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In re A.M.

Supreme Court of West Virginia

June 16, 2017

In re: A.M., T.M., and J.M.-2

         Taylor County 13-JA-19, 13-JA-20, & 15-JA-9


         Petitioner Father J.M.-1, by counsel Jason T. Gains and Ryan C. Shreve, appeals the Circuit Court of Taylor County's July 21, 2016, order terminating his parental rights to then four-year-old A.M., five-year-old T.M., and one-year-old J.M.-2.[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"), Mary S. Nelson, filed a response on behalf of the children in support of the circuit court's order. Petitioner filed a reply. On appeal, petitioner argues that the circuit court (1) violated his constitutional and statutory rights; (2) erred in terminating his parental rights to the children based on erroneous findings of abuse and neglect; (3) plainly erred in terminating his parental rights to the youngest child, J.M., when the DHHR presented no evidence that J.M. was abused or neglected and the circuit court made no finding that J.M. was abuse or neglected; and (4) erroneously entered restraining orders prohibiting him from contacting J.M. or J.M.'s mother.[2]

         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 September of 2013, the DHHR filed an abuse and neglect petition ("first petition") against the mother of A.M. and T.M. following her arrest for felony child abuse and neglect. In the petition, the DHHR alleged that the arrest was based on the children's unsafe and unsanitary living conditions. No allegations against petitioner were made in the first petition. Upon their mother's arrest, A.M. and T.M. were placed in the care, custody, and control of petitioner.

         On June 23, 2014, the DHHR filed an amended abuse and neglect petition ("second petition") alleging that petitioner failed to protect his children from abuse and neglect because he knew or should have known that it occurred. On the same day, the circuit court held a status hearing. Petitioner was present, but not represented by counsel as there were no allegations against him in the first petition. At the outset of that hearing, the circuit court informed petitioner of the second petition's filing; appointed him counsel; and directed him to remain in the courtroom to be served with the second petition.

         Also at the hearing, the guardian raised concerns that petitioner may have abused controlled substances or alcohol while the children were in his custody, based on observations that petitioner appeared disoriented and was often late to and confused about visits between the children and their mother. The guardian requested that the circuit court order petitioner to submit to a drug and alcohol screen. The circuit court asked petitioner whether he had taken any medications or controlled substances for which he had no prescription. Without objection to the question by petitioner or his counsel, petitioner answered, "No." Petitioner further answered that he would not test positive for drugs, if tested. The circuit court adjourned the hearing for petitioner to submit to a drug screen. He tested positive for marijuana. Petitioner explained that he had inhaled second-hand marijuana smoke, but he stated that he had not directly used drugs. He further indicated that he left the children with their grandparents, with whom he and the children reside, when he was around the marijuana smoke. Based on the evidence, the circuit court permitted the children to remain in petitioner's physical custody provided that he submit to drug screens.

         On July 8, 2014, the DHHR filed another amended petition ("third petition") alleging that petitioner had abused and/or neglected his children due to his drug use, as evidenced by his positive drug screen for marijuana on June 23, 2014, in addition to the previous allegations contained in the second petition. Thereafter, petitioner submitted to additional drug screens. While the details of his drug screens are unclear, the record indicates that on several occasions petitioner tested positive for controlled substances and provided diluted samples.

         On July 15, 2014, the circuit court held an adjudicatory hearing on the allegations in the third petition. At that hearing, petitioner, with advice of counsel, stipulated that he "abused and/or neglected his infant child(ren) through his failure to protect and ensure for their wellbeing and through his resistance to services offered by the [DHHR] meant to remediate the pending issues . . . [and] . . . through his substance abuse, as evidence [sic] by multiple positive and/or dilute[d] drug screens." Petitioner stated that his stipulation was knowing, intelligent, and voluntary. After accepting the stipulation, the circuit court granted petitioner a six-month, post-adjudicatory improvement period.

         In September of 2014, the circuit court held a review hearing on petitioner's post-adjudicatory improvement period. Petitioner did not appear in person, but he was represented by counsel, who indicated that she had difficulty communicating with petitioner. It was also reported that petitioner failed to appear for drug screens on three occasions; provided diluted samples on one occasion; and tested positive for marijuana on another occasion. At the conclusion of the hearing, the circuit court ordered that petitioner could no longer reside with the children at their grandparents' home.

         In December of 2014, at the request of the children's grandparents, the DHHR removed the children from the grandparents and placed them in foster care. Later that month, at a status hearing, the circuit court granted the DHHR's motion to add petitioner's newly born child, J.M.-2, to the on-going abuse and neglect proceedings. Petitioner did not object to the motion or ruling regarding J.M.-2

         In February of 2015, the circuit court entered an order on its ruling from the hearing in December of 2014 that the "petition [was] ordered amended to reflect [the] birth of [J.M.-2]" and to include J.M.-2's non-offending mother in the proceedings ("fourth petition"). At a status hearing held in March of 2015, it was again reported that petitioner failed to fully submit to drug screens as directed.

         In June of 2015, the circuit court held a hearing at which it found that petitioner abused and neglected J.M.-2 The circuit court ruled that it could take judicial notice of petitioner's prior adjudication as to A.M. and T.M., which would include petitioner's admissions and stipulations related to those children, and petitioner's failures during his prior improvement period, which would include his failed drug screens. Petitioner presented no evidence or argument at the hearing, and at no time did petitioner object to the circuit court's rulings. It was further reported at the hearing that petitioner continued to fail to appear for drug screens; to give diluted samples; and to test positive for marijuana.

         In July of 2015, at the first dispositional hearing, the circuit court granted petitioner a dispositional improvement period. At a status hearing several months later, the circuit court noted that petitioner continued to fail to comply with drug screens as directed.

         In February of 2016, the circuit court held a second dispositional hearing. At that hearing, several service providers testified that petitioner failed to substantially comply with the terms and conditions of his improvement period. Petitioner only sporadically attended and participated in parenting and adult-life skills classes, and he had not attended any such classes since November of 2015. It was also noted that in June of 2015 petitioner attempted suicide and was hospitalized for mental health concerns. A mental health provider testified that petitioner initially sought treatment at a mental health clinic after his hospitalization, but he was discharged for non-compliance after only two therapy sessions. Further, the DHHR caseworker testified regarding petitioner's continued failures with positive, diluted, or missed drug screens.[3] Petitioner testified that his failure to comply with drug screens, therapy, and other services was due to a lack of transportation. Following the hearing, by order entered ...

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