                             STATE OF WEST VIRGINIA
                           SUPREME COURT OF APPEALS

In re N.Z.                                                                           FILED
                                                                                  April 19, 2019
No. 18-0995 (Mercer County 17-JA-056-WS)                                        EDYTHE NASH GAISER, CLERK
                                                                                SUPREME COURT OF APPEALS
                                                                                    OF WEST VIRGINIA




                               MEMORANDUM DECISION



         Petitioner Father J.Z., by counsel P. Michael Magann, appeals the Circuit Court of
Mercer County’s August 21, 2018, order terminating his parental rights to N.Z.1 The West
Virginia Department of Health and Human Resources (“DHHR”), by counsel Mindy M. Parsley,
filed a response in support of the circuit court’s order and a supplemental appendix. The guardian
ad litem (“guardian”), Thomas M. Janutolo, Jr., filed a response on behalf of the child in support
of the circuit court’s order. On appeal, petitioner argues that the circuit court erred in terminating
his parental, custodial, and guardianship rights.

        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 2017, the DHHR filed an abuse and neglect petition that alleged petitioner,
a resident of South Carolina, neglected the child by failing to provide support and by
discouraging the child’s mother from seeking financial assistance to support the child. At the
time, the mother lived with the child in West Virginia and petitioner did not reside in the home.
The petition contained additional allegations against the child’s mother, including her inability to
properly care for the child. According to the petition, a Child Protective Services worker
observed the mother changing the child’s diaper and noticed “severe diaper rash” that was “very
red and irrita[ted] with healing sores.” According to the mother, she had been prescribed
medication for this condition two weeks before the worker’s visit, yet the condition persisted.


       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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The worker further observed the mother’s failure to clean feces off the child’s genitals, which
presented a risk for continued diaper rash. According to the worker, the child and her clothes
were generally dirty and the child appeared to be “developing a slight rash due to uncleanliness.”
The petition further alleged issues related to the home’s condition, including the presence of a
cockroach infestation.

         In April of 2017, the circuit court held an adjudicatory hearing. The DHHR presented
evidence that petitioner failed to provide the child with support. Petitioner testified in his
defense, but the circuit court ultimately found that his testimony lacked credibility. Based upon
this evidence, the circuit court adjudicated petitioner as having neglected the child and further
granted him a post-adjudicatory improvement period. Thereafter, a case plan was adopted that
required petitioner to (1) participate in and complete parenting classes and training; (2) pay child
support; and (3) establish a bond with the child through supervised visitation. The record shows
that, at least initially, petitioner traveled from South Carolina to West Virginia for monthly
visitation with the child. Additionally, the DHHR was able to arrange for petitioner to receive
services, such as parenting classes and training, in his home state of South Carolina. According
to the parties, the circuit court later granted petitioner a post-dispositional improvement period.

        After the DHHR filed a motion to terminate petitioner’s parental rights, the circuit court
held a dispositional hearing in August of 2018. Petitioner did not attend but was represented by
counsel.2 The DHHR presented testimony that, although initially compliant, petitioner had not
complied with the terms of his case plan since approximately November of 2017. This included a
total lack of visits with the child during that time period. The DHHR worker testified that
although the DHHR was able to arrange for some services in South Carolina, it was unable to
identify a psychologist to perform an evaluation of petitioner in that state. Accordingly, the
DHHR arranged for petitioner to submit to a psychological evaluation in Princeton, West
Virginia. According to the DHHR worker’s testimony, petitioner refused to submit to the
evaluation because he claimed the DHHR was biased against him. Based upon this evidence, the
circuit court ultimately terminated petitioner’s parental, custodial, and guardianship rights. It is
from the dispositional order that petitioner appeals.3

       The Court has previously established the following standard of review:


       2
         In the petition for appeal, counsel indicates that he was appointed to represent petitioner
in the proceedings below at a hearing in July of 2018 that was originally scheduled as a
dispositional hearing. Counsel further asserts that he was unable to establish contact with
petitioner prior to the dispositional hearing in August of 2018. Without citation to the record, in
contradiction to the West Virginia Rules of Appellate Procedure, counsel asserts that he
requested a continuance of the August of 2018 dispositional hearing in order to contact
petitioner, but that the circuit court denied the request. See W. Va. R. App. Pro. 10(c)(4)
(requiring that a brief contain a statement of the case “[s]upported by appropriate and specific
references to the appendix or designated record”).
       3
        The child’s mother retains her parental rights. According to the DHHR, the current
permanency plan is reunification with the mother, who is participating in an improvement
period. The concurrent permanency plan is adoption by the current foster family.
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               “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 proceedings below.

