                             STATE OF WEST VIRGINIA
                           SUPREME COURT OF APPEALS                               FILED
                                                                             November 21, 2018
                                                                               EDYTHE NASH GAISER, CLERK
In re F.C., M.C.-1, K.C., and W.C.                                             SUPREME COURT OF APPEALS
                                                                                   OF WEST VIRGINIA

No. 18-0757 (Berkeley County 17-JA-127, 17-JA-128, 17-JA-129, and 17-JA-130)


                              MEMORANDUM DECISION
        Petitioner Father M.C.-2, by counsel Jared Adams, appeals the Circuit Court of Berkeley
County’s July 26, 2018, order terminating his parental rights to F.C., M.C.-1, K.C., and W.C.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”), William Prentice Young, filed a response on behalf of the children also in
support of the circuit court’s order. Petitioner filed a reply. On appeal, petitioner argues that the
circuit court erred in terminating his parental rights upon an erroneous finding that he abandoned
the children. Petitioner also argues that the circuit court erred in admitting hospital records
without proper authentication.

        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 November of 2017, the DHHR filed a child abuse and neglect petition against
petitioner and the mother of F.C. and M.C.-1.2 The mother only attended one prenatal

       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). Additionally, because one of the children and petitioner
share the same initials, we will refer to them as M.C.-1 and M.C.-2, respectively, throughout this
memorandum decision.
       2
         At the time the petition was filed, petitioner and the mother had custody of F.C. and B.L.
B.L. is the mother’s child from a previous relationship and is not at issue on appeal. The mother
had only recently given birth to M.C.-1, who remained in the hospital at the time the petition was
filed. Petitioner shared joint custody of his two other children from a previous relationship, K.C.
and W.C., with their mother.



                                                 1
appointment at fourteen weeks gestation and prematurely gave birth to M.C.-1, at twenty-seven
weeks gestation, in a vehicle. Upon arriving at the hospital, the mother tested positive for
fentanyl. The child had to be resuscitated and placed in an incubator. The mother denied that she
or petitioner abused drugs, but admitted she had taken Percocet during her pregnancy. However,
contrary to her assertions, the mother had a substantiated history of drug abuse.3 A Child
Protective Services (“CPS”) worker spoke to the hospital social worker, who reported that the
parents had been sporadic in their visits with the child since her birth and appeared to be under
the influence of drugs. The social worker further reported that M.C.-1’s drug test showed that she
tested positive for cocaine and morphine at birth. The CPS worker spoke to petitioner, who
denied that the mother abused cocaine and stated that he believed the hospital’s drug screens
were wrong. He conceded that he knew the mother was taking Percocet without medical
treatment. The CPS worker also spoke with then-seven-year-old B.L., who reported observing
his mother abuse drugs in the home. The DHHR concluded that petitioner had knowledge of the
mother’s substance abuse and failed to protect M.C.-1 during the pregnancy. Further, due to his
failure to protect M.C.-1 after knowing of the mother’s unauthorized use of Percocet while
caring for F.C. and B.L., the DHHR alleged that he could not ensure the safety of his other
children, K.C. and W.C.

        The circuit court held a preliminary hearing in December of 2017. Petitioner failed to
attend the hearing but was represented by counsel. The CPS worker testified regarding the
allegations contained in the petition and noted that petitioner had knowledge of the mother’s
unauthorized use of Percocet. The CPS worker testified that the mother told petitioner she was
pregnant and, as such, he had knowledge of her pregnancy during the time she was using
Percocet. After hearing evidence, the circuit court found reasonable cause that there was
imminent danger to the children.

       In March of 2018, the circuit court held an adjudicatory hearing. Petitioner failed to
attend the hearing but was represented by counsel. Counsel for petitioner requested a
continuance, which was denied. During the hearing, the circuit court provisionally admitted
medical documents showing the positive drug screens of the mother and M.C.-1.4




       3
        The record indicates that the mother was previously involved in child abuse and neglect
proceedings due to her drug use and F.C., petitioner’s child, was at issue in that proceeding.
Petitioner was listed as a non-abusing parent. Further, at some point during the instant
proceedings, the circuit court learned that the mother had been fired from her place of
employment two weeks before M.C.-1’s birth due to heroin use.
       4
         The DHHR proffered that it would either call hospital personnel to testify at a later time
in order to authenticate the records or subpoena the documents for the court. The record shows,
however, that neither of those things took place. Ultimately, the circuit court permitted a DHHR
employee to testify to its policy of obtaining medical records in order to authenticate these
records, over petitioner’s objection.



