STATE OF WEST VIRGINIA
SUPREME COURT OF APPEALS FILED
June 19, 2017
RORY L. PERRY II, CLERK
SUPREME COURT OF APPEALS
In re: I.C., B.C., W.C., and J.C.-1
OF WEST VIRGINIA
No. 17-0240 (Kanawha County 16-JA-289, 16-JA-290, 16-JA-291, & 16-JA-292)
MEMORANDUM DECISION
Petitioner Father J.C.-2, by counsel Shawn D. Bayliss, appeals the Circuit Court of
Kanawha County’s February 21, 2017, order terminating his parental rights to I.C, B.C., W.C.,
and J.C.-1.1 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”), Jennifer R. Victor, filed a response on behalf of the children in support of the
circuit court’s order. On appeal, petitioner argues that the circuit court erred in: (1) granting the
DHHR leave to file an amended petition; (2) adjudicating him of abusing and neglecting the
children; (3) terminating his parental rights; (4) taking testimony from witnesses at the
dispositional hearing in the absence of a disclosure from the DHHR pursuant to Rule 30 of the
West Virginia Rules of Procedure for Child Abuse and Neglect Proceedings; and (5) denying
him post-termination visitation with the children.
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 June of 2016, the DHHR filed an abuse and neglect petition against the parents.
According to the petition, the DHHR received a referral that a fourteen-year-old child was
babysitting the children and locked them in a bedroom. When a Child Protective Services
(“CPS”) worker arrived at the home, the children were not locked in the room in question, but
the mother did indicate that the lock on the bedroom door was used to keep the children from
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). Additionally, because one child and petitioner share the
same initials, we will refer to them as J.C.-1 and J.C.-2, respectively, throughout this
memorandum decision.
1
making a mess by dragging items from the room. According to CPS, the children were not
dressed, with the exception of the youngest child who was wearing a diaper. CPS requested that
the mother clothe the children, and she complied. However, over the extended time CPS was in
the home, the children repeatedly removed their clothes. CPS also noted that the children were
covered in feces and there was feces in the children’s bedroom and on their mattress. The
children shared one bedroom in the three-bedroom apartment and also shared one mattress with
no sheets. The mother slept in one of the other bedrooms and the third bedroom contained a
couch, tanning bed, and exercise equipment. The mother also indicated that the children’s
babysitter resided with her several days out of the week. CPS further observed an open-topped
cage in the living room, which the mother stated was for her pet rats that were deceased.
According to CPS, the cage contained a child-sized chair and a child’s sippy cup.
After investigating the matter, the DHHR determined that the children were
developmentally delayed. Child J.C.-1, then four years old, could say only the words “zombie,”
“chips,” and “mommy,” while the remaining children could not say their own names. In regard
to petitioner, the petition alleged that he had not had contact with the children or the mother since
2015, pursuant to a domestic violence protective order. Based on the conditions in the home, the
DHHR implemented two protection plans, but both were unsuccessful. Ultimately, the DHHR
alleged that the parents failed to provide the children with necessary food, clothing, supervision,
housing, and financial support. The petition further alleged that the parents were not sufficiently
motivated to provide for the children.
In June of 2016, the circuit court held a preliminary hearing, during which it ordered the
DHHR to provide petitioner remedial services, including random drug screens and visitation
with the children. Following a failed drug screen, the DHHR filed an amended petition in July of
2016 to include allegations against petitioner based on his abuse of marijuana and hydrocodone,
for which he did not have a valid prescription, and his refusal to submit to a second drug screen.
The circuit court held an adjudicatory hearing in August of 2016. Petitioner did not attend
the hearing in person, but he was represented by counsel. The DHHR moved, without objection,
to incorporate all previous testimony, information regarding the domestic violence protective
order against petitioner, and other evidence regarding petitioner into the adjudicatory hearing.
Based on the evidence, the circuit court found that petitioner’s substance abuse issues affected
his ability to properly parent the children. The circuit court further found that petitioner failed to
comply with its order by refusing to submit to a drug screen at the prior hearing and, therefore,
considered the failure to screen as evidence of continued drug use. Further, as evidenced by the
pending domestic violence protective order, the circuit court found that petitioner committed
domestic violence in the home. Finally, the circuit court found that petitioner was aware that the
home was unfit for habitation, yet took no steps to protect the children. Based on this evidence,
the circuit court ruled that petitioner abused and neglected the children. The circuit court
additionally ordered that petitioner could not exercise visits with the children without passing a
drug screen.
