FILED
June 22, 2021
STATE OF WEST VIRGINIA EDYTHE NASH GAISER, CLERK
SUPREME COURT OF APPEALS
SUPREME COURT OF APPEALS OF WEST VIRGINIA
In re R.W.
No. 20-0877 (Mercer County 18-JA-120-DS)
MEMORANDUM DECISION
Petitioner Father C.H., by counsel P. Michael Magann, appeals the Circuit Court of Mercer
County’s September 25, 2020, order terminating his parental rights to R.W. 1 The West Virginia
Department of Health and Human Resources (“DHHR”), by counsel Mindy M. Parsley, filed a
response in support of the circuit court’s order. The guardian ad litem (“guardian”), Catherine
Bond Wallace, 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 and in
terminating his post-adjudicatory improvement period.
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 May of 2018, the DHHR filed a child abuse and neglect petition against R.W.’s mother
and J.B.-2 regarding their child, J.B.-1 who is a younger half-sibling of R.W. The DHHR alleged
that J.B.-2 was charged with several criminal offenses including operating a methamphetamine
laboratory, counterfeiting, obstruction, battery on a police officer, improper registration, and child
neglect with risk of serious bodily injury. The DHHR also alleged that the mother had previously
placed R.W. in the guardianship of the maternal grandmother, who was named as a nonabusing
party. According to the petition, the grandmother obtained guardianship of R.W. in June of 2013.
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 of the children and his father share the
same initials, they will be referred to as J.B.-1 and J.B.-2, respectively, throughout the
memorandum decision.
1
Petitioner was named as the father of R.W. in the 2018 petition. The DHHR also submitted to the
circuit court the family court order appointing the grandmother as R.W.’s guardian in June of 2013.
That family court order lists petitioner’s whereabouts as unknown and provides that petitioner had
not been involved in then four-year-old R.W.’s life. The DHHR’s 2018 petition did not list any
new allegations of abuse and neglect against petitioner. In J.B.-2’s case, the DHHR eventually
gave custody of J.B.-1 to the maternal grandmother as well.
The DHHR filed an amended abuse and neglect petition in April of 2019 naming petitioner
and alleging that he had been incarcerated since February of 2019 for violating the terms of his
home incarceration. 2 The DHHR also alleged that petitioner failed to support R.W. emotionally,
socially, or financially, and had had no contact with the child since 2013. According to the petition,
petitioner blamed the grandmother for his absence and stated that she prevented him from
contacting R.W. because of his prior traumatic brain injury stemming from an automobile accident
and history of drug abuse. According to the petition, the grandmother denied preventing petitioner
from seeing the child.
The circuit court held an adjudicatory hearing in August of 2019 wherein petitioner
stipulated to abusing and neglecting R.W. because of his drug usage and incarceration. The circuit
court accepted petitioner’s stipulation, adjudicated him as an abusing and neglecting parent, and
granted him a post-adjudicatory improvement period.
The next month, the circuit court held a review hearing wherein the DHHR informed the
circuit court that petitioner was awaiting a neuropsychological and parental fitness evaluation
regarding his traumatic brain injury. The circuit court held additional review hearings in December
of 2019 and January of 2020 where it continued placement of R.W. with the grandmother. The
circuit court held another hearing in February of 2020 where it terminated the mother’s parental
rights to R.W. due to her failure to participate in the proceedings. At that hearing, R.W.’s newly
appointed guardian ad litem expressed her concerns to the court that petitioner and R.W. had little
contact during the child’s life. The circuit court scheduled a dispositional hearing for March of
2020. However, the dispositional hearing was delayed due to the COVID-19 pandemic and
resulting judicial emergency.
The results of petitioner’s neuropsychological evaluation were submitted to the circuit
court in May of 2020. According to that report, petitioner suffered from areas of substantial
neurocognitive limitation, including an inability to complete simple tasks. The report noted that
petitioner admitted to being arrested at least ten times, and was previously convicted and sentenced
to two to nine years in prison for prescription fraud. The report noted that petitioner eventually
served six and a half years of that sentence after he twice violated parole because of positive drug
screens. The report also detailed that petitioner had severe impairment when completing more
complex tasks and that he struggled with “more complex problem solving, adaptation to changing
task demands, organizing and applying organizing principles, being systematic, and maintaining
focus.”
