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In re B.F.

Supreme Court of West Virginia

May 22, 2017

In re: B.F. and M.K.

         (Jackson County 15-JA-148 & 15-JA-149)

          MEMORANDUM DECISION

         Petitioner Father J.K., by counsel Ryanne A. Ball, appeals the Circuit Court of Jackson County's August 3, 2016, order terminating his parental rights to B.F. and M.K.[1] The West Virginia Department of Health and Human Resources ("DHHR"), by counsel Melinda C. Dugas, filed a response in support of the circuit court's order. The guardian ad litem ("guardian"), Erica Brannon Gunn, 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 adjudicating him as an abusing parent, denying his request for a post-adjudicatory improvement period, and terminating 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.

         Although the abuse of petitioner's step-son, M.F., forms the basis of this petition, M.F. is not the subject of petitioner's appeal. In December of 2015, M.F., experienced a serious behavioral issue at school, related to his autism.[2] M.F.'s teacher called the home and petitioner picked the child up from the school. When M.F. returned to school later that same week, he had noticeable injuries on his face and forehead, including a black eye. Ultimately, in December of 2015, the DHHR filed an abuse and neglect petition against petitioner and the mother of M.K. as to B.F. and M.K.[3] Specifically, the petition alleged that petitioner and the mother engaged in domestic violence in the children's presence and that petitioner and the mother physically and emotionally abused the children. An amended abuse and neglect petition was filed in April of 2016, alleging that petitioner and the mother attempted to interfere with the children's statements to the DHHR.

         In January of 2016, the circuit court held a preliminary hearing wherein it heard the testimony of several witnesses. A DHHR worker testified that she observed bruises on M.F. and that M.F. reported to her that petitioner threw him on the ground, causing the bruises. She also testified that M.F. hid under a chair and reported that the bruises were the reason he was absent from school. The worker further testified that when she confronted M.F. and M.K.'s mother about the allegations of abuse, the mother told her that M.F. was "not able to make sentences or be understood." B.F.'s non-offending mother testified that she filed for a domestic violence protective order against petitioner in January of 2016, after he threatened to kill her. She also testified that, in May of 2015, B.F. returned from a visit with petitioner and had marks on his face, eyes, and chest, as well as bruises on his side and bottom. Respondent called petitioner to testify but the circuit court continued the matter to allow petitioner to further confer with his attorney regarding the implications of testifying at the preliminary hearing.

         Also in January of 2016, the circuit court held a second preliminary hearing wherein it heard the testimony of another witness. M.F.'s teacher testified that she observed bruises on M.F.'s forehead and a black eye when he returned to school. She also testified that M.F. told her that petitioner pushed him down onto the floor. She further testified that M.F. did not have bruises on his forehead or a black eye when he left school on December 15, 2015. Following the testimony of the witnesses, the circuit court found that imminent danger existed at the time of the petition's filing and sustained the removal of B.F. and M.K. from the home. The circuit court ordered that petitioner, the mother of M.F. and M.K., and the children undergo psychological evaluations.

         In May of 2016, the circuit court held an adjudicatory hearing wherein it heard testimony from the psychologist who evaluated petitioner and the mother of M.K. The psychologist testified that petitioner and the mother denied abusing the children. He also testified that petitioner had an unspecified personality disorder with antisocial and narcissistic features. He further testified that M.F. stated that his mother told him he was not supposed to acknowledge the abuse and he would be "back in the home soon." The psychologist opined that the children would be in danger if left in petitioner's care and testified that he could not formulate treatment recommendations because petitioner refused to acknowledge the abuse. At the conclusion of the hearing, the circuit court adjudicated petitioner as an abusing parent to B.F. and M.K.[4] Following the adjudicatory hearing, petitioner and the mother filed written motions requesting post-adjudicatory improvement periods.

         In July of 2016, the circuit court held a dispositional hearing. Petitioner failed to attend the hearing but was represented by his counsel. A DHHR worker testified that the DHHR was seeking termination of petitioner's parental rights because he had not accepted responsibility for his actions that led to the petition's filing. Petitioner presented no evidence in support of his previously filed motion for a post-adjudicatory improvement period. At the conclusion of the hearing, the circuit court found that petitioner "abandoned the case" because he failed to attend a scheduled multidisciplinary team ("MDT") meeting, failed to participate in the development of a family case plan, and failed to attend the dispositional hearing or present evidence in support of his motion. The circuit court also found that there was no reasonable likelihood petitioner could substantially correct the conditions of abuse and neglect, terminated his parental rights to the children, and denied his motion for a post-adjudicatory improvement period.[5] It is from that August 3, 2016, 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 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, the Court finds no error in the circuit court's adjudication of petitioner as an abusing parent, denial of his motion for a post-adjudicatory improvement period, or termination of his parental rights.

         On appeal, petitioner argues that the circuit court's findings of abuse were not supported by clear and convincing evidence. Petitioner asserts that the evidence presented at the adjudicatory hearing was insufficient to support the findings of abuse. West Virginia Code § 49-1-201 defines an "abused child" as "a child whose health or welfare is being harmed or threatened by [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." Further, this Court has described the "clear and convincing" standard as one in which

the evidence does not have to satisfy the stringent standard of beyond a reasonable doubt; the evidence must establish abuse by clear and convincing evidence. This Court has explained that "'clear and convincing' is the measure or degree of proof that will produce in the mind of the factfinder a firm belief or conviction as to the allegations sought to ...

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