Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

In re I.C.

Supreme Court of West Virginia

June 19, 2017

In re: I.C., B.C., W.C., and J.C.-1

         Kanawha County 16-JA-289, 16-JA-290, 16-JA-291, & 16-JA-292

          MEMORANDUM DECISION

         Petitioner Father J.C.-2, by counsel Shawn D. Bayliss, appeals the Circuit Court of Kanawha County's February 21, 2017, order terminating his parental rights to I.C, B.C., W.C., and J.C.-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"), Jennifer R. Victor, 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) granting the DHHR leave to file an amended petition; (2) adjudicating him of abusing and neglecting the children; (3) terminating his parental rights; (4) taking testimony from witnesses at the dispositional hearing in the absence of a disclosure from the DHHR pursuant to Rule 30 of the West Virginia Rules of Procedure for Child Abuse and Neglect Proceedings; and (5) denying him post-termination visitation with the children.

         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 June of 2016, the DHHR filed an abuse and neglect petition against the parents. According to the petition, the DHHR received a referral that a fourteen-year-old child was babysitting the children and locked them in a bedroom. When a Child Protective Services ("CPS") worker arrived at the home, the children were not locked in the room in question, but the mother did indicate that the lock on the bedroom door was used to keep the children from making a mess by dragging items from the room. According to CPS, the children were not dressed, with the exception of the youngest child who was wearing a diaper. CPS requested that the mother clothe the children, and she complied. However, over the extended time CPS was in the home, the children repeatedly removed their clothes. CPS also noted that the children were covered in feces and there was feces in the children's bedroom and on their mattress. The children shared one bedroom in the three-bedroom apartment and also shared one mattress with no sheets. The mother slept in one of the other bedrooms and the third bedroom contained a couch, tanning bed, and exercise equipment. The mother also indicated that the children's babysitter resided with her several days out of the week. CPS further observed an open-topped cage in the living room, which the mother stated was for her pet rats that were deceased. According to CPS, the cage contained a child-sized chair and a child's sippy cup.

         After investigating the matter, the DHHR determined that the children were developmentally delayed. Child J.C.-1, then four years old, could say only the words "zombie, " "chips, " and "mommy, " while the remaining children could not say their own names. In regard to petitioner, the petition alleged that he had not had contact with the children or the mother since 2015, pursuant to a domestic violence protective order. Based on the conditions in the home, the DHHR implemented two protection plans, but both were unsuccessful. Ultimately, the DHHR alleged that the parents failed to provide the children with necessary food, clothing, supervision, housing, and financial support. The petition further alleged that the parents were not sufficiently motivated to provide for the children.

         In June of 2016, the circuit court held a preliminary hearing, during which it ordered the DHHR to provide petitioner remedial services, including random drug screens and visitation with the children. Following a failed drug screen, the DHHR filed an amended petition in July of 2016 to include allegations against petitioner based on his abuse of marijuana and hydrocodone, for which he did not have a valid prescription, and his refusal to submit to a second drug screen.

         The circuit court held an adjudicatory hearing in August of 2016. Petitioner did not attend the hearing in person, but he was represented by counsel. The DHHR moved, without objection, to incorporate all previous testimony, information regarding the domestic violence protective order against petitioner, and other evidence regarding petitioner into the adjudicatory hearing. Based on the evidence, the circuit court found that petitioner's substance abuse issues affected his ability to properly parent the children. The circuit court further found that petitioner failed to comply with its order by refusing to submit to a drug screen at the prior hearing and, therefore, considered the failure to screen as evidence of continued drug use. Further, as evidenced by the pending domestic violence protective order, the circuit court found that petitioner committed domestic violence in the home. Finally, the circuit court found that petitioner was aware that the home was unfit for habitation, yet took no steps to protect the children. Based on this evidence, the circuit court ruled that petitioner abused and neglected the children. The circuit court additionally ordered that petitioner could not exercise visits with the children without passing a drug screen.

         In October of 2016, the circuit court held a hearing, during which it found that the DHHR failed to timely file a case plan in the proceeding. The circuit court further ordered the DHHR to provide petitioner with additional services, including a psychological and parental fitness evaluation, adult life skills, and parenting education.

         In January of 2017, the circuit court held a dispositional hearing. Petitioner again failed to appear, although he was represented by counsel. According to testimony from DHHR personnel, petitioner failed to participate in the services offered; failed to participate in drug screens; continued to abuse drugs; failed to visit the children; violated a prior order regarding contact with the children; and failed to maintain contact with the DHHR. Based upon petitioner's failure to participate in services or benefit from the same, the circuit court found that he was addicted to controlled substances and/or drugs to the extent that proper parenting skills were seriously impaired. The circuit court further found that petitioner failed to follow through with the recommended treatment that would have improved his ability to adequately parent. As such, the circuit court terminated petitioner's parental rights and denied him post-termination visitation with the children.[2] 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). Upon our review, the Court finds no error in the proceedings below.

         At the outset, it is important to note that petitioner's brief on appeal incorrectly asserts that "no allegations were levied against [him]" in the original petition. This is an inaccurate representation of the DHHR's initial petition in this matter, which clearly indicated that the "parents . . . failed to provide the children with the necessary food, clothing, supervision and housing" based on the deplorable conditions in the home. While petitioner refers to this as "boilerplate" language, the fact remains that the DHHR clearly alleged that petitioner, in addition to the mother, abused and/or neglected the children by allowing them to live in the mother's home. According to petitioner, the DHHR could not allege abuse or neglect on his part because it also alleged that he had not had contact with the mother or the children for six months. Again, we do not agree. The record shows that petitioner's lack of contact was the result of a domestic violence protective order against him, and the imposition of such an order does not absolve petitioner of his duty to provide the children with necessities, such as appropriate supervision and shelter.[3] As such, the Court finds that the DHHR's initial petition in this matter clearly alleged that petitioner abused and neglected the children.

         Turning to petitioner's first assignment of error, he argues that the circuit court erred in permitting the DHHR to amend the petition to include additional allegations regarding his substance abuse. According to petitioner, this was improper because the only evidence of his substance abuse occurred when he failed a drug test following the preliminary hearing. Because the children had already been removed from the home, petitioner argues that his substance abuse could not properly form the basis of an amended petition because there was no evidence he ever abused drugs in the children's presence. We do not agree.

         Rule 19(a) of the Rules of Procedure for Child Abuse and Neglect Proceedings clearly states that "[t]he court may allow the petition to be amended at any time until the final adjudicatory hearing begins, provided that an adverse party is granted sufficient time to respond to the amendment." Here, petitioner does not allege that he was denied sufficient time to respond to the amendment. His only argument on appeal is that amendment was improper because the allegations contained therein related to a time that the children were not in his care. Pursuant to West Virginia Code § 49-1-201, a neglected child is one "[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 . . . ." (Emphasis added). In the present matter, the DHHR alleged that petitioner's substance abuse, as evidenced by his failed drug screen and refusal to submit to a second screen, resulted in his inability to provide the children with appropriate supervision and shelter, among other necessities. It was unnecessary for the children to be in his custody in order for his substance abuse to threaten their wellbeing due to his inability to properly parent them. Simply put, the Court finds no merit to petitioner's argument that the DHHR was barred from filing an amended petition based on these new allegations. Moreover, ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.