM DECISION
         Petitioner Father A.K., by counsel Lauren M. Wilson, appeals the Circuit Court of Grant
County’s April 27, 2017, order terminating his parental rights to J.K., K.K., and K.H.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”), Marla
Zelene Harman, 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 in (1) failing to require the DHHR to
include him in the initial petition; (2) failing to immediately appoint him counsel; (3)
adjudicating him as an abusing parent; (4) terminating his parental rights without imposing a
less-restrictive dispositional alternative; and (5) denying 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 April of 2016, the DHHR filed an abuse and neglect petition that alleged the mother
used inappropriate corporal punishment on the children, in addition to emotional, psychological,
and verbal abuse. The petition also alleged that the mother failed to provide the children with
necessary food, shelter, and supervision. According to the petition, the mother suffered from
bipolar disorder, anxiety, depression, and ADHD, but refused medication for any of the
conditions. Finally, the petition alleged that J.K. tested positive for THC at birth. At the time of
the original petition, the mother informed the DHHR that petitioner resided outside West
Virginia and that she was unaware of how to contact him. Accordingly, the DHHR did not name


       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).




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petitioner as a respondent to its initial petition nor did it include any allegations of abuse or
neglect against him therein.

        In May of 2016, the circuit court held an adjudicatory hearing, during which the circuit
court adjudicated the mother of abusing and neglecting the children. The circuit court also
granted the mother a post-adjudicatory improvement period. During the resulting services,
petitioner appeared with the mother when she attended visits with the children. Petitioner also
attended some services with the mother. At this time, the mother informed the DHHR that
petitioner had relocated to West Virginia.

       In October of 2016, the mother gave birth to K.H. That same month, the DHHR filed an
amended petition to include that child in the proceedings and also named petitioner as a
respondent. According to the amended petition, petitioner abandoned and neglected the children
due to his failure to provide them with the necessary financial, emotional, and psychological
support. At this point, the circuit court appointed counsel for petitioner.

        In November of 2016, the circuit court held an adjudicatory hearing in regard to the
amended petition. During the hearing, the only witness to testify was a DHHR employee who
indicated that petitioner had not provided the children with any support, either financially or
emotionally. According to the record, petitioner did not have contact with the children until at
least the beginning of these proceedings when he began attending visits. However, despite the
fact that he began attending visits with the mother, petitioner still failed to provide for the
children. Based upon the evidence, the circuit court adjudicated petitioner not only upon
abandonment, but also upon its finding that petitioner “failed to protect the infant children and
neglected the children by leaving them in the extended and sole care of the [mother] . . . with
knowledge that [the mother] has mental health issues that rendered her incapable of parenting.”
The circuit court additionally granted petitioner a post-adjudicatory improvement period.

        During a review hearing in February of 2017, the circuit court ordered K.H.’s return to
the parents’ custody, despite concerns over the other children’s behavior related to visits with the
parents. In March of 2017, the circuit court heard evidence concerning the visits between the
children and the parents, including evidence that one of the mother’s children exhibited severe
negative effects following visits.

        In April of 2017, the DHHR filed a motion to revoke petitioner’s improvement period.
According to the motion, petitioner stopped regularly participating in services and was travelling
out of the state with K.H. without advising the DHHR. The motion further alleged that when the
DHHR attempted to address the issues with the mother, she became angry and aggressive and
refused to assure the DHHR of the child’s safety. The motion further alleged that petitioner left
K.H. in the care of an individual who lost custody of her own children and was not appropriate to
provide care for K.H. Moreover, petitioner and the mother engaged in a domestic violence
incident in April of 2017 that resulted in the issuance of a domestic violence protective order and
criminal charges. As such, the DHHR removed K.H. from petitioner’s care by emergency order.
The circuit court then held a hearing on this motion and revoked petitioner’s improvement
period.



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        Later that month, the circuit court held a dispositional hearing, during which it found that
petitioner failed to comply with the terms and conditions of his improvement period. The circuit
court also found that there was no reasonable likelihood petitioner could substantially correct the
conditions of abuse and neglect in the near future before terminating his parental rights.2 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
       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).

       In his first assignment of error, petitioner argues that the DHHR erred in failing to name
him as a respondent in its initial petition and that the circuit court erred in failing to appoint him
counsel in a timely manner. Citing to West Virginia Code § 49-4-601, petitioner argues that the
DHHR had a statutory duty to include him as a respondent in the initial petition and the circuit
court had a duty to appoint him counsel.3 We agree, insomuch as that statute requires notice of

       2
        In addition to the termination of petitioner’s parental rights, the circuit court also
terminated the mother’s parental rights to the children. According to the DHHR, the children are
placed in a foster home with a permanency plan of adoption therein.
       3
         According to West Virginia Code § 49-4-601(e)(1), petitioner was entitled to notice of
the proceedings as a parent to the children, as that statute provides that “[t]he petition and notice
of the hearing shall be served upon both parents and any other custodian, giving to the parents or
custodian at least five days’ actual notice of a preliminary hearing and at least ten days’ notice of
any other hearing.” (emphasis added). Moreover, West Virginia Code § 49-4-601(f)(1) provides
that

       [i]n any proceeding under this article, the child, his or her parents and his or her
       legally established custodian or other persons standing in loco parentis to him or
       her has the right to be represented by counsel at every stage of the proceedings

                                                                                     (continued . . . )
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the proceedings to both parents and the appointment of counsel for parents in the circuit court’s
initial order. However, we find that the errors of which petitioner complains on appeal resulted in
no actual prejudice to him and, accordingly, amount to harmless error. The record reflects that,
although petitioner was not served with a copy of the initial petition, he had actual notice of the
proceedings and actively participated in services prior to the filing of the amended petition
naming him as a respondent. Importantly, petitioner was not in jeopardy of losing his parental
rights at this stage, as the DHHR did not include any allegations of abuse or neglect against him
in the initial petition. However, upon the filing of the amended petition that included petitioner
as a named respondent and contained allegations against him, the circuit court immediately
appointed counsel to represent petitioner. As such, it is clear that at all times petitioner was a
named party to the action below, he was represented by counsel. Accordingly, we find that
petitioner was not prejudiced by the DHHR’s failure to include him as a respondent in the initial
petition or the circuit court’s appointment of counsel upon the filing of the amended petition.