                                                2
        Thereafter, the CPS worker testified that petitioner was aware that the mother was taking
unauthorized medication. While the parents claimed there had been difficulty verifying whether
the mother was pregnant at that time, the CPS worker stated “there was an assumption.” Further,
petitioner denied the veracity of the drug screens and left F.C. in the care of the maternal
grandmother, choosing to care for the mother following the birth of M.C.-1 at that time.

        After hearing evidence, the circuit court noted that it took a negative inference from
petitioner’s failure to attend the adjudicatory hearing. Further, the circuit court found that the
mother knew or should have known of her pregnancy due to attending a prenatal appointment at
fourteen weeks gestation and that petitioner knew or should have known of the mother’s drug
use during that time. The circuit court stated “[i]f a 7-year old child [B.L.] can testify that there
were needles in the house and that he saw needles in his mother’s arm then [petitioner] is not
excused from failing to acknowledge that she was using drugs during the time that she was
pregnant.” Moreover, petitioner knew of the mother’s unauthorized use of Percocet and allowed
her to care for F.C. and B.L. during that time. As such, the circuit court adjudicated petitioner as
an abusing parent.

        The circuit court held a dispositional hearing in July of 2018. Petitioner again failed to
attend the hearing but was represented by counsel. A DHHR worker testified that petitioner had
done nothing to address the issues that led to the filing of the petition. The worker stated that the
DHHR set up drug screening, arranged for visitation with the children, and provided information
on drug rehabilitation programs. However, petitioner did not avail himself of any services and
had not visited M.C.-1 in three to four months. After hearing evidence, the circuit court found
that the DHHR was willing to assist petitioner by providing services, but that he did not avail
himself of the opportunity. The circuit court further found that petitioner’s actions and inactions
demonstrated the settled purpose to forego his parental duties to the children, constituting
abandonment. Finally, the circuit court determined that there was no reasonable likelihood that
petitioner could correct the conditions of abuse and neglect in the near future and that
termination of his parental rights was necessary for the children’s welfare. It is from the July 26,
2018, dispositional order terminating his parental rights that petitioner appeals.5

        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


        5
        Petitioner’s parental rights to his children were terminated below. The parental rights of
the mother of F.C. and M.C.-1 were also terminated below and the permanency plan for these
children is adoption by the maternal grandmother. The mother of K.C. and W.C. is a non-abusing
mother and the permanency plan for these children is to remain in the care of their non-abusing
mother.



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       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 admitting hospital records that
were not properly authenticated. According to petitioner, the positive drug screens for the mother
and M.C.-1 should not have been admitted because the DHHR failed to call an employee from
the hospital to testify and failed to obtain the records by subpoena. We decline to address this
issue on appeal, however, because even assuming for the sake of argument that the medical
records at issue were not sufficiently authenticated, the record contains overwhelming evidence
of petitioner’s abuse and/or neglect of the children. Specifically, the record contains
uncontradicted evidence that the mother abused drugs while the children were in her care and
that petitioner was aware of her substance abuse and should have had knowledge of her
pregnancy following her first prenatal appointment. Upon being admitted to the hospital, the
mother admitted that she consumed Percocet without a prescription while the children were in
her care. Moreover, the record demonstrates that B.L. reported witnessing his mother with
needles in her arm and, only two weeks prior to M.C.-1’s birth, the mother was fired from her
place of employment due to heroin use. As such, even without the medical records establishing
that the mother and M.C.-1 tested positive for drugs at the birth, there was sufficient evidence to
establish the mother’s drug use and petitioner’s knowledge of the same while the children were
in their care. Indeed, petitioner admitted that he was aware of the mother’s use of Percocet
without a prescription. Accordingly, we find no error.

