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In re D.C.

Supreme Court of West Virginia

June 12, 2019

In re D.C.

          (Ohio County 18-CJA-35)

          MEMORANDUM DECISION

         Petitioner Father A.C., by counsel Betsy Griffith, appeals the Circuit Court of Ohio County's January 14, 2019, order terminating his parental rights to D.C.[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, Joseph J. Moses, filed a response on behalf of the child also in support of the circuit court's order. Petitioner filed a reply. On appeal, petitioner argues that the circuit court erred in adjudicating him as an abusing parent, 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.

         Prior to the initiation of the instant proceedings, petitioner was the subject of child abuse and neglect proceedings in 2016. The DHHR filed the prior child abuse and neglect petition against petitioner after the mother, A.M., gave birth to twins, both of whom were born drug-exposed. One twin died shortly after birth, and the other child suffered severe complications as a result of having been drug-exposed. The DHHR alleged that petitioner knew of the mother's drug abuse and failed to protect the child from the same. The DHHR further alleged that petitioner had an extensive criminal history. Before the circuit court adjudicated petitioner, it requested that this Court answer a certified question, which this Court addressed in In re A.L.C.M., 239 W.Va. 382, 801 S.E.2d 260 (2017). Subsequently, petitioner was adjudicated as an abusing parent, and the circuit court ultimately terminated his parental rights. Petitioner appealed and this Court affirmed the dispositional order in In re A.C.-1, No. 18-0062, 2018 WL 2278095 ( W.Va. May 18, 2018)(memorandum decision).

         In April of 2018, E.S., the mother of the child at issue in this appeal, gave birth to D.C., who is petitioner's biological child. Shortly after the child's birth, the DHHR filed the instant child abuse and neglect petition against the parents alleging that the mother abused opiates and cocaine during her pregnancy and that D.C.'s urine and umbilical cord tested positive for cocaine at birth. The DHHR alleged aggravated circumstances due to petitioner's prior termination of parental rights to an older child and further alleged that he knew of the mother's drug abuse and did nothing to protect D.C. Further, the DHHR stated that petitioner had an extensive criminal history that included a conviction for unlawful taking of a vehicle in 1996; a conviction for conspiracy with intent to deliver cocaine in 1998, for which he was incarcerated for eighty-seven months; a revocation of his supervised release in 2005; a conviction for distribution of cocaine in 2005, for which he was sentenced to forty months of incarceration; a conviction for delivery of marijuana in 2012, for which he was sentenced to one to five years of incarceration; and a conviction for manufacturing or delivery of a controlled substance, for which he was sentenced to one to five years of incarceration. Indeed, petitioner was incarcerated at the time of the petition's filing and had never met the child due to his incarceration.[2]

         The circuit court held an adjudicatory hearing in June of 2018. Petitioner admitted that the case involved aggravated circumstances based upon the prior involuntary termination of his parental rights to an older child. He also admitted that he had an extensive criminal history and had been incarcerated since D.C.'s birth. However, petitioner did not acknowledge that those admissions rendered him an abusing or neglecting parent. Nevertheless, the circuit court adjudicated petitioner as a neglecting parent.

         In December of 2018, the circuit court held a dispositional hearing wherein the court took judicial notice of petitioner's criminal history and prior termination of his parental rights to an older child. Petitioner testified in support of his motion for a post-adjudicatory improvement period. Petitioner reported that he was involved in prior abuse and neglect proceedings wherein he submitted to drug screens three times a week for approximately a year and a half. According to petitioner, he only tested positive for drugs on two occasions during that time. Further, he maintained employment and visited the child during those proceedings. Regarding the instant matter, petitioner admitted that he had been incarcerated at the time of the child's birth and had only recently been released on parole one month prior to the dispositional hearing. During his incarceration, petitioner completed two classes regarding substance abuse and making good decisions. Petitioner admitted to a long criminal history of drug-related offenses but stated "I don't do drugs. I mean, I sell drugs." He explained that his positive screens for controlled substances in his prior proceedings were because "if you touch drugs so much then, yes, you can catch a dirty [screen] from it." Petitioner also admitted that he knew E.S. was abusing drugs while pregnant with D.C. Nevertheless, petitioner requested an improvement period and stated that he had employment in place, had already provided a negative drug screen for that employment, and resided in a stable home that he owned.

         The DHHR presented the testimony of a Child Protective Services ("CPS") worker who recommended termination of petitioner's parental rights. The worker testified that the instant petition had been filed based upon identical circumstances to those in the prior petition and that petitioner had failed to address the conditions of abuse and/or neglect since that time. Petitioner had been incarcerated throughout the proceedings and had been unable to participate in any services offered by the DHHR. After hearing evidence, the circuit court found that petitioner had "absolutely no relationship with the child and never contributed to the emotional, financial or physical support of the child." Further, per his own testimony, petitioner knew of the mother's drug use during her pregnancy, but took no steps to protect the child. Although petitioner claimed to have learned from the two courses he took while incarcerated, petitioner refused to acknowledge that his actions were abusive and/or neglectful at the adjudicatory hearing. Accordingly, the circuit court determined that petitioner had not remedied the conditions of abuse that led to the prior termination of his parental rights and terminated his parental rights upon findings that there was no reasonable likelihood that petitioner could correct the conditions of abuse and neglect in the near future and that termination was necessary for the child's welfare. It is from the January 14, 2019, 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 first argues that the circuit court erred in adjudicating him as a neglecting parent based "solely" on his prior involuntary termination of parental rights, prior criminal history, and incarceration at the time the petition was filed. Although petitioner stipulated to these things, he denies that his criminal and CPS history render him a neglecting parent with regard to D.C. According to petitioner, no evidence was presented to demonstrate "any direct, indirect, or threat of harm to this child by [p]etitioner." As such, he avers that his criminal acts and incarceration, when viewed in isolation, did nothing to harm the child, and the child suffered no harm and did not go without necessities due to any acts of petitioner. We disagree.

         We have previously noted as follows:

At the conclusion of the adjudicatory hearing, the 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. . . . The findings must be based upon conditions existing at the time of ...

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