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In re S.S.

Supreme Court of West Virginia

October 23, 2017

In re: S.S.

         Randolph County 16-JA-93

          MEMORANDUM DECISION

         Petitioner Father G.L., by counsel Gregory R. Tingler, appeals the Circuit Court of Randolph County's March 3, 2017, order terminating his parental rights to S.S.[1] The West Virginia Department of Health and Human Resources ("DHHR"), by counsel Lee Niezgoda, filed a response in support of the circuit court's order. The guardian ad litem ("guardian"), Heather M. Weese, filed a response on behalf of the child in support of the circuit court's order. On appeal, petitioner argues that the circuit court erred in (1) finding probable cause to support the emergency removal of the child from the home; (2) adjudicating him of neglect upon insufficient evidence; and (3) denying his motion for either a post-adjudicatory or post-dispositional improvement period.[2]

         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.

         Following a prior abuse and neglect proceeding in which he successfully completed an improvement period, petitioner was reunited with the child in May of 2016. According to the record, the prior proceeding was based, in part, on allegations that petitioner lacked adequate housing. At the time, petitioner lived with his parents. According to the DHHR, petitioner was repeatedly warned that the child's paternal grandparents' home was inappropriate, especially in light of the later removal of petitioner's nieces and nephews from that home due to unsafe conditions. Following reunification with petitioner, the prior petition was dismissed.

         In September of 2016, petitioner's mother contacted the DHHR and asked if the child could reside in her home for two weeks while petitioner moved. Despite the DHHR employee indicating that this would not be appropriate, petitioner nonetheless left the child at the grandparents' home around October 3, 2016, before leaving for the Commonwealth of Virginia. The following day, the DHHR received a referral that the child was staying at the grandparents' home. The DHHR initiated an investigation and found the home to be "in a filthy and unsafe condition" due to missing windows, a missing door, and food debris and garbage filling the home. The worker also noted a strong odor in the home which was also present on the child's person. Further, the child was found to have dirt caked under her nails and in the creases of her skin. As such, the DHHR removed the child from the home.

         On October 11, 2016, the DHHR filed an abuse and neglect petition against petitioner based on the conditions of the home in which he left the child. The petition further alleged that the paternal grandfather was charged with domestic violence against the paternal grandmother in June of 2016 after an incident that took place in petitioner's home in the child's presence. That same month, the circuit court held a preliminary hearing and found that petitioner subjected the child to imminent danger by placing her in a home he knew to be unsafe.

         In December of 2016, the circuit court held an adjudicatory hearing, during which the DHHR presented testimony from three workers who testified that the grandparents' home was chronically unfit. The DHHR also presented evidence from petitioner's sister's mother-in-law, who similarly spoke to the unfit nature of the home. Petitioner presented no evidence or testimony in response to the DHHR's evidence. The circuit court then adjudicated petitioner of neglecting the child, based upon his failure to acknowledge the unsafe conditions in his parents' home. The following month, petitioner filed a motion for either a post-adjudicatory or a post-dispositional improvement period, while the DHHR filed a motion to terminate petitioner's parental rights.

         In January of 2017, the circuit court held a dispositional hearing and addressed both outstanding motions. In support of his motion for an improvement period, petitioner testified that his parents' home was not in an unsafe condition when he left the child there. Petitioner further disagreed with the testimony of the DHHR workers regarding the home's condition. Petitioner additionally acknowledged that he was previously warned on multiple occasions that the home in question was not suitable for the child. Ultimately, the circuit court found that petitioner failed to accept responsibility for his actions. The circuit court further found that, based upon the extensive services petitioner received in the prior proceeding, there were no additional services that could remedy the conditions and neglect. As such, the circuit court denied petitioner's motion for an improvement period and terminated his parental rights to the child. [3] 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.

         First, we find no error in the circuit court's finding of imminent danger to the child such that removal from the home was warranted. Pursuant to West Virginia Code 49-4-303,

[p]rior to the filing of a petition, a child protective service worker may take the child or children into his or her custody (also known as removing the child) without a court order when:
(1) In the presence of a child protective service worker a child or children are in an emergency situation which constitutes an imminent danger to the physical well-being of the child or children, as that phrase is defined in ...

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