In re C.A. ( 2018 )


Menu:
  •                                                       STATE OF WEST VIRGINIA
    SUPREME COURT OF APPEALS
    In re C.A.                                                                           FILED
    May 14, 2018
    No. 17-1100 (Cabell County 16-JA-66)                                             EDYTHE NASH GAISER, CLERK
    SUPREME COURT OF APPEALS
    OF WEST VIRGINIA
    MEMORANDUM DECISION
    Petitioner Father J.A., by counsel Kerry A. Nessel, appeals the Circuit Court of Cabell
    County’s November 20, 2017, order terminating his parental rights to C.A.1 The West Virginia
    Department of Health and Human Resources (“DHHR”), by counsel Brandolyn N. Felton-
    Ernest, filed a response in support of the circuit court’s order. The guardian ad litem
    (“guardian”), Sarah Dixon, filed a response on behalf of the child in support of the circuit court’s
    order.
    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.
    The DHHR filed a petition in March of 2016 alleging that petitioner and his wife
    participated in domestic violence in the home and failed to protect the child, C.A. Later that
    month, petitioner waived his preliminary hearing. Subsequently, the proceedings against
    petitioner were delayed due, in part, to his absence at court hearings and his request for new
    counsel. During this time, petitioner tested positive for marijuana and exhibited signs of
    psychological problems.
    In July of 2016, the circuit court held an adjudicatory hearing and petitioner stipulated to
    the allegations in the petition. The circuit court also noted that the mother’s testimony was
    preserved from an earlier hearing. The mother testified that the most recent incident of domestic
    violence occurred when petitioner was drunk. She testified that she and petitioner had a physical
    altercation during which petitioner struck her several times. The mother testified that she had a
    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
    black-eye as a result of the altercation. The mother stated that she was afraid of petitioner and
    obtained a domestic violence protective order against him. Based upon petitioner’s stipulation
    and the testimony of the mother, the circuit court adjudicated petitioner as an abusing parent.
    Petitioner moved for a post-adjudicatory improvement period and the circuit court granted his
    motion. The circuit court ordered petitioner to participate in drug screening and a psychological
    examination. Further, petitioner’s family case plan required that he participate in a domestic
    violence intervention program, parenting services, individual therapy, and visitation with the
    child.
    The circuit court held a review hearing for the mother in August of 2016 and noted that
    petitioner was incarcerated after he allegedly made terroristic threats against the mother and the
    circuit court judge; that judge recused himself after receiving those threats. The mother’s case
    was dismissed.
    In March of 2017, the circuit court reviewed petitioner’s improvement period and the
    guardian moved to terminate his improvement period for noncompliance. Petitioner then moved
    for the second judge to be recused. A third judge was assigned the case on May 15, 2017.
    Petitioner also moved for new counsel, and new counsel was appointed.
    The circuit court held a dispositional hearing in July of 2017 and heard testimony from a
    DHHR worker and petitioner. The DHHR worker testified that petitioner did not comply with
    drug screening, substance abuse treatment, or visitation with the child. She also testified that
    petitioner completed a three-hour domestic violence class, but she believed petitioner’s anger
    management required further counseling. The DHHR worker testified that petitioner moved to
    Ohio, which made setting up services more difficult. Petitioner testified that he had visited the
    child twice since the beginning of the case, but never in a supervised setting. Petitioner also
    testified that he did not believe he had a drug problem and therefore he would not participate in
    substance abuse treatment. Petitioner further testified that he was enrolled in parenting classes in
    Ohio, but he did not introduce documents in support of that claim.
    Ultimately, the circuit court found that the petitioner failed to comply with the family
    case plan. Specifically, petitioner failed to undergo drug screens, complete drug treatment,
    complete his anger management classes, and visit with the child. The circuit court then found
    that there was no reasonable likelihood that the conditions of neglect or abuse could be
    substantially corrected in the near future and that the termination of parental rights was necessary
    for the child’s welfare. Accordingly, the circuit court terminated petitioner’s parental rights in its
    November 20, 2017 order.2 Petitioner now appeals that order.
