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In re G.P.

Supreme Court of West Virginia

October 23, 2017

In re: G.P., J.P., and W.P.

         Randolph County 16-JA-64, 16-JA-65, and 16-JA-66

          MEMORANDUM DECISION

         Petitioner Father L.M., by counsel J. Brent Easton, appeals the Circuit Court of Randolph County's April 10, 2017, order terminating his parental rights to G.P., J.P., and W.P.[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"), Jeremy B. Cooper, filed a response on behalf of the children and in support of the circuit court's order. On appeal, petitioner argues that the circuit court erred in denying his motion for a dispositional improvement period because the DHHR failed to formulate a family case plan.

         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 August of 2016, the DHHR filed an abuse and neglect petition against petitioner and G.P., J.P., and W.P.'s mother, L.B., alleging that they engaged in domestic violence in the children's presence, that the mother abused substances, and that petitioner failed to protect the children from the mother's substance abuse. In September of 2016, the circuit court held an adjudicatory hearing wherein petitioner stipulated to the allegation that he and the mother engaged in domestic violence in the children's presence. Ultimately, the circuit court adjudicated petitioner as an abusing parent and granted him a post-adjudicatory improvement period.

         In November of 2016, the circuit court held a review hearing regarding petitioner's improvement period. Even though the DHHR reported that petitioner was not fully participating in his improvement period and had not been communicating adequately with the DHHR, the circuit court ordered that his improvement period continue.

          In January of 2017, the circuit court held another review hearing regarding petitioner's improvement period. Petitioner did not appear but was represented by counsel. The DHHR reported to the circuit court that petitioner failed to attend scheduled visits with the children, failed to submit to random drug screening, and made no progress during the course of the improvement period. Following the review hearing, petitioner was arrested and charged with the domestic battery of the mother, battery of the mother's boyfriend, and destruction of property. According to the police report, petitioner rammed his vehicle into the vehicle in which the mother and her boyfriend were riding. In February of 2017, the DHHR filed a motion to terminate petitioner's parental rights due to his non-compliance with his post-adjudicatory improvement period.

         On March 3, 2017, the DHHR filed an untimely family case plan and on March 6, 2017, petitioner filed a motion for a predispositional improvement period in which he argued that he should be granted the same because the DHHR failed to file a timely family case plan. Also in March of 2017, the circuit court held a dispositional hearing to address petitioner's motion for an improvement period and the DHHR's motion to terminate his parental rights. The circuit court heard the testimony of the police officer who had knowledge of the January of 2017 incident wherein petitioner was arrested for domestic battery of the mother, battery of the mother's boyfriend, and destruction of property. The officer testified that petitioner was the aggressor based on the victims' injuries and the damage to the vehicles. However, petitioner testified that he was not the aggressor in the January of 2017 incident and minimized his acts of domestic violence. He also testified that he had enrolled in a coal miner's certification class and attended three counseling sessions in September of 2016 and that those actions constituted a substantial change in circumstances that warranted a ruling granting his motion for a predispositional improvement period. At the conclusion of the hearing, the circuit court denied petitioner's motion for a predispositional improvement period, 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 entered on April 10, 2017.[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.

         On appeal, petitioner argues that the circuit court erred in denying his motion for a dispositional improvement period because the DHHR failed to formulate a family case plan. With regard to family case plans, this Court has stated that

"[t]he purpose of the family case plan as set out in W.Va. Code [§] 49-6D-3(a) [now W.Va. Code § 49-4-408(a)] . . . is to clearly set forth an organized, realistic method of identifying family problems and the logical steps to be used in resolving or lessening these problems." Syl. Pt. 5, State ex rel. Dep't of Human Services v. Cheryl M., 177 W.Va. 688, 356 S.E.2d 181 (1987).

Syl. Pt. 2, In re Desarae M., 214 W.Va. 657, 591 S.E.2d 215 (2003). We have also stated that

"[w]here it appears from the record that the process established by the Rules of Procedure for Child Abuse and Neglect Proceedings and related statutes for the disposition of cases involving children [alleged] to be abused or neglected has been substantially disregarded or frustrated, the resulting order . . . will be vacated and the case remanded for compliance with that process and entry of an appropriate . . . ...

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