       Petitioner also argues that the circuit court erred in terminating his parental rights based
upon abandonment when abandonment was not alleged in the petition and he was not
adjudicated based upon abandonment.6 We find no merit in petitioner’s argument.


       6
        As part of his argument, petitioner states that the circuit court erred in terminating his
parental rights to K.C. and W.C. when the DHHR’s case focused on his knowledge of M.C.-1’s
mother’s drug use during her pregnancy. According to petitioner, these issues did not affect K.C.
and W.C., who were in the care of their non-abusing mother. Further, petitioner avers that he was
not adjudicated as an abusing parent with regard to K.C. and W.C. and, as such, the circuit court
could not terminate his parental rights to these two children. We disagree.

       Here, the adjudicatory order clearly states that M.C.-1 was adjudicated as an abused child
and that petitioner was adjudicated as an abusing parent. Although K.C. and W.C. lived with

                                                                                   (continued . . .)
                                                 4
        Here, petitioner is correct that abandonment was not alleged in the petition, nor was
evidence regarding abandonment produced at the adjudicatory hearing. However, we find that
the record supports termination of petitioner’s parental rights to the children apart from any
alleged erroneous finding regarding abandonment. Pursuant to West Virginia Code § 49-4-
604(b)(6), circuit courts are directed to terminate parental rights upon findings that there is no
reasonable likelihood the conditions of abuse and neglect can be substantially corrected in the
near future and when necessary for the children’s welfare. West Virginia Code § 49-4-604(c)(3)
clearly indicates that a situation in which 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. .
       ..

        The record demonstrates that there was no reasonable likelihood that petitioner could
substantially correct the conditions of abuse and neglect in the near future. The DHHR provided
services, such as drug screens and visitation with the children, and provided resources regarding
drug abuse treatment programs. Despite being given these opportunities, petitioner failed to
participate in any aspect of the proceedings below. Petitioner did not submit to drug screens, nor
did he participate in visits with M.C.-1. Indeed, the CPS worker testified that petitioner had not
visited the child in three to four months. Moreover, petitioner failed to attend his preliminary,
adjudicatory, and dispositional hearings. Accordingly, it is clear that petitioner failed to
participate in any services designed to correct the conditions of abuse and neglect.

        With regard to petitioner’s argument that the circuit court erroneously found
abandonment at the dispositional hearing and relied upon the same in terminating his parental
rights, we note that


their non-abusing mother during the week, petitioner shared joint custody of the children and
saw them on the weekends. Our law recognizes that children living in the same household of a
child who is abused are also at risk. West Virginia Code § 49-1-201 defines an “abused child” as
“[a] child whose health or welfare is being harmed or threatened by: (A) A parent, guardian, or
custodian who knowingly or intentionally inflicts, attempts to inflict, or knowingly allows
another person to inflict, physical injury or mental or emotional injury, upon the child or another
child in the home.” (emphasis added). Petitioner does not take issue with M.C.-1’s adjudication
as an abused child and, because the record demonstrates that petitioner shared custody of K.C.
and W.C. with the mother, their health or welfare were threatened by the abuse inflicted on
M.C.-1. Accordingly, we find that petitioner’s adjudication as an abusing parent extends to K.C.
and W.C. and the circuit court did not err in proceeding to disposition with regard to these
children.



                                                5
               “[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). Even assuming, for the sake of
argument, that the circuit court made erroneous findings regarding abandonment at disposition,
the process was not substantially disregarded or frustrated such that vacation of the order is
necessary. Rather, based upon petitioner’s refusal to participate in the proceedings below and his
failure to address the issues of abuse and/or neglect through the services provided, we find that
there was no reasonable likelihood that petitioner could correct the conditions of abuse in the
near future and further find that termination of his parental rights was necessary for the
children’s welfare. Therefore, the circuit court did not err in terminating petitioner’ parental
rights.

       For the foregoing reasons, we find no error in the decision of the circuit court, and its
July 26, 2018, order is hereby affirmed.


                                                                                        Affirmed.

ISSUED: November 21, 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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