                                                      STATE OF WEST VIRGINIA 

                                                    SUPREME COURT OF APPEALS


                                                                                     FILED
In re A.L.                                                                       October 19, 2018
                                                                                 EDYTHE NASH GAISER, CLERK
No. 18-0254 (Hampshire County 17-JA-38)                                          SUPREME COURT OF APPEALS
                                                                                     OF WEST VIRGINIA 



                                                          MEMORANDUM DECISION
         Petitioner Father S.L., by counsel Jeremy B. Cooper, appeals the Circuit Court of
Hampshire County’s February 9, 2018, order terminating his parental rights to A.L.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”), Joyce
E. Stewart, 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 rights instead of
continuing the dispositional 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.

        On June 29, 2016, the DHHR filed a petition against the mother alleging that she abused
and neglected children that are not at issue in this appeal. At the time the petition was filed, the
mother reported that petitioner was the biological father of one of the children. However,
petitioner was later dismissed from the petition upon the return of paternity test results that
showed no probability that he was the biological father of that child. In June of 2017, the mother
gave birth to petitioner’s child, A.L. The child was born addicted to Suboxone due to the
mother’s substance abuse during her pregnancy. The DHHR filed an amended petition that
named petitioner as the respondent father of A.L. and alleged that he had knowledge of the
mother’s substance abuse during her pregnancy.

        On July 25, 2017, the circuit court held an adjudicatory hearing during which petitioner
stipulated to the allegations of abuse and neglect. Accordingly, petitioner was adjudicated as an
abusing parent and the circuit court granted him a post-adjudicatory improvement period. On
                                                            
              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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November 29, 2017, the circuit court held a status hearing. The DHHR informed the circuit court
that petitioner continued to test positive for illegal substances and that if he continued to test
positive the DHHR would file a motion to terminate his improvement period. The circuit court
admonished petitioner for his continued substance abuse. According to the DHHR, following the
November 29, 2017, hearing, petitioner continued to test positive for Suboxone without a
prescription.

        On February 5, 2018, the circuit court held a dispositional hearing. Petitioner did not
appear for the hearing, but his counsel explained that he had received actual notice of the
hearing. The mother testified that she informed petitioner of the February 5, 2018, hearing date.
She further testified that petitioner told her that he had not heard anything from his attorney. The
circuit court denied counsel’s motion for a continuance upon its finding that petitioner had actual
notice of the hearing and chose not to appear. The circuit court also noted that petitioner failed to
appear at the last hearing in the matter. Over the objection of petitioner’s counsel, the circuit
court proceeded with the dispositional hearing.

        The DHHR presented testimony that petitioner’s adult life skills and individualized
parenting sessions were terminated due to his noncompliance in January of 2018. A DHHR
worker testified that she explained to petitioner that his services would be terminated if he
continued to fail to attend sessions, and, in response, petitioner told her that he thought Child
Protective Services (“CPS”) was not “going to give him his daughter anyway.” Next, the DHHR
presented testimony that petitioner tested positive for substances on all but one screen between
July and December of 2017. Petitioner consistently tested positive for Suboxone but did not have
a prescription for that drug. Petitioner completed a ten-day detoxification program but declined
to enter into an inpatient treatment program. A CPS worker further testified that petitioner
cancelled several visits with the child. She explained that petitioner would provide transportation
for the mother to visit the child but failed to attend his own visits.

        Following the testimony, the circuit court found that petitioner had an addiction to
controlled substances that seriously impaired his parenting skills. The circuit court also found
that petitioner failed to participate in the family case plan and services. In its dispositional order,
the circuit court found that the child’s mother “provided testimony that she told [petitioner] about
[the dispositional] hearing and he told her that he was not coming because his lawyer did not tell
him about the hearing.” Further, the circuit court found that a DHHR worker advised the circuit
court that a service provider “sent her a message advising her that [petitioner] was aware of [the
dispositional] hearing.” Ultimately, the circuit court found that there was 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 child’s best interests. Petitioner’s
parental rights were terminated in the circuit court’s February 9, 2018, order.2 It is from this
order that petitioner appeals.

              The Court has previously established the following standard of review:

                                                            
              2
       According to the respondents, the child’s mother is currently participating in an
improvement period. The permanency plan is reunification with the mother and the concurrent
permanency plan for the child is adoption in her current foster home.
                                                               2

 
               “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, this Court
finds no error in the proceedings below.

