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In re P.B.

Supreme Court of West Virginia

June 19, 2017

In re: P.B. and T.B.

         Mercer County 16-JA-35 & 16-JA-36

          MEMORANDUM DECISION

         Petitioner Father B.B., by counsel David B. Kelley, appeals the Circuit Court of Mercer County's August 26, 2016, order terminating his parental rights to P.B.[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"), William O. Huffman, 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 adjudicating the children as abused and/or neglected and terminating his parental rights without first granting his request for a post-adjudicatory improvement period.

         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 alleging that he drove a vehicle while intoxicated with P.B. and P.B.'s mother, H.B., as passengers. The petition also alleged that petitioner was stealing H.B.'s prescription drugs and that petitioner and H.B. engaged in domestic violence in the children's presence.

         Also in March of 2016, the circuit court held a preliminary hearing wherein a DHHR worker testified that petitioner admitted to having substance abuse issues and attempted to check into a substance abuse treatment facility. A Mercer County deputy sheriff testified that petitioner threatened him while the deputy sheriff was "trying to serve a [domestic violence protective order]" on petitioner for engaging in domestic violence with the mother. Based on the evidence presented, the circuit court found that there was probable cause to believe that the children were neglected. The circuit court ordered that a multidisciplinary team ("MDT") schedule a meeting and that petitioner submit to random drug and alcohol screening. Following the preliminary hearing, petitioner filed a motion for a pre-adjudicatory improvement period.

         In April of 2016, the circuit court held an adjudicatory hearing wherein a DHHR worker testified that petitioner refused to participate in random substance abuse screening. The worker also testified that petitioner was charged with making terroristic threats, intimidating a witness, and was subsequently incarcerated.[2] The circuit court continued the adjudication until May 9, 2016 and petitioner was transported to the adjudicatory hearing wherein he testified that he wanted an improvement period and would "agree to anything like going into rehab to get off." Petitioner admitted to neglecting his children because of his alcohol addiction and engaging in domestic violence. Based on the evidence presented, the circuit court found that the children were neglected because of petitioner's alcohol abuse and incarceration.[3]

         In June of 2016, the DHHR filed a motion to terminate petitioner's parental rights. Subsequently, petitioner filed a motion for a post-adjudicatory improvement period. In August of 2016, the circuit court held a dispositional hearing wherein it addressed petitioner's motion and the DHHR's motion to terminate his parental rights. A DHHR worker testified that she had concerns about petitioner's ability to participate in an improvement period because of his "unpredictable behavior" and alcohol abuse. A service provider testified that petitioner refused to screen on several occasions and missed scheduled visits with the children. P.B.'s foster mother testified that, on April 8, 2016, petitioner came to her home intoxicated and threatened to kill everyone in the home and "smash out the windows." She also testified that she called the police as a result of petitioner's threats. A West Virginia State Trooper testified that petitioner threatened to kill him after he executed a "welfare check" on petitioner. The psychiatrist treating petitioner testified that petitioner was voluntarily admitted to Highland Hospital for detoxification but that he left the facility against medical advice. The psychiatrist also testified that petitioner "is a severe alcoholic" who minimizes his alcoholism and denies that he has a problem with alcohol. According to the psychiatrist's testimony, petitioner believes that the "things that he does or says while intoxicated, he [should not] be held responsible for." Finally, petitioner testified that he would "do whatever it takes" to be reunified with the children and that he agreed with the psychiatrist's testimony. Given this evidence, the circuit court found that there was no reasonable likelihood petitioner could substantially correct the conditions of abuse and neglect, terminated his parental rights to P.B. and his custodial rights to T.B., and denied his motion for a post-adjudicatory improvement period.[4] It is from that August 26, 2016, order that petitioner appeals.

         The Court has previously established the following standard of review in a case such as this:

"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 circuit court's adjudication of the children as neglected or the denial of his motion for a post-adjudicatory improvement period.

         On appeal, petitioner argues that the circuit court's findings of neglect were not supported by clear and convincing evidence because there were no allegations of physical abuse. West Virginia Code § 49-1-201 defines a "neglected child" as a child

[w]hose physical or mental health is harmed or threatened by a present refusal, failure or inability of the child's parent, guardian or custodian to supply the child with necessary food, clothing, shelter, supervision, medical care or education, when that refusal, failure or inability is not due primarily to a lack of financial means on the part of the parent, guardian or custodian.

         Further, West Virginia Code § 49-1-201 defines an "abusing parent" as "a parent, guardian or other custodian, regardless of his or her age, whose conduct has been adjudicated by the court to constitute child abuse or neglect as alleged in the petition charging child abuse or neglect." In addition, this Court has described the "clear and convincing" standard as one in which

the evidence does not have to satisfy the stringent standard of beyond a reasonable doubt; the evidence must establish abuse by clear and convincing evidence. This Court has explained that "'clear and convincing' is the measure or degree of proof that will produce in the mind of the factfinder a firm belief or conviction as to the allegations sought to ...

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