2
Petitioner was later released from incarceration during the proceedings.
2
The guardian ad litem submitted a home study and report in June of 2020 which noted that
R.W. was raised almost exclusively by her grandmother, who had been the child’s guardian since
the child was four years old. At the time of the guardian’s report, the child was twelve years old.
The guardian’s report explained that R.W. was performing well academically in the grandmother’s
care and was involved in extracurricular activities. The report also indicated that the child did not
recall any contact with petitioner but was aware of his drug usage and automobile accident.
According to the report, R.W. did not want regular contact or to live with petitioner due to his
decision to have no part in her life. The report indicated that the child would be reluctantly open
to meeting petitioner if visitation was supervised and she knew he was no longer abusing drugs.
The guardian concluded the report by recommending that petitioner’s parental rights be terminated
and the grandmother be allowed to adopt the child.
The DHHR filed a case plan recommending the termination of petitioner’s parental rights
in September of 2020. According to the case plan, petitioner failed to have consistent
communication with R.W. and struggled with substance abuse for several years. The DHHR noted
that petitioner’s lack of communication with the child and drug usage preceded his automobile
accident and resulting traumatic brain injury. According to the case plan, the DHHR did not
develop goals for petitioner because any such goals were dependent on the recommendations of
the neuropsychological evaluation.
After multiple continuances, the circuit court held a final dispositional hearing in
September of 2020. At the hearing, the psychologist who conducted petitioner’s
neuropsychological evaluation testified that petitioner had likely reached his maximum medical
improvement with respect to his traumatic brain injury and that petitioner believed he was
functioning at a higher level than his actual level of functioning. The neuropsychologist further
testified that petitioner lacked insight as to his limitations and had poor decision making, as shown
by his prior arrests, incarceration, and substance abuse. Next, a service provider testified to
petitioner’s positive drug screens. Finally, petitioner testified that he would be willing to
participate in any services offered by the DHHR. However, petitioner acknowledged that he did
not have a relationship with R.W. and that the child was in a stable and suitable home.
After hearing the evidence, the circuit court found that petitioner had prior opportunities to
correct his behavior, but that he continued to abuse controlled substances and was incarcerated for
various periods of time. Accordingly, the circuit court terminated petitioner’s parental rights upon
finding that there was no reasonable likelihood that petitioner could correct the conditions of abuse
or neglect in the near future and that termination was necessary for the child’s welfare. Petitioner
now appeals the September 25, 2020, dispositional order terminating his parental rights. 3
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
3
The mother’s parental rights were also terminated below. The permanency plan for the
child is guardianship by her grandmother.
3
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 refusing him any services in
connection with his post-adjudicatory improvement period. We find, however, that petitioner is
entitled to no relief. Petitioner is correct that, unless certain conditions exist, the DHHR is required
to make “reasonable efforts to preserve and reunify the family.” W. Va. Code § 49-4-
604(b)(6)(C)(iv). Further, “[i]n determining whether or not parental rights should be terminated,
the court shall consider the efforts made by the department to provide remedial and reunification
services to the parent.” Id. at (b)(6)(C). What petitioner fails to recognize, however, is that the
record shows that the DHHR’s attempts to provide him with services began as early as the filing
of the amended petition in May of 2018. By petitioner’s own admission, he suffers from certain
limitations that the DHHR alleged impacted his ability to properly parent the child. In order to
accommodate this issue, the DHHR arranged for petitioner to undergo a neuropsychological
evaluation. While petitioner may take issue with the extent of the DHHR’s services, we find that
they were sufficient to satisfy the requirement that the DHHR make reasonable efforts to reunify
petitioner with his child.
