                                STATE OF WEST VIRGINIA

                              SUPREME COURT OF APPEALS

                                                                                            FILED
In Re: G.F.                                                                               June 16, 2014
                                                                                     RORY L. PERRY II, CLERK
                                                                                   SUPREME COURT OF APPEALS
No. 14-0127 (Raleigh County 11-JA-136)                                                 OF WEST VIRGINIA




                                 MEMORANDUM DECISION
        Petitioner Father, by counsel Steven Mancini, appeals the Circuit Court of Raleigh
County’s January 7, 2014, order terminating his parental rights to G.F. The West Virginia
Department of Health and Human Resources (“DHHR”), by counsel William Jones, filed its
response in support of the circuit court’s order. The guardian ad litem (“GAL”), John Parkulo,
filed a response on behalf of the child that also supported the circuit court’s order. On appeal,
Petitioner Father alleges that the circuit court erred in terminating his parental rights without
providing him proper notice and absent a motion to terminate his parental rights. Petitioner
Father also alleges that the circuit court erred in terminating his parental rights against the weight
of the evidence.

        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 decision is appropriate under Rule
21 of the Rules of Appellate Procedure.

        In June of 2011, the DHHR filed an abuse and neglect petition against G.F.’s mother,
alleging that she admitted to using hydrocodone while she was pregnant with T.C.1 and that T.C.
was born with opiates in his system. In January of 2012, the DHHR amended the mother’s
petition for abuse and neglect by adding Petitioner Father. The amended petition alleged that
Petitioner Father abandoned G.F. because he failed to provide for her after he was released from
incarceration. Petitioner Father stipulated that his incarceration interfered with his ability to
appropriately care for and support G.F. As such, the circuit court adjudicated the child as
neglected and Petitioner Father as a neglectful parent. Thereafter, the circuit court granted
Petitioner Father a six month post-adjudicatory improvement period.

        During a review hearing on March 28, 2013, the circuit court found that Petitioner Father
failed to submit to regular drug screens. Several months later, the circuit court held another
review hearing on Petitioner Father’s post-adjudicatory improvement period. By order entered on
July 1, 2013, the circuit court found that Petitioner Father was “not progressing in his post­


       1
           Petitioner Father is not T.C.’s father, and T.C. is not part of this appeal.

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adjudicatory improvement period,” and set another review hearing for August 22, 20132, to
enable Petitioner Father to successfully complete his improvement period. During the subsequent
review hearing, the circuit court heard evidence favoring the termination of Petitioner Father’s
parental rights. However, because Petitioner Father failed to attend the hearing, the circuit court
continued the hearing and informed all the parties, including Petitioner Father’s counsel, that a
dispositional hearing would be set for October 2, 2013, to allow Petitioner Father the opportunity
to present any evidence.

       At the conclusion of the dispositional hearing, the circuit court found that Petitioner
Father’s addiction has seriously impaired his parenting skills and that he had failed to benefit
from services during the proceedings. As such, the circuit court terminated Petitioner Father’s
parental rights. It is from this order that Petitioner Father now appeals.

       The Court has previously established the following standard of review in such cases:

               “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). Petitioner Father raises three
assignments of error on appeal. First, Petitioner Father argues that the circuit court erred in
terminating his parental rights without giving him proper notice of the dispositional hearing.
Upon our review, the Court finds no error in the circuit court’s termination of Petitioner Father’s
parental rights. Further, it is clear that the circuit court offered Petitioner Father both notice of
the dispositional hearing and an opportunity to be heard, as required by Rule 31 of the West
Virginia Rules of Procedure for Child Abuse and Neglect Proceedings and West Virginia Code §
49-6-5(a).

        A review of the transcript reveals that at the conclusion of the May 30, 2013, hearing the
circuit court set a “review and/or dispositional hearing on August 22, [2013].”3 Further,
       2
           The circuit court continued Petitioner Father’s hearing until September 26, 2013.
       3
         Petitioner Father’s counsel was not present at this hearing, but substitute counsel was
present during the hearing. The record is devoid of any information as to why Petitioner Father’s
counsel could not attend the hearing, but he arranged for another attorney to attend the hearing in
his place.
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Petitioner Father’s counsel was present at the September 26, 2013, hearing even though
Petitioner Father was not. Therefore the circuit court continued the dispositional hearing to allow
Petitioner Father to attend and present any evidence. As such, it is clear that proper notice was
provided to all parties pursuant to Rule 31 of the West Virginia Rules of Procedure for Child
Abuse and Neglect Proceedings. Further, the Court finds that Petitioner Father was offered the
opportunity to be heard at the dispositional hearing as required by West Virginia Code § 49-6­
5(a). Therefore, we find no error in this regard.

        Next, Petitioner Father argues that the circuit court violated his due process rights by
terminating his parental rights without a proper motion. Specifically, Petitioner Father alleges
that he was not made aware of the reasons for termination. This Court has held that “‘[w]here it
appears from the record that the process established by the Rules of Procedure for Child Abuse
and Neglect Proceedings . . . has been substantially disregarded or frustrated, the resulting order
of disposition will be vacated and the case remanded for compliance with that process and entry
of an appropriate dispositional order.’ Syl. Pt. 5, In re Edward B., 210 W.Va. 621, 558 S.E.2d
620 (2001).” Syl. Pt. 6, In re Elizabeth A., 217 W.Va. 197, 617 S.E.2d 547 (2005).

         Although we find that the DHHR did not file a case plan seeking termination or move
for the termination of Petitioner Father’s parental rights, this inaction did not substantially
frustrate the purpose of the West Virginia Rules of Procedure for Child Abuse and Neglect
Proceedings. Rule 2 of those rules provides that “[t]hese rules shall be liberally construed to
achieve safe, stable, secure permanent homes for abused and/or neglected children and fairness
to all litigants. These rules are not to be applied or enforced in any manner which will endanger
or harm a child . . . .” The record before us shows that the circuit court heard evidence that
Petitioner Father failed to submit to drug tests, which imputed knowledge to Petitioner Father as
early as March 28, 2013, of the conditions that needed to be met to complete his improvement
period. Prior to Petitioner Father’s continued dispositional hearing, the circuit court heard
testimony that the DHHR was seeking termination because Petitioner Father did not attend
parenting classes, failed two drug tests, and did not report for numerous drug tests in violation
of the terms of his improvement period. Importantly, the circuit court continued the
dispositional hearing to allow Petitioner Father to address these allegations. Therefore, the rules
were not “substantially disregarded or frustrated” in this case.

        Finally, the Court finds no error in the circuit court’s decision to terminate Petitioner
Father’s parental rights. Petitioner Father alleges that the circuit court failed to make an accurate
accounting of the evidence below, but it is clear the evidence supported termination. As noted
above, the circuit court heard testimony that Petitioner Father failed to regularly visit G.F.,
failed drug screens, failed to report to numerous drug tests, and stopped participating in other
services in March of 2013.

        Pursuant to West Virginia Code § 49-6-5(b)(3), a situation in which there is no
reasonable likelihood that the parent can substantially correct the conditions of abuse and neglect
includes one where “[t]he abusing parent . . . [has] not responded to or followed through with a
reasonable family case plan or other rehabilitative efforts . . . designed to reduce or prevent the
abuse or neglect of the child . . . .” As stated above, the evidence shows that Petitioner Father
failed to participate in services designed to remedy the conditions of abuse and neglect. Pursuant

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to West Virginia Code § 49-6-5(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 the
January 7, 2014, order is hereby affirmed.


                                                                                        Affirmed.

ISSUED: June 16, 2014

CONCURRED IN BY:

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




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