                             STATE OF WEST VIRGINIA

                           SUPREME COURT OF APPEALS


In re: C.L.                                                                        FILED
                                                                              November 21, 2016
No. 16-0728 (Mercer County 15-JA-061-WS)                                          RORY L. PERRY II, CLERK

                                                                                SUPREME COURT OF APPEALS

                                                                                    OF WEST VIRGINIA


                               MEMORANDUM DECISION
        Petitioner Father J.V., by counsel Gerald R. Linkous, appeals the Circuit Court of Mercer
County’s July 12, 2016, order terminating his parental rights to then two-year-old C.L.1 The
West Virginia Department of Health and Human Resources (“DHHR”), by counsel S.L. Evans,
filed its response in support of the circuit court’s order. The guardian ad litem (“guardian”),
Joseph T. Harvey, filed a response on behalf of the child also in support of the circuit court’s
order. On appeal, petitioner alleges that the circuit court committed plain error in terminating his
parental rights to the child based on a substance abuse problem that was not alleged in the abuse
and neglect petition and was not the basis of his adjudication.

        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 June of 2015, the DHHR filed an abuse and neglect petition and an amended petition
against petitioner in which it alleged that he had a prior involuntary termination of his parental
rights to two older children in 2010 and was incarcerated in prison at Huttonsville Correctional
Center, Huttonsville, West Virginia. In the petitions, the DHHR also made allegations against
four additional respondents regarding their illegal drug use and its effect on C.L. and another
child.

        In August of 2015, the circuit court held an adjudicatory hearing. Petitioner did not
contest adjudication. At the hearing, the circuit court heard evidence that petitioner was
incarcerated for the entirety of the child’s life and that he had not provided for the child. Further,
petitioner remained incarcerated at the time of the hearing, although he was scheduled to be
released approximately one month later and claimed to have already arranged employment upon

       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). The proceedings below involved another child not related to
petitioner and not at issue in this appeal.
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his release. At the close of evidence, the circuit court found that petitioner “has neglected his
child by his incarceration during the child’s life.” Thereafter, petitioner’s motion for a post­
adjudicatory improvement period was granted. In February of 2015, the circuit court held a
review hearing. At that time, petitioner reportedly failed a drug screen.2

        In April of 2016, the circuit court held a dispositional hearing. At that hearing, the DHHR
worker testified that between the time of petitioner’s release from prison in late September of
2015 and April of 2016, he was scheduled to attend twenty-two visits with the child. However,
petitioner missed or cancelled twelve of those twenty-two visits, three of which were due to bad
weather. The DHHR worker also testified that petitioner had begun using illegal drugs with the
child’s mother, had failed or refused to submit to drug screens, and had committed domestic
violence by reportedly “hit[ting] [the child’s mother] several times, and . . . beating her face in.”
The DHHR worker noted that, while petitioner blamed much of his lack of cooperation with the
DHHR on his work, he had never provided proof of his employment. In his testimony, petitioner
maintained that he missed visits with the child largely due to his work schedule, but he admitted
to relapsing into illegal drug use. Petitioner requested that the circuit court give him the
opportunity to pursue drug treatment. At the conclusion of the hearing, the circuit court granted
petitioner’s request and continued the disposition to allow him to undergo in-patient drug
treatment. The circuit court noted that petitioner must complete drug treatment, and petitioner
stated that “[i]f you have a place for me to go, I’ll go today.”

        In July of 2016, the circuit court held a final dispositional hearing. At that hearing, the
DHHR moved to terminate petitioner’s parental rights due to non-compliance with drug
treatment or visits with the child. The DHHR argued that petitioner was unwilling or unable to
participate in a reasonable case plan because he was offered a bed at an in-patient substance
abuse treatment program, but he refused to attend that program. Petitioner made several
admissions during this hearing: that he had not begun substance abuse treatment, as directed by
the circuit court in April of 2016, although he claimed the treatment facility would not take him
due to medical issues; that even after his alleged medical issues had resolved in June of 2016, he
made no effort to seek drug treatment; that he “didn’t follow up with” the intake requirements for
drug treatment arranged by a DHHR worker through the county’s day report center; that he
chose not to seek drug treatment in April or May of 2016, which showed a “lack of participation
on my part”; that he initially refused to go to the treatment facility until he received one more
visit with the child; that he had cancelled more than one visit with the child since April of 2016,
one of which he claimed to have cancelled for work; and that he attended approximately six or
eight of the twelve scheduled visits with the child between April of 2016 and the final
dispositional hearing in July of 2016.

