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In re D.L.

Supreme Court of West Virginia

May 22, 2017

In re: D.L.-1, D.L.-2, and G.L.

         Jackson County 15-JA-136, 15-JA-137, & 15-JA-138


         Petitioner Father L.W., by counsel Teresa C. Monk, appeals the Circuit Court of Jackson County's September 15, 2016, order terminating his parental rights to D.L.-1, D.l.-2, and G.L.[1]The West Virginia Department of Health and Human Resources ("DHHR"), by counsel Lee Niezgoda, 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 in support of the circuit court's order. On appeal, petitioner argues that the circuit court erred in (1) adjudicating him as an abusing parent; (2) permitting the DHHR to file a case plan that did not properly address the problems that led to the petition's filing; and (3) 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.

         In November of 2015, the DHHR filed an abuse and neglect petition against the parents based upon allegations of the parents' drug use and domestic violence in the home. The petition also alleged that petitioner was previously convicted for drug offenses and was indicted on criminal charges in June of 2015, including charges of operating or attempting to operate a clandestine drug laboratory; possession of substances used as precursors to manufacturing methamphetamine; manufacturing methamphetamine; and exposing a child to methamphetamine.[2] According to the guardian, although the original petition did not include allegations to this effect, the DHHR initiated this action less than one month after another infant in the home, G.L., died.

         In February of 2016, petitioner stipulated to the DHHR's allegations that he exposed the children to domestic violence. Petitioner also admitted to a prior conviction of possessing precursors to manufacturing methamphetamine and that he currently had charges pending for several methamphetamine-related crimes, including exposing a child to methamphetamine.

         In April of 2016, the circuit court held a series of dispositional hearings. Ultimately, the circuit court granted petitioner a post-adjudicatory improvement period. However, during his improvement period, petitioner failed to comply with mandatory drug screens, failed to comply with parenting and adult life skills services such that the provider terminated the same, and was found to have a poor prognosis for improved parenting by a parenting evaluator. As such, the DHHR filed a motion to revoke petitioner's improvement period and terminate his parental rights in June of 2016.

         In July of 2016, the circuit court held a dispositional hearing. Petitioner did not attend the hearing, although he was represented by counsel. During the hearing, petitioner's service provider testified to his failure to comply with services. The circuit court found that petitioner failed to participate in the improvement period and that the children's best interests required termination of his parental rights. As such, the circuit court terminated petitioner's parental rights.[3] It is from the dispositional hearing 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 proceedings below.

         First, the Court rejects petitioner's argument that the circuit court erred in adjudicating him as an abusing parent.[4] On appeal, petitioner argues that the allegations in the petition, even if true, do not rise to the level of abuse or neglect because petitioner was not the aggressor in the domestic violence that took place in the home and because his involvement in criminal activity does not constitute abuse. However, the Court finds that petitioner is not entitled to challenge the sufficiency of his adjudication on appeal because he stipulated to the same. We have previously held that "'[a] litigant may not silently acquiesce to an alleged error, or actively contribute to such error, and then raise that error as a reason for reversal on appeal.' Syllabus Point 1, Maples v. West Virginia Dep't of Commerce, 197 W.Va. 318, 475 S.E.2d 410 (1996)." Syl. Pt. 2, Hopkins v. DC Chapman Ventures, Inc., 228 W.Va. 213, 719 S.E.2d 381 (2011). Further,

"[a] judgment will not be reversed for any error in the record introduced by or invited by the party seeking reversal." Syllabus Point 21, State v. Riley, 151 W.Va. 364, 151 S.E.2d 308 (1966), overruled on other grounds by Proudfoot v. Dan's Marine Service, Inc., 210 W.Va. 498, 558 S.E.2d 298 (2001).

Id. at 215, 719 S.E.2d at 383, Syl. Pt. 3.

         The record in this matter is clear that petitioner voluntarily chose to stipulate to the adjudication against him. Moreover, petitioner did not object to his adjudication as an abusing parent, nor did he challenge the sufficiency of the allegations against him as contained in the DHHR's petition. In fact, the circuit court advised petitioner "that by making admissions, the [circuit c]ourt would find that [he was] an abusing . . . parent and that the [children] were . . . abused and neglected children." Despite the circuit court's warnings, petitioner admitted to his role in the domestic violence in the home as well as his indictment for several drug offenses, including exposing a child to methamphetamine. After petitioner made his stipulation, the circuit court asked both the guardian and counsel for the DHHR if the stipulation was sufficient. Both responded affirmatively, and petitioner made no objection to the circuit court ...

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