                             STATE OF WEST VIRGINIA

                           SUPREME COURT OF APPEALS


In Re: K.P.                                                                        FILED
                                                                                  June 2, 2014
No. 14-0110 (Kanawha County 13-JA-66)                                        RORY L. PERRY II, CLERK
                                                                           SUPREME COURT OF APPEALS
                                                                               OF WEST VIRGINIA


                              MEMORANDUM DECISION
        Petitioner Father filed this appeal by his counsel, W. Jesse Forbes, from an order entered
January 14, 2014, in the Circuit Court of Kanawha County, which terminated his parental rights
to twenty-three-month-old K.P. The guardian ad litem for the child, Sharon K. Childers, filed a
response in support of the circuit court’s order. The Department of Health and Human Resources
(“DHHR”), by its attorney, William P. Jones, also filed a response in support of the circuit
court’s order. Subsequently, petitioner filed a reply. On appeal, petitioner argues that the circuit
court erred by conducting hearings without him present, not allowing him to present evidence
with regard to his prior termination, finding that he made no efforts to rectify the circumstances
of abuse and neglect, and by finding that there was no less restrictive alternative to termination.

        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 2008, petitioner was convicted in federal court on possession of chemicals used in the
manufacture of methamphetamine and of aiding/abetting the same. Petitioner was subsequently
sentenced to sixty months of incarceration followed by three years of federal supervised release.
While petitioner was on supervised release, the DHHR filed an abuse and neglect petition against
petitioner and K.P.’s mother in March of 2013 because they were arrested for operating a
clandestine methamphetamine lab in their home. During this time, petitioner was under federal
supervised release and, subsequently, was returned to federal custody for violating his probation.
The petition alleged that not only was K.P. present for the arrest, but also that the parents failed
to provide him with necessary food, clothing, supervision, financial support, and housing. The
petition also alleged that petitioner had his rights terminated to other children in 2008.

        The officer who arrested petitioner testified at the preliminary hearing that when he and
another officer arrived at the home, they could smell a chemical odor. After entering the home,
the two officers found materials used to make methamphetamine and “finished product.” This
officer also testified about the home’s unsafe conditions, such as the stove being used for
heating, the lack of running water, the home’s cold temperature, and trash everywhere. In June of
2013, and after multiple continuances due to petitioner’s absences while in federal custody, the
circuit court proceeded with adjudication and adjudicated K.P. as a neglected child and petitioner

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and K.P.’s mother as abusing parents.1 After a number of continuances for the dispositional
hearing, again due to petitioner’s absences while in federal custody, the circuit court heard
evidence from the family’s assigned caseworker. Ultimately, the circuit court found that there
was no reasonable likelihood that the conditions of abuse and neglect could be substantially
corrected in the near future and that termination would be in the child’s best interests. Petitioner
now brings this appeal.

       This 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).

       Petitioner raises four assignments of error. First, petitioner argues that the circuit court
erred in conducting the adjudicatory and dispositional hearings without him being present
because petitioner was incarcerated at the time of those hearings. Upon our review of the record,
we find no error by the circuit court in proceeding with these hearings in petitioner’s absence.
We have held as follows:

       [An] incarcerated parent who is a respondent to an abuse and neglect proceeding
       must inform the circuit court in which such case is pending that he/she is
       incarcerated and request the court’s permission to attend the hearing(s) scheduled
       therein. Once the circuit court has been so notified, by the respondent parent
       individually or by the respondent parent’s counsel, the determination of whether
       to permit the incarcerated parent to attend such hearing(s) rests in the court’s
       sound discretion.

Syl. Pt. 4, in part, In re Stephen Tyler R, 213 W.Va. 725, 584 S.E.2d 581 (2003). The record
does not reveal that he ever requested the circuit court’s permission to attend the hearings
1
  The circuit court actually adjudicated the parents as abusive and neglectful parents, but the
Court notes that West Virginia Code § 49-1-3(2) defines “abusing parent” as a “parent, guardian
or other custodian, regardless of his or her age, whose conduct, as alleged in the petition
charging child abuse or neglect, has been adjudged by the court to constitute child abuse or
neglect.”

