In re V.B. and J.B.
Webster County 17-JA-57 and 58
Father G.B., by counsel Steven B. Nanners, appeals the
Circuit Court of Webster County's January 11, 2018, order
terminating his parental rights to V.B. and
The West Virginia Department of Health and Human Resources
("DHHR"), by counsel Brandolyn N. Felton-Ernest,
filed a response in support of the circuit court's order.
The guardian ad litem ("guardian"), Mary E. Sneed,
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 parental rights
without the imposition of a less-restrictive dispositional
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.
was named as a respondent in a prior abuse and neglect case
that began in May of 2016. Petitioner completed an improvement
period in January of 2017; however, the circuit court
expressed concerns regarding the ongoing educational needs of
the children and ordered the DHHR to monitor the children
through the remainder of the school year.
of 2017, the DHHR filed a petition alleging that both
children were absent multiple days without excuse, that J.B.
was failing several classes and missing assignments, and that
V.B. was not returning documentation regarding home reading
assignments. Additionally, petitioner recently fled in an
encounter with the police and later admitted to using
controlled substances. The DHHR also alleged that when the
mother was questioned regarding possible placement with her,
she refused to drug screen. The circuit court held a
preliminary hearing and found that the children would be in
imminent danger if they were returned to their parents'
circuit court held an adjudicatory hearing in August of 2017
and took judicial notice of petitioner's prior abuse and
neglect proceeding. From the evidence presented, the circuit
court found that petitioner admitted to using controlled
substances and failed to provide a fit and suitable home.
Accordingly, the circuit court adjudicated petitioner as an
abusing parent. Petitioner moved for a post-adjudicatory
improvement period and the circuit court granted that motion
in October of 2017. The terms of the improvement period
required petitioner to remain drug free, participate in
random drug screens, complete a long-term drug rehabilitation
treatment program, complete an anger management class, and
participate in outpatient drug treatment while waiting for
admission to inpatient treatment.
November of 2017, the circuit court held a review hearing,
suspended petitioner's supervised visitation, and
indicated that the DHHR should file a motion to terminate
petitioner's parental rights within seven days if it
intended to so do. Accordingly, the DHHR filed a motion to
terminate petitioner's parental rights alleging that
petitioner agreed to enter into the LEAD academy, a long-term
substance abuse program, but left a few hours after arriving.
The DHHR alleged that the mother also left the program
because she would not be allowed to smoke cigarettes and that
petitioner left because the mother left.
circuit court held an evidentiary hearing on the DHHR's
motion to terminate petitioner's improvement period and
parental rights in December of 2017. A DHHR case worker
testified that petitioner left the LEAD academy the same day
he arrived. Additionally, the worker testified that
petitioner attended a substance abuse program in Huntington,
West Virginia, for a few days before the evidentiary hearing.
However, petitioner now refused to return to the program. The
worker testified that petitioner was testing negative for
controlled substances, but was not consistently tested in
December of 2017 because the DHHR did not consistently find
him at home. Finally, the worker testified that petitioner
was not participating in anger management classes and had
cancelled parenting classes. Petitioner testified that he
continued to live with the mother "off and on." The
circuit court found that the mother continued to abuse drugs
and admitted during the evidentiary hearing that she would
test positive for methamphetamine if tested at that time.
Further, petitioner testified that he no longer desired to
attend inpatient substance abuse treatment and believed that
he could manage his addiction through outpatient treatment.
the circuit court found that there was no reasonable
likelihood the conditions of neglect and abuse could be
corrected within the foreseeable future and that there was no
appropriate less-restrictive alternative to termination of
petitioner's parental rights. Accordingly, the circuit
court terminated petitioner's parental rights by its
January 11, 2018, order. Petitioner now appeals that order.
Court has previously established the following standard of
"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
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
appeal, petitioner first argues that the circuit court erred
in terminating his parental rights because he was
substantially complying with the terms of his
post-adjudicatory improvement period and that a
less-restrictive dispositional alternative would have been
more appropriate than the termination of his parental rights.
Petitioner also argues that, although he voluntarily left a
second inpatient treatment facility, he simply needed to find
a new facility to receive the treatment required by the terms
of his case plan. We disagree.
Virginia Code § 49-4-604(b)(6) provides that the circuit
court may terminate parental rights when "there is no
reasonable likelihood that the conditions of neglect or abuse
can be substantially corrected in the near future and, when
necessary for the welfare of the child." Further, West
Virginia Code § 49-4-604(c)(3) provides that there is no
reasonable likelihood that the conditions of neglect or abuse
can be substantially corrected when the parent has "not
responded or followed through with a reasonable family case
plan or other rehabilitative efforts of social, medical,
mental health or other rehabilitative agencies designed to
reduce or prevent the abuse or neglect of the child[.]"
Upon these findings, the ...