STATE OF WEST VIRGINIA
SUPREME COURT OF APPEALS
FILED
In Re: J.W.-1, J.W.-2, and L.W. September 3, 2013
RORY L. PERRY II, CLERK
SUPREME COURT OF APPEALS
No. 13-0200 (Ohio County 12-CJA-28, 29 and 30)
OF WEST VIRGINIA
MEMORANDUM DECISION
Petitioner Father filed this appeal, by counsel Gerald Jacovetty Jr., from a February 6,
2013 order of the Circuit Court of Ohio County, which terminated his parental and/or custodial
rights to his children, J.W.-1, age two; J.W.-2, age seven, and L.W.; age four.1 The guardian ad
litem for the children, Allison Cowden, and the Department of Health and Human Resources
(“DHHR”), by its attorney Melinda Dugas, each filed a response supporting the circuit court’s
order. On appeal, petitioner argues that the circuit court erred in denying his motion for a post
adjudicatory improvement period and terminating his parental and/or 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 is appropriate under Rule 21 of the Rules of Appellate
Procedure.
Petitioner Father is the biological father of J.W.-2 and L.W., and is listed as the father on
J.W.-1’s birth certificate. Additionally, Petitioner Father was the custodian of all three children at
the time these abuse and neglect proceedings were initiated. 2 The biological mother of all the
children, R.R., is not a party to this appeal. 3 In September of 2011, the DHHR received a referral
after J.W.-1 was born with severe, active withdrawal symptoms. Subsequently, J.W.-1 and R.R.,
tested positive for THC, opiates, and benzodiazepine. The DHHR conducted an investigation
1
Because this matter concerns infant children, we follow our traditional practice in cases
involving sensitive facts and use only the parties’ initials. See State v. Edward Charles L., 183
W.Va. 641, 645 n.1, 398 S.E.2d 123, 127 n.1 (1990). Because two of the children have the
initials J.W., we have identified those children by placing a number after their initials. We also
note that the circuit court case numbers listed above correspond with each child in the style of
this case.
2
A DNA test concluded that Dan B. was J.W.-1’s biological father. Dan B. voluntarily
relinquished his parental rights and is not subject to this appeal.
3
R.R. voluntarily relinquished her rights to the children and her parental rights were
terminated by the circuit court.
1
and, in March of 2012, filed its initial petition alleging abuse and neglect and seeking temporary
emergency custody. The DHHR asserted that Petitioner Father committed multiple acts of
domestic violence in the presence of the children; abused the children by knowingly or
intentionally inflicting physical, mental, or emotional injury; failed or refused to provide proper
medical care; neglected the children by failing to provide necessary food, clothing, shelter,
supervision, medical care or education; and abused drugs and alcohol, which impaired his
parenting skills. On June 29, 2012, the DHHR filed an amended petition to include information
concerning Petitioner Father’s arrest on federal drug trafficking charges.
At adjudication, Petitioner Father stipulated that he failed to follow up with medical care
related to J.W.-1’s treatment for clubbed feet and malformed legs, conditions that were present at
birth. J.W.-1 was undergoing extensive medical care under the direction of a pediatric orthopedic
surgeon in Pittsburgh, Pennsylvania. As part of her treatment, J.W.-1 was to attend weekly
casting appointments, wherein casts were to be applied to her lower extremities in preparation
for subsequent surgeries to correct the conditions in her legs and feet. Petitioner Father further
stipulated that he removed, or assisted in removing, the casts from J.W.-1 without seeking
medical treatment from a physician and without the recommendation of a physician, that he used
or was under the influence of drugs while caring for the children, and that he committed acts of
domestic violence against the children’s mother in their presence. The circuit court found that
Petitioner Father was an abusing and neglectful parent to the children.
On December 6, 2012, a hearing was held on Petitioner Father’s motion for a post
adjudicatory improvement period, after which the circuit court denied Petitioner Father’s motion
and terminated Petitioner Father’s parental and/or custodial rights.4 In terminating Petitioner
Father’s parental rights, the circuit court found that aggravated circumstances existed, Petitioner
Father failed to acknowledge his responsibility for his actions that led to the filing of the petition,
and there was no reasonable likelihood that the conditions of abuse and neglect could be
corrected in the near future.
Petitioner Father argues that the circuit court erred in terminating his parental and/or
custodial rights to the children because there was sufficient evidence to support his position that
the actions that led to the filing of this petition could be substantially corrected in the near future.
He asserts that he participated in a de facto improvement period during the pendency of the
underlying case, and that by stipulating to his adjudication, he accepted responsibility for the
allegations of abuse and neglect. Respondents argue that Petitioner Father failed to take
responsibility for his actions, failed to comply with the DHHR, and failed to continue from
services that were put into place as early as September of 2011.
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
4
The parties agreed that if the circuit court denied Petitioner Father’s motion for a post
adjudicatory improvement period, the hearing and testimony would be converted to a
dispositional hearing.
