                                                      STATE OF WEST VIRGINIA 

                                                    SUPREME COURT OF APPEALS


                                                                                     FILED
In re A.W.
                                                                                   May 14, 2018
                                                                                 EDYTHE NASH GAISER, CLERK
No. 17-0876 (Wood County 16-JA-93)                                               SUPREME COURT OF APPEALS
                                                                                     OF WEST VIRGINIA 



                                                          MEMORANDUM DECISION
        Petitioner Father W.D., by counsel Eric K. Powell, appeals the Circuit Court of Wood
County’s August 29, 2017, order terminating his parental rights to A.W.1 The West Virginia
Department of Health and Human Resources (“DHHR”), by counsel Lee Niezgoda, filed a
response in support of the circuit court’s order. The guardian ad litem (“guardian”), Ernest M.
Douglass, filed a response on behalf of the child in support of the circuit court’s order. Petitioner
filed a reply. On appeal, petitioner argues that the circuit court erred in (1) finding that the
petition and amended petition alleged abandonment and further erred in adjudicating him on
these grounds, (2) improperly shifting the burden of proof to him to prove that the circumstances
leading to his previous involuntary termination had been corrected and whether the DHHR failed
to establish by clear and convincing evidence that he abused and neglected A.W., and (3)
denying him a less-restrictive alternative than termination of his parental rights.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.

        On April 11, 2016, the DHHR filed a petition alleging abuse and neglect against
petitioner, the father of A.W. On September 12, 2016, the circuit court held an adjudicatory
hearing at which petitioner moved the court to continue the hearing to allow for paternity testing
to determine whether he was the biological father of the child. The circuit court granted his
motion. However, when a representative was sent to the jail where petitioner was housed to
obtain a swabbed DNA sample, petitioner refused to provide a sample.
                                                            
              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
        Following the initial brief on appeal, upon substitution of counsel, petitioner filed an
amended brief raising additional assignments of error. All assignments of error are addressed in
this memorandum decision.
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        Due to petitioner’s failure to participate in paternity testing after raising the issue of
paternity, the DHHR filed an amended petition on February 22, 2017, alleging that petitioner
refused to participate in paternity testing and abandoned the child, based upon his failure to
contact the child for over six months and failure to provide emotional or financial support to the
child. The petition further alleged that such conduct constituted a settled purpose to forego
parental duties and responsibilities. On March 21, 2017, the circuit court held an adjudicatory
hearing on the amended petition. Despite his prior refusal to provide a sample for DNA testing,
petitioner again moved for a continuance to allow for paternity testing. However, petitioner
refused to provide a sample again.

        After petitioner’s second refusal to participate in paternity testing, the circuit court
proceeded to the adjudicatory hearing on May 2, 2017. When asked if he was the father of A.D.,
petitioner responded affirmatively. He testified that he was married to A.W.’s mother at the time
of the child’s birth. However, petitioner refused to answer questions regarding whether he had
ever had contact with the child. Petitioner also testified that he was incarcerated for unlawful
entry, but had yet to be sentenced. The mother of the child testified that petitioner was the legal
and biological father of A.W., that petitioner never had any contact with A.W., and that
petitioner never provided any emotional or financial support to A.W. The circuit court took
judicial notice of a prior proceeding wherein petitioner’s parental rights to an older child were
terminated in June of 2016. Petitioner’s prior termination was based upon his failure to comply
with the conditions of his improvement period, including his failure to participate in drug
screening, continued abuse of drugs, failure to participate in parenting and life skills training, and
dishonesty with service providers. The circuit court adjudicated petitioner as an abusing parent
based upon his failure to provide A.W. with necessary food, clothing, supervision, or medical
care, in addition to his failure to contact the child for over six months or provide the child with
financial or emotional support. Additionally, the circuit court found that there was no evidence
that, since his prior involuntary termination, petitioner “had a substantial change in
circumstances or . . . shown a willingness or the ability to change.”

        On August 15, 2017, the circuit court held a dispositional hearing. The DHHR presented
argument that due to aggravated circumstances, it was not required to make reasonable efforts to
reunify the family and moved for termination of petitioner’s parental rights. The circuit court
took judicial notice of petitioner’s May 8, 2017, sentencing order. Petitioner was sentenced to
one to ten years of incarceration for unlawful entry, and his projected release date was November
29, 2021. The circuit court again noted that petitioner had not “had a substantial change in
circumstances or . . . shown a willingness or ability to change.” The circuit court found that
petitioner was unable to provide his child with necessary food, clothing, shelter, supervision, or
medical care and that he had not had contact with the child for over six months. Additionally,
petitioner failed to support the child financially, educationally, or emotionally, demonstrating the
settled purpose to forego his parental duties and responsibilities to the child. The circuit court
further found no reasonable likelihood that the conditions of abuse and neglect could be
substantially corrected in the near future due to petitioner’s incarceration and that termination of
petitioner’s parental rights was in the child’s best interests. The circuit court ultimately




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terminated petitioner’s parental rights in its August 29, 2017, order.3 It is from the dispositional
order that petitioner appeals.

              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). Upon our review, the Court finds
no error in the proceedings below.

