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In re C.G.-1

Supreme Court of Appeals of West Virginia

September 13, 2019

In re C.G.-1

          Logan County 18-JA-11-B

          MEMORANDUM DECISION

         Petitioner Father C.G.-2, by counsel Mark Hobbs, appeals the Circuit Court of Logan County's January 15, 2019, order terminating his parental rights to C.G.-2.[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 ("guardian"), Rebecca E. Mick, filed a response on behalf of the child also in support of the circuit court's order. On appeal, petitioner argues that the circuit court erred in terminating his parental rights without first employing less-restrictive alternatives and when the DHHR failed to make reasonable efforts to preserve the family.

         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 February of 2018, the DHHR filed a child abuse and neglect petition against petitioner and the mother. According to the petition, the mother tested positive for drugs throughout her pregnancy and, upon giving birth to the child, tested positive for Neurontin. The child was reported to be experiencing withdrawal symptoms. The DHHR alleged that petitioner knew of the mother's substance abuse during the pregnancy and engaged in substance abuse with her. Family of the parents indicated that petitioner had a substantial substance abuse problem and "will do any type of drugs that [he] can get [his] hands on and also use[s] needles." Petitioner waived his preliminary hearing.

         Petitioner stipulated to having a substance abuse addiction that impaired his ability to properly parent the child and requested a post-adjudicatory improvement period in April of 2018. The circuit court accepted petitioner's stipulation, adjudicated him as an abusing parent, and granted his request for a post-adjudicatory improvement period. As part of the terms and conditions of his improvement period, petitioner was ordered to (1) comply with the terms of his medically assisted treatment program, (2) submit to drug screens and pill/strip counts, (3) participate in in-home services such as parenting and adult life skills classes, (4) maintain contact with his counsel and the DHHR on a weekly basis, and (5) submit to a psychological evaluation and comply with the recommendations of the report.

         Petitioner submitted to a psychological evaluation and the report was distributed in June of 2018. The evaluating psychologist opined that petitioner failed to acknowledge responsibility for the conditions of abuse that led to the filing of the petition and gave a pattern of responses to the assessments that suggested that he believed himself to be "exceptionally free of common short comings to which most individuals will admit." The psychologist concluded that petitioner's likelihood of attaining minimally adequate parenting was poor given his "history of drug use, his lack of acknowledgement of responsibility in the referral incidents, his apparent lack of veracity concerning recent drug use, his unstable employment history, and his defensiveness during the evaluation." Over the course of the next few months, the circuit court held several review hearings regarding petitioner's post-adjudicatory improvement period. The DHHR advised that petitioner was not successfully complying with the terms and conditions of his improvement period and, due to his noncompliance, had not consistently visited with the child. Eventually, the circuit court terminated petitioner's post-adjudicatory improvement period.

         The final dispositional hearing was held in January of 2019. Petitioner failed to attend but was represented by counsel. Petitioner's counsel requested a continuance, which the circuit court denied. The DHHR presented the testimony of a Child Protective Services ("CPS") worker who reported that petitioner had not complied with his post-adjudicatory improvement period. Specifically, the worker testified that, although petitioner initially participated in treatment through a Suboxone clinic, he ceased attending the treatment program. Petitioner failed to present a valid prescription for Suboxone for several months and had never submitted to a strip count of his Suboxone. Further, petitioner failed to consistently submit to drug screens, which meant that his supervised visits with the child were terminated. Petitioner tested positive for drugs on the few occasions that he did submit to screens and failed to complete his parenting and adult life skills classes, maintain suitable housing, and gain employment.

         After hearing evidence, the circuit court found that, despite the DHHR having made reasonable efforts to reunify the family, petitioner failed to take advantage of the services provided. Based upon petitioner's noncompliance throughout the entirety of the proceedings, the circuit court found that there was no reasonable likelihood that petitioner could correct the conditions of neglect in the near future and that termination of his parental rights was in the child's best interest. It is from the January 15, 2019, dispositional order terminating his parental rights that petitioner appeals.[2]

         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 argues that the circuit court erred in terminating his parental rights. According to petitioner, he was "the victim of rash judgment," and the circuit court "simply proceeded to terminate [his] parental rights . . . too quickly." Petitioner avers that he initially complied with the terms and conditions of his improvement period and that the circuit court should have considered a less-restrictive alternative to termination of his parental rights, such as a post-dispositional improvement period. Petitioner also argues that the circuit court erred in finding that the DHHR made reasonable efforts to preserve the family, and contends that the DHHR should have provided him more assistance with housing, poverty, and addiction issues.[3]We disagree.

         Contrary to petitioner's argument, the record establishes that the DHHR did, in fact, make reasonable efforts. The DHHR provided petitioner with several services throughout his post-adjudicatory improvement period including random drug screens, assistance with drug treatment programs, parenting and adult life skills classes, assistance with transportation, a psychological evaluation, and supervised visitation. While petitioner alleges that the DHHR failed to adequately assist him with housing and substance abuse issues, we note that West Virginia Code § 49-4-610(4)(A) explicitly provides that "the [parent] shall be responsible for the initiation and completion of all terms of the improvement period." It is clear that the DHHR offered its assistance in helping petitioner achieve these goals, but he failed to maintain contact with the DHHR or request additional assistance. In fact, as of the dispositional hearing, the CPS caseworker testified that she had not heard from petitioner since before August of 2018. Accordingly, we find no merit in petitioner's argument that the DHHR did not make reasonable efforts to preserve the family.

         We further find no merit in petitioner's argument that the circuit court should have granted him a less-restrictive disposition such as a post-dispositional improvement period. Pursuant to West Virginia Code § 49-4-610(3)(D), a ...


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