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 E.J. and H.J.
No. 21-0061 (Preston County 20-JA-8 and 20-JA-9)
MEMORANDUM DECISION
Petitioner Father A.J., by counsel Kristen D. Antolini, appeals the Circuit Court of Preston
County’s December 29, 2020, order terminating his parental rights to E.J. and H.J. 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, Jennifer Yost, filed
a response on behalf of the children also in support of the circuit court’s order. Respondent Mother
N.A., by counsel Natalie J. Sal, also filed a brief in support of the circuit court’s order. On appeal,
petitioner argues that the circuit court erred in terminating his parental rights rather than employing
a less-restrictive dispositional alternative.
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 January of 2020, the DHHR filed an abuse and neglect petition against petitioner and
the mother alleging exposure of the children to drug use, domestic violence, unsafe living
conditions, and medical and educational neglect. According to the petition, the DHHR received a
referral indicating that the children were living in their grandparents’ home and the parents exposed
the children to drug usage. The DHHR also alleged that petitioner, who did not have a driver’s
license, drove under the influence of drugs with the children in the vehicle. The DHHR also alleged
that the grandparents and petitioner were abusing methamphetamine and emotionally abused the
children. According to the petition, petitioner and the mother also routinely engaged in domestic
disputes. The DHHR alleged that during one such dispute the mother attempted to leave with the
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).
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children and petitioner threatened to kill the children with a vehicle. The DHHR further alleged
that when the mother threatened to leave petitioner, he threatened to kill himself “to keep her from
leaving due to the guilt she would feel by his suicide.” According to the petition, petitioner also
used drugs and passed out in his vehicle in front of the children on multiple occasions. The DHHR
alleged that, during one such occasion, petitioner passed out in his vehicle while parked in front
of a home where he purchased drugs. The DHHR alleged that the children were in the vehicle at
the time, and one of the children left the vehicle and went inside of the home where petitioner
purchased drugs, and sat inside the home until petitioner awoke and took the children home.
Next, the DHHR alleged that a Child Protective Services (“CPS”) worker interviewed H.J.
at her school where the child reported that petitioner was incarcerated, and that the child had seen
petitioner physically fight his uncle who lived next door to the family over “drug money.” H.J.,
who is eight-years-old, also reported that when her family fought, she would become scared and
take her sister, six-year-old E.J., out to a trampoline and scream until a neighbor would come to
help them. H.J. also informed the CPS worker that on one occasion E.J. opened her makeup box
and found a sharp knife inside the box. The DHHR alleged that H.J. was serving as E.J.’s caretaker.
due to the parents’ lack of supervision. According to the petition, E.J. was largely non-responsive
in her interview with the CPS worker but did indicate that she was afraid of her grandmother and
petitioner because they were physically violent with each other. The DHHR alleged that the CPS
worker spoke with E.J.’s teacher, who indicated the child was completely non-verbal at school.
According to the petition, the children each had over fifteen absences and were tardy over thirty
times each during the prior school year. Finally, the DHHR alleged that petitioner was released
from incarceration prior to the filing of the petition.
The circuit court held a preliminary hearing in January of 2020 wherein petitioner proffered
that he would likely be positive for methamphetamine during drug screening and had used that
drug two days prior to the hearing. Petitioner also claimed that he was investigating drug
rehabilitation treatment programs and had taken steps to obtain the same.
The circuit court held an adjudicatory hearing in March of 2020 wherein petitioner was
absent but represented by counsel. Petitioner’s counsel moved the circuit court to continue the
hearing and claimed that petitioner lacked transportation to the hearing and was in the process of
obtaining long-term drug treatment. The DHHR and guardian did not oppose the motion, and the
circuit court continued the hearing. The circuit court rescheduled the adjudicatory hearing for April
of 2020. However, petitioner again filed a motion to continue the hearing this time due to the
coronavirus pandemic and ongoing judicial emergency. The circuit court held a continued
adjudicatory hearing in August of 2020 wherein petitioner did not appear but was represented by
counsel. The DHHR filed a motion to continue the hearing, which the circuit court granted.
In October of 2020, the circuit court held the continued adjudicatory hearing wherein
petitioner failed to appear but was represented by counsel. Counsel for petitioner proffered that
petitioner had not contacted her “in a long time” and that she had not been able to reach him. The
DHHR informed the court that a capias order was pending against petitioner in an unrelated matter.
The circuit court allowed the DHHR to present evidence in support of petitioner’s adjudication.
First, the mother testified that petitioner was “extremely physically and emotionally abusive
toward her in front of the . . . children and towards the . . . children.” The mother also testified that
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petitioner was addicted to drugs and had not sought treatment for his addiction. Next, a CPS worker
testified that the children were exposed to petitioner’s domestic violence and drug use on numerous
occasions. The CPS worker also testified that petitioner was not cooperative with the DHHR.
Petitioner did not testify or present any evidence on his behalf. Based upon the evidence, the circuit
court found that petitioner had a history of substance abuse, failed to provide for the children, and
failed to meaningfully participate in the abuse and neglect proceedings. As a result, the circuit
court adjudicated petitioner as an abusing and neglecting parent.
