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In re B.N.

Supreme Court of West Virginia

May 22, 2017

In re: B.N.

         (Raleigh County 16-JA-009-K)

          MEMORANDUM DECISION

         Petitioner 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.[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. 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.

         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 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.

         At a 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.

         In May 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.[2] 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.

         On June 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.

         In July 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.

         In 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.[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 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. 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.

         First, 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 not agree.

         According 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 ...


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