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In re E.E.

Supreme Court of Appeals of West Virginia

October 17, 2019

In Re: E.E.

          Wood County 17-JA-150W

          MEMORANDUM DECISION

         Petitioner Father E.E.-2, by counsel George M. Torres, appeals the December 28, 2018, order of the Circuit Court of Wood County, West Virginia, terminating his parental rights to his daughter, E.E.-1.[1] The West Virginia Department of Health and Human Resources ("DHHR"), by counsel Mindy M. Parsley, filed its response in support of the circuit court's order. The child's guardian ad litem, Robin S. Bonovitch, filed a response on behalf of the child also in support of the circuit court's order. On appeal, Petitioner argues the circuit court erred by terminating his parental rights solely due to his incarceration, without imposing a less-restrictive dispositional alternative, and denying post-termination visitation.

         This Court has considered the parties' briefs, their oral arguments, and the record on appeal. Upon review, the Court discerns no substantial question of law and no prejudicial error. Consequently, a memorandum decision affirming the order of the circuit court is the appropriate disposition pursuant to Rule 21 of the West Virginia Rules of Appellate Procedure.

         In June of 2017, the DHHR filed an abuse and neglect petition against the parents of E.E.-1. According to the petition, the DHHR received a referral that Respondent Mother was "living down by the river and is homeless." Child Protective Service workers and law enforcement officers arrived at the homeless encampment and located Mother and the child. Mother admitted that she had been homeless for approximately two to three weeks. The child, who was three years old at the time (almost four), appeared "disheveled, dirty, smelled of urine, and unkempt." The child had bug bites on her body, a cigarette burn on her face, severely rotting teeth, and was hungry. Mother's face and arms were covered in sores and she admitted that she had been injecting methamphetamines.

         In the petition, DHHR alleged that Mother could not provide for the child's basic needs like appropriate shelter, food, clothing, medical care, and supervision because of her drug use. With regard to Petitioner, DHHR alleged he "has seen the child a few times but has not been in the child's life consistently." Additionally, "there has not been a paternity test, his name is not on the birth certificate and he has not been ordered to pay child support."

         In July of 2017, the circuit court held an adjudicatory hearing. Mother stipulated to the allegations contained in the petition. The circuit court accepted her admissions and adjudicated her an abusive and neglectful parent. Although the circuit court granted Mother the opportunity to participate in a post-adjudicatory improvement period, it ultimately terminated her parental rights.

         In July of 2017, the circuit court ordered that Petitioner submit to paternity testing and the test results confirmed Petitioner was the child's biological father. Thereafter, the circuit court conducted status hearings in relation to Petitioner in May and July of 2018.

         In September of 2018, the DHHR filed an amended petition. With regards to Petitioner, the DHHR alleged: Petitioner had not seen the child since June of 2017 and it was unclear when he had seen the child prior to then; during the proceedings, there had been times when Petitioner was incarcerated in Ohio and West Virginia; Petitioner was currently incarcerated at the North Central Regional Jail in Greenwood, West Virginia, and was being held on a breaking and entering and destruction of property charge; prior to his incarceration, Petitioner was homeless and did not have appropriate housing and shelter for the child; Petitioner was also recently indicted in Ohio for grand theft for allegedly stealing a handgun out of a vehicle.

         In October of 2018, the circuit court held an adjudicatory hearing. Petitioner testified that he resided with Mother during her pregnancy.[2] Petitioner stated that after their child was born, he and Mother were in a relationship for two and a half years before breaking up. Petitioner claimed he had frequent visitation with the child for about a year after the relationship ended with Mother. Petitioner stated he had been incarcerated various times throughout these proceedings and was currently incarcerated. Petitioner admitted to having a pending fugitive charge from Ohio. He further admitted to not providing food, clothing, shelter, or supervision to the child since May of 2017. Petitioner claimed that he did not seek visitation with the child because Mother told him there was no need to get involved in the case as he was not on the birth certificate and she believed DHHR would eventually return the child to her.

         The circuit court entered its adjudicatory order in November of 2018. It found that, based upon the conditions existing at the time of the petition's filing, the child was abused and neglected as defined by West Virginia Code § 49-6-2(c). The circuit court stated Petitioner failed to provide the child with necessary food, clothing, shelter, supervision, or medical care. Moreover, Petitioner had no contact with the child for more than six months and failed to support her financially, educationally, or emotionally. The circuit court noted that prior to Petitioner's most recent incarceration, he was homeless and did not have appropriate housing for the child.[3]From approximately May of 2017, to the day of the adjudicatory hearing, Petitioner had no contact with the child and made no request to visit her.

         In December of 2018, the circuit court held a dispositional hearing during which Petitioner testified that his first incarceration after the initial petition was filed was October of 2017. Petitioner stated that he was currently incarcerated. Petitioner claimed he was involved in the child's life for the first three and a half years, and last saw the child in May of 2017. Petitioner stated he was staying with a friend in Marietta, Ohio, when DHHR took custody of the child and learned this happened about a week later when he spoke with Mother. Petitioner stated that he would like to have visitation with the child when he is released from jail but he could not predict when that would occur.

         The circuit court terminated Petitioner's parental rights. In its dispositional order, the circuit court stated that had Petitioner come forward earlier, he could have potentially participated in services prior to his most recent incarceration. It held that Petitioner had not provided the child with necessary food, clothing, shelter, supervision or medical care and failed to support the child financially, educationally, or emotionally. The circuit court determined there was no reasonable likelihood that the conditions of neglect and abuse could be substantially corrected in the near future. It is from this order that Petitioner appeals.

         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 ...

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