    The Court has previously established the following standard of review:
    2
    The mother retains her parental rights after successfully completing an improvement
    period and the circuit court’s dismissal of the petition against her. The permanency plan for the
    child is continuation in her mother’s care.
    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). Upon our review, this Court
    finds no error in the proceedings below.
    On appeal, petitioner argues that the circuit court clearly erred in terminating his parental
    rights. Petitioner asserts that he made corrections to his parenting that the circuit court ignored
    when considering its ultimate disposition. We disagree. West Virginia Code § 49-4-604(b)(6)
    provides that the circuit court may terminate parental rights when “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.” Further, West Virginia Code § 49-4-604(c)(3)
    provides that there is no reasonable likelihood that the conditions of neglect or abuse can be
    substantially corrected when the parent has “not responded 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[.]”
    Upon these findings, the circuit court may terminate a parent’s parental rights without the use of
    less-restrictive alternatives. Syl. Pt. 5, In re Kristin Y., 227 W.Va. 558, 
    712 S.E.2d 55
    (2011).
    The circuit court correctly found that there was no reasonable likelihood that the
    conditions of neglect or abuse could be corrected in the near future because petitioner was non-
    compliant with a reasonable family case plan. Although petitioner’s improvement period was
    never formally extended, petitioner was offered services for over a year and never consistently
    participated in the agreed-upon family case plan. Contrary to that case plan, petitioner took only
    two drug screens, never participated in substance abuse treatment, did not visit his daughter on a
    consistent basis, and did not attend sufficient anger management classes. The record is clear that
    the DHHR required participation in these services to correct the conditions of neglect and
    petitioner agreed to those services. Nevertheless, at the dispositional hearing, petitioner asserted
    that he did not have a drug problem, even though the record clearly indicates that petitioner
    tested positive for controlled substances before his improvement period began. Petitioner further
    asserted that he was participating in some services out of state. However, he admitted no
    evidence regarding those services. Because petitioner was noncompliant for the duration of his
    improvement period, we find no error in the circuit court’s finding that there was no reasonable
    likelihood that the conditions of neglect or abuse could be corrected in the near future.
    3
    The circuit court also correctly found that termination was necessary for the welfare of
    the child because petitioner exhibited violent tendencies throughout the proceedings. Petitioner
    admitted to domestic violence in the home in the presence of the child. Further, the record
    indicates that petitioner made terroristic threats against one of the circuit court judges assigned to
    his case and the mother during the proceedings. Petitioner never provided any evidence that he
    sought help for these outbursts, with the exception of one three-hour-long class on domestic
    violence. Additionally, petitioner did not visit with the child in a supervised setting and,
    therefore, could not show that such outbursts would not affect his parenting. Because petitioner
    could not show that he had remedied his serious violent tendencies, the circuit court could not
    guarantee the child’s safety if she were to be in his custody. We have previously held:
    “[C]ourts are not required to exhaust every speculative possibility of
    parental improvement . . . where it appears that the welfare of the child will be
    seriously threatened, and this is particularly applicable to children under the age
    of three years who are more susceptible to illness, need consistent close
    interaction with fully committed adults, and are likely to have their emotional and
    physical development retarded by numerous placements.” Syl. Pt. 1, in part, In re
    R.J.M., 164 W.Va. 496, 
    266 S.E.2d 114
    (1980).
    Cecil T., 228 W.Va. at 
    91, 717 S.E.2d at 875
    , Syl. Pt.4. Therefore, we find that the circuit court
    correctly found that termination was necessary for the welfare of the child. Accordingly, we find
    that the circuit court did not err in terminating petitioner’s parental rights.
    For the foregoing reasons, we find no error in the decision of the circuit court, and its
    November 20, 2017, order is hereby affirmed.
    Affirmed.
    ISSUED: May 14, 2018
    CONCURRED IN BY:
    Chief Justice Margaret L. Workman
    Justice Robin Jean Davis
    Justice Menis E. Ketchum
    Justice Allen H. Loughry II
    Justice Elizabeth D. Walker
    4