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In re N.L.

Supreme Court of West Virginia

January 14, 2019

In re N.L.

          Monroe County 18-JA-3

          MEMORANDUM DECISION

         Petitioner Father M.L., by counsel Martha J. Fleshman, appeals the Circuit Court of Monroe County's July 26, 2018, order terminating his parental and custodial rights to N.L.[1] The West Virginia Department of Health and Human Resources ("DHHR"), by counsel Brandolyn Felton-Ernest, filed a response in support of the circuit court's order and a supplemental appendix. The guardian ad litem ("guardian"), Amy L. Mann, 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 adjudicating him as an abusing parent, denying his motion for an improvement period, and terminating his parental and custodial rights rather than imposing a less-restrictive dispositional alternative.

         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 April of 2018, the DHHR filed a petition alleging that four-year-old N.L.'s biological mother's parental rights had been previously terminated, but petitioner continued to allow the mother to have contact with the child. The DHHR alleged that the mother recently gave birth to a child in Virginia and that child was exposed to drugs in utero. According to the DHHR, the mother provided authorities in Virginia with petitioner's address and phone number as her contact information. Additionally, the DHHR alleged that the child was interviewed by a Child Protective Service ("CPS") worker and that she disclosed that she had seen her mother, but that petitioner told her to lie about seeing the mother. The DHHR alleged that petitioner first denied that the mother had contact with the child, but then later stated "you need to understand that sometimes circumstances arise." Petitioner waived his preliminary hearing.

         The circuit court held an adjudicatory hearing in June of 2018, during which a DHHR worker from Virginia testified that, during her investigation into the issues of the mother's abuse of a different child in Virginia, the mother disclosed to the worker that petitioner continued to allow her to see N.L. The worker testified that she called petitioner's cell phone number, which the mother had given as her contact information, and left a message with petitioner for the mother. The worker further testified that the mother called her back from petitioner's cell phone. Additionally, the worker testified that she transported the mother to petitioner's home on one occasion. A West Virginia DHHR worker testified that petitioner's previous abuse and neglect petition was dismissed in March of 2018. During that case, the worker informed petitioner that the mother could have no contact with the child after the termination of her parental rights. Further, this worker testified that she interviewed the child, who disclosed that she continued to see the mother, but that she was not supposed to tell anyone.

         Petitioner testified that the mother came to his home unannounced twice and that he did not let her in the house either time. Petitioner admitted that the child saw her mother on both occasions. Petitioner refuted the claim made by the Virginia DHHR worker and stated that the mother did not call the worker from his cell phone. Petitioner explained that he passed the worker's message to the mother at some point. Petitioner also testified that he did not see any danger in allowing the child to see her mother while he supervised any contact. However, petitioner acknowledged that the circuit court ordered that the mother have no contact with the child, and he said he would respect that order. Finally, the maternal grandmother testified that she was present for two instances when the mother went to petitioner's home to collect some belongings. The grandmother confirmed that petitioner told the mother that she was not supposed to be at the house and that the mother left afterwards.

         Ultimately, the circuit court found that petitioner continued to allow his child to have contact with the mother whose rights had been previously terminated and who was an active drug user. Further, the circuit court concluded that petitioner emotionally abused the child by requiring that she keep the contact with the mother a secret. Accordingly, the circuit court adjudicated petitioner as an abusing parent.

         In July of 2018, the circuit court held the final dispositional hearing and heard argument regarding petitioner's motion for a post-dispositional improvement period, which the circuit court denied. Testimony was presented from two DHHR workers, petitioner, and the foster father. The evidence presented detailed petitioner's prior improvement period and the services provided to him. The DHHR workers opined that petitioner would comply with services if granted an improvement period, but that petitioner would likely again attempt to deceive the DHHR regarding contact between the mother and the child. Additionally, the DHHR indicated that further services would not correct the conditions that led to the filing of the petition. Petitioner testified that the mother did not live in his home and that he never invited her to see the child. Petitioner further testified that in the future he would obtain a domestic violence protective order to keep the mother from coming to his home unannounced. Finally, the foster father testified that he had seen the mother on the porch of petitioner's home on two occasions.

         Ultimately, the circuit court found that there was no reasonable likelihood that the conditions of abuse and neglect could be substantially corrected because petitioner continued to allow the mother to have contact with the child despite knowing that the mother's parental rights were terminated and that she continued to abuse controlled substances. Further, the circuit court found that petitioner coached the child to keep her contact with the mother a secret, which demonstrated petitioner's knowledge that the contact should not be taking place and his willingness to thwart the efforts of the DHHR to protect the child from exposure to her drug-addicted mother. Accordingly, the circuit court terminated petitioner's parental and custodial rights in its July 26, 2018, order. Petitioner now appeals that order.[2]

         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 first argues that the circuit court erred in adjudicating him as an abusing parent. Petitioner asserts that the DHHR's witnesses presented conflicting testimony and that the manner in which the child was interviewed rendered the child's statements incredible. We disagree. We have held that

"W.Va. Code [§] 49-6-2(c) [now West Virginia Code § 49-4-601(i)], requires the [DHHR], in a child abuse or neglect case, to prove 'conditions existing at the time of the filing of the petition . . . by clear and convincing [evidence].' The statute, however, does not specify any particular manner or mode of testimony or evidence by which the [DHHR] is obligated to meet this ...

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