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In re G.H.

Supreme Court of West Virginia

February 15, 2019

In re G.H.

          (Cabell County 15-JA-274)

          MEMORANDUM DECISION

         Petitioner Father G.N., by counsel Michael S. Bailey, appeals the Circuit Court of Cabell County's August 10, 2018, order terminating his parental rights to G.H.[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"), Shawn Bartram, filed a response on behalf of the child in opposition of the termination of petitioner's parental rights. The foster parent intervenors, by counsel Jacquelyn Stout Biddle, also filed a response in support of the circuit court's order and a supplemental appendix. Petitioner filed a reply. On appeal, petitioner argues that the circuit court erred in failing to properly consider the paternal grandmother for placement of the child and terminating 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.

         In October of 2015, the DHHR filed an abuse and neglect petition alleging that the mother overdosed on substances in the child's presence. The DHHR alleged that petitioner was incarcerated and, as a result, failed to provide for the child financially, emotionally, or psychologically. The circuit court held an adjudicatory hearing in November of 2015. The circuit court found that petitioner was incarcerated for possession of heroin and that his parole date was in May of 2017. The circuit court found that he was unable to parent the child due to his incarceration. He was adjudicated as an abusing parent based upon his neglect of the child. The mother was granted an improvement period and subsequently made substantial progress in addressing her substance abuse issues.

         The child was placed in three different homes during the first few months of the proceedings. Approximately six months after the child was removed from her mother's custody, petitioner requested that his attorney inquire into whether petitioner's mother could be considered for placement of the child. According to the DHHR, petitioner's mother had not indicated a desire, willingness, or ability to undertake the placement of the child. Therefore, the circuit court deemed placement with the grandmother inappropriate. In November of 2016, the child was placed in a foster home where she lived for the remainder of the proceedings.

         In January of 2017, the circuit court held a review hearing. Petitioner did not attend, but was represented by counsel. The circuit court found that petitioner was in federal custody in Ohio. According to the mother, she was fearful of petitioner and wanted his parental rights to be terminated. In May of 2017, the circuit court held a review during which the mother admitted that she had relapsed on heroin in April of 2017. The circuit court terminated the mother's improvement period and set the matter for disposition. In July of 2017, a dispositional hearing was held. Petitioner appeared for the hearing, having been paroled in June of 2017 after serving three-and-a-half years on a sentence for conspiracy in a drug-related offense. The circuit court proceeded to terminate the mother's parental rights and rescheduled petitioner's dispositional hearing.

         In September of 2017, petitioner attended a review hearing in the matter and requested a post-adjudicatory improvement period, which the circuit court granted. The circuit court was informed that petitioner completed life skills classes while imprisoned, maintained regular contact with his service provider, produced negative drug screens, and was employed. In October of 2017, petitioner was granted supervised visitation with the seven-year-old child at the DHHR's discretion. The circuit court held a review hearing regarding petitioner's post-adjudicatory improvement period in December of 2017. According to the DHHR, the child's therapist reported that the child was regressing due to contact with petitioner. Additionally, the therapist stated that it would be detrimental to the child's mental and emotional wellbeing to be removed from her foster family. The therapist also reported that the child had been crying often at school, exhibited poor behavior, and frequently got into trouble at school "since the changes of visiting" petitioner. The therapist expressed concerns that the child would continue negative behaviors if she had to continue visiting or had to reside with petitioner, with whom she had no contact since she was approximately one year old. The guardian reported that the child did not want to attend visitation with petitioner. According to the DHHR, petitioner and the child attended supervised visits, but they did not seem to engage with each other or have a bond.

         On March 1, 2018, the DHHR filed a motion to terminate visitation. According to the DHHR, petitioner was essentially a stranger to the child due to his incarceration for most of the child's life. The DHHR explained that the child "has not handled visits with [petitioner] well. She is anxious and upset before and during visits. Her performance at school has deteriorated." Further, the DHHR noted in its motion that the child reported to her therapist that she was afraid of petitioner. The therapist expressed concern for the child's mental wellbeing. A service provider also reported that the child "started hysterically crying" when the provider arrived to transport the child to a visit with petitioner. The circuit court held a review hearing in May of 2018. The circuit court noted that the matter was "almost three years old" and that the child did not know petitioner through no fault of her own. The circuit court further stated that it is "difficult for the [circuit c]ourt to justify subjecting the child to any further visitation, which is scary to the child. The polar star in abuse and neglect proceedings is the best interests of the respondent child." The circuit court found that the termination of petitioner's parental rights was in the child's best interests. However, the circuit court held its decision in abeyance in order for the parties to attempt to determine how to develop and maintain some type of relationship between petitioner and the child.

         The circuit court held the final dispositional hearing on July 11, 2018. Petitioner requested that the circuit court accept the voluntary relinquishment of his guardianship rights instead of terminating his parental rights. However, the circuit court found that petitioner's request was not an "adequate disposition in this case. The respondent child needs and deserves permanency in the form of an adoptive home." The circuit court also found that there was no alternative disposition available, short of the termination of petitioner's parental rights, to "assure the physical and emotional well-being" of the child and that there was no reasonable likelihood that petitioner could substantially correct the conditions of neglect in the near future. Lastly, the circuit court found that the termination of petitioner's parental rights was necessary for the child's welfare. Ultimately, the circuit court terminated petitioner's parental rights in its August 10, 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.

         First, petitioner argues that the circuit court erred in failing to consider his mother for placement of the child. In support, petitioner asserts that his mother was present for hearings while he was incarcerated and that she attempted to contact the DHHR regarding placement of the child. However, petitioner fails to cite to any evidence in the record to support his assertion in violation of Rule 10 of the West Virginia Rules of Appellate Procedure.[3]

         Pursuant to West Virginia Code § 49-4-114(a)(3), the DHHR "shall first consider the suitability and willingness of any known grandparent or grandparents to adopt the child. Once grandparents who are interested in adopting the child have been identified, the department shall conduct a home study evaluation, including home visits and individual interviews by a licensed social worker." However, according to the DHHR, petitioner's mother failed to express a desire, willingness, or ability to undertake the placement of the child. The circuit court considered ...


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