In re: G.B. and K.B.-1
Webster
County 17-JA-l and 17-JA-2
MEMORANDUM DECISION
Petitioner
Father K.B.-2, by counsel Teresa C. Monk, appeals the Circuit
Court of Webster County's May 3, 2017, order terminating
his parental rights to G.B. and K.B.-l.[1] 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"), Mary Elizabeth Snead, filed a
response on behalf of the children also in support of the
circuit court's order. On appeal, petitioner argues that
the circuit court erred in terminating his parental rights.
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
January of 2017, the DHHR filed an abuse and neglect petition
alleging that petitioner and, D.B., the mother of G.B. and
K.B.-l, engaged in domestic violence in the children's
presence and abused and trafficked drugs in the home.
According to the petition, petitioner was also arrested for
battery and burglary following an incident during which he
attempted to forcibly take G.B. out of the mother's arms
during an argument. Petitioner then struck the mother and
G.B. during the same argument and later attempted to enter
the mother's home. Petitioner injured the children's
grandmother in the process. The petition also alleged that
petitioner committed numerous incidents of domestic violence
against the mother over a three-year period. Petitioner
thereafter waived his right to a preliminary hearing.
In
February of 2017, the circuit court held an adjudicatory
hearing wherein the circuit court heard testimony from the
mother, Sergeant Matt Diez, and a DHHR worker. Petitioner did
not testify on his own behalf. The circuit court also heard
evidence that petitioner previously had his parental rights
terminated to another child. By order entered on February 15,
2017, the circuit court adjudicated petitioner as an abusing
parent and found that he engaged in domestic violence in the
children's presence; struck the child, G.B.; and had his
parental rights terminated to another child due to incidents
involving domestic violence.
In
April of 2017, the circuit court held a dispositional hearing
wherein it found that petitioner's case was one of
aggravated circumstances due to his prior termination based
on domestic violence and his inability to successfully
complete an improvement period or comply with the circuit
court's orders. The circuit court also noted
petitioner's history of domestic violence. Based on the
evidence presented, by order dated May 3, 2017, the circuit
court determined that the circumstances of petitioner's
current incarceration made his participation in an
improvement period impossible, 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. It is from that order that petitioner
appeals.
The
Court has previously established the following standard of
review in cases such as these:
"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
circuit court's termination of petitioner's parental
rights.
Petitioner's
argument on appeal is that the circuit court erred in
terminating his parental rights to the children instead of
granting his request to terminate only his custodial rights.
He also argues that the "only problem with correcting
his problems was the fact that he was incarcerated." We
disagree. West Virginia Code § 49-4-604(b)(6) provides
that a circuit court is directed to terminate parental rights
upon findings that there is "no reasonable likelihood
that the conditions of neglect or abuse can be substantially
corrected in the near future" and that termination is
necessary for the children's welfare. West Virginia Code
§ 49-4-604(c)(3) provides that "no reasonable
likelihood that conditions of neglect or abuse can be
substantially corrected" exists when "[t]he abusing
parent . . . ha[s] not responded to or followed through with
a reasonable family case plan or other rehabilitative
efforts[.]"
In this
case, the circuit court was presented with evidence that
petitioner engaged in domestic violence in the children's
presence, struck one of the children, and had his parental
rights previously terminated to another child due to
incidents involving domestic violence. The circuit court also
found that, in the five years between abuse and neglect
proceedings involving petitioner, "he made no effort to
change his behavior." The circuit court noted that
petitioner did not request an improvement period in the
present case. Given petitioner's complete lack of
improvement during these proceedings, we find no error in the
circuit court's termination order. The circuit court
properly found that petitioner was not reasonably likely to
substantially correct the conditions of abuse and neglect in
the near future, and it is clear from the record that the
children's welfare necessitated the termination of
petitioner's parental rights. Accordingly, we find no
error below.
For the
foregoing reasons, we find no error in the decision of the
circuit court, and its May 3, 2017, order is hereby affirmed.
Affirmed.
CONCURRED IN BY: Chief Justice Allen H. Loughry II, Justice
Robin Jean Davis, Justice Margaret L. Workman, Justice Menis
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