         On appeal, petitioner argues that his failure to attend visitations and the psychological
evaluation due to transportation issues constitute insufficient grounds upon which to terminate
his parental, custodial, and guardianship rights. According to petitioner, a DHHR worker
testified that he “told her that he was having car trouble and therefore [was] not able to travel
from South Carolina to West Virginia for visits between November 2017 and March 2018.” He
further argues that the fact that the DHHR arranged for some services to be completed in South
Carolina evidences the reality that the DHHR recognized that, in order for all services to be
successful, they needed to be provided in his home state. Accordingly, petitioner argues that
there was insufficient evidence to support termination of his parental, custodial, and guardianship
rights. We do not agree, however, as petitioner’s argument misstates the record and fails to
acknowledge the reality of his noncompliance with services.

        Petitioner argues that he “worked within his means and financial ability, based upon
where he resided and his access to transportation to address all of the issues and satisfy the goals
set forth in his improvement period and Family Case Plan.” He goes on to argue that the issue
that ultimately resulted in his noncompliance was his inability to travel from South Carolina to
West Virginia. However, petitioner ignores that fact that he admits in his brief that the DHHR
provided testimony at disposition that “there had been no compliance by [petitioner] with the
terms of his Family Case Plan” for the nine months prior to the hearing. As noted above,
petitioner’s case plan required that he participate in and complete parenting classes and training,
services that he acknowledges were provided in South Carolina. Despite the DHHR arranging for
these services to be provided locally, petitioner cites to no evidence that he completed this
requirement or otherwise provided any evidence to refute the DHHR worker’s testimony
regarding the extended period of his complete noncompliance.

       Moreover, petitioner fails to recognize that his explanation to the DHHR regarding
missed visits covered only the period from November of 2017 through March of 2018 without
accounting for the additional period from March of 2018 through the dispositional hearing in

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August of 2018. West Virginia Code § 49-4-610(4) explicitly provides that “the respondent shall
be responsible for the initiation and completion of all terms of the improvement period.” While
petitioner argues that he informed the DHHR he was having transportation issues, he cites to
nowhere in the record where he requested that the DHHR make any accommodation so that he
could fulfill his scheduled visitations with the child, including providing assistance with
transportation. Instead, petitioner unilaterally decided not to visit with the child for
approximately nine months based on transportation issues that are supported only by his self-
serving assertions which lack corroboration. “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 (1996) (citing Tiffany Marie S., 196 W. Va. at 228 and 237, 470 S.E.2d at
182 and 191; State ex rel. Amy M. v. Kaufman, 196 W. Va. 251, 259, 470 S.E.2d 205, 213
(1996)). Accordingly, it is clear that the circuit court did not err in relying on petitioner’s failure
to visit with the child for the majority of the proceedings.

         Similarly, petitioner argues that his psychological evaluation should have been scheduled
with a provider in South Carolina. However, in advancing this argument there are two important
issues that petitioner acknowledges – and fails to refute – in his brief. The first is that the record
shows that the DHHR attempted to accommodate petitioner by locating a provider in South
Carolina who could perform the evaluation in question. It was only after the DHHR determined
that it would be unable to provide petitioner with an evaluation in South Carolina that the DHHR
scheduled the evaluation in West Virginia. Moreover, petitioner even acknowledges that the
DHHR provided testimony that he “agreed to change the location of his psychological evaluation
. . . to West Virginia.” Second, the DHHR provided testimony that petitioner later refused to
submit to the evaluation because he claimed that “West Virginia was biased and he would not
complete the evaluation in West Virginia.” Given this evidence, it is disingenuous for petitioner
to argue on appeal that transportation issues were the sole reason he did not comply with the
scheduled evaluation. Instead, it appears that petitioner chose not to comply with the service
offered after he agreed to a change in location.

        According to West Virginia Code § 49-4-604(b)(6), a circuit court may terminate
parental, custodial, and guardianship 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. Pursuant to West Virginia Code § 49-4-
604(c)(3), 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.

