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In re J.M.

Supreme Court of West Virginia

January 14, 2019

In re J.M.

          Taylor County 17-JA-79

          MEMORANDUM DECISION

         Petitioner Father T.M., by counsel James E. Shay, Jr., appeals the Circuit Court of Taylor County's June 4, 2018, order terminating his parental rights to J.M.[1] The West Virginia Department of Health and Human Resources ("DHHR"), by counsel Lee Niezgoda, filed a response in support of the circuit court's order. The guardian ad litem ("guardian"), Mary S. Nelson, filed a response on behalf of the child also in support of the circuit court's order and a supplemental appendix. On appeal, petitioner argues that the circuit court erred in terminating his parental rights without first granting him an improvement period, allowing the DHHR and the guardian to present evidence after resting their cases, and denying him due process and equal protection.

         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 September of 2017, the DHHR filed a child abuse and neglect petition against petitioner and the mother. The DHHR alleged that petitioner had issues with alcohol abuse which endangered the child. Specifically, petitioner rode his motorcycle, while intoxicated, with the child as a passenger. Neither petitioner nor the child were wearing helmets and petitioner crashed the motorcycle, breaking four ribs and his clavicle, along with other less-serious injuries. A Child Protective Services ("CPS") worker spoke with the child, who showed the worker minor injuries sustained to his leg and knee. The child reported that petitioner was intoxicated at the time of the wreck and was driving too fast. Petitioner refused to go to the hospital following the wreck until the mother picked up petitioner and the child and took them. The child further reported that petitioner drinks frequently and that petitioner and his mother engage in domestic violence frequently. Based on these facts, the DHHR alleged that petitioner abused and/or neglected his child through subjecting the child to dangerous and hazardous situations, exposing the child to domestic violence, abusing alcohol in the child's presence, and failing to protect the child and ensure his safety and well-being.

         The circuit court held a preliminary hearing later in September of 2017. Petitioner waived the hearing, although the circuit court went on to question him regarding the motorcycle incident. Petitioner testified that he regularly consumes alcohol and consumes a "couple" of beers before breakfast after he returns home from working a night shift. He further admitted that he consumes between twelve and thirty beers per week. Petitioner denied having a problem with alcohol or drinking in excess. However, petitioner conceded that both doctors and family members have informed him that he drinks too much alcohol. Petitioner stated that he consumed alcohol prior to the motorcycle accident and confirmed that neither he nor the child were wearing helmets. The circuit court ordered petitioner to submit to alcohol screening and scheduled the adjudicatory hearing.

         In November of 2017, the circuit court held an adjudicatory hearing. Petitioner and the mother stipulated to the allegations contained in the petition. During the circuit court's questioning, the mother stated that she believed petitioner had an alcohol abuse problem and that he drinks four to five beers after arriving home from work. The mother reported seeing petitioner drink six to ten beers on his days off. Petitioner admitted that he made a mistake in drinking a few beers prior to allowing his son to ride on a motorcycle with him, without wearing a helmet. However, petitioner denied drinking excessively and believed the proceedings would not have occurred had he been in a state that did not require the use of helmets while riding motorcycles. Counsel for petitioner requested a post-adjudicatory improvement period, to which the circuit court expressed concern due to petitioner's reluctance to comply with services and his combative nature. At that point, petitioner stated "the reason I am so combative is because [the CPS worker who filed the petition] is a liar. She put information in that paper that was not stated by my son, that is why I am so combative in your courtroom." The circuit court warned petitioner regarding his behavior before proceeding. Ultimately, the circuit court adjudicated petitioner as an abusing parent, and took his motion for an improvement period under advisement.

         The circuit court held a dispositional hearing in March of 2018. A CPS worker testified that, although petitioner had not been granted an improvement period, he was offered services and had complied with parenting classes and visitation. However, although petitioner expressed the desire to comply with services, he refused to wear a continuous alcohol monitoring device, submit to drug and/or alcohol screens after November of 2017, provide medical records, attend Alcoholics Anonymous ("AA") meetings, or participate in a psychological evaluation. The worker further testified that petitioner stated that he did not understand why the proceedings were occurring and refused to cooperate with the DHHR, only attending one multidisciplinary team ("MDT") meeting during the proceedings. The worker testified that the mother reported observing petitioner under the influence of alcohol twice since the adjudicatory hearing.

         A service provider testified that petitioner complied with parenting classes and visitation and demonstrated a bond with the child. The provider conceded that petitioner had issues cooperating with the DHHR. A DHHR worker testified about an incident in February of 2018 wherein petitioner became loud and aggressive when he was asked to show identification to enter the DHHR office building. Thereafter, the DHHR and the guardian stated that they had no further witnesses. However, after further conversation, the DHHR called two more witnesses, the mother and petitioner, to correct a hearsay issue.

         The mother testified that she observed petitioner to be under the influence on two occasions during the course of the proceedings. Finally, petitioner testified that the allegations of alcohol abuse were unfounded. When the DHHR informed petitioner that the circuit court made prior findings regarding his alcohol abuse at the adjudicatory hearing, he responded "[s]o it's allegation [sic] that was turned into fact overnight, magically. If that's how you want to say that then okay." Petitioner stated that he would comply with any terms and conditions of an improvement period "[a]s long as the specifics are laid out to me" but denied having an alcohol abuse problem. After hearing evidence, the circuit court found that there was no reasonable likelihood that petitioner could correct the conditions of abuse in the near future due to his inadequate capacity to address the conditions of abuse and neglect on his own or with help. The court further found that termination of petitioner's parental rights was necessary for the child's welfare. It is from the June 4, 2018, dispositional order terminating his parental rights that petitioner appeals.[2]

         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 at disposition by improperly allowing the [DHHR] and guardian ad litem to present more evidence after they had voluntarily rested their cases. . . ." However, petitioner fails to cite to any authority demonstrating that the DHHR is prohibited from presenting additional evidence after it has voluntarily rested its case. Here, after presenting the testimony of several witnesses, the DHHR and guardian advised the circuit court that they had no more witnesses. Following a brief discussion regarding hearsay, the circuit court permitted the DHHR to call more witnesses. Ultimately, the DHHR called the mother and petitioner to testify, without objection. Contrary to petitioner's assertions, the circuit court did not shift the burden to petitioner.[3] Rather, the circuit court merely allowed the DHHR to present additional evidence to correct a hearsay issue. We have previously held that

"[t]he West Virginia Rules of Evidence and the West Virginia Rules of Civil Procedure allocate significant discretion to the trial court in making evidentiary and procedural rulings. Thus, rulings on the admissibility of evidence . . . are committed to the discretion of the trial court. Absent a few exceptions, this Court will review evidentiary and procedural rulings of the circuit court under an abuse of discretion ...

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