In Re: I.M., M.M., & K.M. ( 2015 )


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  •                              STATE OF WEST VIRGINIA
    SUPREME COURT OF APPEALS
    In Re: I.M., M.M., & K.M.                                                             FILED
    September 21, 2015
    RORY L. PERRY II, CLERK
    No. 15-0307 (Mercer County 13-JA-40, 13-JA-41 & 13-JA-42)                      SUPREME COURT OF APPEALS
    OF WEST VIRGINIA
    MEMORANDUM DECISION
    Petitioner Father M.M., by counsel John C. Byrd, appeals the Circuit Court of Mercer
    County’s March 6, 2015, order terminating his parental, custodial, and guardianship rights to
    I.M., M.M., and K.M. The West Virginia Department of Health and Human Resources
    (“DHHR”), by counsel Lee Niezgoda, filed its response in support of the circuit court’s order.
    The guardian ad litem (“guardian”), Jennifer Alvarez, 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
    terminating his parental, custodial, and guardianship rights based solely upon his incarceration.1
    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 2013, the DHHR filed an abuse and neglect petition against petitioner alleging
    that petitioner failed to properly supervise his children; committed domestic violence in the
    children’s presence; abused drugs and alcohol; committed emotional and physical abuse towards
    the children, which included holding a knife to K.M.’s throat; and subjected his children
    deplorable living conditions. In August of 2013, petitioner stipulated to general neglect and
    subjecting his children to deplorable living conditions. The circuit court granted petitioner a post­
    adjudicatory improvement period.
    The circuit court held its first review hearing on the progress of petitioner’s post­
    adjudicatory improvement period in November of 2013. The DHHR presented testimony that
    petitioner was progressing with his improvement period and that the children were thriving.
    Therefore, the circuit court continued petitioner’s post-adjudicatory improvement period. A
    second review hearing was held in February of 2014, during which the DHHR testified that
    1
    We note that West Virginia Code §§ 49-1-1 through 49-11-10 were repealed and
    recodified during the 2015 Regular Session of the West Virginia Legislature. The new
    enactment, West Virginia Code §§ 49-1-101 through 49-7-304, has minor stylistic changes and
    became effective ninety days after the February 19, 2015, approval date. In this memorandum
    decision, we apply the statutes as they existed during the pendency of the proceedings below.
    1
    petitioner was doing “fairly well” but still needed to show additional improvement before they
    could recommend reunification. Accordingly, the circuit court extended petitioner’s post­
    adjudicatory improvement period. A third review hearing was held in May of 2014. The DHHR
    presented testimony that petitioner’s children were in the car when he was arrested for his third
    offense of driving under the influence. The DHHR also presented evidence of a domestic
    violence dispute in which the children’s mother suffered a broken foot. The DHHR moved to
    proceed with disposition.
    In August of 2014, the circuit court held its first dispositional hearing. The DHHR
    testified that, while the original abuse and neglect petition included allegations of alcohol abuse,
    it failed to offer petitioner services to address this condition during his post-adjudicatory
    improvement period. The circuit court acknowledged that the DHHR failed to offer petitioner
    adequate alcohol abuse services and held its ruling in abeyance pending petitioner’s criminal
    sentencing related to his arrest for driving under the influence. Thereafter, the circuit court
    sentenced petitioner to a term of incarceration of one to three years for attempt to commit a
    felony and a term of incarceration of one to five years for child neglect creating substantial risk
    of bodily injury. The following month, the circuit court proceeded with the continued
    dispositional hearing. Based upon the DHHR’s prior testimony, the circuit court suspended
    petitioner’s criminal sentence, placed him on probation for five years, and granted him a
    dispositional improvement period so that he could receive alcohol abuse treatment at Fellowship
    House, a facility designed to treat alcohol and substance abuse. The circuit court specifically
    warned petitioner that it would terminate his parental rights if he “fail[ed] to attend a meeting
    [he] was supposed to attend.”
    In March of 2015, the circuit court held a review hearing on the progress of petitioner’s
    dispositional improvement period. The DHHR provided testimony that petitioner was discharged
    from Fellowship House for not following the rules and for stealing from another resident. The
    circuit court found that there was no reasonable likelihood that petitioner could substantially
    correct the conditions of neglect in the near future and terminated his parental, custodial, and
    guardianship rights to the children. This appeal followed.
    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).
    2
    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 terminating his parental,
    custodial, and guardianship rights based solely upon his incarceration. This Court disagrees.
    Pursuant to West Virginia Code § 49-6-5(a)(6), circuit courts are directed to terminate parental
    rights when they find that there is no reasonable likelihood that a parent could substantially
    correct the conditions of neglect in the near future and that termination is necessary for the
    children’s welfare. West Virginia Code § 49-6-5(b)(3) provides that no reasonable likelihood
    that the conditions of abuse or neglect can be substantially corrected exists when “[t]he abusing
    parent . . . [has] not responded to or followed through with a reasonable family case plan or other
    rehabilitative efforts[.]” The circuit court was presented with overwhelming evidence that
    petitioner failed to follow through with his dispositional improvement period. As noted above,
    the circuit court suspended petitioner’s criminal sentence and placed him on probation so that he
    could receive appropriate services to address his alcohol abuse. However, the DHHR presented
    uncontested evidence that petitioner was discharged from his alcohol abuse treatment program
    for failing to follow Fellowship House rules and for stealing from another resident. This
    evidence supports the circuit court’s conclusion that petitioner failed to comply with his
    dispositional improvement period. Importantly, the circuit court’s order terminating petitioner’s
    parental, custodial, and guardianship rights was based upon this failure, not his incarceration.
    For the foregoing reasons, we find no error in the decision of the circuit court and its
    March 6, 2015, order is hereby affirmed.
    Affirmed.
    ISSUED: September 21, 2015
    CONCURRED IN BY:
    Chief Justice Margaret L. Workman
    Justice Robin Jean Davis
    Justice Brent D. Benjamin
    Justice Menis E. Ketchum
    Justice Allen H. Loughry II
    3
    

Document Info

Docket Number: 15-0307

Filed Date: 9/21/2015

Precedential Status: Precedential

Modified Date: 9/21/2015