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In re H.M.

Supreme Court of West Virginia

March 15, 2019

In re H.M. and P.M.

          (Kanawha County 17-JA-226 and 17-JA-227)

          MEMORANDUM DECISION

         Petitioner Father D.M., by counsel Benjamin Freeman, appeals the Circuit Court of Kanawha County's September 13, 2018, order terminating his parental rights to H.M. and P.M.[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"), W. Jesse Forbes, filed a response on behalf of the children also in support of the circuit court's order. On appeal, petitioner argues that the circuit court erred in forcing petitioner to participate in an improvement period when there were no allegations against him in the petition, adjudicating him as an abusing parent, 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 May of 2017, the DHHR filed a child abuse and neglect petition against petitioner, the mother, and the mother's boyfriend. The petition indicated that petitioner was incarcerated at the time of its filing. The DHHR alleged that the mother and her boyfriend abused drugs in the presence of the children. It concluded that "the respondent parents have failed to provide the children with the necessary food, clothing, supervision and housing at times since the birth of the minor children." The DHHR further stated that "the respondent" has not provided the children with any financial support for at least some periods and that these failures have placed the children in risk of harm. Finally, the DHHR claimed that "the respondents are not sufficiently motivated and organized to provide for the needs of the infant children."

          Subsequent to the petition's filing, petitioner was released from incarceration, placed on supervised release, and provided services in connection with this proceeding. A hearing was held in October of 2017, wherein a Child Protective Services ("CPS") worker testified regarding petitioner's "improvement period."[2] The worker stated that petitioner only received visits with the children at that point and that services had not been set up because they "felt that they were [not] needed at that particular time." Petitioner testified that he was employed, would have suitable housing in the next two weeks, and would request any services that he needed. Following testimony, the DHHR recommended that the circuit court continue petitioner's services and improvement period. Counsel for petitioner requested that the circuit court "adopt the recommendations" of the DHHR that the permanency plan for the children be reunification with petitioner. Counsel stated that there were "no real allegations" against petitioner other than he was participating in a work release program at the time the petition was filed. Counsel also asked that petitioner be permitted to request any services "that he felt he needed." The circuit court ordered that petitioner's improvement period be continued, with no objections.

         In January of 2018, the circuit court held a hearing for the purpose of reviewing petitioner's improvement period. The DHHR advised the circuit court that petitioner tested positive for a prohibited substance which constituted a violation of his work release program, and was thus re-incarcerated and subsequently released on parole. The circuit court ordered the DHHR to provide petitioner with services such as random drug screens, adult life skills classes, and assistance with transportation. Petitioner was also instructed to obtain and maintain suitable housing and employment. His improvement period was continued without objection.

         At a second review hearing held in February of 2018, the DHHR reported that petitioner, who failed to attend the hearing, was not complying with the terms and conditions of his improvement period. The circuit court granted the DHHR's request to amend the petition and set the matter for adjudication. Later in February, the DHHR filed an amended petition alleging that petitioner was incarcerated at the time of the filing of the original petition and included that he was released on a work release program and subsequently re-incarcerated and then released again. The DHHR alleged that petitioner was offered services to allow him to gain custody of the children but that he failed to attend visitation with the children and adult life skills classes on a regular basis and failed to comply with random drug screens. The DHHR also alleged that petitioner did not have housing or employment.

         The circuit court held an adjudicatory hearing regarding the amended petition in March of 2018. Petitioner failed to attend but was represented by counsel. The guardian proffered that petitioner was initially granted a preadjudicatory improvement period following his release from prison and that he had not complied with the terms and conditions imposed. Counsel for petitioner reported that petitioner had originally complied with services but later stopped participating and failed to maintain contact with him or the DHHR.

         A CPS worker testified that petitioner was offered services but that he failed to participate in the same. Petitioner attended a few adult life skills classes, but cancelled visits with the children and failed to contact the worker in order to obtain assistance with employment and housing opportunities. The worker expressed that the children were disappointed with petitioner's behavior but noted "they've been used to this their whole [lives]" as petitioner had been incarcerated for several years prior to the filing of the petition. The worker stated that petitioner did not provide the children with any support, food, clothing, or shelter. After hearing evidence, the circuit court adjudicated petitioner as an abusing parent.

         In May of 2018, the circuit court held a dispositional hearing. Counsel for petitioner advised the circuit court that petitioner had been re-incarcerated. The DHHR presented the testimony of a CPS worker who recommended termination of petitioner's parental rights due to his failure to comply with services and criminal behavior during the proceedings. The worker stated that the children were disappointed by petitioner's actions and that P.M. was particularly negatively affected. After hearing testimony, the circuit court found that petitioner had not made sufficient efforts to rectify the circumstances that led to the filing of the petition and failed to follow through with a reasonable family case plan designed to reduce or prevent the abuse and neglect of the children. Finding that there was no reasonable likelihood that petitioner could correct the conditions of abuse and neglect in the near future and that termination was in the children's best interests, the circuit court terminated his parental rights. It is from the September 13, 2018, dispositional order that petitioner appeals.[3]

         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 original petition contained no allegations against him. According to petitioner, the only allegation of his abuse or neglect of the children was that he was incarcerated at the time of its filing, and he avers that incarceration alone cannot be the sole basis for adjudication.[4] Petitioner further argues that because there were no allegations against him, the circuit court wrongfully forced him to participate in an improvement period. Finally, petitioner argues that the amended petition also failed to contain sufficient allegations against him as ...


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