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In re A.W.

Supreme Court of West Virginia

June 12, 2019

In re A.W.

          Barbour County 16-JA-75

          MEMORANDUM DECISION

         Petitioner Father J.D., by counsel A. Tyler Reseter, appeals the Circuit Court of Barbour County's December 21, 2018, order terminating his parental rights to A.W.[1] The West Virginia Department of Health and Human Resources ("DHHR"), by counsel Lee Niezgoda, filed a response in support of the circuit court's order. The guardian ad litem ("guardian"), Allison C. Iapalucci, filed a response on behalf of the child in support of the circuit court's order. Relative foster parent intervenors C.F. and G.F., by counsel Jaymie Godwin Wilfong, also filed a response in support of the circuit court's order. On appeal, petitioner argues that (1) the DHHR was deficient in providing timely remedial services; (2) the DHHR erred in recommending the termination of petitioner's parental rights in its final case plan; (3) the DHHR failed to develop an adequate case plan as mandated by West Virginia Code §§ 49-4-604(a)(1) and (2); (4) the DHHR failed to develop a proper and timely case plan as mandated by West Virginia Code § 49-4-408(a); (5) the DHHR improperly modified petitioner's case plan in violation of West Virginia Code § 49-4-408(b); and (6) the Barbour County Prosecuting Attorney's Office improperly prosecuted the case due to a conflict of interest.[2]

         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 November 8, 2016, the DHHR filed an abuse and neglect petition alleging that petitioner and the mother abused and neglected the child due to their substance abuse issues. Petitioner waived his preliminary hearing, and the circuit court ordered paternity testing to confirm petitioner's paternity of the child. Petitioner tested positive for methamphetamine, amphetamine, marijuana, and buprenorphine immediately following the hearing. On April 11, 2017, the circuit court entered an order noting that petitioner's adjudicatory hearing was delayed because petitioner had "not been able to take a paternity test." The circuit court further noted that the paternity test was scheduled for May 1, 2017, and that petitioner's adjudicatory hearing should be held following that testing. On May 15, 2017, the paternity test results confirmed that petitioner was the child's father.

         On June 6, 2017, in anticipation of petitioner's stipulation to adjudication, the DHHR recommended that petitioner be granted a post-adjudicatory improvement period and filed a case plan outlining the terms and conditions of the improvement period, services to be provided, and goals for reunification. Thereafter, petitioner stipulated to the allegations of abuse and neglect. Specifically, he admitted that he was addicted to illegal substances and that his substance abuse impaired his ability to care for the child. Petitioner was granted a six-month post-adjudicatory improvement period. In October of 2017, the circuit court terminated the mother's parental rights and ordered that petitioner's improvement period continue. The circuit court noted that petitioner's post-adjudicatory improvement period was set to expire on December 27, 2017. In November of 2017, during an extended unsupervised visit with the child, petitioner took the child to his mother's home, where he was residing. Although a DHHR worker approved the home as an acceptable place for visits, the worker was unaware that petitioner had previously used methamphetamine in the home.

         On January 4, 2018, the DHHR filed a second case plan that included petitioner's girlfriend, because the pair announced that they would be living together. The case plan noted that petitioner had not yet spoken to his doctor about titrating his Suboxone dosage, but that he planned to do so at an upcoming appointment. On January 12, 2018, the circuit court granted petitioner a second improvement period, based upon its finding that petitioner complied with his post-adjudicatory improvement period but needed additional time to titrate off his Suboxone prescription. The circuit court noted that petitioner had a pending appointment to address titration from Suboxone and that he was recently released by his doctor to begin searching for employment. Pursuant to his case plan, petitioner still needed to find employment and complete a psychological evaluation. Lastly, the circuit court noted that petitioner needed additional time to have his mother's home tested for methamphetamine contamination.

         On February 20, 2018, the DHHR received a report indicating that petitioner's mother's home, where petitioner resided, was contaminated with methamphetamine residue and required abatement in order for the home to be safe for the child. According to the DHHR, petitioner took the child to the home and exposed her to the methamphetamine contamination, which was seven times the acceptable limit. He took the child to his home after he learned of the contamination. Petitioner did not complete the decontamination until August of 2018. On June 15, 2018, petitioner filed a motion to modify the case plan and asked the circuit court to remove the requirement that he titrate from Suboxone because such requirement was contrary to his doctor's advice. However, on August 20, 2018, the DHHR filed a third case plan and stated that a goal of the case plan was for petitioner to develop a plan with his doctor to titrate from Suboxone.

