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In re L.C.

Supreme Court of West Virginia

January 14, 2019

In re L.C.

          Kanawha County 18-JA-164

          MEMORANDUM DECISION

         Petitioner Father D.N., by counsel Shawn D. Bayliss, appeals the Circuit Court of Kanawha County's August 2, 2018, order terminating his parental rights to L.C.[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. The guardian ad litem ("guardian"), Jennifer R. Victor, 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 granting the DHHR leave to file an amended petition, adjudicating him as an abusing parent, terminating his parental rights, and denying him post-termination visitation with the child.

         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 March 27, 2018, the DHHR filed an abuse and neglect petition alleging that the parents abandoned the child and failed to provide him with necessary food, clothing, supervision, and housing at various times throughout his life. The DHHR also alleged that petitioner was incarcerated on a parole violation related to an underlying drug offense and that he failed to provide the child with "any financial support, whether in kind or in specific monetary amounts during at least some periods of the child['s] life." On May 18, 2018, the circuit court held an adjudicatory hearing. Petitioner appeared by telephone, but declined to testify. The mother testified that petitioner had not paid child support in over ten years and owed approximately $35, 000 due to missed payments. She further testified that petitioner last saw the child in July of 2017. According to the mother's testimony, petitioner could not provide a home for the child and also suffered from a substance abuse addiction, which interfered with his ability to parent the child. The circuit court adjudicated petitioner as an abusing parent based upon his abandonment of the child and his failure to provide child support. Specifically, the circuit court noted that petitioner "has not paid any attention to his child and he's not met any of his parental obligations." The circuit court granted the DHHR leave to amend the petition based upon allegations of petitioner's substance abuse. However, no such amended petition was filed.

         On June 22, 2018, the circuit court held a dispositional hearing. Petitioner did not appear telephonically or in person, but was represented by counsel. Counsel for petitioner moved for an improvement period, which the circuit court denied. According to counsel, petitioner was released from incarceration prior to the hearing. The DHHR recommended termination of petitioner's parental rights. According to the DHHR, petitioner had not been involved in the child's life and the child had been in specialized foster care due to behavioral issues since he was twelve years old.[2] According to the guardian's report, the child stated that he was never raised by his parents, but lived with his grandmother when he was younger. The report also indicated that the child and petitioner had sporadic contact. However, after his release from incarceration, petitioner made no attempts to contact the DHHR or the child. Further, the DHHR was unable to provide services to petitioner while he was incarcerated and was unaware that petitioner was released from incarceration prior to the dispositional hearing until advised by petitioner's counsel. Following the presentation of testimony, the circuit court found no reasonable likelihood that petitioner could substantially correct the conditions of abuse and neglect in the near future and that the termination of his parental rights was in the child's best interest. Visitation with petitioner was left to the child's request and the legal guardian's discretion. However, the circuit court ordered that all contact with petitioner must be supervised, no overnight visits shall occur, and the child shall not reside in the same household as petitioner. Ultimately, the circuit court terminated petitioner's parental rights in its August 2, 2018, dispositional order. Petitioner now appeals that order.[3]

         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.

         First, petitioner argues that the circuit court erred in granting the DHHR leave to file an amended petition based upon the mother's testimony during the adjudicatory hearing that petitioner abused substances. Although petitioner argues that it was improper for the DHHR to file an amended petition because the alleged substance abuse occurred prior to the filing of the original petition, he acknowledges that the DHHR did not actually file an amended petition. As discussed further below, because the circuit court had sufficient evidence to adjudicate petitioner as an abusing parent based upon his neglect and abandonment of the child, evidence of his substance abuse was unnecessary to adjudicate him. Therefore, petitioner is entitled to no relief. [4]

         Next, petitioner argues that the circuit court erred in adjudicating him as an abusing parent. In support, he asserts that that the mother's testimony regarding his failure to pay child support was insufficient to support adjudication. [5] We do not agree.

         West Virginia Code § 49-1-201, in relevant part, defines a neglected child as one "[w]hose physical or mental health is harmed or threatened by a present refusal, failure or inability of the child's parent . . . to supply the child with necessary food, clothing, shelter, supervision, medical care or education. . . ." This section also defines abandonment as "any conduct that demonstrates the settled purpose to forego the duties and parental responsibilities to the child." Further, 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 burden." Syllabus Point 1, In Interest of S.C., 168 W.Va. 366, 284 S.E.2d 867 (1981).

Syl. Pt. 1, In re Joseph A., 199 W.Va. 438, 485 S.E.2d 176 (1997) (citations omitted). The circuit court correctly adjudicated petitioner as an abusing parent based on the evidence that he neglected and abandoned the child. The record shows that petitioner was often absent from the child's life for long periods of time and failed to provide the child with financial support, necessary food, clothing, shelter, supervision, medical care, or education, largely due to his incarceration. Further, the mother testified that petitioner had not seen the child since July of 2017 and had not paid child support for approximately ten years. While he argues that the DHHR's evidence was insufficient, petitioner offered no testimony or evidence in rebuttal. We have held that

[b]ecause the purpose of an abuse and neglect proceeding is remedial, where the parent or guardian fails to respond to probative evidence offered against him/her during the course of an abuse and neglect proceeding, a lower court may properly consider that individual's ...

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