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In re E.K.

Supreme Court of West Virginia

October 23, 2017

In re: E.K. and I.K.

         Hampshire County 16-JA-69 & 16-JA-70


         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 ...

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