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In re I.D.

Supreme Court of West Virginia

June 12, 2019

In re I.D. and K.D.

          (Wood County 17-JA-252 and 17-JA-253)

          MEMORANDUM DECISION

         Petitioner Custodian D.F., by counsel Ernest M. Douglass, appeals the Circuit Court of Wood County's January 7, 2019, order terminating his custodial rights to I.D. and K.D.[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, Debra L. Steed, filed a response on behalf of the children in support of the circuit court's order. On appeal, petitioner argues that the circuit court erred in terminating his custodial 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 September of 2017, the DHHR filed a child abuse and neglect petition alleging that petitioner kicked his girlfriend's child, I.D., leaving the child with "bruising on her forehead in the mark of a shoe tread, her left neck, and on her buttocks."[2] I.D. stated that she was in trouble for hitting another child at school and that her mother made her sit on a white door in her home as a form of punishment. I.D. stated that she was crying and left the door at which point petitioner kicked her. During the DHHR's initial investigation, petitioner and the mother both denied knowing that I.D. was bruised, but corroborated that the child was punished by sitting on the door. The DHHR located a marijuana pipe in petitioner's home. The mother asserted that she did not use marijuana, but admitted that petitioner used it while she worked and he watched the children. The DHHR also alleged that the home was unsanitary and infested with bed bugs. The DHHR initiated a temporary protection plan that required petitioner have no contact with the mother or the children. Yet, after the initiation of the protection plan, petitioner continued to live with the mother and the children. Petitioner waived his preliminary hearing.

         In November of 2017, petitioner stipulated that he kicked I.D. "in the forehead leaving a shoe print and causing physical injury" and also that he used marijuana while caring for the children. The circuit court adjudicated petitioner as an abusing parent and granted him a six-month post-adjudicatory improvement period. During the improvement period, the DHHR required petitioner to participate in parenting and adult life skills classes, a substance abuse evaluation, random drug screening, a psychological examination, and a domestic violence course.

         Petitioner's psychological examination was completed and provided to the parties in July of 2018. During the examination, petitioner provided a different explanation for I.D.'s bruising, in that he was playing with I.D. and chasing her around the house. Petitioner stated that I.D. tripped, fell, and then he accidentally kicked her in the head. Petitioner detailed a history of domestic abuse in two different relationships. Further, petitioner admitted to a history of substance abuse, including marijuana, cocaine, methamphetamine, psilocybin, and daily alcohol use. During the evaluation, petitioner stated he had not drank alcohol in the prior two months. The evaluator also noted that petitioner was previously providing care for the children in lieu of employment, but failed to seek employment following the removal of the children. Additionally, the evaluator found that petitioner failed to take responsibility for his past actions, rather providing an excuse for each instance. The evaluator recommended that petitioner have no contact with the children based on their fear of petitioner, his criminal and drug histories, and his lack of a meaningful relationship with them.

         The circuit court held dispositional hearings in October of 2018 and January of 2019. The DHHR presented testimony that petitioner failed to make progress during his adult life skills and parenting classes. Petitioner's parenting provider testified that the home was infested with roaches and that she noted no noticeable change during the improvement period. Further, this provider expressed concerns that petitioner's anger would endanger the children. I.D.'s therapist testified that the child indicated on multiple occasions that D.F. was "mean" and that "he just likes to do mean stuff to us." However, the therapist noted that I.D. suddenly changed her opinion in August of 2018, and stated that petitioner was no longer mean.[3] When the therapist asked how I.D. knew this, the child stated that her mother told her that petitioner was no longer mean and no longer drinks beer. Petitioner's psychological examiner testified consistent with the contents of the evaluation. The results of fifty-five of petitioner's drug screens were admitted into evidence, which showed that petitioner was negative for controlled substances and alcohol since May of 2018. Petitioner presented no evidence.

          Ultimately, the circuit court found that the children were afraid of petitioner and that he did not make enough efforts to ensure the safety of the children. Further, the circuit court found that there was no reasonable likelihood that the conditions of abuse and neglect could be substantially corrected in the near future and that termination of petitioner's custodial rights to the children was necessary for their welfare and in their best interests. Accordingly, the circuit court terminated petitioner's custodial rights to the children by its January 7, 2019, order. Petitioner now appeals that order.[4]

         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 terminating his custodial rights to the children. Petitioner asserts that there was substantial evidence that he remedied his substance and alcohol abuse, the DHHR failed to prove that he could not correct his physical abuse of the children, and that the circuit court's dispositional order failed to conform to Rule 36(a) of the West Virginia Rules of Procedure for Child Abuse and Neglect Proceedings in making sufficient findings of fact to support termination. However, we find that petitioner is entitled to no relief.

         West Virginia Code § 49-4-604(c)(5) provides that situations in which there is "no reasonable likelihood that conditions of neglect or abuse can be substantially corrected" include one in which the abusing parent has "seriously injured the child physically or emotionally . . . and the degree of family stress and the potential for further abuse and neglect are so great as to preclude the use of resources to mitigate or resolve family problems." This Court has held

[i]n order to remedy the abuse and/or neglect problem, the problem must first be acknowledged. Failure to acknowledge the existence of the problem, i.e., the truth of the basic allegation pertaining to the alleged abuse and neglect or the perpetrator of said ...

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