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In re D.J.

Supreme Court of West Virginia

April 19, 2019

In re D.J.

          Roane County 17-JA-123

          MEMORANDUM DECISION

         Petitioner Father T.J., by counsel Marc A. Moore, appeals the Circuit Court of Roane County's July 23, 2018, order terminating his parental rights to D.J.[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"), Michael W. Asbury, Jr., 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 finding by clear and convincing evidence that he abused and neglected the child, denying his motion for a post-adjudicatory improvement period, 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 December of 2017, the DHHR filed a petition alleging petitioner was incarcerated in March of 2017 due to felony charges in Putnam County, West Virginia. The DHHR also alleged that the child's parents and custodians failed to provide the child with necessary food, clothing, shelter, and supervision. According to the DHHR, petitioner was not involved in the child's life and the child's mother's contact with the child was described as "sporadic" over the previous eighteen months. The mother was allegedly addicted to illegal substances. At the time the petition was filed, the child lived with the maternal grandparents. However, according to the DHHR, the grandparents abused illegal substances and the home was in a deplorable condition rendering it unsuitable for the child. The DHHR further alleged that the child suffered emotional trauma and medical neglect while residing in the grandparents' home.

         On April 23, 2018, the circuit court held an adjudicatory hearing. The DHHR called petitioner as a witness and he testified that he was incarcerated at Salem Correctional Center after being charged with the possession of a stolen vehicle. He also testified that he was charged with another crime in Kanawha County, West Virginia, and that he would be incarcerated until at least March of 2019. He stated that prior to March of 2017, he saw the child "[a]t least a week out of the month" fairly consistently. He then testified that he last saw the child in March of 2017, just before the child turned two years old. According to petitioner, the mother and the child stayed with him for two weeks in the trailer he was renting in March of 2017. Petitioner explained that, prior to March of 2017, he would occasionally visit the child at the maternal grandparents' home. However, he did not stay long because he and the mother would argue. He stated that he was aware of the mother's substance abuse problem, but believed that the child was being taken care of by the maternal grandparents. He further explained that he did not see the child after March of 2017 because he and the mother argued frequently. He also did not see the child because he was incarcerated. He stated that he did not seek custody of the child prior to his incarceration because he did not have a home or a job and could not afford an attorney. Lastly, he testified that he was not paying any child support. Following the presentation of evidence and arguments from the parties, the circuit court adjudicated petitioner and found that he failed to provide any support to the child, demonstrated a settled purpose to forego his parental duties to the child, and abandoned the child.

         On July 16, 2018, petitioner appeared at the dispositional hearing by telephone. He testified that his possible release date from incarceration was in May of 2019. He moved for a post-adjudicatory improvement period and stated that incarceration was the "only obstacle" to his participation. He also stated that, prior to March of 2017, he saw the child "[a]t least two weeks out of a month." Following petitioner's testimony, the DHHR argued petitioner contradicted himself during his testimony, that there was not a bond between petitioner and the child, and to take the three-year-old child to a correctional facility for visitation in order to facilitate a bond would be inappropriate. The guardian argued in opposition to any order granting petitioner an improvement period based upon the fact that petitioner went long periods of time without seeing the child, even when he was not incarcerated. The guardian moved the circuit court to terminate petitioner's parental rights. Based upon the evidence presented, the circuit court denied petitioner's motion for a post-adjudicatory improvement period finding that, because of his unavailability caused by his incarceration, petitioner was unable to "participate in a post[-]adjudicatory period of improvement to substantially correct the conditions of abuse and neglect that caused the [p]etition to be filed." 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 petitioner's parental rights was in the child's best interests. Ultimately, the circuit court terminated petitioner's parental rights in its July 23, 2018, dispositional order.[2] It is from this order that petitioner appeals.

         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 argues that the circuit court erred in finding by clear and convincing evidence that he abused and neglected the child.[3] In support, he asserts that he visited with the child monthly prior to his incarceration. He contends that his incarceration was the only reason that he was adjudicated as an abusing parent. We disagree.

         Based upon our review of the record, we find that the circuit court had sufficient evidence to adjudicate petitioner as an abusing parent. We have held that

"[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). This Court has explained that "'clear and convincing' is the measure or degree of proof that will produce in the mind of the factfinder a firm belief or conviction as to the allegations sought to be established." In re F.S., 233 W.Va. 538, 546, 759 S.E.2d 769, 777 (2014) (citing Brown v. Gobble, 196 W.Va. 559, 564, 474 S.E.2d 489, 494 (1996)). However, "the clear and convincing standard is 'intermediate, being more than a mere preponderance, but not to the extent of such certainty as is required beyond a reasonable doubt as in criminal ...


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