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himself. Rather, the record reflects that these hearings were continued numerous times and that
although petitioner was absent, his attorney was present at each hearing.

       Second, petitioner argues that the circuit court erred by not allowing him to present
evidence of the facts of the underlying prior termination on the record prior to the finding of
abuse and neglect and prior to termination of parental rights. Petitioner argues that the
circumstances of that termination were remedied, asserting that a family court order returned
custody of those minor children to petitioner. Upon our review of the record, we decline to
address this assignment of error because the circuit court’s adjudication was supported by
findings unrelated to petitioner’s prior termination.2 West Virginia Code § 49-1-3(11)(A)
provides the following definitions of a “neglected” child:

       (i) [A child] [w]hose physical or mental health is harmed or threatened by a
       present refusal, failure or inability of the child's parent, guardian or custodian to
       supply the child with necessary food, clothing, shelter, supervision, medical care
       or education, when such refusal, failure or inability is not due primarily to a lack
       of financial means on the part of the parent, guardian or custodian; or

       (ii) [A child] [w]ho is presently without necessary food, clothing, shelter, medical
       care, education or supervision because of the disappearance or absence of the
       child's parent or custodian;

       Our review of the record reveals that the circuit court concluded that the child’s health
was harmed by petitioner’s failure to supply him with the necessary food, clothing, shelter,
supervision, and care. The circuit court found that petitioner allowed the child to live in a home
unsafe for human habitation through his exposure to methamphetamine, filth, no running water,
and heat sourced only by a kitchen stove. The circuit court also found that petitioner has
remained incarcerated on drug charges throughout the abuse and neglect proceedings. These
findings were sufficient to support the circuit court’s adjudication of K.P. as a neglected child
and petitioner as an abusing parent to K.P.

        Third, petitioner argues that the circuit court erred in finding that petitioner made no
efforts to rectify the circumstances that led to the conditions of abuse and neglect or follow
through with services, and that the same could not be substantially corrected. Petitioner asserts
that the DHHR failed to provide any services during this case. However, the DHHR’s petition
provides that supportive services were offered to petitioner and K.P.’s mother prior to K.P.’s
removal from the home. No evidence in the record provides that petitioner subsequently
requested any services or kept communication with the DHHR during the pendency of this case.
Therefore, we find no error by the circuit court in this regard.

         Lastly, petitioner argues that the circuit court erred in finding that there were no less
restrictive alternatives to termination. Petitioner argues that he should have received an
improvement period at disposition because K.P. is in his mother’s care and custody. Our review


2
  We note, however, that there is no record of the circuit court ever modifying the termination
order of petitioner’s older children to reflect that the termination was vacated.

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of the record reveals no error by the circuit court in terminating petitioner’s parental rights. We
have held the following:

               “[C]ourts are not required to exhaust every speculative possibility of
       parental improvement . . . where it appears that the welfare of the child will be
       seriously threatened, and this is particularly applicable to children under the age
       of three years who are more susceptible to illness, need consistent close
       interaction with fully committed adults, and are likely to have their emotional and
       physical development retarded by numerous placements.” Syl. Pt. 1, in part, In
       Re: R.J.M., 164 W. Va. 496, 266 S.E.2d 114 (1980).

Syl. Pt. 4, In re Cecil T., 228 W. Va. 89, 717 S.E.2d 873 (2011). The record shows no indication
that petitioner ever attempted to contact his attorney or the DHHR during the abuse and neglect
case involving twenty-three-month-old K.P. Rather, petitioner was unresponsive and unable to
be located. This evidence, coupled with the child’s need for permanency, was sufficient to
support the circuit court’s findings and conclusions that there was no reasonable likelihood that
conditions of abuse and neglect could be substantially corrected in the near future, and that
termination was necessary for the child’s welfare. Pursuant to West Virginia Code § 49-6­
5(a)(6), circuit courts are directed to terminate parental rights upon such findings.

       For the foregoing reasons, we affirm.

                                                                                        Affirmed.


ISSUED: June 2, 2014

CONCURRED IN BY:

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




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