Indeed, petitioner concedes that “it might have been difficult” to establish goals to remedy
the conditions of abuse and neglect because of his traumatic brain injury, although he asserts that
it was “not necessarily impossible.” What petitioner fails to recognize, however, is that the Court
has instructed as follows:
“Where allegations of neglect are made against parents based on
intellectual incapacity of such parent(s) and their consequent inability to adequately
care for their children, termination of rights should occur only after the social
services system makes a thorough effort to determine whether the parent(s) can
adequately care for the children with intensive long-term assistance. In such case,
however, the determination of whether the parents can function with such
assistance should be made as soon as possible in order to maximize the child(ren)’s
chances for a permanent placement.” Syllabus point 4, In re Billy Joe M., 206
W.Va. 1, 521 S.E.2d 173 (1999).
Syl. Pt. 4, In re Maranda T., 223 W. Va. 512, 678 S.E.2d 18 (2009). Petitioner argues that the
circuit court failed to adequately determine whether he could function with long-term assistance,
especially since the psychologist who performed petitioner’s psychological evaluation refrained
from offering an opinion regarding petitioner’s parental fitness, and that such a definitive opinion
4
was necessary before terminating his parental rights. We find that such a conclusion from the
evaluator was unnecessary, however, given that the limitations the report identified were clearly
sufficient to establish that petitioner was incapable of caring for the child and that additional
services would be insufficient to overcome these issues. While refraining from addressing his
parental fitness, petitioner’s evaluation nonetheless concluded that he struggled “in dealing with
relatively simple visual tasks” and was “severely impaired” when the task was “more complex and
requires more genitive flexibility.” The evaluation also concluded that petitioner struggled with
working memory, which “refers to the ability to keep information in mind and work with it for the
duration of a task.” While petitioner argues that he testified he was willing to participate in
parenting and life skills classes, therapy, drug screens, and any other services in order to have a
relationship with the child, the record shows that these services were not appropriate for petitioner,
given the results of his evaluation. Further, the neuropsychologist who evaluated petitioner
testified that petitioner had likely reached his maximum medical improvement with respect to his
traumatic brain injury and that petitioner believed he was functioning at a higher level than his
actual level of functioning. The neuropsychologist further testified that petitioner lacked insight as
to his limitations and had poor decision making, reflected in his prior arrests, incarceration, and
substance abuse. As the DHHR set forth below, it refrained from offering services prior to the
evaluation so that it could incorporate the results of the evaluation into any later services so that
they were tailored to petitioner’s abilities. However, after the evaluation, the DHHR indicated that
there were simply no appropriate additional services that would be of benefit to petitioner. As such,
the court complied with the direction in syllabus point 4 of Miranda T., that a determination as to
whether petitioner could function with the aid of long-term services be made quickly in order to
effectuate permanency for the child.
It is also important to note that, to the extent petitioner argues that the DHHR failed to
provide identifiable terms and goals in its family case plan and failed to determine what services
could be provided to assist petitioner to improve his parenting skills, he cites to no portion of the
appendix record where he raised any objection to the case plan or its contents. As such, even if the
Court were to find that the DHHR’s case plan were defective, petitioner has waived this issue on
appeal.
Finally, petitioner claims that he should have been granted a less-restrictive disposition to
the termination of his parental rights. We have previously 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(d)] 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). Here, the court made the
necessary findings based upon substantial evidence. The record establishes that petitioner was
uninvolved in the child’s life since 2013 and consistently showed an inability to demonstrate the
basic elements of proper parenting or to show any substantial progress. Further, petitioner did not
5
take care of the child and abused drugs even prior to his automobile accident. Indeed, the
neuropsychologist’s report noted that petitioner admitted to being arrested at least ten times and
previously being convicted and sentenced to two to nine years in prison for prescription fraud. The
report also noted that petitioner ended up serving six and a half years of that sentence after he twice
violated parole because of positive drug screens. Based on the foregoing, we find no error in the
circuit court’s termination of petitioner’s parental rights.
For the foregoing reasons, we find no error in the decision of the circuit court, and its
September 25, 2020, order is hereby affirmed.
Affirmed.
ISSUED: June 22, 2021
CONCURRED IN BY:
Chief Justice Evan H. Jenkins
Justice Elizabeth D. Walker
Justice Tim Armstead
Justice John A. Hutchison
Justice William R. Wooton
6