        At the conclusion of the hearing, the circuit court found that petitioner made no effort to
comply with drug treatment, visitation with the child, or other parenting issues. Specifically, the
circuit court noted that the proceedings had lasted more than one year and, during that time,
petitioner’s “participation has been sporadic with regards to visitation, sporadic with regards to
parenting, and non-existence [sic] with regards to drug treatment.” Based on those findings, the

        2
            It is unclear from the record what substance petitioner tested positive for in February of
2015.
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circuit court ruled that there was no reasonable likelihood that the conditions of neglect could be
substantially corrected in the near future and termination was in the child’s best interests. As
such, the circuit court terminated petitioner’s parental rights to the child. This appeal followed.

       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). Further, our case law is clear that
“in the context of abuse and neglect proceedings, the circuit court is the entity charged with
weighing the credibility of witnesses and rendering findings of fact.” In re Emily, 208 W.Va.
325, 339, 540 S.E.2d 542, 556 (2000) (citing Syl. Pt. 1, in part, In re Travis W., 206 W.Va. 478,
525 S.E.2d 669 (1999)); see also Michael D.C. v. Wanda L.C., 201 W.Va. 381, 388, 497 S.E.2d
531, 538 (1997) (stating that “[a] reviewing court cannot assess witness credibility through a
record. The trier of fact is uniquely situated to make such determinations and this Court is not in
a position to, and will not, second guess such determinations.”).

        Petitioner’s sole ground for appeal is that the circuit court committed plain error in
terminating his parental rights to the child based on a finding that he failed to seek and receive
substance abuse treatment when his substance abuse problem was not the basis of his
adjudication and was not alleged in the underlying abuse and neglect petition. Petitioner asserts
that because he was adjudicated for neglecting his child due to his incarceration, he corrected the
condition of neglect when he was released from prison in or around late September of 2015. As
such, petitioner claims that the circuit court’s termination order erroneously relied upon his
admitted drug use following his release from prison, and any allegations of his drug use should
have been included in an amended petition in order to form the basis of his termination. We
disagree.

        It is clear from the record on appeal that the circuit court’s termination of petitioner’s
parental rights was not based upon his substance abuse alone; the circuit court also found that
petitioner missed substantial visits and showed only minimal improved parenting. At the final
dispositional hearing, the circuit court noted that the case was pending for more than one year
and, during that time, petitioner’s “participation has been sporadic with regards to visitation,



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sporadic with regards to parenting, and non-existence [sic] with regards to drug treatment.”3 This
Court has explained “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 In Interest of
Tiffany Marie S., 196 W.Va. 223, 228 and 237, 470 S.E.2d 177, 182 and 191 (1996); State ex rel.
Amy M. v. Kaufman, 196 W.Va. 251, 259, 470 S.E.2d 205, 213 (1996)). As we have relayed, the
level of interest a parent shows in visiting a child who is out of the home is “an extremely
significant factor for the circuit court to review” because “[a] parent who consistently
demonstrates a desire to be with his child obviously has far more potential for being a nurturant
and committed parent than one whose interest in being with his child is erratic.” In Interest of
Carlita B., 185 W.Va. 613, 628, 408 S.E.2d 365, 380 (1991). Moreover, this Court has indicated
that “parents who do not adequately provide for a child’s needs and are not sufficiently
motivated or organized to provide for such needs on an ongoing basis should have their parental
rights terminated.” In re Brandon Lee B., 211 W.Va. 587, 591, 567 S.E.2d 597, 601 (2001)
(citing State v. Krystal T., 185 W.Va. 391, 407 S.E.2d 395 (1991)).