In October of 2016, the circuit court held a hearing, during which it found that the DHHR
failed to timely file a case plan in the proceeding. The circuit court further ordered the DHHR to
2
provide petitioner with additional services, including a psychological and parental fitness
evaluation, adult life skills, and parenting education.
In January of 2017, the circuit court held a dispositional hearing. Petitioner again failed to
appear, although he was represented by counsel. According to testimony from DHHR personnel,
petitioner failed to participate in the services offered; failed to participate in drug screens;
continued to abuse drugs; failed to visit the children; violated a prior order regarding contact
with the children; and failed to maintain contact with the DHHR. Based upon petitioner’s failure
to participate in services or benefit from the same, the circuit court found that he was addicted to
controlled substances and/or drugs to the extent that proper parenting skills were seriously
impaired. The circuit court further found that petitioner failed to follow through with the
recommended treatment that would have improved his ability to adequately parent. As such, the
circuit court terminated petitioner’s parental rights and denied him post-termination visitation
with the children.2 It is from the dispositional 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 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). Upon our review, the Court finds
no error in the proceedings below.
2
Petitioner’s parental rights to all the children were terminated below, while the mother’s
parental rights to the children remain intact. According to the parties, the proceedings against the
mother are still pending in circuit court and she has been granted an improvement period.
However, the DHHR indicates that the mother’s improvement period has not been successful and
that it will seek termination of her parental rights. According to the parties, the children currently
reside in specialized foster homes. The guardian states that the children’s needs necessitated two
separate foster homes and that sibling visitation is taking place. The DHHR indicates that the
permanency plan for the children is adoption in their respective foster homes, pending
termination of the mother’s parental rights.
3
At the outset, it is important to note that petitioner’s brief on appeal incorrectly asserts
that “no allegations were levied against [him]” in the original petition. This is an inaccurate
representation of the DHHR’s initial petition in this matter, which clearly indicated that the
“parents . . . failed to provide the children with the necessary food, clothing, supervision and
housing” based on the deplorable conditions in the home. While petitioner refers to this as
“boilerplate” language, the fact remains that the DHHR clearly alleged that petitioner, in addition
to the mother, abused and/or neglected the children by allowing them to live in the mother’s
home. According to petitioner, the DHHR could not allege abuse or neglect on his part because it
also alleged that he had not had contact with the mother or the children for six months. Again,
we do not agree. The record shows that petitioner’s lack of contact was the result of a domestic
violence protective order against him, and the imposition of such an order does not absolve
petitioner of his duty to provide the children with necessities, such as appropriate supervision
and shelter.3 As such, the Court finds that the DHHR’s initial petition in this matter clearly
alleged that petitioner abused and neglected the children.
Turning to petitioner’s first assignment of error, he argues that the circuit court erred in
permitting the DHHR to amend the petition to include additional allegations regarding his
substance abuse. According to petitioner, this was improper because the only evidence of his
substance abuse occurred when he failed a drug test following the preliminary hearing. Because
the children had already been removed from the home, petitioner argues that his substance abuse
could not properly form the basis of an amended petition because there was no evidence he ever
abused drugs in the children’s presence. We do not agree.
Rule 19(a) of the Rules of Procedure for Child Abuse and Neglect Proceedings clearly
states that “[t]he court may allow the petition to be amended at any time until the final
adjudicatory hearing begins, provided that an adverse party is granted sufficient time to respond
to the amendment.” Here, petitioner does not allege that he was denied sufficient time to respond
to the amendment. His only argument on appeal is that amendment was improper because the
allegations contained therein related to a time that the children were not in his care. Pursuant to
West Virginia Code § 49-1-201, a neglected child is one “[w]hose physical or mental health is
harmed or threatened by a present refusal, failure or inability of the child’s parent, guardian or
3
On appeal, petitioner argues that the domestic violence protective order in question was
never submitted to the circuit court or otherwise admitted to the circuit court’s record such that it
should have been considered as evidence in the underlying proceedings. However, the record on
appeal contradicts petitioner’s argument. Specifically, the transcript of petitioner’s adjudicatory
hearing shows that the DHHR moved to incorporate certain evidence into the adjudicatory
hearing. The transcript shows that the circuit court asked the DHHR if it sought to incorporate
“whatever testimony was taken[,]” to which the DHHR replied “Yes. Additionally, a part of that
information was the protective order that the . . . mother had against [petitioner] . . . and we
would move to take all of the evidence adduced with regard to [petitioner] for the purposes of
adjudication.” The record further shows that petitioner did not object to this incorporation. While
the domestic violence protective order was not made a part of the appendix on appeal to this
Court, the record shows that it was properly considered in the circuit court.