        On appeal, petitioner argues that the circuit court erred in denying his motion for a
continuance of the dispositional hearing because he alleges that he did not receive notice of the
hearing pursuant to Rule 31 of the West Virginia Rules of Child Abuse and Neglect Proceedings.
This rule provides that “[n]otice of the date, time, and place of the dispositional hearing shall be
given to all parties, their counsel, and persons entitled to notice and the right to be heard.” In
support, petitioner argues that this Court has stated, in part, that “[c]ircuit courts must provide the
parties with notice of the disposition hearing prior to actually holding the hearing.” In re Travis
W., 206 W.Va. 478, 483, 525 S.E.2d 669, 674 (1999). Although it is true that petitioner did not
receive notice from the circuit court or from his attorney, it is clear from the record that he had
actual notice of the hearing. The child’s mother testified that she informed petitioner of the
February 5, 2018, dispositional hearing. According to the mother, petitioner informed her that he
had not heard from his attorney. However, there is no evidence in the record that petitioner ever
tried to contact his attorney, the circuit court, or any DHHR worker to inquire about the
dispositional hearing. Further, counsel was present at the February 5, 2018, dispositional hearing
to represent petitioner’s interests.

       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 [alleged] to be abused or neglected
       has been substantially disregarded or frustrated, the resulting order . . . will be
       vacated and the case remanded for compliance with that process and entry of an
       appropriate . . . order.” Syllabus point 5, in part, In re Edward B., 210 W.Va. 621,
       558 S.E.2d 620 (2001).

Syl. Pt. 3, In re Emily G., 224 W.Va. 390, 686 S.E.2d 41 (2009). While petitioner is correct that
the Rules of Procedure for Child Abuse and Neglect Proceedings required that he receive notice
of the dispositional hearing, we find that petitioner’s actual notice of the hearing mitigates

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against vacating the dispositional order. While petitioner argues that he should have been granted
a continuance of the dispositional hearing due to his alleged lack of notice, we have also held
that “[w]hether a party should be granted a continuance for fairness reasons is a matter left to the
discretion of the circuit court, and a reviewing court plays a limited and restricted role in
overseeing the circuit court’s exercise of that discretion.” Tiffany Marie S., 196 W.Va. at 235,
470 S.E.2d at 189. As such, we find petitioner is entitled to no relief.

       Further, we find no error in the circuit court’s termination of petitioner’s parental rights.
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 children’s
welfare. West Virginia Code § 49-4-604(c)(3) indicates that a situation where 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. .
       ..

        Here, petitioner failed to comply with services during his post-adjudicatory improvement
period. In fact, his parenting and life skills sessions and drug screening services were terminated
due to his noncompliance. Petitioner also tested positive for illegally obtained Suboxone on all
but one of his drug screens. Although he completed a ten-day detoxification program, petitioner
resumed his illegal use of Suboxone and refused to enter an inpatient treatment facility as
recommended by his case plan. Further, petitioner missed several visits with the child.
Interestingly, he transported the mother to several of her visits but failed to attend many of his
own visits. “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 (1996); State ex rel. Amy
M. v. Kaufman, 196 W.Va. 251, 259, 470 S.E.2d 205, 213 (1996)). Based on this evidence, it is
clear there was no reasonable likelihood that petitioner could substantially correct the conditions
of abuse and neglect in the near future and that termination of petitioner’s parental rights was in
the child’s best interest. Therefore, we find no error in the termination of petitioner’s parental
rights.

       Lastly, because the child’s mother’s abuse and neglect proceedings 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

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       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 dispositional order. As this Court has stated,

               [t]he [twelve]-month period provided in Rule 43 of the West Virginia
       Rules of Procedures 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 W.Va. Code § 49-6-5(a)(6) [1996] [now 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 can not 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
February 9, 2018, dispositional order is hereby affirmed.

                                                                                         Affirmed.



ISSUED: October 19, 2018

CONCURRED IN BY:

Chief Justice Margaret L. Workman
Justice Elizabeth D. Walker
Justice Paul T. Farrell sitting by temporary assignment
Justice Tim Armstead
Justice Evan H. Jenkins
 
Justice Allen H. Loughry II suspended and therefore not participating

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