STATE OF WEST VIRGINIA
SUPREME COURT OF APPEALS
FILED
January 17, 2020
In re M.D. and H.M. EDYTHE NASH GAISER, CLERK
SUPREME COURT OF APPEALS
OF WEST VIRGINIA
No. 19-0417 (Taylor County 18-JA-48 and 18-JA-49)
MEMORANDUM DECISION
Petitioner Father J.D., by counsel Ira A. Richardson, appeals the Circuit Court of Taylor
County’s February 27, 2019, order terminating his parental rights to M.D. and H.M.1 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, Allison C.
Iapalucci, filed a response on behalf of the children, also in support of the circuit court’s order.
On appeal, petitioner argues that the circuit court erred in terminating his parental rights without
imposing a less-restrictive dispositional alternative and erred in denying him post-termination
visitation.
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 April of 2018, the DHHR filed an abuse and neglect petition against petitioner alleging
that the children were in imminent danger due to petitioner’s drug addiction and emotional
abuse, which constituted abuse and/or neglect. Previously, on March 19, 2018, the nonabusing
mother obtained a domestic violence protective order against petitioner based, in part, upon his
emotional abuse of her and the children. In light of the protective order, the Family Court of
Taylor County referred the matter to the DHHR, which then filed the underlying abuse and
neglect petition.
1
Consistent with our long-standing practice in cases with sensitive facts, we use initials
where necessary to protect the identities of those involved in this case. See In re K.H., 235 W.
Va. 254, 773 S.E.2d 20 (2015); Melinda H. v. William R. II, 230 W. Va. 731, 742 S.E.2d 419
(2013); State v. Brandon B., 218 W. Va. 324, 624 S.E.2d 761 (2005); State v. Edward Charles
L., 183 W. Va. 641, 398 S.E.2d 123 (1990).
1
After petitioner waived his preliminary hearing, the circuit court proceeded with
adjudication, where petitioner admitted that he abused methamphetamine daily for the preceding
six months. He indicated that he previously used Subutex to manage his drug addiction, but
stopped taking Subutex. Petitioner also admitted to emotionally abusing the mother and the
children. The circuit court noted that the children reported hearing petitioner tell their mother
that she should “go kill herself” and that petitioner made the mother cry. Additionally, the
mother stated that she locked herself in the bedroom with the children to escape petitioner.
Further, petitioner admitted to his recent incarceration for his third offense of domestic battery
against the mother and his second offense of driving while under the influence of drugs or
alcohol. The circuit court also noted that the domestic violence protective order issued by the
family court would remain in effect for the next six months. The circuit court adjudicated
petitioner as an abusing parent based upon his admissions by order entered in April of 2018.
Petitioner requested a post-adjudicatory improvement period, and the circuit court granted his
motion. Also, petitioner requested visitation with the children, and the circuit court awarded
supervised visitation.
As part of the terms and conditions of his post-adjudicatory improvement period,
petitioner was required to submit to random drug screens, seek substance abuse treatment,
regularly communicate with the DHHR, attend multidisciplinary team (“MDT”) meetings, and
participate in supervised visitation with the children. Shortly after his adjudicatory hearing,
petitioner moved to another county and failed to comply with any of the terms and conditions of
his improvement period resulting in the cessation of his visitations with the children. In February
of 2019, the circuit court held the final dispositional hearing, and petitioner failed to appear. The
circuit court questioned petitioner’s counsel on the record regarding petitioner’s whereabouts,
and his counsel indicated that petitioner knew of the hearing and had intended on appearing for
the hearing “early.” The circuit court reviewed the guardian’s report recommending that
petitioner’s parental rights be terminated and that any award of post-termination visitation be
supervised. Further, the DHHR’s case plan recommended that petitioner’s parental rights be
terminated, citing petitioner’s complete lack of compliance with the terms and conditions of his
post-adjudicatory improvement period. The circuit court found that petitioner failed to regularly
drug screen and the few times that he did screen revealed that he was positive for
methamphetamine. Further, it found that petitioner failed to remain compliant with his MDT
meeting attendance and the associated recommendations. Ultimately, the circuit court concluded
that there was no reasonable likelihood that the conditions of abuse and neglect could be
substantially corrected in the near future and that it was in the best interest of the children to
terminate petitioner’s parental rights. Accordingly, his parental rights were terminated by order
entered February 27, 2019. It is from the dispositional order that petitioner appeals.2
The Court has previously established the following standard of review:
2
The permanency plan for the children is to remain in their nonabusing mother’s custody.
2
“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 should not have terminated his
parental rights and should have instead terminated his custodial rights, as the children were in the
sole custody of their nonabusing mother. We disagree.
West Virginia Code § 49-4-604(b)(6) (2019) provides that circuit courts are to terminate
parental rights upon findings that there is “no reasonable likelihood that the conditions of neglect
or abuse can be substantially corrected in the near future” and that termination is necessary for
the children’s welfare. According to West Virginia Code § 49-4-604(c)(3), a situation in which
there is “[n]o reasonable likelihood that conditions of neglect or abuse can be substantially
corrected” includes one in which the parent has
not responded to or followed through with a reasonable family case plan or other
rehabilitative efforts of social, medical, mental health or other rehabilitative
agencies designed to reduce or prevent the abuse or neglect of the child, as
evidenced by the continuation or insubstantial diminution of conditions which
threatened the health, welfare or life of the child.