4
custodian to supply the child with necessary food, clothing, shelter, supervision, medical care or
education . . . .” (Emphasis added). In the present matter, the DHHR alleged that petitioner’s
substance abuse, as evidenced by his failed drug screen and refusal to submit to a second screen,
resulted in his inability to provide the children with appropriate supervision and shelter, among
other necessities. It was unnecessary for the children to be in his custody in order for his
substance abuse to threaten their wellbeing due to his inability to properly parent them. Simply
put, the Court finds no merit to petitioner’s argument that the DHHR was barred from filing an
amended petition based on these new allegations. Moreover, if petitioner believed that the
amended petition was deficient in that it failed to properly allege conduct that constituted abuse
and/or neglect, the proper remedy would have been to move to dismiss the same. Petitioner does
not assert that he made such motion below. Accordingly, we find no error in the circuit court
permitting the DHHR to amend the petition at issue.
Next, petitioner argues that the evidence at adjudication was insufficient to adjudicate
him as an abusing parent. According to petitioner, no evidence below established that he ever
abused drugs around the children, committed an act of domestic violence in the children’s
presence, or that his parenting skills were impaired to any degree. As such, he argues that the
circuit court’s finding that he is an abusing parent was erroneous. We do not agree. In regard to
the DHHR’s burden of proof at adjudication, we have held as follows:
“W.Va.Code [§] 49-6-2(c) [now West Virginia Code § 49-4-601(i)],
requires the [DHHR], in a child abuse or neglect case, to prove ‘conditions
existing at the time of the filing of the petition . . . by clear and convincing
[evidence].’ The statute, however, does not specify any particular manner or mode
of testimony or evidence by which the [DHHR] is obligated to meet this burden.”
Syllabus Point 1, In Interest of S.C., 168 W.Va. 366, 284 S.E.2d 867 (1981).
Syl. Pt. 1, In re Joseph A., 199 W.Va. 438, 485 S.E.2d 176 (1997) (citations omitted). Here, the
evidence is clear that petitioner failed to provide the children with proper supervision, and shelter
and, at a minimum, neglected the children.
Again, petitioner makes much of the alleged failure of the DHHR to introduce any
evidence regarding the domestic violence protective order against him. However, the circuit
court heard evidence that such an order was pending and was the reason petitioner did not have
contact with the children in the time period shortly before the petition’s filing. Further, petitioner
fails to acknowledge that the evidence regarding the domestic violence protective order was
uncontroverted, as he failed to introduce any evidence that such an order was not in place.
Accordingly, the circuit court specifically found that “[petitioner] committed domestic violence
in the home against the . . . mother, resulting in a domestic violence protective order.” As such,
the DHHR clearly established that domestic violence occurred in the home. Moreover, the
mother testified to the fact that, despite the domestic violence protective order, petitioner could
see the children “anytime he wants” and that he had come to her home to provide the children
with diapers. While it is true that petitioner had not seen the children for approximately six
months prior to the petition’s filing, the circuit court nevertheless found that petitioner “knew
that the . . . mother’s home was not suitable for human habitation and failed to protect the
children from that unwholesome situation.” We agree. Petitioner was not absolved of his duty to
5
ensure that the children received the necessary supervision and shelter simply because he chose
to engage in domestic violence such that he was ordered to have no contact with the children. On
the contrary, the record shows that petitioner’s willful refusal to provide the children with these
needs resulted in their neglect. Accordingly, we find that the DHHR met its burden at
adjudication and the circuit court did not err in ruling that petitioner was an abusing parent.
Next, petitioner argues that the circuit court erred in terminating his parental rights to the
children.4 In support, petitioner argues that termination was improper because there were less-
restrictive dispositional alternatives and because the services the DHHR offered did not address
any alleged deficiencies in his parenting. Moreover, petitioner argues that “[t]he correction and
improvement of parenting skills are impossible to address and measure” due to the fact that the
children were not in his custody in the months preceding the initial petition’s filing. Upon our
review, we find no merit to petitioner’s arguments. First, petitioner admits that his “actions or
omissions, at worst, amounted to not fully participating in the DHHR’s services.” In fact, the
circuit court specifically found that “[t]he evidence against [petitioner] is uncontroverted” and
that he failed to participate in any services offered. This included drug screens and visitations
with the children, which were predicated on negative drug screens.