The next month, the circuit court held a dispositional hearing wherein petitioner appeared
via video conference from a regional jail. At the outset of the hearing, petitioner’s counsel
proffered to the court that she had just recently been in contact with petitioner and that she needed
a brief recess to discuss his options and legal issues with him. After a brief recess, the circuit court
took judicial notice of the mother’s testimony at the adjudicatory hearing, petitioner’s admission
to using methamphetamine at the preliminary hearing, and petitioner’s absences from other
hearings. The circuit court also took judicial notice of petitioner’s prior assertion that he was
seeking to participate in drug rehabilitation treatment, which never occurred. The DHHR presented
a CPS worker who testified that petitioner had no contact with the children since the beginning of
the proceedings due to his failure to drug screen. The CPS worker also testified that petitioner
failed to have contact with the children prior to the abuse and neglect petition and that the children
lacked a bond with petitioner and expressed no desire to see him.
Next, petitioner testified that he did attend drug rehabilitation at Mountaineer Recovery in
Martinsburg, West Virginia, but left early due to fears he would contract coronavirus. Petitioner
also testified that he wanted to remedy his drug addiction but failed to offer any explanation as to
why he missed prior court hearings and failed to participate in the proceedings. In light of the
evidence, the circuit court found that petitioner missed several hearings throughout the proceedings
and failed to provide any legitimate reasons for his failure to appear. The circuit court also found
that petitioner failed to meaningfully participate in drug screenings or other services. Accordingly,
the circuit court terminated petitioner’s parental rights upon finding that there was no reasonable
likelihood that he could correct the conditions of neglect in the near future and that termination
was necessary for the children’s welfare. It is from the December 29, 2020, dispositional order that
petitioner appeals. 2
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,
2
The mother successfully completed an improvement period and the petition against her
was dismissed. The permanency plan for the children is to remain in her custody.
3
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 alleges only one assignment of error, that the circuit court erred in
terminating his parental rights rather than granting him a less-restrictive disposition because
permanency for the children had previously been achieved when the court granted the mother sole
legal and physical custody of the children. According to petitioner, the circuit court was required
to give precedence to the dispositions as listed in West Virginia Code § 49-4-604(c) and that it
should have granted him disposition pursuant to § 49-4-604(c)(5). 3 We find no error in the circuit
court’s termination of petitioner’s parental rights.
Pursuant to West Virginia Code § 49-4-604(c)(6), circuit courts are directed to terminate
parental rights upon finding 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
child’s welfare. West Virginia Code § 49-4-604(d) defines “[n]o reasonable likelihood that [the]
conditions of neglect or abuse can be substantially corrected” as follows: “the abusing [parent] . .
. ha[s] demonstrated an inadequate capacity to solve the problems of abuse or neglect on [his] own
or with help.”
In support of his sole assignment of error that the court erred in denying him a less
restrictive disposition, petitioner cites to In re B.S., 242 W. Va. 123, 829 S.E.2d 754 (2019). In
B.S., the mother had her custodial rights terminated, but retained her parental rights based upon
eight months of no positive drug screens and the belief that she may “someday . . . do well again.”
242 W. Va. at 129, 829 S.E.2d at 760 (emphasis added). This case is not analogous to In re B.S.
because petitioner, unlike the petitioner in B.S., either failed or did not participate in drug screens
throughout the proceedings, and the circuit court found that his substance abuse remained an
unresolved issue at the final dispositional hearing.
Further, the circuit court correctly found that there was no reasonable likelihood that the
conditions of neglect or abuse could be substantially corrected because petitioner continued to
abuse controlled substances, failed to visit or bond with the children, and failed to participate in
the proceedings. Notably, petitioner does not dispute that he missed or failed several drug screens
and did not have contact with the children throughout the proceedings, instead arguing that he
could have been granted a less-restrictive disposition to resolve these issues. Specifically,
3
West Virginia Code § 49-4-604(c)(5) provides that a circuit court may
[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, commit the child
temporarily to the care, custody, and control of the department, a licensed private
child welfare agency, or a suitable person who may be appointed guardian by the
court.
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petitioner argues that if he was granted a less-restrictive disposition to the termination of his
parental rights, it “would have been incumbent upon [him] to resolve his criminal proceedings,
obtain substance abuse treatment, seek counseling for domestic violence and/or anger management
issues, and demonstrate to the court that he was then a fit parent.” Yet the record below indicates
that petitioner was completely noncompliant with the DHHR and refused to participate in services
during the proceedings that could have remedied these issues. While petitioner claims to have
sought drug treatment during the proceedings, he provided no record of this to the circuit court.
Ultimately, petitioner’s assertion that he could remedy his issues with more time ignores the fact
that he failed to stay drug free, attend scheduled court hearings, or participate in drug screens
sufficiently to justify the return of the children to his care.
Finally, the fact that the children’s mother obtained full custody of the children has no
bearing on the circuit court’s termination of petitioner’s parental rights. While petitioner argues
that this permanent placement allowed for the implementation of a less-restrictive dispositional
alternative, he ignores the fact that 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 [other]
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.
Based on the foregoing, we find no error in the circuit court’s refusal to grant petitioner a
less-restrictive alternative to termination of his parental rights, given that 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). While petitioner maintains that
he expressed a desire to reestablish a relationship with the children at the dispositional hearing, he
does not dispute that he had no contact with the children throughout the proceedings due to his
failure to participate in drug screens and the proceedings. Due to petitioner’s failure to address the
conditions of abuse and neglect or establish a bond with the children, we find no error in the circuit
court’s finding that there was no reasonable likelihood that the conditions of abuse and neglect
could be substantially corrected in the near future and that termination was necessary for the
children’s welfare. Therefore, we likewise 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
December 29, 2020, order is hereby affirmed.
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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
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