In re A.D., L.D., and C.D. ( 2022 )

FILED
February 1, 2022
EDYTHE NASH GAISER, CLERK
STATE OF WEST VIRGINIA SUPREME COURT OF APPEALS
SUPREME COURT OF APPEALS
OF WEST VIRGINIA
In re A.D., L.D., and C.D.
No. 21-0697 (Kanawha County 20-JA-251, 20-JA-252, and 20-JA-253)
MEMORANDUM DECISION
Petitioner Father M.D., by counsel Jason S. Lord, appeals the Circuit Court of Kanawha
County’s August 5, 2021, order terminating his parental rights to A.D., L.D., and C.D. 1 The West
Virginia Department of Health and Human Resources (“DHHR”), by counsel Patrick Morrisey
and Mindy M. Parsley, filed a response in support of the circuit court’s order. The guardian ad
litem, Bryan B. Escue, filed a response on behalf of the children also in support of the circuit
court’s order. On appeal, petitioner argues that the circuit court erred in terminating his parental
rights.
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 2020, the DHHR filed a child abuse and neglect petition against petitioner and
the mother based upon allegations of drug abuse. Specifically, the DHHR alleged that then nine-
year-old C.D. reported the parents abused drugs. According to C.D., the parents “w[ould] stay
awake for days at a time and then sleep for long periods of time,” would not feed the children or
change the youngest child’s diaper, and frequently invited guests into their home to smoke things
out of pipes. Other family members also reported that the parents abused drugs. The DHHR alleged
that petitioner sold the family’s food stamps for drugs and tested positive for methamphetamine
earlier that month. As such, the DHHR concluded that the parents failed to provide the children
with necessary food, clothing, supervision, and housing, and that the parents were not sufficiently
motivated to provide for the needs of the children on an ongoing basis.
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
The circuit court held an adjudicatory hearing in July of 2020 and, after hearing testimony,
adjudicated petitioner as an abusing parent, specifically relying on testimony regarding C.D.’s
disclosures and petitioner’s positive drug screen. Petitioner requested a post-adjudicatory
improvement period, and the circuit court granted him the same. As part of the terms and
conditions, the circuit court ordered petitioner to participate in parenting and adult life skills
classes, submit to random drug screens, obtain and maintain suitable housing, and participate in
supervised visits with the children (contingent upon negative drug screens).
Petitioner initially participated in services and tested negative during drug screens such that
he was granted unsupervised visitation with the children. However, around February or March of
2021, petitioner ceased submitting to drug screens. In a DHHR report, the ongoing Child Protective
Services (“CPS”) worker noted that petitioner and the mother failed to appear for a screen, and
providers were sent to the home to perform a drug screen on the parents. The provider for the
mother arrived at the home first and informed petitioner that another provider would be arriving
soon thereafter to screen him. However, by the time that provider arrived, petitioner had left the
home and could not be located. The CPS worker noted that visits with the children were suspended
at that time.
In July of 2021, the circuit court held a dispositional hearing. The ongoing CPS worker
testified that the DHHR recommended that petitioner’s parental rights be terminated. The CPS
worker testified that the petition was filed based upon allegations of drug abuse and that petitioner
failed a drug screen in May of 2021, and thereafter ceased submitting to drug screens. According
to the CPS worker, petitioner never completed any drug treatment and failed to obtain suitable
housing.
Petitioner testified that he was living with a friend but “still ha[d his] apartment.” Petitioner
also stated that he recently applied for housing assistance through Housing and Urban
Development (“HUD”) and had been approved for housing assistance. Petitioner denied testing
positive for methamphetamine in May of 2021, stating “I hadn’t touched meth in a long time.”
Petitioner stated that he ceased submitting to screens afterward because of communication
problems, which he attributed to his assigned CPS worker. Petitioner claimed that he was not able
to complete parenting or adult life skills classes because those services were never arranged.
Petitioner was not employed.
After hearing testimony, the circuit court found that petitioner left a drug rehabilitation
program without completing it and missed several drug screens throughout the proceedings.
According to the circuit court, petitioner participated in some services but failed to make any
improvement in his behavior. Further, petitioner had no employment or suitable housing.
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 and neglect in the
near future and that termination was necessary for the children’s welfare. Petitioner appeals the
circuit court’s August 5, 2021, dispositional order terminating his parental rights. 2
2
The mother’s parental rights to the children were also terminated below. The permanency
plan for those children is adoption by their foster family.
2
The Court has previously established the following standard of review in cases such as this:
“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).
On appeal, petitioner argues that the circuit court erred in terminating his parental rights.
According to petitioner, he complied with services for an extended period. He testified at the
dispositional hearing that he had just been approved for financial assistance with housing through
HUD. Petitioner further testified that he would be willing to resume submitting to drug screens.
Petitioner contends that he submitted numerous negative drug screens throughout the proceedings
and his “brief hiccup in screening” should not have prevented him from regaining custody of the
children. As such, petitioner argues, he should have been permitted more time to comply with
services.
West Virginia Code § 49-4-604(c)(6) provides that circuit courts are 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 children’s
welfare. West Virginia Code § 49-4-604(d)(3) provides that a circuit court may find that there is
no reasonable likelihood that the conditions of abuse and neglect can be substantially corrected
when the 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.
The record establishes that petitioner failed to follow through with services designed to
reduce or prevent the abuse or neglect of the children. While petitioner participated in his
improvement period for a portion of the proceedings below, he eventually relapsed on
methamphetamine and ceased submitting to drug screens. Petitioner denied abusing
methamphetamine and disputed the results of his positive drug screen. Further, petitioner admitted
during his testimony at the dispositional hearing that he did not complete parenting or adult life
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skills classes and that he had not attained appropriate housing for the children and was living with
a friend. Accordingly, the circuit court found that petitioner failed to make any improvement in
his behavior, missed several drug screens, and failed to obtain housing or employment. Under
these circumstances, petitioner’s failure to successfully complete his improvement period was
sufficient to support the circuit court’s determination that there was no reasonable likelihood that
petitioner could correct the conditions of abuse and neglect in the near future.
To the extent petitioner argues that he should have been given more time to comply with
services, we have previously held that “[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.” Cecil T., 228 W. Va. at 91, 717 S.E.2d at 875, Syl. Pt. 4, in part (citation
omitted). Further, we have 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). Based on the foregoing, it is
clear that petitioner failed to remedy to the conditions of abuse and neglect and, thus, termination
of his parental rights was not error.
For the foregoing reasons, we find no error in the decision of the circuit court, and its
August 5, 2021, order is hereby affirmed.
Affirmed.
ISSUED: February 1, 2022
CONCURRED IN BY:
Chief Justice John A. Hutchison
Justice Elizabeth D. Walker
Justice Tim Armstead
Justice Evan H. Jenkins
Justice William R. Wooton
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