                               STATE OF WEST VIRGINIA

                             SUPREME COURT OF APPEALS

                                                                                      FILED
In Re: Q.E. & Z.E.                                                                  April 13, 2015
                                                                                 RORY L. PERRY II, CLERK
                                                                               SUPREME COURT OF APPEALS
No. 14-1186 (Kanawha County 14-JA-217 & 14-JA-218)                                 OF WEST VIRGINIA


                                MEMORANDUM DECISION
        Petitioner Father, by counsel Natalie Atkinson, appeals the Circuit Court of Kanawha
County’s October 21, 2014, order terminating his parental rights to two-year-old Q.E. and two­
year-old Z.E. 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 (“guardian”), Sharon Childers, filed a response on behalf of the children that supports the
circuit court’s order. Petitioner filed a reply. On appeal, Petitioner Father argues that the circuit
court erred in terminating his parental rights and in making evidentiary rulings.

        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.

        On July 4, 2014, petitioner was charged with child neglect resulting in injury and child
abuse resulting in injury. Several days later, the DHHR filed an abuse and neglect proceeding
against petitioner alleging that he struck Z.E. in the face because the child would not stop crying.
The petition further alleged the petitioner failed to provide the children with necessary food,
clothing, supervision, and housing.1

        Petitioner waived his right to a preliminary hearing, and the circuit court directed the
DHHR to provide petitioner with services after he was released from jail, including a
psychological/substance abuse evaluation, supervised visitation, parenting/adult life skills
classes, and random drug screens. In August of 2014, the circuit court held an adjudicatory
hearing during which petitioner admitted that his substance abuse negatively affected his ability
to parent his children. Accordingly, the circuit court adjudicated petitioner as an abusing parent.
In September of 2014, the circuit court held a dispositional hearing and terminated petitioner’s
parental rights.2 It is from this order that petitioner appeals

       The Court has previously established the following standard of review:

       1
       Further, the DHHR stated that petitioner admitted that all he does is “sit around and
smoke pot all day” while the children are in his care
       2
           Petitioner remained incarcerated on his related criminal charges.

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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).

        On appeal, petitioner argues that the circuit court erred in terminating his parental rights
based upon his use of marijuana. Petitioner also asserts that he could not participate in
rehabilitative services because he was incarcerated during the underlying proceedings. This
Court has stated:

               When no factors and circumstances other than incarceration are raised at a
       disposition hearing in a child abuse and neglect proceeding with regard to a
       parent’s ability to remedy the condition of abuse and neglect in the near future,
       the circuit court shall evaluate whether the best interests of a child are served by
       terminating the rights of the biological parent in light of the evidence before it.
       This would necessarily include but not be limited to consideration of the nature of
       the offense for which the parent is incarcerated, the terms of the confinement, and
       the length of the incarceration in light of the abused or neglected child’s best
       interests and paramount need for permanency, security, stability and continuity.

Syl. Pt. 3, Id. The case of In re Cecil T. also recognized that “this Court has never held that
incarceration can not [sic] be the sole basis for terminating parental rights.” Id. at 96, 717
S.E.2d at 880.

        Upon review, this Court finds no merit to petitioner’s argument. The record shows that
the circuit court relied upon factors other than petitioner’s incarceration in reaching disposition.
The record shows that petitioner failed to acknowledge the underlying conditions of abuse. We
have previously held that

       [i]n order to remedy the abuse and/or neglect problem, the problem must first be
       acknowledged. Failure to acknowledge the existence of the problem, i.e., the
       truth of the basic allegation pertaining to the alleged abuse and neglect or the
       perpetrator of said abuse and neglect, results in making the problem untreatable



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       and in making an improvement period an exercise in futility at the child’s
       expense.

In re Kaitlyn P., 225 W.Va. 123, 126, 690 S.E.2d 131, 134 (2010) (quoting W.Va. Dep’t of
Health and Human Res. v. Doris S., 197 W.Va. 489, 498, 475 S.E.2d 865, 874 (1996)). The
evidence produced at the dispositional hearing supports that circuit court’s order terminating
petitioner’s parental rights. Petitioner’s psychological evaluation indicates that petitioner’s
“prognosis to . . . effectively parent [his children] is extremely poor upon his denial and
minimization of problems . . . .” Further, while petitioner admitted to using marijuana, he denied
that he had a drug problem. This evidence constitutes a circumstance in which there is no
reasonable likelihood that the conditions of abuse or neglect could be substantially corrected in
the near future under West Virginia Code § 49-6-5(b)(2). In such circumstances, circuit courts
are directed to terminate parental rights upon this finding and when termination is necessary for
the child’s welfare pursuant to West Virginia Code § 49-6-5(a)(6).

        Petitioner also argues that he was unfairly prejudiced because of the DHHR reliance upon
his psychological report, which was not properly provided to his counsel. Petitioner contends
that his counsel did not receive a copy of this report until the morning of his dispositional
hearing in violation of Rule 10(e) of the West Virginia Rules of Procedure for Abuse and
Neglect Proceedings.3

       We have previously held that

       [w]here it appears from the record that the process established by the Rules of
       Procedure for Child Abuse and Neglect Proceedings and related statutes for the
       disposition of cases involving children adjudicated to be abused or neglected 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). The record in this case is
devoid of any evidence that the DHHR violated Rule 10(e). Petitioner failed to produce any
evidence to show that the report from his psychological evaluation was intentionally withheld
from counsel or that it could have been produced any earlier than the day of the dispositional
hearing. Petitioner further acknowledged that the circuit court temporarily suspended the hearing
to allow petitioner to review the evaluation. We have previously held that “[c]hild abuse and
neglect cases must be recognized as being among the highest priority for the courts’ attention.
Unjustified procedural delays wreak havoc on a child’s development, stability and security.” Syl.
Pt. 1, in part, In the Interest of Carlita B., 185 W.Va. 613, 408 S.E.2d 365 (1991). The record
reflects that, petitioner was “afforded a meaningful opportunity to be heard, including the
opportunity to testify and to present and cross-examine evidence.” W.Va. Code § 49-6-2(c).
Accordingly, we find that the Rules of Procedure for Abuse and Neglect Proceedings were not
“substantially disregarded or frustrated.”
       3
         Rule 10(e) that “[i]f, prior to . . . any hearing, a party discovers additional evidence or
material that should have been disclosed, that party shall promptly notify all other parties and
their counsel . . . .”

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      For the foregoing reasons, we find no error in the decision of the circuit court and its
October 21, 2014, order is hereby affirmed.


                                                                                    Affirmed.

ISSUED: April 13, 2015

CONCURRED IN BY:

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




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