        Next, petitioner argues that the circuit court erred in adjudicating him based on
abandonment. However, we note that in addition to the adjudication based on abandonment, the
circuit court also adjudicated petitioner of neglecting the children. On appeal, petitioner does not
challenge the circuit court’s adjudication on the basis of neglect, which was based on substantial
evidence. This included the circuit court’s findings that petitioner “failed to protect the infant
children and neglected the children by leaving them in the extended and sole care of the [mother]
. . . with knowledge that [the mother] has mental health issues that rendered her incapable of
parenting.” This clearly amounts to a failure on petitioner’s part to provide the children with, at a
minimum, appropriate supervision. West Virginia Code § 49-1-201 defines a “neglected child”
as one

       [w]hose physical or mental health is harmed or threatened by a present refusal,
       failure or inability of the child’s parent . . . to supply the child with necessary
       food, clothing, shelter, supervision, medical care or education, when that refusal,
       failure or inability is not due primarily to a lack of financial means on the part of
       the parent[.]

Here, it is clear that the circuit court had sufficient evidence upon which to adjudicate petitioner
of neglecting the children. As such, we find that an analysis of the circuit court’s additional
finding concerning petitioner’s abandonment of the children is unnecessary, given that the



       and shall be informed by the court of their right to be so represented and that if
       they cannot pay for the services of counsel, that counsel will be appointed.

West Virginia Code § 49-4-601(f)(2) goes on to direct that “[c]ounsel shall be appointed in the
initial order. For parents, legal guardians, and other persons standing in loco parentis, the
representation may only continue after the first appearance if the parent or other persons standing
in loco parentis cannot pay for the services of counsel.”




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finding of neglect was sufficient upon which to adjudicate petitioner as an abusing parent.4 For
these reasons, we find that petitioner is entitled to no relief in this regard.

         Next, petitioner argues that the circuit court erred in failing to consider less-restrictive
dispositional alternatives to termination of his parental rights. According to petitioner, a less-
restrictive option “would have been preferable to termination of parental rights.” He further
argues that termination of parental rights is only appropriate when there is no reasonable
likelihood that the conditions of abuse and neglect can be substantially corrected in the near
future and when necessary for the children’s welfare. Petitioner is correct that West Virginia
Code § 49-4-604(b)(6) instructs circuit courts to terminate parental rights upon such findings;
however, he ignores the fact that the circuit court made these findings in the current matter.

         Specifically, the circuit court found that there was no reasonable likelihood petitioner
could substantially correct the conditions of abuse and neglect because he “failed to fully avail
[himself] of the services offered[,]” in addition to the fact that he engaged in domestic violence
during the proceedings and permitted K.H. to be cared for by an inappropriate individual, among
other findings. This is in keeping with West Virginia Code § 49-4-604(c)(3), which establishes
that a situation in which 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
       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[.]

Moreover, the circuit court made findings addressing how termination of petitioner’s parental
rights served the children’s best interests, including the fact that they required continuity in care
and caretakers, along with the amount of time required to integrate them into a stable and
permanent home. As such, it is clear that the circuit court had sufficient evidence upon which to
find that there was no reasonable likelihood petitioner could substantially correct the conditions
of abuse and neglect in the near future and that termination of his parental rights was necessary
for the children’s welfare.

       We have also held 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

       4
        West Virginia Code § 49-1-201 defines “abusing parent” as “a parent . . . whose conduct
has been adjudicated by the court to constitute child abuse or neglect as alleged in the petition
charging child abuse or neglect.” (emphasis added).



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       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). Because the record is clear that
the circuit court had ample evidence upon which to base its findings, we find no error in the
termination of petitioners’ parental rights to the children.

        Finally, we find no error in the circuit court’s denial of post-termination visitation. On
appeal, petitioner asserts that there were no issues with the visits between him and the children,
although he acknowledges that J.K. did express some “troubling behaviors” after visitation. In
short, petitioner argues that “[t]here were not any concerns with what was occurring during the
visits with the . . . children” during the proceedings. We do not agree. In its dispositional order,
the circuit court specifically found that “the children have, subsequent to . . . visits [with
petitioner], manifested psychological distress by stuttering, pulling out hair to the point of
baldness, biting, kicking, and tantrums[.]” This evidence is in stark contrast to petitioner’s
assertion that the visits had no negative impact on the children.

       In discussing post-termination visitation, we have held as follows:

                “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). It is clear that the evidence
overwhelmingly established that continued visitation with petitioner would not be in the
children’s best interests. As set forth above, the children suffered severe negative effects
following visits. As such, we find that the circuit court’s denial of post-termination visitation was
not error.

       For the foregoing reasons, we find no error in the decision of the circuit court, and its
April 27, 2017, order is hereby affirmed.


                                                                                          Affirmed.

ISSUED: November 22, 2017




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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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