Father L.N., by counsel Stephen P. New, Stacey L. Fragile,
and Amanda Taylor, appeals the Circuit Court of Raleigh
County's October 17, 2016, order terminating his parental
rights to B.N. 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.
The guardian ad litem ("guardian"), Colleen M.
Brown-Bailey, 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 ratifying
the amended petition upon insufficient evidence and in
proceeding to adjudication and disposition upon that same
insufficient evidence. Petitioner also alleges that the
circuit court violated his due process rights by requiring
him to submit to drug screens.
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.
January of 2016, the DHHR filed an abuse and neglect petition
based on aggravated circumstances due to the mother's
prior involuntary termination of parental rights to older
children. Moreover, the petition alleged that the mother
abused drugs while pregnant with B.N., as evidenced by
hospital staff reporting that the child was exhibiting signs
of drug withdrawal. Upon a Child Protective Services
("CPS") investigation, the mother admitted that she
used Xanax and Methadone while pregnant with the child. The
CPS worker also spoke with petitioner, who indicated that he
did not live with the mother and was unaware of her drug use
during pregnancy. The CPS worker told petitioner that she
would need to do a walkthrough of his residence before the
child could return home with him from the hospital.
Petitioner stated that he would provide his address shortly,
but never provided the same. Eventually, when the child was
ready to be released, CPS contacted petitioner to ask for his
address, and he declined to provide it. Instead, petitioner
provided the address of the child's relatives and told
CPS that the home would be appropriate for the child.
Accordingly, CPS contacted the child's great-aunt,
conducted a home study, and the child was subsequently placed
with the relatives.
multidisciplinary team ("MDT") meeting in March of
2016, petitioner again failed to provide CPS with his
address. During the meeting, CPS reiterated that petitioner
would be considered for placement of the child as soon as he
provided an address that could be inspected for
appropriateness. During this meeting, CPS also asked for
petitioner to provide a list of current prescribed
medications. According to the guardian, petitioner indicated
that he was taking oxycodone, but that he would not be
obtaining any new prescriptions for the drug because his
prescribing physician was closing his practice. At this time,
the guardian requested that petitioner submit to a drug
screen to establish a baseline for the medications he was
currently taking. Petitioner indicated that he would provide
drug screens from his employer. Importantly, petitioner was
represented by counsel at this meeting and voluntarily agreed
to provide the DHHR with drug screen results in lieu of
submitting to a drug screen.
of 2016, the DHHR filed an amended petition that included
allegations against petitioner based on his refusal to
provide the DHHR with his address. The DHHR further alleged
that petitioner failed to submit to a drug screen as agreed
to at the MDT meeting. Moreover, the DHHR alleged that
petitioner had recently been arrested following a domestic
violence incident involving the mother. That same month,
petitioner filed a petition for writ of mandamus requesting
the child be placed in his custody immediately. According to
petitioner, he contacted the DHHR in an attempt to provide
his address during this period, but spoke with a supervisor
who failed to convey that information. Regardless, the record
shows that the DHHR did not obtain petitioner's address
until June 2, 2016.
10, 2016, the circuit court held a preliminary hearing on the
amended petition with regard to petitioner. During the
hearing, a DHHR worker testified to concerns that petitioner
was still in a relationship with the mother and may have
possibly been living with her. This was further bolstered by
petitioner's failure to provide the DHHR with an address
and his recent arrest for domestic violence involving the
mother. The circuit court also heard evidence concerning
petitioner's failure to submit to the agreed upon drug
screening, necessitated by numerous referrals to the DHHR
that petitioner was abusing prescription medication.
Ultimately, the circuit court found probable cause to leave
the child in the DHHR's custody. Moreover, the circuit
court specifically ordered petitioner to submit to drug
screening in compliance with his prior agreement to the same.
Finally, the circuit court ordered the DHHR to determine
whether petitioner was, in fact, living with the mother.
of 2016, the circuit court held an adjudicatory hearing.
Petitioner did not attend the hearing, although he was
represented by counsel. Based upon petitioner's failure
to submit to drug screens and his recent arrest, the circuit
court found that petitioner neglected the child.
August of 2017, the circuit court held a dispositional
hearing. Again, petitioner failed to appear in person but was
represented by counsel. During the hearing, petitioner's
counsel represented to the Court that petitioner had again
moved residences and that counsel was unaware of the address.
The circuit court then found that petitioner failed to keep
in contact with his counsel and that the only drug screen to
which petitioner submitted was positive for marijuana. Based
on these factors, the circuit court terminated
petitioner's parental rights to the child. It is from this
order that petitioner appeals.
The Court has previously established the following standard
"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
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. On
appeal, petitioner argues that the circuit court erred in
ratifying the amended petition upon insufficient evidence and
in proceeding to adjudication and disposition upon the same
insufficient evidence. He also alleges that the circuit court
violated his due process rights by requiring that he submit
to drug screens in the absence of any allegations of
substance abuse. The Court, however, does not agree.
the Court finds no error in the circuit court proceeding on
the amended petition at the preliminary hearing. On appeal,
petitioner argues that the DHHR "undertook a pattern of
harassment of [p]etitioner and abused its discretion in
filing the [a]mended [p]etition after a lengthy delay."
Petitioner further argues that the DHHR's amended
petition was deficient, as it failed to allege sufficient
facts to establish abuse or neglect, especially considering
that the allegations contained therein did not relate back to
the time at which the case was initiated. Petitioner further
argues that the DHHR failed to meet its burden of
establishing probable cause at the preliminary hearing. We do
to West Virginia Code § 49-4-601, an abuse and neglect
petition "shall allege specific conduct including time
and place, how the conduct comes within the statutory
definition of neglect or abuse with references thereto . . .
[, ]" among other requirements. Contrary to
petitioner's argument that the amended petition was
deficient, the record is clear that it alleged legitimate
grounds of abuse and/or neglect against petitioner, including
his refusal to comply with drug screens as agreed, his recent
arrest for domestic battery against the mother, and his
inability to ...