                                                      STATE OF WEST VIRGINIA
                                                    SUPREME COURT OF APPEALS

                                                                                     FILED
In re M.U. and D.U.                                                             November 19, 2018
                                                                                 EDYTHE NASH GAISER, CLERK
No. 18-0422 (Logan County 17-JA-36-B and 17-JA-44-B)                             SUPREME COURT OF APPEALS
                                                                                     OF WEST VIRGINIA 



                                                          MEMORANDUM DECISION
        Petitioner Father R.U., by counsel Mark Hobbs, appeals the Circuit Court of Logan
County’s April 6, 2018, order terminating his parental rights to M.U. and D.U.1 The West
Virginia Department of Health and Human Resources (“DHHR”), by counsel Brandolyn N.
Felton-Ernest, filed a response in support of the circuit court’s order. The guardian ad litem
(“guardian”), Donna Pratt, filed a response on behalf of the children also in support of the circuit
court’s order. On appeal, petitioner argues that the circuit court erred in finding that there was no
reasonable likelihood that he could correct the conditions of abuse and neglect if he was released
from incarceration and in terminating his parental rights when he remained incarcerated due to
his inability to post bail.

        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 May of 2017, the DHHR filed a child abuse and neglect petition against petitioner and
the mother. The petition indicated that the parents had an extensive history of Child Protective
Services (“CPS”) involvement with substantiated maltreatment findings. Specifically, the DHHR
enumerated fifteen referrals it had received regarding petitioner over the course of nearly twenty
years. Almost all of the referrals indicated that petitioner had an alcohol abuse problem which
often resulted in domestic violence. Most recently, in May of 2017, the DHHR received a call
from the Logan County Sherriff’s Department, which reported that petitioner took then three-
year-old M.U. to a bar where petitioner became intoxicated and attempted to walk home with the
child. Law enforcement officers observed petitioner staggering alongside the road on a bridge
with the child. Petitioner fell onto the child, pinning her between his body and the guardrail,
nearly causing both of them to fall. Officers observed that the child was crying when she became
                                                            
              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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pinned. The child later informed the officers that she had been at a bar with petitioner while he
was drinking. Petitioner was arrested and charged with child neglect resulting in risk of injury
and public intoxication. Petitioner was unable to post bail and remained incarcerated during the
entirety of the proceedings.

         Thereafter, in July of 2017, the mother gave birth to D.U., and the DHHR filed an
amended petition including that child in the proceedings.  The circuit court held an adjudicatory
hearing in January of 2018, wherein the DHHR presented the testimony of two witnesses,
including the police officer who responded to the scene involving petitioner and M.U. in May of
2017. The officer testified that he observed petitioner to be in an intoxicated state when he fell
onto the child and pinned her against the guardrail near the end of a bridge. A CPS worker
testified that petitioner remained incarcerated throughout the proceedings and was unable to
provide care for his children. Ultimately, the circuit court adjudicated petitioner as an abusing
parent.

        In March of 2018, the circuit court held a dispositional hearing. Petitioner moved the
circuit court to continue the proceedings until he was released from incarceration and the circuit
court denied said motion. After hearing evidence, the circuit court found that petitioner was
arrested for child neglect creating risk of injury and was incarcerated, where he remained for the
entirety of the proceedings. As a result, petitioner was unable to meaningfully participate in the
proceedings and had no bond with the children because he had had no contact with M.U. after
the initiation of the proceedings and had never met D.U., who was born after petitioner’s
incarceration. The circuit court concluded that, based upon those uncontested facts, coupled with
petitioner’s ongoing and indefinite incarceration, there was no reasonable likelihood that
petitioner could correct the conditions of abuse and neglect in the near future and that
termination was in the children’s best interests. It is from the April 6, 2018, dispositional order
that petitioner appeals.2

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

                     “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

                                                            
              2
        Petitioner’s parental rights to the children were terminated below. The mother is
currently participating in an improvement period and the children have been returned to her
physical custody. The permanency plan is reunification with the mother pending her successful
completion of the improvement period. The concurrent permanency plan is adoption.


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       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 finding that there was no
reasonable likelihood that he could correct the conditions of abuse and neglect upon his release
from jail. Further, petitioner argues that the circuit court erred in terminating his parental rights
when he remained incarcerated due to his inability to post bail. Based upon our review of the
record, we disagree and find no error.

        Pursuant to West Virginia Code § 49-4-604(b)(6), 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) provides that “‘no reasonable likelihood
that conditions of neglect or abuse can be substantially corrected’ means that, based upon the
evidence before the court, the abusing [parents] have demonstrated an inadequate capacity to
solve the problems of abuse or neglect on their own or with help.” Such a condition exists,
according to West Virginia Code § 49-4-604(c)(3), when the

       abusing parent or parents have 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 record demonstrates that there was no reasonable likelihood that petitioner could
correct the conditions of abuse and neglect in the near future. Petitioner was adjudicated upon
evidence that he was intoxicated while M.U. was in his care and fell onto her, pinning her against
a guardrail and nearly causing her to fall over it while on a bridge. Petitioner was arrested as a
result of his actions and remained incarcerated throughout the proceedings, rendering him unable
to meaningfully participate in a family case plan aimed at correcting the conditions of abuse. Due
to his incarceration, petitioner developed no bond with the children, particularly with D.U., who
was born after petitioner’s incarceration. Finally, the record establishes that petitioner had a
lengthy history of CPS involvement due to his issues with alcohol abuse and domestic violence,
but made no progress in addressing these issues over the years. Based on this evidence, we find
that petitioner demonstrated no capacity to solve the conditions of abuse and/or neglect.

