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In re A.E.-1

Supreme Court of West Virginia

June 15, 2018

In re A.E.-1

          Jefferson County 17-JA-23

          MEMORANDUM DECISION

         Petitioner Father A.E.-2, by counsel Christian J. Riddell, appeals the Circuit Court of Jefferson County's February 9, 2018, order terminating his parental rights to A.E.-1.[1] 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 and a supplemental appendix. The guardian ad litem ("guardian"), Tracy Weese, filed a response on behalf of the child in support of the circuit court's order and a supplemental appendix. Respondent Mother K.R., by counsel Melanie Jesteadt, filed a response, also in support of the circuit court's order. On appeal, petitioner argues that the circuit court erred in adjudicating him as an abusing parent and finding that he abandoned the child.[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 2018, the DHHR filed a child abuse and neglect petition against petitioner and the mother. The DHHR alleged that a referral indicated that the mother had a psychotic break after taking several of her prescribed medications and smoking marijuana. Neighbors saw the mother "ranting" outside her home and walking in the streets. According to the DHHR, the mother had a long, untreated history of mental illness and substance abuse. Regarding petitioner, the DHHR alleged that he lived in Chicago, Illinois, had not seen the child in two years, failed to provide for the child, and abandoned the child.

         The circuit court held an adjudicatory hearing in December of 2017. Petitioner attended the hearing via telephone and testified that he had only seen the three-year-old child twice since he moved to Chicago, six weeks after the child's birth. He stated that he was not able to travel to see the child often because of his financial situation. Petitioner admitted that, during prior family court proceedings, his monthly child support obligation had been reduced by $100 a month in order to facilitate more visits with the child, but he had yet to visit in 2017. Further, petitioner testified that he tried to see the child through a video platform, such as Skype and FaceTime, but the mother often denied him the opportunity. Petitioner admitted that he had been granted visits with the child in November of 2017 and around the time of the adjudicatory hearing, but cancelled them. After hearing evidence, the circuit court found that petitioner offered several excuses for not visiting the child, had not given the child the benefit of his presence in the child's life or the financial benefit which was offset by the family court, and that petitioner voluntarily chose to forego his visitation with the child. As such, the circuit court determined that petitioner had abandoned and neglected the child and adjudicated petitioner as an abusing parent accordingly.

         The father filed a motion for a post-adjudicatory improvement period in January of 2018. The circuit court held a dispositional hearing in February of 2018, and heard evidence on petitioner's motion. At the close of evidence, the circuit court denied petitioner's request for a post-adjudicatory improvement period, finding that he never acknowledged his parental deficiencies and did not demonstrate that he was likely to fully participate in an improvement period. Further, the circuit court noted that visitation and maintaining contact with the child was a primary consideration in the case, yet petitioner never visited the child during the underlying proceedings and cancelled visits with the child, even though they were scheduled to accommodate his circumstances. Moreover, petitioner failed to visit with the child consistently even before the petition was filed, despite the fact that the family court reduced his monthly child support obligation to assist with financing visits, totaling nearly $2, 400 over the course of two years. Based on this evidence, the circuit court found that there was no reasonable likelihood that petitioner could correct the conditions of abuse in the near future and that termination was necessary for the child's welfare. It is from the February 9, 2018, order terminating his parental rights that petitioner appeals.[3]

         The Court has previously established the following standard of review in cases such as this:

"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).

         On appeal, petitioner argues that the circuit court erred in adjudicating him as an abusing parent. First, petitioner alleges that the circuit court erroneously adjudicated him when his failure to provide the necessary food, clothing, shelter, medical care, and education was primarily due to lack of financial means. Petitioner argues that his testimony established that his expenses met or exceeded his monthly income, and that he could not afford to regularly visit the child. Second, petitioner alleges that the circuit court erred in adjudicating him on the basis of abandonment when he attempted to visit the child when he could and maintained regular phone contact with the child. We have previously held as follows:

At the conclusion of the adjudicatory hearing, the 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. . . . The findings must be based upon conditions existing at the time of the filing of the petition and proven by clear and convincing evidence.

In re F.S., 233 W.Va. 538, 544, 759 S.E.2d 769, 775 (2014). This Court has explained that "'clear and convincing' is the measure or degree of proof that will produce in the mind of the factfinder a firm belief or conviction as to the allegations sought to be established." In re F.S., 233 W.Va. at 546, 759 S.E.2d at 777 (citing Brown v. Gobble, 196 W.Va. 559, 564, 474 S.E.2d 489, 494 (1996)). However, "the clear and convincing standard is 'intermediate, being more than a mere preponderance, but not to the extent of such certainty as is required beyond a reasonable doubt as in criminal cases.'" In re F.S., 233 W.Va. at 546, 759 S.E.2d at 777 (quoting Cramer v. W.Va. Dep't of Highways, 180 W.Va. 97, 99 n.1, 375 S.E.2d 568, 570 n.1 (1988)).

         Pursuant to West Virginia Code § 49-1-201, a neglected child is one

[w]hose physical or mental health is harmed or threatened by a present refusal, failure or inability of the child's parent, guardian or custodian to supply the child with necessary food, clothing, shelter, supervision, medical care or education, when that refusal, failure or inability is not due primarily to ...

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