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In re J.K.

Supreme Court of West Virginia

November 22, 2017

In re: J.K., K.K, and K.H.

         Grant County 16-JA-12, 16-JA-13, & 16-JA-19

          MEMORANDUM DECISION

         Petitioner Father A.K., by counsel Lauren M. Wilson, appeals the Circuit Court of Grant County's April 27, 2017, order terminating his parental rights to J.K., K.K., and K.H.[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"), Marla Zelene Harman, 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 (1) failing to require the DHHR to include him in the initial petition; (2) failing to immediately appoint him counsel; (3) adjudicating him as an abusing parent; (4) terminating his parental rights without imposing a less-restrictive dispositional alternative; and (5) denying post-termination visitation.

         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 April of 2016, the DHHR filed an abuse and neglect petition that alleged the mother used inappropriate corporal punishment on the children, in addition to emotional, psychological, and verbal abuse. The petition also alleged that the mother failed to provide the children with necessary food, shelter, and supervision. According to the petition, the mother suffered from bipolar disorder, anxiety, depression, and ADHD, but refused medication for any of the conditions. Finally, the petition alleged that J.K. tested positive for THC at birth. At the time of the original petition, the mother informed the DHHR that petitioner resided outside West Virginia and that she was unaware of how to contact him. Accordingly, the DHHR did not name petitioner as a respondent to its initial petition nor did it include any allegations of abuse or neglect against him therein.

         In May of 2016, the circuit court held an adjudicatory hearing, during which the circuit court adjudicated the mother of abusing and neglecting the children. The circuit court also granted the mother a post-adjudicatory improvement period. During the resulting services, petitioner appeared with the mother when she attended visits with the children. Petitioner also attended some services with the mother. At this time, the mother informed the DHHR that petitioner had relocated to West Virginia.

         In October of 2016, the mother gave birth to K.H. That same month, the DHHR filed an amended petition to include that child in the proceedings and also named petitioner as a respondent. According to the amended petition, petitioner abandoned and neglected the children due to his failure to provide them with the necessary financial, emotional, and psychological support. At this point, the circuit court appointed counsel for petitioner.

         In November of 2016, the circuit court held an adjudicatory hearing in regard to the amended petition. During the hearing, the only witness to testify was a DHHR employee who indicated that petitioner had not provided the children with any support, either financially or emotionally. According to the record, petitioner did not have contact with the children until at least the beginning of these proceedings when he began attending visits. However, despite the fact that he began attending visits with the mother, petitioner still failed to provide for the children. Based upon the evidence, the circuit court adjudicated petitioner not only upon abandonment, but also upon its finding that petitioner "failed to protect the infant children and neglected the children by leaving them in the extended and sole care of the [mother] . . . with knowledge that [the mother] has mental health issues that rendered her incapable of parenting." The circuit court additionally granted petitioner a post-adjudicatory improvement period.

         During a review hearing in February of 2017, the circuit court ordered K.H.'s return to the parents' custody, despite concerns over the other children's behavior related to visits with the parents. In March of 2017, the circuit court heard evidence concerning the visits between the children and the parents, including evidence that one of the mother's children exhibited severe negative effects following visits.

         In April of 2017, the DHHR filed a motion to revoke petitioner's improvement period. According to the motion, petitioner stopped regularly participating in services and was travelling out of the state with K.H. without advising the DHHR. The motion further alleged that when the DHHR attempted to address the issues with the mother, she became angry and aggressive and refused to assure the DHHR of the child's safety. The motion further alleged that petitioner left K.H. in the care of an individual who lost custody of her own children and was not appropriate to provide care for K.H. Moreover, petitioner and the mother engaged in a domestic violence incident in April of 2017 that resulted in the issuance of a domestic violence protective order and criminal charges. As such, the DHHR removed K.H. from petitioner's care by emergency order. The circuit court then held a hearing on this motion and revoked petitioner's improvement period.

          Later that month, the circuit court held a dispositional hearing, during which it found that petitioner failed to comply with the terms and conditions of his improvement period. The circuit court also found that there was no reasonable likelihood petitioner could substantially correct the conditions of abuse and neglect in the near future before terminating his parental rights.[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).

         In his first assignment of error, petitioner argues that the DHHR erred in failing to name him as a respondent in its initial petition and that the circuit court erred in failing to appoint him counsel in a timely manner. Citing to West Virginia Code § 49-4-601, petitioner argues that the DHHR had a statutory duty to include him as a respondent in the initial petition and the circuit court had a duty to appoint him counsel.[3] We agree, insomuch as that statute requires notice of the proceedings to both parents and the appointment of counsel for parents in the circuit court's initial order. However, we find that the errors of which petitioner complains on appeal resulted in no actual prejudice to him and, accordingly, amount to harmless error. The record reflects that, although petitioner was not served with a copy of the initial petition, he had actual notice of the proceedings and actively participated in services prior to the filing of the amended petition naming him as a respondent. Importantly, petitioner was not in jeopardy of losing his parental rights at this stage, as the DHHR did not include any allegations of abuse or neglect against him in the initial petition. However, upon the filing of the amended petition that included petitioner as a named respondent and contained allegations against him, the circuit court immediately appointed counsel to represent ...


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