        The child in this case lived outside of petitioner’s home, and petitioner missed nearly half
of his scheduled visits with the child from the time of his release from prison to the time of the
final dispositional order. While petitioner argued that his work interfered with many of his visits,
petitioner failed to provide any proof of his employment or work schedule to the DHHR or
circuit court, and he failed to provide any explanation for several of his missed visits. The DHHR
worker specifically testified that on several occasions she and the child arrived at the scheduled
time and place for visits with petitioner, but, despite the child waiting for the visit, he failed to
appear. Assuming the circuit court erred in relying on the issue of substance abuse to arrive at its
final decision as petitioner alleges,

       [w]e have consistently held that “[t]his Court may, on appeal, affirm the judgment
       of the lower court when it appears that such judgment is correct on any legal
       ground disclosed by the record, regardless of the ground, reason or theory
       assigned by the lower court as the basis for its judgment.” Syl. Pt. 3, Barnett v.
       Wolfolk, 149 W.Va. 246, 140 S.E.2d 466 (1965); see also Cumberland Chevrolet
       Oldsmobile Cadillac, Inc. v. General Motors Corp., 187 W.Va. 535, 538, 420
       S.E.2d 295, 298 n. 4 (1992)(stating that “even if the reasoning of a trial court is in
       error . . . we are not bound by a trial court's erroneous reasoning”)[.]

State v. Boggess, 204 W.Va. 267, 276, 512 S.E.2d 189, 198 (1998). Here, the circuit court
properly considered petitioner’s failure to regularly visit the child in its dispositional ruling,
particularly in light of the fact that the underlying condition of neglect was petitioner’s prolonged
       3
        While the circuit court did not include these findings in its July 12, 2016, termination
order, we may look to the transcript of the dispositional hearing to determine whether the circuit
court made the requisite statutory findings. See In re Jamie Nicole H., 205 W.Va. 176, 517
S.E.2d 41 (1999) (upholding termination of parental rights where transcript of dispositional
hearing, rather than order of termination, satisfied Court that circuit court had made requisite
findings).

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absence from the child’s life. As such, the circuit court’s dispositional judgment was correct
based on petitioner’s continued failure to provide for or supervise this child throughout the
child’s entire life, or to otherwise establish a bonded, demonstrable parent-child relationship up
to and including the time of disposition.

        Further, we note that petitioner’s substantial reliance on our decision in In re Lilith H.,
231 W.Va. 170, 744 S.E.2d 280 (2013), is misplaced. In that case, we took “notice of the plain
error permeating the disposition wherein the circuit court terminated the parental rights on the
basis of allegations and issues which were never properly made subject of the adjudication.” Id.
at 180, 744 S.E.2d at 290. However, unlike Lilith H., petitioner in this case was adjudicated for
being incarcerated for the child’s entire life, which caused him to fail to provide for or supervise
the child, and petitioner’s parental rights were terminated based on his continued inability to
provide for or supervise the child, as demonstrated, at a minimum, by his repeated missed visits.
Therefore, in this case, petitioner failed to correct the condition of neglect by the time of
disposition.

        Based upon the evidence presented below, it is clear that the circuit court properly found
that there was no reasonable likelihood that petitioner could substantially correct the conditions
of neglect in the near future and that the child’s best interests were served by termination. The
condition of neglect was initially caused by petitioner’s incarceration, but the record supports the
conclusion that it continued even after his release from prison. Therefore, because West Virginia
Code § 49-4-604(b)(6) directs circuit courts to terminate parental rights upon such findings, we
find no error in the circuit court’s termination order.

       For the foregoing reasons, we find no error in the circuit court’s July 12, 2016, order, and
we hereby affirm the same.

                                                                                         Affirmed.

ISSUED: November 21, 2016


CONCURRED IN BY:

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




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