        To the extent that petitioner argues that the issue of his non-participation and resulting
inability to correct the conditions of abuse would have been solved simply by waiting until his
release from incarceration, we note that Rule 5 of the Rules of Procedure for Child Abuse and
Neglect Proceedings provides that “[u]nder no circumstances shall a child abuse and neglect
[proceeding] be delayed pending the initiation, investigation, prosecution, or resolution of any

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other proceeding, including, but not limited to, criminal proceedings.” As such, the circuit court
did not err in declining to consider petitioner’s ability to correct the conditions of abuse in light
of the fact that petitioner’s release date was unknown and the parties consistently referred to his
incarceration as “indefinite.”

        Because we find that there was no reasonable likelihood that petitioner could correct the
conditions of abuse in the near future, we find that the circuit court did not err in terminating his
parental rights, despite the fact that he remained incarcerated and unable to post bail.3 Regarding
his incarceration, we note that “this Court has never held that incarceration can not be the sole
basis for terminating parental rights.” Cecil T., 228 W.Va. at 96, 717 S.E.2d at 880. Further,

                      [w]hen 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.
                                                            
              3
         As part of his argument, petitioner asserts that his due process rights were violated when
the circuit court terminated his parental rights when he remained incarcerated because he was
unable to post bail. Petitioner relies upon In re S.K., No. 16-0863, 2017 WL 971918 (W.Va. Mar.
13, 2017) (memorandum decision), in which this Court affirmed the circuit court’s decision
declining to terminate the father’s parental rights when he remained incarcerated at the
dispositional stage of the proceedings. In re S.K. is distinguishable from petitioner’s case. In that
case, the father was granted an improvement period in which he undisputedly participated and
made appropriate progress. During the improvement period, the father was incarcerated on
unrelated charges and was unable to post bond, thus remaining in custody and unable to
participate in services. At the dispositional hearing, the circuit court declined to terminate the
father’s parental rights, but rather imposed disposition under West Virginia Code § 49-4-
604(b)(5), in part, based upon petitioner’s presumption of innocence and his demonstrated
compliance with his improvement period prior to his incarceration. This Court affirmed the
decision, finding that the circuit court made appropriate findings that there was a reasonable
likelihood that petitioner could correct the conditions of abuse in the near future and imposing a
less-restrictive disposition as a result.

        Petitioner, however, is unlike the father in In re S.K. Here, petitioner was incarcerated on
allegations that gave rise to the filing of the petition and, after adjudication, the circuit court
presumed his alleged actions were true for the purpose of the underlying proceedings.
Petitioner’s incarceration was based upon his abusive behavior towards M.U., while S.K.’s
father’s incarceration was entirely unrelated to the child abuse and neglect proceedings. Further,
petitioner was never granted an improvement period and did not demonstrate that he was
reasonably likely to participate in services were he to be released from incarceration in the near
future. In contrast, S.K.’s father was granted an improvement period, complied with services,
and made substantial progress throughout the proceedings, all of which led the circuit court to
conclude that there was a reasonable likelihood that he could correct the conditions of abuse and
neglect in the near future. As such, we find that In re S.K. is distinguishable from the case at bar
and decline to further address petitioner’s argument due to his failure to sufficiently provide any
citation to authority on the same. See W.Va. R. App. Proc. 10(c)(7).
                                                               4
 
        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.

Id. at 91, 717 S.E.2d at 875, Syl. Pt. 3.

         Here, petitioner’s incarceration was considered in light of the applicable factors set forth
by Cecil T. Petitioner’s abusive behavior related specifically to the offense for which he was
incarcerated. Petitioner’s incarceration remained indefinite as he had no knowledge of when or if
he would be indicted, whether he would ultimately be convicted, or what his potential sentence
would be if he were to be convicted. Evidence further established that petitioner had no bond
with the children, who were both of tender years. At the time of the dispositional hearing,
petitioner had not seen M.U. since his incarceration and never met D.U. While petitioner argues
that he simply needed more time for his criminal proceedings to resolve, we note that “courts are
not required to exhaust every speculative possibility of parental improvement . . . where it
appears that the welfare of the child will be seriously threatened. . . .” Cecil T., 228 W.Va. at 89,
717 S.E.2d at 873, Syl. Pt. 4, in part (quoting Syl. Pt. 1, in part, In re R.J.M., 164 W.Va. 496, 266
S.E.2d 114 (1980)). As such, the circuit court properly considered petitioner’s incarceration,
regardless of his ability to post bail, in making its decision to terminate petitioner’s parental
rights. As we find that there was no reasonable likelihood that petitioner could correct the
conditions of abuse and neglect in the near future, we likewise find that the circuit court did not
err in terminating his parental rights. Accordingly, petitioner is entitled to no relief.

       Lastly, because the proceedings in circuit court regarding the mother are still ongoing,
this Court reminds the circuit court of its duty to establish permanency for the children. 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
        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
children within twelve months of the date of the disposition 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



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               [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
April 6, 2018, order is hereby affirmed.



                                                                                       Affirmed.

ISSUED: November 19, 2018


CONCURRED IN BY:

Chief Justice Margaret L. Workman
Justice Elizabeth D. Walker
Justice Tim Armstead
Justice Evan H. Jenkins
Justice Paul T. Farrell sitting by temporary assignment




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