In re I.D. and K.D.
County 17-JA-252 and 17-JA-253)
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
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.
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.
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." 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.
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.
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.
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. 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.
Court has previously established the following standard of
"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
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
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.
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 ...