Taylor
County 17-JA-63
MEMORANDUM DECISION
Petitioner
Father D.L., by counsel Gregory Michael, appeals the Circuit
Court of Taylor County's February 13, 2018, order
terminating his parental rights to P.L.[1] The West Virginia
Department of Health and Human Resources ("DHHR"),
by counsel S.L. Evans, filed a response in support of the
circuit court's order and a supplemental appendix. The
guardian ad litem ("guardian"), Terri Tichenor,
filed a response on behalf of the child in support of the
circuit court's order. On appeal, petitioner argues that
the circuit court erred in not granting him a
less-restrictive disposition than termination of his parental
rights.
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 June
30, 2017, the DHHR filed a petition for immediate custody of
the infant child after the mother filed a domestic violence
petition against petitioner. The petition for custody of the
child alleged that both parents had untreated mental health
issues, were not employed, and failed to provide proper care
for the child. The petition also alleged that a domestic
violence incident between the parents occurred in the
child's presence in June of 2017. Further, according to
the DHHR, the parents did not seem to understand the extent
of the child's medical issues, as the child was losing
weight instead of gaining weight when he was one month old.
At the time the petition was filed, the child had recently
undergone a stomach surgery. The DHHR had concerns that the
parents did not properly administer the necessary medication
to the child following his surgery.
On July
17, 2017, the circuit court held a preliminary hearing.
Petitioner denied all allegations of domestic violence
against the mother. He denied having any contact with the
mother, but admitted to calling the mother repeatedly and
leaving her voicemails. The circuit court ordered petitioner
to submit to drug screens. The domestic violence protective
order ("DVPO") was also entered on July 17, 2017.
On October 16, 2017, the circuit court held an adjudicatory
hearing. Petitioner failed to appear, despite having notice
of the hearing, but was represented by counsel. The mother
testified regarding the domestic violence between her and
petitioner and that petitioner violated the DVPO. She also
testified that petitioner stalked her, broke into her home,
and sexually assaulted her. As a result of his conviction for
sexual assault, petitioner was sentenced to six months to two
years in the Anthony Correctional Center. Based on the
evidence presented, petitioner was adjudicated as an abusing
parent.
On
February 7, 2018, the circuit court held a dispositional
hearing. The circuit court refused petitioner's voluntary
relinquishment of his parental rights. The circuit court
noted that petitioner seemed uncertain of his decision to
voluntarily relinquish his parental rights because he
requested additional time for improvement. In its disposition
summary filed with the circuit court in January of 2018, the
DHHR reported that petitioner stalked the mother throughout
the pendency of the case and, on one instance, sexually
assaulted her. The summary also reported that petitioner was
referred for services including parenting and adult life
skills classes, drug screens, and visitation, but was
discharged from all services due to his failure to
participate. The DHHR recommended termination of
petitioner's parental rights and was opposed to
petitioner's voluntary relinquishment of his parental
rights due to the crimes he committed against the mother. The
circuit court found no reasonable likelihood that petitioner
could correct the conditions of abuse and neglect in the near
future and that termination of his parental rights was in the
child's best interests.[2] Ultimately, the circuit court
terminated petitioner's parental rights in its February
13, 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
failing to impose a less-restrictive disposition.
Specifically, petitioner argues that disposition pursuant to
West Virginia Code § 49-4-604(b)(4) would have permitted
him to successfully complete the Anthony Center Program and
correct the conditions of abuse and neglect. Further,
"in light of his acceptance of responsibility [of] his
criminal acts" and "an implicit acknowledgement
[of] parenting issues, " petitioner argues that
additional time for improvement was warranted.[4] However, we find
this argument meritless because there is no evidence that
petitioner complied with any services that were provided to
him.
West
Virginia Code § 49-4-604(b)(6) provides that circuit
courts are to terminate parental 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 "[t]he abusing parent . . . ha[s]
not responded to or followed through with a reasonable family
case plan or other rehabilitative efforts[.]"
The
record shows that petitioner was offered services to address
the abuse and neglect issues during the proceedings,
including parenting and adult life skills classes, drug
screens, and visitation. However, he failed to comply with
these services. Additionally, petitioner violated the DVPO,
stalked the mother, broke into her home, and sexually
assaulted her during the proceedings. Based on this evidence,
there was no reasonable likelihood that petitioner could
correct the conditions of abuse and neglect in the near
future and termination of his parental rights was in the
child's best interests. While petitioner asserts that the
programs offered by the Anthony Correctional Center would
help petitioner address "a host of issues, " we
find his speculative participation in the facility's
programs irrelevant to whether he addressed the issues of
abuse and neglect during the proceedings below.
Finally,
we have held that
"[t]ermination of parental rights, the most drastic
remedy under the statutory provision covering the disposition
of neglected children, W.Va.Code [§] 49-6-5 [now West
Virginia Code § 49-4-604] . . . may be employed without
the use of intervening less restrictive alternatives when it
is found that there is no reasonable likelihood under
W.Va.Code [§] 49-6-5(b) [now West Virginia Code §
49-4-604(c)] . . . that conditions of neglect or abuse ...