Randolph
County 2016-JA-076, 2016-JA-077, 2016-JA-078, &
2016-JA-081
MEMORANDUM DECISION
Petitioner
Father R.W., by counsel Melissa T. Roman, appeals the Circuit
Court of Randolph County's July 18, 2017, order
terminating his parental rights to C.W., R.W., N.W., and
H.W.[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"), G. Phillip Davis, 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 denying his motion for a
post-adjudicatory improvement period and denying him
post-termination visitation with the children.[2]
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 the parents that alleged they were homeless after
losing their rented residence due to failure to pay rent and
damage to the home. According to the petition, due to the
parents' homelessness, they sometimes left the children
with unsafe individuals they barely knew. The petition also
alleged that the parents' drug abuse affected their
ability to provide the children with a stable home, food,
clothing, and other necessities.
In
November of 2016, the circuit court held an adjudicatory
hearing during which it found that the DHHR failed to meet
its burden in establishing the parents' abuse by way of
substance abuse. However, the circuit court found sufficient
evidence upon which to adjudicate the parents for failing to
provide the children with appropriate shelter, food, and
clothing.
In
February of 2017, the DHHR filed an amended petition
following one child's disclosure that she witnessed the
parents abuse drugs, including smoking marijuana and snorting
pills. The amended petition also included an allegation that
the parents evaded court-ordered drug screens. In April of
2017, the circuit court held an adjudicatory hearing on the
amended petition and found that the evidence established that
the parents' substance abuse impaired their parenting
abilities. Thereafter, the parents moved for
post-adjudicatory improvement periods.
In June
of 2017, the circuit court held a dispositional hearing,
during which it heard evidence that petitioner evaded drug
screens, tested positive for methamphetamine and marijuana
when he did screen, and was dishonest with service providers.
Additionally, two service providers testified that neither
parent admitted to any parenting deficiencies or substance
abuse issues. Moreover, a Child Protective Services
("CPS") worker testified to the parents'
involvement in a 2009 abuse and neglect proceeding and
services rendered over several years during CPS intervention
subsequent to multiple investigations. According to this
worker, the parents were adjudicated upon issues of substance
abuse in the 2009 proceedings, which included their inability
to properly provide suitable housing for the children.
Finally, a service provider and foster parents testified to
the children's concerning behaviors following visits with
the parents. Ultimately, the circuit court found that the
parents' failure to acknowledge the conditions of abuse
and neglect and their inability to correct them, despite
years of services, established that they were not entitled to
improvement periods. The circuit court also found that there
was no reasonable likelihood the parents could substantially
correct the conditions of abuse and neglect and that
termination of their parental rights was in the
children's best interest. Accordingly, the circuit court
terminated petitioner's parental rights to the children
and denied him post-termination visitation.[3] 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.
According
to petitioner, the circuit court erred in denying his request
for a post-adjudicatory improvement period because the
testimony established he would successfully complete the
same. Specifically, petitioner cites to testimony from
multiple witnesses that showed he had a strong bond with the
children and that he could correct the conditions of abuse
and neglect in the home. Further, petitioner testified that,
at the time of the dispositional hearing, he was employed,
took steps to apply for housing assistance, and took
responsibility for his substance abuse and parenting
deficiencies. The Court, however, does not find these
arguments persuasive.
Contrary to petitioner's assertions, the circuit court
specifically found that "[t]he testimony provided is
that the parents have been, at best, inconsistent in
visitation." This included a lack of visitation from
August of 2016 until December of 2016, at which point
continued problems arose when visitation did occur, including
issues with the parents' inability to follow the rules
set for visits. Moreover, the circuit court specifically
found that "[t]here has been no acknowledgement of any
problem by the [parents] in this case." While the
circuit court did note that petitioner, "for the first
time, . . . testified today that he has a substance abuse
problem, " it went on to find that petitioner had not
"made any efforts to seek out substance abuse treatment
during the pendency of this action." Further, the
circuit court found that petitioner failed to acknowledge his
substance abuse issues even as he repeatedly tested positive
for drugs.
In
order to obtain a post-adjudicatory improvement period, West
Virginia Code § 49-4-610(2)(B) requires the parent to
"demonstrate[], by clear and convincing evidence, that
the [parent] is likely to fully participate in the
improvement period[.]" While it is true that petitioner
testified to his willingness to participate in the terms and
conditions of a post-adjudicatory improvement period, the
overwhelming evidence supported the circuit court's
finding that petitioner failed to satisfy the necessary
burden. This is especially true in light of petitioner's
failure to fully acknowledge the conditions of abuse and
neglect in the home. We have held that
[i]n order to remedy the abuse and/or neglect problem, the
problem must first be acknowledged. Failure to acknowledge
the existence of the problem, i.e., the truth of the basic
allegation pertaining to the alleged abuse and neglect or the
perpetrator of said abuse and neglect, results in making the
problem untreatable and in ...