         On August 29, 2018, the circuit court commenced a dispositional hearing. During the hearing, petitioner offered the testimony of a physician regarding his Suboxone treatment. The physician planned to testify that petitioner should not titrate from Suboxone at that time. However, the circuit court declined to hear the testimony due to the fact that the DHHR and guardian indicated that they agreed with the recommendation that petitioner not titrate from Suboxone. Also during the hearing, the circuit court granted the child's relative foster parents intervenor status. The circuit court ordered the multidisciplinary team ("MDT") to meet and scheduled the matter for further disposition. On October 2, 2018, the DHHR filed a final case plan recommending the termination of petitioner's parental rights because the DHHR is required to seek termination of parental rights to a child who has been in foster care for at least fifteen of the last twenty-two months. The DHHR further stated in the case plan that the best interests of the child necessitated that she remain in the care of her relative foster parents, who provided her with the only home she has ever known.

         On October 11, 2018, the circuit court held a final dispositional hearing in the matter. The DHHR, the guardian, and the relative foster parent intervenors requested the termination of petitioner's parental rights. All three requests were based upon the best interests of the child. Notably, the parties stated that the child had spent the majority of her life in the relative foster parents' home and had a bond with them, but also developed attachment issues due to visits with petitioner. However, the parties supported continued contact with petitioner consistent with the child's best interests.

         The child's relative foster parents testified regarding their bond with the child and the attachment issues the child developed as a result of visitation with petitioner. The DHHR also presented testimony regarding the child's visits with petitioner. Specifically, a service provider testified that the child was upset and crying during exchanges on multiple occasions. The service provider also testified regarding the frequency and length of petitioner's visits during the proceedings. Petitioner commenced visitation with the child in December of 2016, with visits of two hours per week. Once paternity was established, petitioner's visits were increased to two visits per week for two hours each. Further, the service provider testified that petitioner agreed to titrate from Suboxone in November of 2016. She also testified that some delays in the matter occurred due to petitioner's request to include his girlfriend in his case plan. Petitioner requested to live with his girlfriend, but the DHHR advised that it was not in the child's best interests due to the girlfriend's own Child Protective Services case. The service worker further explained that petitioner "was constantly asking that other people be involved in his case, to include grandparents, great-grandparents, his own siblings and extended family, which the DHHR had to limit, due to the [child's] young age." The service worker agreed that petitioner obtained gainful employment during the proceedings, but failed to obtain stable housing.

         Next, petitioner testified on his own behalf. He admitted that he failed his drug screen following the preliminary hearing and that he was initially dishonest with the circuit court regarding his substance abuse. He then testified regarding the methamphetamine contamination in his mother's home and claimed that he was unaware that his prior methamphetamine use could affect the home. He testified that he paid for the home to be abated in August of 2018; however, he no longer wished to live with his mother in that home and wanted to live with his girlfriend. Petitioner acknowledged that his methamphetamine use negatively impacted the child and admitted that he was charged with driving on a suspended license during the proceedings. When questioned about the child's best interests, petitioner responded that he loves his child, but that he did not want to keep the child from the relative foster parents. Petitioner also acknowledged that he cancelled visits with the child on more than one occasion.

         In its dispositional order, the circuit court noted that "at no time did [petitioner] object to any of the terms or conditions of his improvement period, and he agreed, initially, to titrate from Suboxone." The circuit court also noted that petitioner failed to maintain stable housing "for the duration of this case." Further, the circuit court noted that the child had been in foster care with her relatives for twenty-three months and they were the only parents the child had ever known. Removing the child from their care was contrary to her welfare. Moreover, the circuit court explained that

it has no issue with [petitioner] or his [S]uboxone titration and that's not what this case is about. The individuals who provided documentation are experts and the [c]ourt takes their opinion as authority. Again, the primary issue is whether or not ...

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