“We have previously pointed out that the level of interest demonstrated by a parent in
visiting his or her children while they are out of the parent’s custody is a significant factor in
determining the parent’s potential to improve sufficiently and achieve minimum standards to
parent the child.” In re Katie S., 198 W.Va. 79, 90, n. 14, 479 S.E.2d 589, 600, n. 14
(1996)(citing In Interest of Tiffany Marie S., 196 W.Va. 223, 228 and 237, 470 S.E.2d 177, 182
and 191 (1996); State ex rel. Amy M. v. Kaufman, 196 W.Va. 251, 259, 470 S.E.2d 205, 213
(1996)). Here, petitioner was aware that visitation with the children required that he provide a
negative drug screen. Despite this knowledge, petitioner failed one screen and thereafter refused
to submit to further screening. As such, it is clear that petitioner displayed an almost nonexistent
level of interest in visiting the children. Further, the evidence established that petitioner “failed to
maintain contact with the CPS case manager and any service provider.” Simply put, there is no
evidence that petitioner took any steps to comply with services below.
Pursuant to West Virginia Code § 49-4-604(c)(3), a situation in which there is “no
reasonable likelihood that conditions of neglect or abuse can be substantially corrected” includes
one in which
4
A significant portion of petitioner’s argument in support of this assignment of error is
predicated on his allegation that, because the circuit court erred in permitting the DHHR to
amend the petition and in adjudicating him as an abusing parent, termination was therefore
necessarily improper. As set forth above, the Court finds no error in either the circuit court’s
granting of leave for the DHHR to file an amended petition or in its adjudication of petitioner as
an abusing parent. Accordingly, petitioner is entitled to no relief in support of this assignment of
error, to the extent such argument is predicated on these other alleged errors.
6
[t]he abusing 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;
Here, the circuit court specifically made this finding in regard to petitioner based on his willful
refusal to participate in any services below. While petitioner argues that the services offered
were insufficient to remedy the conditions of abuse and neglect, we do not agree. The record is
clear that the circuit court specifically ordered the DHHR to provide petitioner with multiple
services, including a psychological and parental fitness evaluation, adult life skills, and parenting
education. Despite these services being offered, petitioner failed to avail himself of the same.
Moreover, the circuit court found that termination of petitioner’s parental rights was necessary
for the children’s welfare.
Pursuant to West Virginia Code § 49-4-604(b)(6), circuit courts are directed to terminate
a parent’s parental rights upon findings that there is no reasonable likelihood the parent can
substantially correct the conditions of abuse and neglect in the near future and when necessary
for the children’s wellbeing. Further, we have held as follows:
“Termination of parental rights, the most drastic remedy under the
statutory provision covering the disposition of neglected children, W. Va.Code [§]
49-6-5 [now 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 W. Va.Code [§] 49-6-5(b) [now 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). Accordingly, petitioner’s
argument that a less-restrictive dispositional alternative was appropriate is without merit. As
such, we find no error in the circuit court’s termination of petitioner’s parental rights upon these
findings.
Next, petitioner argues that the circuit court erred in hearing testimony at the
dispositional hearing in the absence of a disclosure from the DHHR pursuant to Rule 30 of the
Rules of Procedure for Child Abuse and Neglect Proceedings. According to Rule 30,
[a]t least five (5) judicial days prior to the disposition hearing, each party shall
provide the other parties, persons entitled to notice and the right to be heard, and
the court a list of possible witnesses, with a brief summary of the testimony to be
presented at the disposition hearing, and a list of issues of law and fact. Parties
shall have a continuing obligation to update information until the time of the
disposition hearing.
While the record shows that the DHHR filed no such disclosure, the record is also clear that
petitioner did not object to the presentation of witnesses at the dispositional hearing or otherwise
7
object to the DHHR’s failure to file its disclosure. As such, petitioner has waived his right to
raise this issue on appeal. See State v. Jessie, 225 W.Va. 21, 27, 689 S.E.2d 21, 27 (2009) (“This
Court’s general rule is that nonjurisdictional questions not raised at the circuit court level will not
be considered to the first time on appeal.”).5 For this reason, we decline to grant petitioner relief
in this regard.
