In Re: L.L.-1, L.L.-2, and L.L.-3 ( 2017 )


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  •                              STATE OF WEST VIRGINIA
    SUPREME COURT OF APPEALS
    FILED
    In re: L.L.-1, L.L.-2, and L.L.-3
    November 22, 2017
    EDYTHE NASH GAISER, CLERK
    No. 17-0693 (Kanawha County 17-JA-41, 17-JA-42, & 17-JA-43)                    SUPREME COURT OF APPEALS
    OF WEST VIRGINIA
    MEMORANDUM DECISION
    Petitioner Father J.L., by counsel Edward L. Bullman, appeals the Circuit Court of
    Kanawha County’s July 3, 2017, order terminating his parental rights to L.L.-1, L.L.-2, and L.L.­
    3.1 The West Virginia Department of Health and Human Resources (“DHHR”), by counsel S.L.
    Evans, filed a response in support of the circuit court’s order. The guardian ad litem
    (“guardian”), Christopher C. McClung, 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 denying him
    post-termination visitation with the children.2
    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 2017, the DHHR filed an abuse and neglect petition that alleged petitioner
    was charged with one count of fleeing from an officer and two counts of child neglect creating a
    risk of injury. These charges stemmed from an incident in which petitioner fled from a police
    officer at a high rate of speed with two of the children in the vehicle. The petition further alleged
    that petitioner attempted to strike an officer with the vehicle and that the officer likely would
    have fired into the vehicle, had he not noticed the children. Additionally, the petition raised
    allegations of chronic domestic violence in the home and failure to provide the children with
    appropriate medical care.
    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 the children all share the same initials,
    we will refer to them as L.L.-1, L.L.-2, and L.L.-3 throughout this memorandum decision.
    2
    In his notice of appeal, petitioner raised another assignment of error regarding the circuit
    court’s dispositional alternative as it related to the children’s placement with a relative. However,
    in his brief on appeal, petitioner asserts that, due to a change in the children’s permanent
    placement, he is withdrawing this second assignment of error as moot.
    1
    In March of 2017, the circuit court adjudicated petitioner of abusing and neglecting the
    children. In May of 2017, the circuit court held a dispositional hearing, during which petitioner
    indicated that he pled guilty to one of the charges from the incident giving rise to the abuse and
    neglect proceedings, although he had yet to be sentenced. Petitioner also indicated that his
    probation for two prior convictions of breaking and entering was revoked based upon his recent
    criminal conduct. This resulted in the imposition of consecutive sentences of one to ten years of
    incarceration for petitioner. Further, petitioner admitted to his failure to participate in certain
    services designed to remedy the conditions of abuse and neglect in the home, and confirmed that
    he relapsed with regard to his substance abuse. The circuit court heard additional evidence
    concerning petitioner’s earlier arrest, including the fact that the children in the car with petitioner
    were between the ages of six months and three years old at that time, and neither was properly
    restrained. It was further established that petitioner was under the influence of drugs at the time
    of the incident and that drugs were found in the vehicle. Ultimately, the circuit court terminated
    petitioner’s parental rights and denied him post-termination visitation with the children.3 It is
    from the dispositional order that petitioner appeals.4
    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).
    Syl. Pt. 1, In re Cecil T., 
    228 W.Va. 89
    , 
    717 S.E.2d 873
     (2011). Upon our review, the Court finds
    no error in the proceedings below.
    According to petitioner, the circuit court erred in denying him post-termination visitation
    with the children because at least two of the children are old enough to remember him and have
    formed a relationship with him. He further argues that there was no evidence he abused the
    children or that continued contact with him would be detrimental to the children’s wellbeing. We
    3
    The parents’ parental rights to the children were terminated below. According to the
    DHHR, the children are placed in a foster home with a permanency plan of adoption therein.
    4
    On appeal, petitioner does not raise an assignment of error challenging the circuit court’s
    termination of his parental rights.
    2
    do not agree. Contrary to petitioner’s argument on appeal, the circuit court specifically found that
    petitioner abused the children by his actions during his arrest, the domestic violence in the home,
    and his substance abuse. In fact, the circuit court found that “there were horribly egregious
    activities going on in the presence of these children; that the use of drugs and operating a vehicle
    with children unsecured and running from police is terribly aggravating circumstances . . . .”
    Moreover, contrary to petitioner’s argument that the children’s ages support continued contact
    with him, the circuit court denied post-termination visitation, in part, upon “the tender age of
    these children,” none of whom were older than three years old. Based upon these factors, the
    circuit found that post-termination visitation was not in the children’s best interests.
    In discussing post-termination visitation, we have held as follows:
    “When parental rights are terminated due to neglect or abuse, the circuit
    court may nevertheless in appropriate cases consider whether continued visitation
    or other contact with the abusing parent is in the best interest of the child. Among
    other things, the circuit court should consider whether a close emotional bond has
    been established between parent and child and the child’s wishes, if he or she is of
    appropriate maturity to make such request. The evidence must indicate that such
    visitation or continued contact would not be detrimental to the child’s well being
    and would be in the child’s best interest.” Syl. Pt. 5, In re Christina L., 
    194 W.Va. 446
    , 
    460 S.E.2d 692
     (1995).
    Syl. Pt. 11, In re Daniel D., 
    211 W.Va. 79
    , 
    562 S.E.2d 147
     (2002). We find that petitioner’s
    argument that the children’s ages dictated continued visitation is without merit, as the children
    are not of sufficient maturity to express any meaningful request concerning this issue, regardless
    of the fact that petitioner alleges they will remember him. This is simply irrelevant, given that the
    evidence established that continued contact with petitioner would not be in the children’s best
    interests, especially in light of his egregious conduct below. As such, we find that the circuit
    court’s denial of post-termination visitation was not error.
    For the foregoing reasons, we find no error in the decision of the circuit court, and its
    July 3, 2017, order is hereby affirmed.
    Affirmed.
    ISSUED: November 22, 2017
    CONCURRED IN BY:
    Chief Justice Allen H. Loughry II
    Justice Robin Jean Davis
    Justice Margaret L. Workman
    Justice Menis E. Ketchum
    Justice Elizabeth D. Walker
    3