                                                      STATE OF WEST VIRGINIA 

                                                    SUPREME COURT OF APPEALS


                                                                                     FILED
In re P.L.
                                                                                  June 15, 2018
                                                                                 EDYTHE NASH GAISER, CLERK
No. 18-0267 (Taylor County 17-JA-63)                                             SUPREME COURT OF APPEALS
                                                                                     OF WEST VIRGINIA 



                                                          MEMORANDUM DECISION
         Petitioner Father D.L., by counsel Gregory Michael, appeals the Circuit Court of Taylor
County’s February 13, 2018, order terminating his parental rights to P.L.1 The West Virginia
Department of Health and Human Resources (“DHHR”), by counsel S.L. Evans, filed a response
in support of the circuit court’s order and a supplemental appendix. The guardian ad litem
(“guardian”), Terri Tichenor, 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 not granting him a less-
restrictive disposition than termination of his parental rights.

        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 30, 2017, the DHHR filed a petition for immediate custody of the infant child
after the mother filed a domestic violence petition against petitioner. The petition for custody of
the child alleged that both parents had untreated mental health issues, were not employed, and
failed to provide proper care for the child. The petition also alleged that a domestic violence
incident between the parents occurred in the child’s presence in June of 2017. Further, according
to the DHHR, the parents did not seem to understand the extent of the child’s medical issues, as
the child was losing weight instead of gaining weight when he was one month old. At the time
the petition was filed, the child had recently undergone a stomach surgery. The DHHR had
concerns that the parents did not properly administer the necessary medication to the child
following his surgery.

                                                            
              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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        On July 17, 2017, the circuit court held a preliminary hearing. Petitioner denied all
allegations of domestic violence against the mother. He denied having any contact with the
mother, but admitted to calling the mother repeatedly and leaving her voicemails. The circuit
court ordered petitioner to submit to drug screens. The domestic violence protective order
(“DVPO”) was also entered on July 17, 2017. On October 16, 2017, the circuit court held an
adjudicatory hearing. Petitioner failed to appear, despite having notice of the hearing, but was
represented by counsel. The mother testified regarding the domestic violence between her and
petitioner and that petitioner violated the DVPO. She also testified that petitioner stalked her,
broke into her home, and sexually assaulted her. As a result of his conviction for sexual assault,
petitioner was sentenced to six months to two years in the Anthony Correctional Center. Based
on the evidence presented, petitioner was adjudicated as an abusing parent.

        On February 7, 2018, the circuit court held a dispositional hearing. The circuit court
refused petitioner’s voluntary relinquishment of his parental rights. The circuit court noted that
petitioner seemed uncertain of his decision to voluntarily relinquish his parental rights because
he requested additional time for improvement. In its disposition summary filed with the circuit
court in January of 2018, the DHHR reported that petitioner stalked the mother throughout the
pendency of the case and, on one instance, sexually assaulted her. The summary also reported
that petitioner was referred for services including parenting and adult life skills classes, drug
screens, and visitation, but was discharged from all services due to his failure to participate. The
DHHR recommended termination of petitioner’s parental rights and was opposed to petitioner’s
voluntary relinquishment of his parental rights due to the crimes he committed against the
mother. The circuit court found 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
in the child’s best interests.2 Ultimately, the circuit court terminated petitioner’s parental rights in
its February 13, 2018, order.3 It is from this 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
                                                            
              2
         While the circuit court also found that petitioner failed to participate in the improvement
period granted to him, there is no evidence in the record that petitioner was granted an
improvement period. At the close of the adjudicatory hearing, the circuit court set petitioner’s
case for disposition without granting him an improvement period.
 
              3
        According to respondents, the mother is participating in a post-adjudicatory
improvement period and the permanency plan for the child is reunification with the mother. The
concurrent permanency plan is adoption by the current foster family.



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              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 failing to impose a less-
restrictive disposition. Specifically, petitioner argues that disposition pursuant to West Virginia
Code § 49-4-604(b)(4) would have permitted him to successfully complete the Anthony Center
Program and correct the conditions of abuse and neglect. Further, “in light of his acceptance of
responsibility [of] his criminal acts” and “an implicit acknowledgement [of] parenting issues,”
petitioner argues that additional time for improvement was warranted.4 However, we find this
argument meritless because there is no evidence that petitioner complied with any services that
were provided to him.

        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) 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[.]”

         The record shows that petitioner was offered services to address the abuse and neglect
issues during the proceedings, including parenting and adult life skills classes, drug screens, and
visitation. However, he failed to comply with these services. Additionally, petitioner violated the
DVPO, stalked the mother, broke into her home, and sexually assaulted her during the
proceedings. Based on this evidence, there was no reasonable likelihood that petitioner could
correct the conditions of abuse and neglect in the near future and termination of his parental
rights was in the child’s best interests. While petitioner asserts that the programs offered by the
Anthony Correctional Center would help petitioner address “a host of issues,” we find his

                                                            
              4
         Petitioner also argues that the circuit court erred in terminating his parental rights “in
light of her (sic) considerable compliance with the terms and conditions of her (sic) improvement
period.” Aside from the numerous improper pronouns and other errors throughout his brief, his
assertion that he complied with the terms and conditions of an improvement period is not
supported by the record because there is no evidence that petitioner properly requested an
improvement period, was granted an improvement period, or complied with any services that
were provided to him.
 




                                                               3

 
speculative participation in the facility’s programs irrelevant to whether he addressed the issues
of abuse and neglect during the proceedings below.

       Finally, 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). As discussed above, there was
no reasonable likelihood that petitioner could correct the conditions of abuse and neglect in the
near future and termination of his parental rights was in the child’s best interests. Therefore, we
find no error in the circuit court’s termination of petitioner’s parental rights.

       Additionally, because the 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
       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.

                                                 4

 
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 13, 2018, dispositional order is hereby affirmed.


                                                                                      Affirmed.




ISSUED: June 15, 2018


CONCURRED IN BY:

Chief Justice Margaret L. Workman
Justice Robin Jean Davis
Justice Menis E. Ketchum
Justice Elizabeth D. Walker

Justice Allen H. Loughry II, suspended and therefore not participating
 

 




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