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In re A.N.

Supreme Court of West Virginia

June 19, 2017

In re: A.N. and N.N.-1

         Mercer County 16-JA-071 and 16-JA-072

          MEMORANDUM DECISION

         Petitioner Father N.N.-2, by counsel John G. Byrd, appeals the Circuit Court of Mercer County's January 11, 2017, order terminating his parental rights to A.N. and N.N.-1[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"), Michael P. Cooke, 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 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 April of 2016, the DHHR filed an abuse and neglect petition alleging that petitioner and the mother engaged in domestic violence in the children's presence and abused and trafficked drugs in the home. According to the petition, petitioner was arrested for conspiracy and intent to deliver a controlled substance. The petition also alleged that the children were left in the care of an inappropriate person while petitioner was incarcerated and he admitted to the DHHR that he used intravenous drugs in the home. Petitioner thereafter waived his right to a preliminary hearing.

         In May of 2016, the circuit court held an adjudicatory hearing wherein petitioner stipulated to the allegations contained in the petition and admitted that the children were abused and neglected due to his substance abuse. Petitioner requested a post-adjudicatory improvement period, and the circuit court granted his request. In June of 2016, the circuit court held a review hearing during which the circuit court was presented with evidence that petitioner "had a few positive drug screens for [o]piates." The DHHR recommended that petitioner remain on his improvement period and continue to submit to random drug screens.

         In December of 2016, the circuit court held a dispositional hearing wherein petitioner failed to appear but was represented by counsel. A DHHR worker testified that petitioner was non-compliant with the terms and conditions of his improvement period. According to the worker, petitioner failed to fully complete adult life skills classes, participate in visitation, and submit to random drug screens. The worker testified that the "very few drug screens that could be collected have all been positive for substances." The worker also described petitioner's visits with the children as "sporadic." Based on the evidence presented, the circuit court determined that petitioner failed to participate in the proceedings and found that there was no reasonable likelihood he could substantially correct the conditions of abuse and neglect and terminated his parental rights to the children by order dated January 11, 2017.[2] It is from that order that petitioner appeals.

         The Court has previously established the following standard of review in cases such as these:

"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 termination of petitioner's parental rights.

         Petitioner's sole argument on appeal is that the circuit court erred in terminating his parental rights to the children when the least-restrictive alternative was to terminate his custodial rights. We disagree. West Virginia Code § 49-4-604(b)(6) provides that a circuit court is directed to terminate parental rights upon findings that there is "no reasonable likelihood that the conditions of neglect or abuse can be substantially corrected in the near future" and that termination is necessary for the children's welfare. West Virginia Code § 49-4-604(c)(3) provides that "no reasonable likelihood that conditions of abuse or neglect can be substantially corrected" exists when "[t]he abusing parent . . . ha[s] not responded to or followed through with a reasonable family case plan or other rehabilitative efforts[.]"[3]

         In this case, it is undisputed that petitioner failed to comply with the terms of his improvement period. He failed to participate in adult life skills classes, failed to regularly visit with his children, and tested positive for controlled substances on multiple occasions. Given petitioner's complete lack of improvement during these lengthy proceedings, we find no error in the circuit court's termination order. The circuit court properly found that petitioner was not reasonably likely to substantially correct the conditions of abuse and neglect in the near future, and it is clear from the record on appeal that the children's welfare necessitated the termination of petitioner's parental rights. Accordingly, we find no error below.

         For the foregoing reasons, we find no error in the decision of the circuit court, and its January 11, 2017, order is hereby affirmed.

         Affirmed.

          CONCURRED IN BY: Chief Justice Allen H. Loughry II Justice Robin Jean Davis Justice Margaret L. Workman Justice Menis ...


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