In re: E.K. and I.K.
Hampshire
County 16-JA-69 & 16-JA-70
MEMORANDUM DECISION
Petitioner
Father J.K., by counsel Karen L. Garrett, appeals the Circuit
Court of Hampshire County's February 3, 2017, order
terminating his parental rights to E.K. and
I.K.[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"), Joyce E.
Stewart, 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 improvement period, suspending his visitation with the
children, finding that the DHHR made all reasonable efforts,
terminating his parental rights, denying him post-termination
visitation, and denying him the due process of law.
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 2015, the DHHR filed an abuse and neglect petition
alleging that petitioner and E.K. and I.K.'s mother
engaged in domestic violence in the children's presence
and that the mother abused illegal substances. The children
were removed from the home and the mother was not permitted
to return to the home or contact the children. Petitioner was
granted and completed a preadjudicatory improvement period.
The mother's parental rights to the children were
terminated on March 3, 2016, and the children were returned
to petitioner's care. On June 29, 2016, the police were
dispatched to petitioner's home in response to a report
of domestic violence between petitioner and the mother. The
mother told the police that she lived in petitioner's
home. The DHHR took emergency custody of the children and
filed an amended abuse and neglect petition against
petitioner alleging that he and the mother engaged in
domestic violence in the children's presence and that he
knowingly allowed the mother to live in the home and care for
the children despite the termination of her parental rights.
According to the amended petition, the children confirmed
that the mother was living in the home, that petitioner told
them "never to talk about [the mother] living there,
" and that the mother hid when service providers came to
the home. Petitioner thereafter waived his right to a
preliminary hearing.
In
August of 2016, the circuit court held an adjudicatory
hearing wherein petitioner stipulated to the allegations in
the amended petition - specifically, that he allowed the
mother to return to the home and care for the children and
that he and the mother engaged in domestic violence in the
children's presence. Following the adjudication,
petitioner filed a motion requesting a post-adjudicatory
improvement period, claiming that he allowed the mother to
return to the home because he did not understand that the
mother was not permitted contact with the children. The
circuit court granted petitioner's motion and ordered the
multidisciplinary team ("MDT") to meet and develop
a family case plan.
In
October of 2016, the circuit court held a status hearing
wherein the DHHR reported that petitioner continued to have
contact with the mother, failed to participate in services,
attempted to influence a witness to offer beneficial and
untruthful testimony, and reported to his doctor that he had
a fifteen-year history of addiction to prescription
medication. The DHHR then filed a motion to terminate
petitioner's improvement period. In support of its
motion, the DHHR provided the circuit court with copies of a
photograph of petitioner and the mother taken in October of
2016, an online post wherein the mother attempted to sell the
children's toys, and petitioner's medical records
indicating his fifteen-year substance abuse history.
In
December of 2016, the circuit court held a hearing on the
DHHR's motion to revoke petitioner's improvement
period. A DHHR caseworker testified that petitioner failed to
attend a Batterer's Intervention Program
("BIP"), failed to comply with substance abuse
services, and continued to have contact with the mother.
Petitioner testified that, contrary to his medical records,
he did not recall telling his doctor that he had a substance
abuse problem. Petitioner also testified that he could not
"make it" to all of his scheduled drug screens and
missed the initial BIP session because he went to the wrong
building. He denied having contact with the mother during the
underlying proceedings, but admitted to having contact with
her on the day the photograph was taken and testified that he
was "just checking on her to make sure everything was
okay." At the conclusion of the hearing, the circuit
court revoked petitioner's improvement period.
In
January of 2017, the circuit court held a dispositional
hearing wherein a day report center worker testified that
petitioner was referred to the agency for substance abuse
services. The worker also testified that petitioner appeared
for intake, refused to submit to drug screening, and denied
having any substance abuse issues, despite having a Suboxone
prescription. The worker further testified that the day
report center cannot provide petitioner any Suboxone until he
acknowledges his substance abuse issues. The circuit court
then ordered petitioner to submit to drug screening during a
brief court recess, at which time he tested positive for
marijuana and Suboxone. A DHHR worker then testified that
petitioner was initially provided with in-home parenting and
life skills classes and was enrolled in the BIP, but was
excused from the same because it conflicted with his work
schedule. The worker also testified that, after the amended
petition was filed, petitioner was again referred to the BIP,
but failed to appear for his initial session and was
discharged by the provider. Finally, the worker testified
that petitioner was referred to substance abuse counseling
and drug screening but failed to comply with those services.
Petitioner admitted to having continued contact with the
mother despite the circuit court's order prohibiting such
contact. Based on the evidence presented, the circuit court
determined that petitioner and the mother were still in a
relationship, that petitioner has had "months, if not
years, to change the direction of his life, " and that
he refuses to "accept responsibility for anything."
The circuit court found that petitioner tested positive for
Suboxone and marijuana, but that petitioner denied that he
has a substance abuse problem. The circuit court also 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 February 3, 2017. It is from that order that petitioner
appeals.[2]
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.
On
appeal, petitioner first argues that the circuit court erred
in terminating his post-adjudicatory improvement period.
Despite petitioner's claim that the circuit court
"[failed] to approve the family case plan" and,
therefore, failed to implement his improvement period,
petitioner's motion for an improvement period was granted
on September 22, 2016, and services were initiated at that
time. It is clear from the record on appeal that petitioner
was instructed regarding the initiation of services the same
day his improvement period was granted and initial intake for
services was scheduled. Petitioner acknowledges his failure
to comply with services and his continued drug use. We find
that petitioner's failures and drug abuse were
appropriate considerations for the circuit court in
terminating his improvement period.
With
regard to the termination of his improvement period, West
Virginia Code § 49-4-610 sets forth when a circuit court
may terminate an improvement period. Under West Virginia Code
§ 49-4-610(7), a circuit court is to terminate an
improvement period "when the court finds that [a parent]
has failed to fully participate in the terms of the
improvement period." Additionally, "it is . . .
within the court's discretion to terminate the
improvement period . . . if the court is not satisfied that
the [parent] is making the necessary progress." Syl. Pt.
2, in part, In re Lacey P., 189 W.Va. 580, 433
S.E.2d 518 (1993).
In this
case, petitioner clearly failed to fully participate with the
services offered during his improvement period and
acknowledged these failures. He admitted that he did not
consistently comply with services throughout the proceedings,
and he admits to continued drug abuse. For those reasons, we
find no error in the circuit court's termination of
petitioner's ...