                             STATE OF WEST VIRGINIA

                           SUPREME COURT OF APPEALS

                                                                                     FILED
In re: J.B.                                                                       April 12, 2016
                                                                                  RORY L. PERRY II, CLERK
                                                                                SUPREME COURT OF APPEALS
No. 15-1096 (Kanawha County 14-JA-33)                                               OF WEST VIRGINIA




                               MEMORANDUM DECISION

        Petitioner Father N.B., by counsel Kevin P. Davis, appeals the Circuit Court of Kanawha
County’s October 28, 2015, order terminating his parental rights to four-year-old J.B.1 The West
Virginia Department of Health and Human Resources (“DHHR”), by counsel S.L. Evans, filed
its response in support of the circuit court’s order. The guardian ad litem (“guardian”), Rebecca
Stollar Johnson, filed a response on behalf of the child also in support of the circuit court’s order.
On appeal, petitioner argues that the circuit court erred in terminating his dispositional
improvement period and his parental rights to the child.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 February of 2014, the DHHR filed an abuse and neglect petition against the child’s
mother and petitioner. In that petition, the DHHR alleged that the child’s mother used drugs and
had recently overdosed; that the child was often dirty and not dressed appropriately for the
weather; that the home was dirty and had a roach infestation; and that neighbors often fed and
babysat the child. The DHHR noted in the petition that petitioner was incarcerated at that time
and could not provide for the child. Petitioner represents that he was incarcerated for
approximately fourteen months, including the month of February of 2014, because he stole two
televisions.


       1
         The proceedings below concerned another child, E.F., who is not petitioner’s biological
child and who is not at issue in this appeal. As such, this memorandum decision concerns only
petitioner’s parental rights to his biological child, J.B.
       2
         We note that West Virginia Code §§ 49-1-1 through 49-11-10 were repealed and
recodified during the 2015 Regular Session of the West Virginia Legislature. The new
enactment, West Virginia Code §§ 49-1-101 through 49-7-304, has minor stylistic changes and
became effective ninety days after the February 19, 2015, approval date. In this memorandum
decision, we apply the statutes as they existed during the pendency of the proceedings below.


                                                  1


        In May of 2014, the DHHR filed an amended abuse and neglect petition against
petitioner. In its amended petition, the DHHR alleged that petitioner remained incarcerated and,
therefore, had effectively abandoned the child. The circuit court held an adjudicatory hearing on
the amended petition in September of 2014. At that hearing, petitioner stipulated to the allegation
that he abandoned his child due to his incarceration. Thereafter, the circuit court granted
petitioner a post-adjudicatory improvement period and supervised visitation at the Beckley
Correctional Center. During this hearing, the child’s mother was restricted from visiting with the
child due to her continued drug use and non-compliance with parental services.

       While the exact date is unclear from the record on appeal, petitioner was granted parole
and released from incarceration at some time between September 8, 2014, and October of 2014.
Upon his release, petitioner resided with his mother in Kanawha County, West Virginia. By
October of 2014, due to his compliance with the terms of the improvement period, the
supervision requirement was removed from petitioner’s visits with the child.

        However, by January of 2015, the DHHR was concerned that petitioner was residing with
the child’s mother due to comments made by the child to that effect. The child’s mother
remained under a court order that prohibited her from visiting with the child. At a review hearing
held in February of 2015, based on the DHHR’s recommendation, the circuit court granted
petitioner an extension of his improvement period. The child remained in the DHHR’s custody,
but unsupervised visits between petitioner and the child continued.

        In March of 2015, the DHHR filed a “status summary” in which it expressed concern that
petitioner, during his unsupervised visits with the child, allowed the child’s mother to exercise
parenting time in violation of the circuit court’s order. The DHHR further relayed its concerns
that petitioner had missed visits with the child and may have begun using controlled substances.3

        In June of 2015, police arrested petitioner and the child’s mother together in an
abandoned house on charges of burglary.4 Having apparently been released thereafter,5 petitioner
was arrested and incarcerated for a violation of the terms of his parole in August of 2015.
Petitioner’s parole was ultimately revoked due to his criminal conduct in June of 2015. Petitioner
was incarcerated throughout the remainder of the proceedings below.



       3
        In April of 2015, the child’s mother’s parental rights were terminated to two children,
including the child in this matter. On appeal, this Court affirmed the mother’s termination of
parental rights. See In re: E.F. & J.B., No. 15-0833, 2016 WL 870572 (W.Va. Mar. 7, 2016)
(memorandum decision).
       4
         Those charges were ultimately lessened to trespassing. The disposition of those charges
is unclear from the record on appeal.
       5
          The parties relay in their briefs to this Court that petitioner was arrested twice in 2015—
once in June for burglary and again in August for a parole violation. While the parties do not
expressly indicate that petitioner was released from incarceration between his first and second
arrest, the same is implied.
                                                 2


