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In re C.C.-1

Supreme Court of West Virginia

June 11, 2018

In re C.C.-1, K.C., M.C., D.C., and C.C.-2

          Mercer County 16-JA-66, 67, 68, 69, and 70

          MEMORANDUM DECISION

         Petitioner D.B., the children's step-father, by counsel Joshua J. Lawson, appeals the Circuit Court of Mercer County's January 3, 2018, order terminating his custodial rights to C.C.-1, K.C., M.C., D.C., and C.C.-2.[1] The West Virginia Department of Health and Human Resources ("DHHR"), by counsel Mindy M. Parsley, filed a response in support of the circuit court's order. The guardian ad litem ("guardian"), Catherine Bond Wallace, 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 terminating his custodial rights without first granting him a post-dispositional improvement period.

         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.

         On April 20, 2016, the DHHR filed an abuse and neglect petition that alleged that petitioner and the mother abused drugs and alcohol and engaged in domestic violence in front of the children.[2] The petition also alleged that the children disclosed to the DHHR that petitioner strangled the mother in front of them, threatened C.C.-1 with physical violence, and drove while intoxicated with C.C.-2 in the vehicle. Petitioner waived the preliminary hearing.

         On June 3, 2016, the circuit court held an adjudicatory hearing and found that petitioner abused and neglected the children based upon his stipulation. The circuit court granted petitioner's motion for a post-adjudicatory improvement period, which required him to complete substance abuse treatment, gain stable housing, address domestic violence issues, and complete the Batterers Intervention and Prevention Program ("BIPPS"). Petitioner was arrested on May 1, 2017, for strangling the mother and was subsequently placed on home incarceration. On May 19, 2017, the DHHR filed a motion to terminate petitioner's custodial rights alleging that he failed to complete substance abuse treatment, gain stable housing, address the domestic violence issues, or complete BIPPS education.

         After multiple continuances of the dispositional hearing, the circuit court held a final dispositional hearing on December 1, 2017. Petitioner moved to continue to participate in his post-adjudicatory improvement period. However, both the guardian and the DHHR objected to an extension. The DHHR presented evidence from two CPS workers that petitioner failed to consistently comply with services until after he was placed on home incarceration, and subsequently probation and that petitioner had not had any visits with the children during the proceedings because the children were afraid of him and did not want to see him. Petitioner admitted that he did not comply with services at the beginning of the proceedings. He explained that he and the mother were "in a bad situation, " their housing was unstable, and they were abusing drugs and alcohol. He further stated that he changed within the past six months because he wanted the children back and wanted to comply with services. He testified that he was not just compliant because he was on probation and explained that his circumstances changed because he now had an apartment and food in the home. Finally, he testified that he had not had in-person contact with the children, only phone calls. Following petitioner's testimony, the circuit court noted that the children "are scared of [petitioner] and probably rightfully so, " and permanency needed to be established. The circuit court found no reasonable likelihood that petitioner could correct the conditions of abuse and neglect in the near future and that it was in the best interests of the children to terminate his custodial rights. Ultimately, the circuit court terminated petitioner's custodial rights in its January 3, 2018, order.[3] It is from this 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, this Court finds no error in the proceedings below.

         On appeal, petitioner argues that the circuit court erred in denying his motion for a post-dispositional improvement period prior to terminating his custodial rights. However, the record shows petitioner never moved for a post-dispositional improvement period. Instead he requested to "continue with [his] improvement period[ ]." Therefore, petitioner is arguing on appeal that the circuit court erred in denying him an extension of his post-adjudicatory improvement period. In support, petitioner asserts that he complied with the terms and conditions of his post-adjudicatory improvement period and family case plan for five months prior to the dispositional hearing because he obtained stable housing, participated in services, and domestic violence between he and the mother ceased. We do not find this argument persuasive.

         Under West Virginia Code § 49-4-610(2), a post-adjudicatory improvement period shall not exceed six months. Further, pursuant to West Virginia Code § 49-4-610(6),

[a] court may extend any improvement period granted pursuant to subdivision (2) or (3) of this section for a period not to exceed three months when the court finds that the [parent] has substantially complied with the terms of the improvement period; that the continuation of the improvement period will not substantially impair the ability of the department to permanently place the child[ren]; and that the extension is otherwise consistent with the best interest of the child[ren].

         Petitioner admits that he initially failed to comply with services during his improvement period. In fact, the record shows that his period of noncompliance lasted well over one year, during which he failed to participate in drug screens, obtain stable housing, or address his domestic violence issues through BIPPS education. Further, petitioner was arrested for strangling the mother during his post-adjudicatory improvement period. The record also shows that petitioner did not participate in visitation during the proceedings because the children did not want to see him. Although petitioner argues that he was permitted to have phone calls with the children, the circuit court noted at the dispositional hearing that the children "are scared of [petitioner] and probably rightfully so." According to petitioner, at the time of the dispositional hearing, he was participating in BIPPS education, but he had not completed it. Based on this evidence, petitioner failed to substantially comply with the terms and conditions of his post-adjudicatory improvement period, despite two prior extensions thereto, and did not meet the requisite burden to receive an additional extension of the same. Therefore, petitioner is entitled to no relief in this regard.

         Further, we find no error in the circuit court's termination of petitioner's custodial rights. West Virginia Code § 49-4-604(b)(6) provides that circuit courts are to terminate custodial 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 the conditions of abuse or neglect can be substantially corrected exists when ...


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