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In re Z.N.

Supreme Court of West Virginia

May 17, 2018

In re Z.N. and D.N.

          Mineral County 16-JA-11, 12, 13


         Minor children Z.N. and D.N.[1] were placed in foster care in November 2016 after enduring sexual and physical abuse by their mother's boyfriend. Their mother's parental rights were terminated in February 2017 due to her knowledge of this abuse. In April 2017, their father's rights were terminated without a post-adjudicatory improvement period based upon the circuit court's finding that he abandoned the children. Specifically, the father did not participate in the mother's abuse and neglect proceeding, made no effort to visit with Z.N. and D.N. for more than one year, and failed to meet his child support obligations. We now consider the father's appeal[2] and affirm the circuit court's termination of his parental rights.

         Because this case does not present a new or significant issue of law, and for the reasons set forth below, we find it is proper for disposition as a memorandum decision pursuant to Rule 21(c) of the West Virginia Rules of Appellate Procedure.

         I. Facts and Procedural History

         The Department of Health and Human Resources (DHHR) filed the original petition involving these children following Z.N.'s hospital visit on June 13, 2016 while in the custody of his mother.[3] Z.N. had a bruised and swollen penis, bruising across the pelvic area, dark quarter-size bruises on both cheeks, a split in his bottom lip, and a bruise near his hairline. When asked by the physician and the Child Protective Services (CPS) Worker what caused the bruising, his mother offered only implausible explanations.[4] CPS's interview of Z.N. was also futile. He blamed his brother, D.N., for the bruising to his face but refused to provide any information regarding the bruising to his genital area.

         Later that day, however, during an interview with the Mineral County Child Advocacy Center (CAC), Z.N. provided more information. He told the interviewer that his mother coached him to say that her boyfriend "had not done anything [wrong]" and also disclosed that he had previously informed a family member of sexual and physical abuse by his mother's boyfriend. After the interview, DHHR was awarded emergency custody of Z.N. and D.N. and they were placed with their great-grandmother. At the preliminary hearing the following week, the circuit court found probable cause that the children were abused and neglected. As a result, the children remained with their great-grandmother, but their mother and father were granted supervised visitation.

         On July 14, 2016, the Multidisciplinary Team (MDT) agreed to return the children to the mother, so long as she agreed not to allow contact between the children and her boyfriend. This custodial arrangement was terminated when she violated the terms of the safety plan only four days later. At the resulting adjudicatory hearing on July 26, 2016, the court granted the mother's motion for a pre-adjudicatory period of improvement and the children were returned to her custody. Although the father did not attend the hearing, the court granted his counsel's motion for supervised visitation. The father also failed to attend the subsequent status hearing and failed to visit Z.N. and D.N. even once during this time, later simply claiming that he failed to do so because he was unaware that he was allowed to see them.

         In October 2016, Z.N. and D.N. were removed from their mother's custody once again after disclosing in a second CAC interview that they were afraid of their mother's boyfriend because he physically and sexually abused them. They also disclosed that their mother was aware of the abuse but allowed her boyfriend to have continued contact with them in violation of her agreement with DHHR. As a result, DHHR filed an amended petition against the mother and her boyfriend.

         In the same time period, a CPS Worker received a call from Z.N. and D.N.'s father who offered to provide information regarding the mother's drug use. When asked whether he had noticed the bruising on the children, he stated that he'd previously questioned it, but thought the mother and her boyfriend provided adequate explanation. The father agreed to meet with the CPS Worker and attend the hearing; however, he did neither of those things. He later claimed that he was unable to attend due to hospitalization, but ultimately admitted this was untrue.

         During the October 19, 2016 preliminary hearing, the court again found probable cause that the children were abused and neglected.[5] Z.N. and D.N. were placed in a kinship placement with their mother's boyfriend's father and stepmother. But on November 22, 2016-only one month later-they informed DHHR that they could no longer care for the children and Z.N. and D.N. were placed in a foster home in Grant County where they remain today.

         Sometime in November of 2016, the father called the CPS Worker and inquired about his visitation. The petition alleges that once the father was informed that the children were in foster care, he did not ask why or question their wellbeing. On a subsequent call with the CPS Worker, the father agreed to provide his attorney with a letter outlining the issues he believed were occurring in the mother's home, but the CPS worker never heard from him again. At the dispositional hearing in February 2017, the circuit court ultimately terminated the mother's parental rights, finding-as this Court later affirmed-that she knowingly allowed them to be exposed to abuse, encouraged them to lie about the abuse, and continued the relationship with her boyfriend despite the allegations.

         Two months later-on April 11, 2017-DHHR filed a corrected amended petition that included the father as an offending parent. The petition alleges that the father abandoned the children by barely participating in their mother's abuse and neglect proceedings, [6] not attempting to see them for several months (his supervised visitation was suspended due to non-participation), and failing to provide support as evidenced by his child support arrearages. Finally, the petition noted his recent arrest following a domestic incident with his then-girlfriend.[7]

         Ultimately, the circuit court found that the father abandoned the children and that there was no reasonable likelihood that the conditions of abuse and/or neglect could be corrected. The circuit court determined that termination was necessary for the welfare of the children. The father now appeals the circuit court's order.

          II. ...

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