        First, petitioner argues that the circuit court erred in finding that the initial petition and
amended petition alleged abandonment of the child and that the petitions did not allege that he
failed to provide the child with the statutory necessities. Further, petitioner argues that the circuit
court erred in adjudicating him on these grounds and in considering them in its decision to
terminate his parental rights. We disagree.

        Here, petitioner failed to provide this Court with a copy of the original petition.
Therefore, any error raised by petitioner regarding the original petition will not be considered.
Next, petitioner was adjudicated based upon his neglect of the child as set forth in the amended
petition. Pursuant to West Virginia Code § 49-1-201 a neglected child is a child

              [w]hose physical or mental health is harmed or threatened by a present refusal,
              failure or inability of the child’s parent, guardian or custodian to supply the child
              with necessary food, clothing, shelter, supervision, medical care or education,
              when that refusal, failure or inability is not due primarily to a lack of financial
              means on the part of the parent, guardian or custodian

        The amended petition alleged that petitioner had not seen his child in over six months and
“failed to support the child financially, educationally or emotionally demonstrating the settled
purpose to forego his parental duties and responsibilities to the child.” Despite his refusal to take
a DNA test, evidence was presented to establish that petitioner was, in fact, the biological and
legal father of the child and that he was married to the child’s mother when the child was born.

                                                            
              3
                  The child’s mother is a non-abusing parent and has full custody of the child.
                                                               3
 
Further, evidence was presented that petitioner never contacted the child or otherwise provided
any financial or emotional support for the child. Due to this failure, it is clear that petitioner
failed to provide the child the necessary food, clothing, shelter, supervision, medical care or
education, meeting the statutory definition of neglect. Therefore, the circuit court did not err in
adjudicating petitioner as an abusing parent pursuant to West Virginia Code § 49-1-201, which
provides that “‘abusing parent’ means a parent . . . whose conduct has been adjudicated by the
court to constitute child abuse or neglect as alleged in the petition charging child abuse or
neglect.”

        Next, petitioner argues that the circuit court improperly shifted the burden of proof to
petitioner to prove that the circumstances leading to his previous involuntary termination had
been corrected. The Court finds it unnecessary to address this argument. As discussed above,
petitioner was adjudicated as an abusing parent due to his failure to contact and provide financial
and emotional support to the child. Because he was adjudicated based upon his neglect of A.W.,
the aggravated circumstances regarding his prior termination are irrelevant. Further, although
petitioner argues that the DHHR failed to establish by clear and convincing evidence that he
abused the child, we have held that

               [West Virginia Code § 49-4-601(i)] requires the [DHHR], in a child abuse
       or neglect case, to prove “conditions existing at the time of the filing of the
       petition . . . by clear and convincing proof.” The statute, however, does not
       specify any particular manner or mode of testimony or evidence by which the
       State Department of Welfare is obligated to meet this burden.

Syl. Pt. 1, In Interest of S.C., 168 W. Va. 366, 284 S.E.2d 867, (1981). As previously discussed,
evidence was presented to show that petitioner failed to contact the child or otherwise provide
support, and, based upon that evidence, petitioner was adjudicated as an abusing parent.
Therefore, the DHHR met its burden and petitioner is not entitled to relief in this regard.

        Finally, petitioner argues that the circuit court erred in denying him a less-restrictive
alternative than termination of his parental rights. Petitioner further argues that his incarceration
should not have been the basis for termination of his parental rights. We find this argument
unpersuasive. West Virginia Code § 49-4-604(b)(6) provides that circuit courts are to terminate
parental 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 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[.]”

         As discussed above, the circuit court found that petitioner neglected A.W. due to his
failure to contact the child, provide emotional and financial support to the child, and provide
other necessities. Further, petitioner was incarcerated during the proceedings. Petitioner was
sentenced to one to ten years of incarceration, and, therefore, unable to participate in services or
visitation with the child. Based on this evidence, the circuit court found no reasonable likelihood
that petitioner could substantially correct the conditions of abuse and neglect in the near future
and that termination of his parental rights was in the children’s best interests and we agree.

                                                 4

 
       Further, we have held that

               “[t]ermination of parental rights, the most drastic remedy under the
       statutory provision covering the disposition of neglected children, W. Va.Code [§]
       49-6-5 [now West Virginia Code § 49-4-604] . . . may be employed without the
       use of intervening less restrictive alternatives when it is found that there is no
       reasonable likelihood under W. Va.Code [§] 49-6-5(b) [now West Virginia Code
       § 49-4-604(c)] . . . that conditions of neglect or abuse can be substantially
       corrected.” Syllabus point 2, In re R.J.M., 164 W.Va. 496, 266 S.E.2d 114 (1980).

Syl. Pt. 5, In re Kristin Y., 227 W.Va. 558, 712 S.E.2d 55 (2011). Moreover, it is clear that
termination was necessary for the child’s welfare, given that petitioner failed to correct the
conditions of abuse and neglect. For these reasons, we find no error in the circuit court’s
termination of petitioner’s parental rights.

      For the foregoing reasons, we find no error in the decision of the circuit court, and its
August 29, 2017, order is hereby affirmed.


                                                                                      Affirmed.

ISSUED: May 14, 2018


CONCURRED IN BY:

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




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