2
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).
First, we address Petitioner Father’s contention that the circuit court erred in denying his
motion for a post-adjudicatory improvement period. In order to receive an improvement period, a
parent must show that he “is likely to fully participate in the improvement period . . . .” W.Va.
Code § 49-6-12(b)(2). DHHR child protective service worker Tracy Hamilton testified that she
was assigned to the case of J.W.-1, J.W.-2, and L.W. in early April of 2012, soon after the filing
of the petition. She assisted Petitioner Father with completing applications for inpatient drug
treatment, but he has not engaged in the treatment or followed up on the status of his inpatient
drug treatment applications. He underwent treatment for drug addiction for nine days in May of
2012, but left that program against advice. Though Petitioner Father testified he did not want to
take Suboxone as part of that program, Ms. Hamilton explained her concern: “[H]e didn’t follow
through with their recommendations and was so abrupt about it and didn’t seek alternative
measures for treatment.” Ms. Hamilton also testified that Petitioner Father continues to blame
R.R. for the problems that led to the filing of this petition. Furthermore, Petitioner Father
testified he attends Narcotics Anonymous meetings only when he can fit it into his “busy
schedule.” Also, Ms. Hamilton arranged individual therapy services at Wellspring Family
Services; Petitioner Father attended for three weeks. Despite his testimony that he planned to
continue those services, he did not offer any reason for not attending.
The circuit court also heard the testimony of Kim Miller, a social worker with Open
Horizons Family Services, where Petitioner Father began receiving services in May of 2012.
Between May and October of that year, Petitioner Father missed five scheduled appointments
without calling. Ms. Miller testified that Petitioner Father has taken no responsibility for his
actions, that he usually blamed biological mother R.R., and that he denied responsibility for the
medical neglect of J.W.-1. Petitioner himself testified that he often made false statements to CPS
workers during the investigation. These facts, all recognized by the circuit court, indicate that
Petitioner Father is highly unlikely to participate fully in an improvement period.
This Court has held that “‘courts are not required to exhaust every speculative possibility
of parental improvement . . . where it appears that the welfare of the child will be seriously
threatened . . . .’ Syl. Pt. 1, in part, In re R.J.M., 164 W.Va. 496, 266 S.E.2d 114 (1980).” Syl. Pt.
4, in part, In re Cecil T., 228 W.Va. 89, 717 S.E.2d 873 (2011). The circuit court noted that when
J.W.-1 was taken into custody, she was “significantly underweight” and had to undergo
3
extensive medical procedures to correct not only her birth disabilities, “but also the medical
neglect in failing to get the appropriate treatment for her condition.” The evidence showed that
Petitioner Father used drugs, including heroin, in the presence of the children, and J.W.-2 told an
interviewer that she found drug paraphernalia, including syringes, needles, and pills in the home.
There is further evidence that Petitioner Father and R.R. – each of whom is the subject of a
federal indictment on drug trafficking – were held at gunpoint with the children in their home.
After the event, however, Petitioner Father took the children to his mother’s home before calling
the police, then told the responding officer that the children were not present.5 The record on
appeal shows that the children have been subjected to chronic abuse and their welfare has been
seriously threatened. We, therefore, find no error in the circuit court’s denial of a post
adjudicatory improvement period.
We turn to petitioner’s contention that the circuit court erred in terminating Petitioner
Father’s parental and/or custodial rights. West Virginia Code § 49-6-5(a)(6), in pertinent part,
directs that circuit courts shall, “[u]pon a finding that there is no reasonable likelihood that the
conditions of neglect or abuse can be substantially corrected in the near future and, when
necessary for the welfare of the child, terminate the parental, custodial and guardianship rights
and responsibilities of the abusing parent . . . .” For the same reasons explained above, we find
the evidence shows no reasonable likelihood that the conditions of neglect or abuse can be
substantially corrected in the near future. Petitioner Father continually disregarded the safety,
well-being, and protection of the children; J.W.-2 found hypodermic needles and pills in the
house; the children were present when Petitioner Father was held at gunpoint; and Petitioner
Father knowingly removed J.W.-1’s casts without medical advice and failed to obtain necessary
medical treatment for J.W.-1. Furthermore, he failed to seek appropriate treatment for his drug
addiction, sold illegal drugs in the presence of the children, and failed to acknowledge his pattern
of domestic violence. Termination was necessary for the children’s welfare, and the Court finds
no error in the termination of these rights.
For the foregoing reasons, we affirm the circuit court’s order.
Affirmed.
ISSUED: September 3, 2013
CONCURRED IN BY:
Chief Justice Brent D. Benjamin
Justice Robin Jean Davis
Justice Margaret L. Workman
Justice Menis E. Ketchum
Justice Allen H. Loughry II
5
The circumstances of this event revealed Petitioner Father’s violation of the DHHR’s safety
plan.
4
5