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In re D.S.

Supreme Court of West Virginia

December 1, 2017

In re: D.S.

         Preston County 16-JA-60

          MEMORANDUM DECISION

         Petitioner Mother M.S., by counsel Jeremy B. Cooper, and the guardian ad litem ("guardian") for the child, D.S., Cheryl Warman, appeal the Circuit Court of Preston County's May 24, 2017, order dismissing Respondent Father, W.S., from the abuse and neglect proceedings below.[1] The West Virginia Department of Health and Human Resources ("DHHR"), by counsel Lee Niezgoda, filed a response in support of petitioners. Respondent father, by counsel Natalie J. Sal, filed a response in support of the circuit court's order. Petitioners filed a reply. On appeal, petitioners argue that the circuit court erred in failing to adjudicate Respondent Father as an abusing parent.

         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, this 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 July of 2016, the DHHR filed an abuse and neglect petition against Petitioner Mother and Respondent Father alleging that Petitioner Mother was involved in a motor vehicle accident wherein the Petitioner Mother was a passenger, the child was not properly restrained in the vehicle, and the driver of the vehicle was impaired due to the consumption of illegal drugs. The petition further alleged that Petitioner Mother's drug use impaired her ability to properly care for the child. With regard to Respondent Father, the petition alleged that he had a long history of drug abuse and criminal behavior which resulted in his incarceration, that he had no residence, that he did not maintain regular contact with the child, and that he previously attempted suicide. The petition also alleged that the aforementioned circumstances were emotionally and psychologically harmful to the child.

          In August of 2016, the circuit court held a preliminary hearing wherein the court found that placing the child in the care of either parent "would be contrary to her welfare and best interests." After the preliminary hearing, Respondent Father filed a motion for a pre-adjudicatory improvement period. In Respondent Father's motion, he acknowledged that he needed to obtain and maintain an appropriate home and undergo a psychological evaluation to verify his stable mental health. Respondent Father also indicated that he would submit to random drug screening and would comply with any other recommendations of the DHHR. The circuit court granted Respondent Father's motion for a pre-adjudicatory improvement period.

         In November of 2016, the circuit court held a review hearing wherein the DHHR reported that Respondent Father failed to comply with the terms of his improvement period. According to the DHHR, Respondent Father failed to maintain contact with the DHHR or to provide it with an address, phone number, or any other means of contacting him. Additionally, Respondent Father indicated that he had been "struggling with homelessness, " but voiced a desire to participate in services.

         In January of 2016, the circuit court held an adjudicatory hearing regarding Respondent Father. A community corrections worker was called to testify about his participation in drug screening during his improvement period. Respondent Father's counsel objected to the testimony upon the ground that it was not relevant to the issue of adjudication because the drug screening was not conducted pursuant to conditions existing at the time of the filing of the petition. The circuit court sustained the objection and the DHHR moved for leave to continue the hearing and amend the petition to include allegations which arose subsequent to the original petition's filing. The circuit court granted the DHHR's motion and rescheduled the hearing.

         In February of 2017, the DHHR filed an amended abuse and neglect petition alleging that Respondent Father lacked stable and appropriate housing throughout his pre-adjudicatory improvement period and failed to exercise visitation with the child, despite the opportunities afforded to him. In addition, the amended petition alleged that, notwithstanding his previous assertions that he would comply with any terms and conditions imposed by the improvement period, Respondent Father failed to fully comply with the same.

         Later in February of 2017, the circuit court held a second adjudicatory hearing. The circuit court found that the DHHR proved by clear and convincing evidence that Respondent Father had "infrequent contact" with the child and failed to provide the child with stable and appropriate housing, as alleged in the original petition, but that such evidence was insufficient to constitute abuse and neglect. Accordingly, by order entered on May 24, 2017, the circuit court dismissed the abuse and neglect petitions against Respondent Father but again found that returning the child to Respondent Father's custody would be contrary to her welfare. Therefore, the circuit court ordered that the child remain in the DHHR's custody with her placement in the home of Petitioner Mother's cousin.[2] It is from that order that Petitioner Mother and the guardian appeal.

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). With this standard in mind, we turn to the parties' arguments.

         On appeal, petitioners argue that the circuit court erred in failing to adjudicate Respondent Father as an abusing parent. We do not agree. West Virginia Code § 49-1-201 defines "abusing parent" as "a parent . . . whose conduct has been adjudicated by the court to constitute child abuse or neglect as alleged in the petition charging child abuse or neglect." West Virginia Code § 49-1-201 defines an "abused child[, ]" in part, as

a child whose health or welfare is being harmed or threatened by . . . [a] parent, guardian or custodian who knowingly or intentionally inflicts, attempts to inflict or knowingly allows another person to inflict, physical injury or mental or ...

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