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In re M.S.

Supreme Court of West Virginia

June 16, 2017

In re: M.S. and B.E.

         Randolph County 16-JA-031 & 16-JA-032

          MEMORANDUM DECISION

         Petitioner Father B.E., by counsel J. Brent Easton, appeals the Circuit Court of Randolph County's February 8, 2017, order terminating his parental rights to M.S. and B.E.-1.[1] The West Virginia Department of Health and Human Resources ("DHHR"), by counsel Lee Niezgoda, filed its response in support of the circuit court's order. The guardian ad litem ("guardian"), Heather M. Weese, filed a response on behalf of the children also in support of the circuit court's order and a supplemental appendix. On appeal, petitioner argues that he should have been entitled to an additional improvement period at disposition because of the DHHR failure to timely file a family case plan.

         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 March of 2016, the DHHR filed an abuse and neglect petition against petitioner and the mother that alleged the mother abused drugs during her pregnancy with M.S. The petition further alleged that the mother's drug use resulted in abuse and neglect to the other children in the home.[2] As to petitioner, the DHHR alleged that he also abused drugs and supported the mother's drug abuse. The petition further alleged that petitioner engaged in domestic violence in the home.

         That same month, the circuit court held an adjudicatory hearing, at which petitioner stipulated to neglecting the children due to drug abuse and the domestic violence present in the home. The circuit court thereafter granted petitioner a post-adjudicatory improvement period and directed the multidisciplinary team ("MDT") to meet in order to set the terms and conditions of the post-adjudicatory improvement period. The following day, the MDT met to comply with the circuit court's direction. During the meeting, the parties set the terms and conditions of petitioner's improvement period and memorialized the same in a document that petitioner signed. The terms and conditions included, but were not limited to, the following: (1) complete recommended evaluations; (2) submit to random drug screens; (3) participate in any services deemed appropriate, including parenting services and anger management/batterers intervention services; and (4) participate in visitation with the children.

         In May of 2016, the circuit court held a review hearing, during which it determined that petitioner was noncompliant with the terms and conditions of his improvement period, including his failure to submit to drug screens. After the DHHR suggested finding a new location for petitioner to submit to screens, the circuit court ordered petitioner to comply with the DHHR's attempts to facilitate the same.

         In July of 2016, the circuit court held another review hearing. Petitioner failed to appear in person, although he was represented by counsel. During the hearing, the DHHR presented evidence that petitioner continued in his failure to comply with his improvement period, including missed drug screens and visitations with the children. However, the circuit court granted petitioner an extension of his post-adjudicatory improvement period.

         In August of 2016, the circuit court held another review hearing. The circuit court found that, aside from attending three parenting classes, petitioner failed to participate in his improvement period. This included petitioner's failure to submit to drug screens, visit the children, and attend hearings. Shortly after the hearing, the DHHR filed a motion to terminate petitioner's parental rights.

         In December of 2016, the circuit court held a dispositional hearing, during which the parents moved for post-dispositional improvement periods on the grounds that the DHHR failed to timely file a family case plan after they were granted post-adjudicatory improvement periods. The circuit court then continued the hearing and ordered the DHHR to file a family case plan. In January of 2017, the circuit court held another dispositional hearing subsequent to the DHHR's filing of a case plan.[3] Petitioner again failed to appear in person, but was represented by counsel. During the hearing, the circuit court denied petitioner's motion for a post-dispositional improvement period upon petitioner's failure to comply with any terms and conditions of his post-adjudicatory improvement period. The circuit court found that petitioner failed to comply with minimal requirements, such as executing a medical release for the DHHR in order to facilitate other services. Petitioner further failed to participate in evaluations, visitation with the children, and anger management classes. Moreover, petitioner routinely missed drug screens and tested positive for illicit substances on the few occasions he did submit to screening. As such, the circuit court terminated petitioner's parental rights to the children.[4] It is from the dispositional 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).

         On appeal, petitioner argues that he should have been entitled to an additional improvement period at disposition because of the DHHR's failure to timely file a family case plan.[5] We do not agree. With regard to family case plans, this Court has stated that

"[t]he purpose of the family case plan as set out in W.Va. Code [§] 49-6D-3(a) [now W.Va. Code § 49-4-408(a)] . . . is to clearly set forth an organized, realistic method of identifying family problems and the logical steps to be used in resolving or lessening these problems." Syl. Pt. 5, State ex rel. Dep't of ...

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