According to the record, petitioner failed to comply with any of the terms and conditions
of his post-adjudicatory improvement period. Specifically, petitioner failed to drug screen
regularly, keep in contact with the DHHR, participate in the MDT meetings and comply with the
associated recommendations, or seek and attend drug rehabilitation for his admitted drug
addiction. In fact, petitioner moved to another county, failed to remain in contact with the DHHR
and its service providers, and failed to inquire about the welfare of his children. Clearly,
petitioner failed to respond to or follow through with rehabilitative efforts designed to reduce or
prevent the abuse and neglect of his children. Despite having been given substantial time and
resources, petitioner did not make any progress. Additionally, on the few occasions petitioner
submitted to drug screens, he tested positive for methamphetamines and otherwise failed to
adequately acknowledge his issues with substance abuse. As such, the circuit court found that
there was no reasonable likelihood that petitioner could correct the conditions of abuse and/or
neglect in the near future, and that termination was necessary for the children’s welfare.
Accordingly, we find no error in the circuit court’s termination of petitioner’s parental rights.
3
With regard to the argument that the circuit court should have granted petitioner a less-
restrictive dispositional alternative pursuant to West Virginia Code § 49-4-604(b)(5)3, we have
held that
“[t]ermination of parental rights, the most drastic remedy under the
statutory provision covering the disposition of neglected children, [West Virginia
Code § 49-4-604] may be employed without the use of intervening less restrictive
alternatives when it is found that there is no reasonable likelihood under [West
Virginia Code § 49-4-604(c)] that conditions of neglect or abuse can be
substantially corrected.” Syllabus point 2, In re R.J.M., 164 W.Va. 496, 266
S.E.2d 114 (1980).
Syl. Pt. 5, In re Kristin Y., 227 W. Va. 558, 712 S.E.2d 55 (2011). Petitioner argues that the
circuit court should have terminated only his custodial rights because the children were placed in
the full custody of the nonabusing mother. However, we have previously held that West Virginia
Code § 49-4-604 “permits the termination of one parent’s parental rights while leaving the rights
of the nonabusing parent completely intact, if the circumstances so warrant.” In re Emily, 208 W.
Va. 325, 344, 540 S.E.2d 542, 561 (2000). Further,
simply because one parent has been found to be a fit and proper caretaker for [the]
child does not automatically entitle the child’s other parent to retain his/her
parental rights if his/her conduct has endangered the child and such conditions of
abuse and/or neglect are not expected to improve.
Id. at 344, 540 S.E.2d at 561. Accordingly, we find that petitioner is entitled to no relief in this
regard.
Second, petitioner argues that the circuit court erred in denying him post-termination
visitation due to his strong bonds with the children. We disagree. In regard to post-termination
visitation, we have previously held that
“[w]hen parental rights are terminated due to neglect or abuse, the circuit
court may nevertheless in appropriate cases consider whether continued visitation
or other contact with the abusing parent is in the best interest of the child. Among
other things, the circuit court should consider whether a close emotional bond has
been established between parent and child and the child’s wishes, if he or she is of
3
Pursuant to West Virginia Code § 49-4-604(b)(5),
[u]pon a finding that the abusing parent or battered parent or parents are presently
unwilling or unable to provide adequately for the child’s needs, [a circuit court
may] commit the child temporarily to the care, custody, and control of the state
department, a licensed private child welfare agency, or a suitable person who may
be appointed guardian by the court.
4
appropriate maturity to make such request. The evidence must indicate that such
visitation or continued contact would not be detrimental to the child’s well being
and would be in the child’s best interest.” Syl. Pt. 5, In re Christina L., 194 W.Va.
446, 460 S.E.2d 692 (1995).
Syl. Pt. 11, In re Daniel D., 211 W. Va. 79, 562 S.E.2d 147 (2002). The record shows that the
two children previously reported to the guardian that they heard petitioner verbally attacking
their mother and that he also emotionally abused them. Further, petitioner’s contact with the
children during the proceedings was almost nonexistent as his supervised visitation was
suspended due to his noncompliance with services. Finally, petitioner’s failure to comply with
his improvement period, his continued substance abuse issues, and his failure to address his
violent and abusive behaviors toward the children demonstrated that post-termination visitation
was contrary to the children’s best interests. Therefore, the circuit court did not abuse its
discretion in denying petitioner’s request for post-termination visitation.
For the foregoing reasons, we find no error in the decision of the circuit court, and its
February 27, 2019, order is hereby affirmed.
Affirmed.
ISSUED: January 17, 2020
CONCURRED IN BY:
Chief Justice Tim Armstead
Justice Margaret L. Workman
Justice Elizabeth D. Walker
Justice Evan H. Jenkins
Justice John A. Hutchison
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