The record clearly supports the circuit court’s finding that there was no reasonable likelihood
petitioner could substantially correct the conditions of neglect, given his complete lack of

                                                  4
compliance with services for the nine months preceding the dispositional hearing. Further, we
have held as follows:

               “[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, and this is particularly applicable to children under the age
       of three years who are more susceptible to illness, need consistent close
       interaction with fully committed adults, and are likely to have their emotional and
       physical development retarded by numerous placements.” Syl. Pt. 1, in part, In re
       R.J.M., 164 W.Va. 496, 266 S.E.2d 114 (1980).

Cecil T., 228 W. Va. at 91, 717 S.E.2d at 875, syl. pt. 4. Given that the child is only two years
old, coupled with petitioner’s failure to visit with the child for nine months prior to disposition, it
is clear that the child’s welfare required termination of petitioner’s parental, custodial, and
guardianship rights. Accordingly, we find no error in the circuit court’s decision.4

        Lastly, because the proceedings involving the mother are ongoing, this Court reminds the
circuit court of its duty to establish permanency for the child. Rule 39(b) of the Rules of
Procedure for Child Abuse and Neglect Proceedings requires:

       At least once every three months until permanent placement is achieved as
       defined in Rule 6, the court shall conduct a permanent placement review
       conference, requiring the multidisciplinary treatment team to attend and report as
       to progress and development in the case, for the purpose of reviewing the progress
       in the permanent placement of the child.

Further, this Court reminds the circuit court of its duty pursuant to Rule 43 of the Rules of
Procedure for Child Abuse and Neglect Proceedings to find permanent placement for the child
within twelve months of the date of the disposition order. As this Court has stated,


       4
          In support of this assignment of error, petitioner also argues that because he was not
present at the dispositional hearing and had been appointed new counsel, the circuit court erred
because he “should have been able to have the opportunity to appear at the hearing and [should]
have been given the opportunity to meet his new counsel” so that he could have requested that
the DHHR “accommodate the difficulty he faced complying with the terms of his improvement
period.” We find this argument to be without merit. While it is true that West Virginia Code §
49-4-604(a)(2) requires the circuit court, after the filing of a case plan, to “forthwith proceed to
disposition giving both the petitioner and respondents an opportunity to be heard,” petitioner
fails to recognize that he was provided with this opportunity. At no point in his brief does
petitioner argue that the dispositional hearing was not properly noticed. Instead, he simply
asserts that he did not attend the hearing due to transportation issues. This is insufficient to
establish that he was not provided an opportunity to be heard, as required by the statute. Further,
it is clear that petitioner could not establish that the DHHR was required to accommodate him
any more than it already attempted to, especially given his extended failure to comply with the
services that the DHHR arranged to have provided locally. As such, petitioner is entitled to no
relief in this regard.
                                                  5
               [t]he [twelve]-month period provided in Rule 43 of the West Virginia
       Rules of Procedure[] for Child Abuse and Neglect Proceedings for permanent
       placement of an abused and neglected child following the final dispositional order
       must be strictly followed except in the most extraordinary circumstances which
       are fully substantiated in the record.

Cecil T., 228 W. Va. at 91, 717 S.E.2d at 875, syl. pt. 6. Moreover, this Court has stated that

               [i]n determining the appropriate permanent out-of-home placement of a
       child under [West Virginia Code § 49-4-604(b)(6)], the circuit court shall give
       priority to securing a suitable adoptive home for the child and shall consider other
       placement alternatives, including permanent foster care, only where the court
       finds that adoption would not provide custody, care, commitment, nurturing and
       discipline consistent with the child’s best interests or where a suitable adoptive
       home [cannot] be found.

Syl. Pt. 3, State v. Michael M., 202 W. Va. 350, 504 S.E.2d 177 (1998). Finally, “[t]he guardian
ad litem’s role in abuse and neglect proceedings does not actually cease until such time as the
child is placed in a permanent home.” Syl. Pt. 5, James M. v. Maynard, 185 W. Va. 648, 408
S.E.2d 400 (1991).

      For the foregoing reasons, we find no error in the decision of the circuit court, and its
August 21, 2018, order is hereby affirmed.


                                                                                          Affirmed.

ISSUED: April 19, 2019


CONCURRED IN BY:

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




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