                               STATE OF WEST VIRGINIA
                             SUPREME COURT OF APPEALS

                                                                                   FILED
In re I.W.
                                                                               November 8, 2019
                                                                                 EDYTHE NASH GAISER, CLERK
No. 19-0377 (Lewis County 18-JA-64)                                              SUPREME COURT OF APPEALS
                                                                                     OF WEST VIRGINIA




                                MEMORANDUM DECISION



        Petitioner Father T.M., by counsel Steven B. Nanners, appeals the Circuit Court of Lewis
County’s April 1, 2019, order denying his motion to modify disposition.1 The West Virginia
Department of Health and Human Resources (“DHHR”), by counsel S.L. Evans, filed a response
in support of the circuit court’s order. The guardian ad litem, Hunter D. Simmons, 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 denying his motion to modify disposition without holding a hearing.

       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 September of 2018, the DHHR filed a child abuse and neglect petition against petitioner
and I.W.’s mother. Specifically, the DHHR alleged that the mother abused drugs during her
pregnancy with I.W. and that petitioner was aware of the mother’s drug use and participated in
drug use with her. Further, petitioner left the hospital the day after the child’s birth and never
returned. While petitioner did attend the preliminary hearing, he failed to attend any subsequent
hearings.2 Testimony taken at the adjudicatory hearings held in November of 2018 and January of
2019 established that petitioner was aware of the mother’s substance abuse while she was pregnant
with the child, failed to provide any financial support for the child, and failed to inquire about the
child’s health or wellbeing. As such, the circuit court adjudicated petitioner as an abusing parent.
Petitioner’s parental rights were ultimately terminated at a dispositional hearing held later in

       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).
       2
           Petitioner was represented by counsel at all hearings during the proceedings below.
                                                  1
January of 2019, based upon findings that there was no reasonable likelihood that petitioner could
correct the conditions of abuse and neglect in the near future and that termination was necessary
for the child’s welfare. The dispositional order was entered on March 11, 2019, and petitioner did
not appeal this order.
        In April of 2019, petitioner filed a motion to “reopen” disposition. In his motion, petitioner
stated that “he did not have an effective way to communicate with Counsel or [the DHHR] and
further was addicted to drugs.” Petitioner asserted that since the dispositional hearing, he had
“gone into in-patient treatment and it would be appropriate to permit the Dispositional hearing to
be re-opened to permit such testimony and entertain [petitioner’s] Motion for a Post-Adjudicatory
Improvement Period.” Without holding a hearing, the circuit court denied petitioner’s motion,
noting that this Court has previously held that termination of parental rights “completely severs
the parent-child relationship, and, . . . the law no longer recognizes such person as a ‘parent’ with
regard to the child(ren) involved in the particular termination proceeding.” Syl. Pt. 4, in part, In re
Cesar L., 221 W. Va. 249, 654 S.E.2d 373 (2007). Because petitioner’s parental rights had
previously been terminated, the circuit court concluded that he lacked standing to seek
modification of the dispositional order. It is from the April 1, 2019, order denying his motion to
modify disposition that petitioner appeals.3


       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 argues that the circuit court erred in denying his motion to “reopen”
disposition without holding a hearing. Petitioner argues that the circuit court erroneously addressed
his motion to “reopen” disposition as a motion to modify disposition. According to petitioner, he
was not seeking to modify disposition, but rather to reopen disposition so that he could present
“additional testimony regarding the [d]isposition.” He asserts that given the “remedial nature” of
abuse and neglect proceedings, the circuit court should have held a hearing so that he could offer

       3
        The mother’s parental rights were also terminated during the proceedings below. The child
was placed in a foster home with a permanency plan of adoption by the foster family.


                                                  2
testimony as to his treatment following disposition and his ability to remedy the conditions of
abuse and neglect. We disagree.

        Pursuant to West Virginia Code § 49-4-606(a),

        [u]pon motion of a child, a child’s parent or custodian or the department alleging
        a change of circumstances requiring a different disposition, the court shall conduct
        a hearing pursuant to section six hundred four [§ 49-4-604] of this article and may
        modify a dispositional order if the court finds by clear and convincing evidence a
        material change of circumstances and that the modification is in the child’s best
        interests.

(Emphasis added). This Court has held that

        [a] final order terminating a person’s parental rights, as the result of either an
        involuntary termination or a voluntary relinquishment of parental rights,
        completely severs the parent-child relationship, and, as a consequence of such order
        of termination, the law no longer recognizes such person as a “parent” with regard
        to the child(ren) involved in the particular termination proceeding.

Cesar L., 221 W. Va. at 251, 654 S.E.2d at 375, syl. pt. 4. Further,

        [a] person whose parental rights have been terminated by a final order, as the result
        of either an involuntary termination or a voluntary relinquishment of parental
        rights, does not have standing as a “parent,” pursuant to [West Virginia Code § 49-
        4-606] to move for modification of disposition of the child with respect to whom
        his/her parental rights have been terminated.

Id. at 251, 654 S.E.2d at 375, syl. pt. 6.

        Petitioner attempts to argue that his motion to “reopen” disposition was distinct from a
motion to modify disposition. However, petitioner’s argument is a matter of semantics. Although
he claims that he was not seeking to modify disposition, his argument is disingenuous given his
stated desire to present evidence for the purpose of requesting an improvement period and
demonstrating his ability to “remedy the conditions of abuse and neglect.” In order for the circuit
court to grant petitioner an improvement period, it would have been required to vacate its order
terminating his parental rights. Therefore, regardless of what petitioner claims on appeal, he sought
modification of his disposition below. As shown above, a parent whose parental rights have been
involuntarily terminated “does not have standing as a ‘parent’ . . . to move for modification of
disposition.” Id. Indeed, petitioner concedes as much in his brief on appeal, stating “[t]his Court
has held that a parent that has their parental rights terminated does not have legal standing to seek
a Motion to Modify Disposition.” Accordingly, because petitioner’s parental rights have been
terminated, we find no error in the circuit court’s denial of his motion to modify disposition.

       For the foregoing reasons, we find no error in the decision of the circuit court, and its April
1, 2019, order is hereby affirmed.

                                                  3
                                        Affirmed.

ISSUED: November 8, 2019


CONCURRED IN BY:

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




                                    4
