In re: K.J. and L.J.
County 16-JA-061-MW & 16-JA-062-MW
Father S.J., by counsel John G. Byrd, appeals the Circuit
Court of Mercer County's January 13, 2017, order
terminating his parental, custodial, and guardianship rights
to K.J. and L.J. 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"), Catherine Bond
Wallace, 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, custodial, and guardianship rights.
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.
April of 2016, the DHHR filed an abuse and neglect petition
against the parents that alleged K.J. had twice been admitted
to the hospital over concerns that he ingested ADHD
medication. The mother additionally informed the DHHR that
petitioner and his family were substance abusers, although
she admitted that she left L.J. in his care while seeking
medical treatment for K.J. After K.J. was discharged from the
hospital, the DHHR requested that the parents bring the child
to its offices because of the child's general hygiene,
including a strong odor and the condition of his car seat.
Additionally, the DHHR identified prior instances of domestic
violence involving petitioner. Most recently, petitioner
received supervised visitation in a family court proceeding
that ended in January of 2016. According to the individual
that supervised those visits, petitioner was frequently under
the influence and was either late or failed to appear for
many visits. Specifically, this supervisor witnessed
petitioner fall asleep while holding the infant.
April of 2016, the circuit court held a preliminary hearing,
during which the guardian requested that the circuit court
permit the DHHR to retain custody of the children over
concerns as to where K.J. obtained the medication that
necessitated his medical treatment. The circuit court found
probable cause for the children's removal and ordered
they remain in the DHHR's custody.
of 2016, the circuit court granted the guardian's motion
to require the parents to submit to psychological testing.
The following month the circuit court held an adjudicatory
hearing, during which it took judicial notice of the records
from petitioner's prior domestic violence proceedings.
According to the records, petitioner previously threatened to
kill the mother. The circuit court also found that petitioner
was a drug addict and likely under the influence during the
hearing. As such, the circuit court found that petitioner
neglected the children by virtue of his substance abuse. The
circuit court then granted petitioner a post-adjudicatory
improvement period and directed him to submit to a
of 2016, as part of an ongoing domestic violence proceeding,
petitioner tested positive for multiple substances, including
amphetamine, methamphetamine, Suboxone, and marijuana.
Thereafter, the circuit court held a status hearing, during
which it heard evidence that petitioner left rehabilitation
against doctor's orders, provided a positive drug screen,
and failed to submit to a psychological evaluation as
ordered. Additionally, a summary submitted to the circuit
court in October of 2016 indicated that petitioner made no
attempt to contact his caseworker and that a recent drug
screen was positive for Suboxone and marijuana. Thereafter,
the DHHR filed a motion to terminate petitioner's
December of 2016, the circuit court held a dispositional
hearing. Petitioner did not attend the hearing, though he was
represented by counsel. During the hearing, the DHHR
presented evidence of petitioner's failure to comply with
the terms and conditions of his improvement period. This
included his exit from substance abuse treatment against
medical advice; failed drug screens; his refusal to be
evaluated by a psychologist; and his failure to make himself
available for services, among other evidence. It is from the
dispositional order that petitioner appeals.
Court has previously established the following standard of
"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
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
appeal, petitioner argues that the circuit court failed to
impose the least restrictive dispositional alternative.
According to petitioner, termination of only his custodial
and guardianship rights would have constituted the least
restrictive dispositional alternative. We do not agree.
According to West Virginia Code § 49-4-604(b)(6),
circuit courts are directed to terminate parental, custodial,
and guardianship rights upon findings that there is no
reasonable likelihood the conditions of abuse and neglect can
be substantially corrected and that termination is necessary
for the children's welfare. Here, the circuit court made
the necessary findings, based upon substantial evidence, to
support termination of petitioner's parental, custodial,
and guardianship rights.
to West Virginia Code § 49-4-604(c)(3), a situation in
which there is no reasonable likelihood the conditions of
abuse and neglect can be substantially corrected includes one
[t]he abusing parent . . . [has] not responded to or followed
through with a reasonable family case plan or other
rehabilitative efforts of social, medical, mental health or
other rehabilitative agencies designed to reduce or prevent
the abuse or neglect of the child, as evidenced by the
continuation or insubstantial ...