        In September of 2015, the circuit court held a dispositional hearing. As noted above,
petitioner remained incarcerated. The DHHR presented evidence of petitioner’s arrest in June of
2015 and subsequent parole revocation and incarceration. Further evidence established that
petitioner failed to obtain suitable housing during his improvement period and that the child
returned from petitioner’s visits with bug bites, which the DHHR was concerned may have been
caused by bed bugs. During his testimony, petitioner admitted that he was with the child’s
mother when the two were arrested in June of 2015. However, he claimed that he did not know
she would be in the abandoned “drug house” when he and his friend entered that location.
Notwithstanding his description of the location as a “drug house,” petitioner testified that he did
not enter that location for the purpose of using drugs. On cross-examination, petitioner also
stated that he had been arrested ten times in the last ten years and that he spent a “couple years”
incarcerated during that period of time. The date of petitioner’s release from prison was
uncertain at the time of the dispositional hearing, but he claimed to anticipate his release on
parole within three months. He further claimed that he missed a parole hearing scheduled on the
same date as the dispositional hearing. Based on the evidence presented, the circuit court
terminated petitioner’s parental rights to the child. This appeal followed.

       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).

        On appeal, petitioner’s first assignment of error is that the circuit court erred in
terminating his “dispositional improvement period.” However, following a thorough review of
the parties’ briefs and the record submitted on appeal, we find no supporting evidence that
petitioner moved for or received a dispositional improvement period at any time, nor that the
circuit court terminated the same. We note that petitioner fails to direct this Court to the portion
of the record on appeal containing any reference to a dispositional improvement period or the
termination thereof, and the record before us is devoid of a certified docketing sheet, any motion
for dispositional improvement period and responses, and any order with regard to a dispositional




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improvement period.6 Rule 10(c)(7) of the West Virginia Rules of Appellate Procedure requires
that petitioner’s argument in his brief to this Court “contain appropriate and specific citations to
the record on appeal, including citations that pinpoint when and how the issues in the
assignments of error were presented to the lower tribunal.” As we find no factual support for
petitioner’s argument in the record on appeal, we hereby find no merit to this assignment of
error.

        Petitioner’s second assignment of error is that the circuit court erroneously terminated his
parental rights based solely on his incarceration at the time of the dispositional hearing.7
Pursuant to West Virginia Code § 49-4-604(6), circuit courts are directed to terminate parental
rights upon findings that there is no reasonable likelihood the conditions of abuse and neglect
can be substantially corrected in the near future and when necessary for the child’s welfare. West
Virginia Code § 49-4-604(c)(3) provides that no reasonable likelihood that the conditions of
abuse or neglect can be substantially corrected exists when “[t]he abusing parent . . . ha[s] not
responded to or followed through with a reasonable family case plan or other rehabilitative
efforts[.]” We have also held that “[t]ermination . . . may be employed without the use of
intervening less restrictive alternatives when it is found that there is no reasonable likelihood . . .
that conditions of neglect or abuse can be substantially corrected.” Syl. Pt. 7, in part, In re Katie
S., 198 W.Va. 79, 479 S.E.2d 589 (1996). Further, we have explained that incarceration may
support the termination of parental rights based on the analysis of a series of factors. See In re
Cecil T., 228 W.Va. 89, 717 S.E.2d 873 (holding that “[a]lthough we have not adopted a per se
rule regarding the impact incarceration has on a termination of parental rights decision, we have
likewise not said that the facts surrounding a parent’s incarceration may never form the basis for
terminating parental rights.”).

        Here, petitioner admitted that he abandoned his child due to his prolonged incarceration.
While petitioner now claims that his incarceration alone could not result in the termination of his
parental rights, it is clear that the circuit court based its ruling on additional factors. In this case,
prior to his termination, petitioner began missing visits with the child. Further, the child claimed
that petitioner allowed the child’s mother to visit, which was in direct violation of the circuit
court’s order regarding her visitation due to her continued drug use. Moreover, petitioner found
no suitable housing during his improvement period, and the child had bug bites when he returned
from visits with petitioner. Finally, and importantly, petitioner was arrested with the child’s
mother in a “drug house” during an extension of his improvement period. Based on his then-
status as a parolee, petitioner was incarcerated thereafter on a parole violation up to and
including the time for his dispositional hearing. Notably, at the time of the dispositional hearing,
        6
        Petitioner fails to direct this Court to any portion of the record on appeal containing a
motion for a dispositional improvement period—either filed in writing or presented orally at a
hearing in the proceedings below. We note that West Virginia Code § 49-4-610(3) requires a
motion for a dispositional improvement period to be made in writing.
        7
         Petitioner also argues that the DHHR “admits” that termination of his parental rights
would not have been necessary if he could maintain employment, obtain suitable housing, and
provide stability for the child. However, such an argument is of no import because it is clear that
petitioner failed to maintain employment, obtain suitable housing, and provide stability for the
child in this case.
                                                   4


petitioner had no scheduled date of release and no guarantee of release on parole. Given the
circumstances presented, there was no reasonable likelihood that the conditions of neglect could
be substantially corrected in the near future. Furthermore, the child required stability and
permanency. As such, we find no error in the circuit court’s termination of petitioner’s parental
rights herein.

       For the foregoing reasons, the circuit court’s October 28, 2015, termination order is
hereby affirmed.

                                                                                       Affirmed.

ISSUED: April 12, 2016

CONCURRED IN BY:



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




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