Finally, the Court finds no error in the circuit court’s denial of post-termination visitation
below. In support of this assignment of error, petitioner argues that his bond with his children
necessitated post-termination visitation. However, petitioner cites to no evidence of his alleged
bond with the children and admits that he had not contacted them for several months prior to the
petition’s filing. In addressing post-termination visitation, we have held as follows:
“When 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
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). Based on the evidence, the
circuit court found that “[p]ost-termination visitation is contrary to the children’s best interests . .
.” and denied the same. On appeal, petitioner provides no evidence to the contrary, beyond his
own unsupported assertion that he shares a bond with the children. He further continues to
diminish his role in the conditions the children endured by arguing that his “conduct did not
constitute any active abuse, but passive abuse such that supervision could thus ensure the
children’s safety.” However, petitioner fails to acknowledge the fact that he did not avail himself
of supervised visitation with the children during the proceedings because of his willful refusal to
submit to drug screens. It is, therefore, unlikely that petitioner would engage in supervised
visitation with the children following termination of his parental rights, even if the circuit court
5
On appeal, petitioner argues that the requirements of Rule 30 are jurisdictional in nature.
In support of this argument, petitioner relies on the following holding: “[c]ircuit courts must
comply with Rule 31 of the West Virginia Rules of Procedure for Child Abuse and Neglect by
providing notice of the date, time, and place of the disposition hearing to all parties, their
counsel, and the CASA representative, if one was appointed.” Syl. Pt. 2, In re Travis W., 206
W.Va. 478, 525 S.E.2d 669 (1999). Based on this holding, petitioner states that “one can
reasonably conclude that the procedural rules such as Rule 30 . . . are likewise jurisdictional in
nature.” The Court does not find this argument compelling and, accordingly, finds that petitioner
waived his right to assert error in the DHHR’s failure to file its required disclosures when he
failed to object in the proceedings below.
8
had found that the same was appropriate. For these reasons, we find no error in the circuit court
denying petitioner post-termination visitation with the children.
This Court reminds the circuit court of its duty to establish permanency for the children.
Rule 39(b) of the Rules of Procedure for Child Abuse and Neglect Proceedings requires:
At least once every three months until permanent placement is achieved as
defined in Rule 6, the court shall conduct a permanent placement review
conference, requiring the multidisciplinary treatment team to attend and report as
to progress and development in the case, for the purpose of reviewing the progress
in the permanent placement of the child.
Further, this Court reminds the circuit court of its duty pursuant to Rule 43 of the Rules of
Procedure for Child Abuse and Neglect Proceedings to find permanent placement for the
children within twelve months of the date of the disposition order. As this Court has stated,
[t]he [twelve]-month period provided in Rule 43 of the West Virginia
Rules of Procedures for Child Abuse and Neglect Proceedings for permanent
placement of an abused and neglected child following the final dispositional order
must be strictly followed except in the most extraordinary circumstances which
are fully substantiated in the record.
Cecil T., 228 W.Va. at 91, 717 S.E.2d at 875, Syl. Pt. 6. Moreover, this Court has stated that
[i]n determining the appropriate permanent out-of-home placement of a
child under W.Va.Code § 49-6-5(a)(6) [1996] [now West Virginia Code § 49-4
604(b)(6)], the circuit court shall give priority to securing a suitable adoptive
home for the child and shall consider other placement alternatives, including
permanent foster care, only where the court finds that adoption would not provide
custody, care, commitment, nurturing and discipline consistent with the child’s
best interests or where a suitable adoptive home can not be found.
Syl. Pt. 3, State v. Michael M., 202 W.Va. 350, 504 S.E.2d 177 (1998). Finally, “[t]he guardian
ad litem’s role in abuse and neglect proceedings does not actually cease until such time as the
children are placed in a permanent home.” Syl. Pt. 5, James M. v. Maynard, 185 W.Va. 648, 408
S.E.2d 400 (1991).
For the foregoing reasons, we find no error in the decision of the circuit court, and its
February 21, 2017, order is hereby affirmed.
Affirmed.
ISSUED: June 19, 2017
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CONCURRED IN BY:
Chief Justice Allen H. Loughry II
Justice Robin Jean Davis
Justice Margaret L. Workman
Justice Menis E. Ketchum
Justice Elizabeth D. Walker
10