In Re: J.E. ( 2017 )

STATE OF WEST VIRGINIA
SUPREME COURT OF APPEALS
FILED
In re: J.E. December 1, 2017
EDYTHE NASH GAISER, CLERK
No. 17-0686 (Barbour County 16-JA-80) SUPREME COURT OF APPEALS
OF WEST VIRGINIA
MEMORANDUM DECISION
Petitioner Father, G.E., by counsel Aaron P. Yoho, appeals the Circuit Court of Barbour
County’s July 3, 2017, order terminating his parental rights to J.E.1 The West Virginia
Department of Health and Human Resources (“DHHR”), by counsel Lee Niezgoda, filed a
response in support of the circuit court’s order. The guardian ad litem (“guardian”), Mary S.
Nelson, filed a response on behalf of the child in support of the circuit court’s order. On appeal,
petitioner argues that the circuit court erred in terminating his parental rights and in not
transporting him to the dispositional hearing.
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 October of 2016, the DHHR filed an abuse and neglect petition against petitioner
alleging that he abused and neglected the child by perpetrating domestic violence against the
mother in the child’s presence. The DHHR alleged that petitioner hit the mother repeatedly,
grabbed her throat, and held a knife to her throat while threatening to kill her. The petition also
alleged that petitioner’s substance abuse and criminal behaviors resulted in neglect and
emotional abuse to the child.
Prior to the preliminary hearing held on October 28, 2016, petitioner met with his
attorney at the courthouse. However, when the hearing commenced, petitioner could not be
found and was absent from the hearing without explanation to his counsel.
In February of 2017, the circuit court held an adjudicatory hearing at which petitioner
stipulated to the allegations set forth in the abuse and neglect petition. Petitioner admitted to his
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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history of drug abuse since age twelve, and to his continued abuse of substances, including
methamphetamine. He also admitted to abusing drugs in the home when the child was present.
Petitioner was adjudicated as an abusing parent and moved for a post-adjudicatory improvement
period. However, he asked that his motion be held in abeyance due to his incarceration upon
charges of manufacturing methamphetamine. The circuit court denied the motion in the order
following adjudication. According to the DHHR, petitioner was subsequently released from
incarceration, but was reincarcerated after he absconded from community corrections
supervision.
In June of 2017, the circuit court held a dispositional hearing. Petitioner was represented
by counsel, but petitioner was not transported from the regional jail to the hearing based upon the
circuit court’s concerns that petitioner might abscond and due to a threat petitioner posted on
social media aimed at law enforcement. According to the DHHR, petitioner failed to comply
with the proceedings, aside from attending one hearing and one Multi-Disciplinary Team
(“MDT”) meeting, by phone. Based upon petitioner’s overall lack of effort to correct the
conditions for which he was adjudicated, the circuit court found no reasonable likelihood that
petitioner could correct the conditions of abuse and neglect and found termination of petitioner’s
parental rights to be in the best interests of the child. Ultimately, the circuit court terminated
petitioner’s parental rights in its July 3, 2017, order.2 It is from the dispositional order that
petitioner appeals.
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.
First, petitioner argues that the circuit court erred in denying him a lesser alternative than
the termination of his parental rights. He asserts that the main cause of his abuse and neglect was
2
The mother’s parental rights are still intact, pending her completion of her post­
adjudicatory improvement period. According to the guardian and the DHHR, the concurrent
permanency plan is adoption.
2
his addiction to controlled substances, which led to severe mood swings and violence toward the
mother. He also asserts that his drug addiction caused him to fail to report to community
corrections supervisors and to adequately participate in that program. We do not find this
argument compelling.
Here, it is clear that there was no reasonable likelihood that petitioner could have
substantially corrected the conditions of abuse or neglect in the near future. Petitioner presents
no argument that he has done anything throughout the course of the proceedings to attempt to
correct the conditions of abuse and neglect. He blames the abuse and neglect on his substance
abuse issues, but did not present any evidence in circuit court that he sought to remedy these
issues. Further, petitioner failed to participate in the majority of the proceedings. Finally, the
circuit court found 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
child’s welfare.
West Virginia Code § 49-4-604(b)(6) provides that circuit courts are to terminate parental
rights upon findings 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(c)(3) provides that no reasonable likelihood
that the conditions of abuse or neglect can be substantially corrected exists when “[t]he abusing
parent . . . ha[s] not responded to or followed through with a reasonable family case plan or other
rehabilitative efforts[.]”
Further, we have previously held that
“[t]ermination of parental rights, the most drastic remedy under the
statutory provision covering the disposition of neglected children, W. Va.Code [§]
49-6-5 [now 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 W. Va.Code [§] 49-6-5(b) [now West Virginia Code
§ 49-4-604(c)] . . . 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). Therefore, we find no error in
the circuit court’s termination of petitioner’s parental rights.
Next, petitioner argues that the circuit court denied him an opportunity to be heard at the
dispositional hearing by not transporting him from the regional jail to the dispositional hearing.
He asserts that he was denied the opportunity to respond to the allegations regarding the
threatening social media posts and his inability to substantially participate in the community
corrections program. However, “[w]hether an incarcerated parent may attend a dispositional
hearing addressing the possible termination of his or her parental rights is a matter committed to
the sound discretion of the circuit court.” Syl. Pt. 10, State ex rel. Jeanette H. v. Pancake, 207
W.Va. 154, 529 S.E.2d 865, (2000).
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Prior to the dispositional hearing, petitioner violated the rules of his community
corrections program and absconded. He further made threats on social media aimed toward law
enforcement. Petitioner was represented by counsel throughout the proceedings, and therefore,
his due process rights were protected. In his brief, petitioner does not argue that, had he attended
the dispositional hearing, the outcome would have been different. He also does not argue that he
wished to testify regarding the termination of his parental rights, but instead argues that he
wanted to testify regarding his social media posts and non-participation in his community
corrections supervision. However, the circuit court’s decision to terminate his parental rights was
based upon petitioner’s overall failure to correct the conditions of abuse and neglect upon which
petitioner was adjudicated. Therefore, the circuit court did not abuse its discretion by not
transporting him to the dispositional hearing.
Lastly, this Court reminds the circuit court of its duty to establish permanency for the
child. Rule 39(b) of the Rules of Procedure for Child Abuse and Neglect Proceedings requires:
At least once every three months until permanent placement is achieved as defined
in Rule 6, the court shall conduct a permanent placement review conference,
requiring the multidisciplinary treatment team to attend and report as to progress
and development in the case, for the purpose of reviewing the progress in the
permanent placement of the child.
Further, this Court reminds the circuit court of its duty pursuant to Rule 43 of the Rules of
Procedure for Child Abuse and Neglect Proceedings to find permanent placement for the
children within twelve months of the date of the disposition order. As this Court has stated,
[t]he [twelve]-month period provided in Rule 43 of the West Virginia
Rules of Procedures for Child Abuse and Neglect Proceedings for permanent
placement of an abused and neglected child following the final dispositional order
must be strictly followed except in the most extraordinary circumstances which
are fully substantiated in the record.
Cecil T., 228 W.Va. at 91, 717 S.E.2d at 875, Syl. Pt. 6. Moreover, this Court has stated that
[i]n determining the appropriate permanent out-of-home placement of a
child under W.Va.Code § 49-6-5(a)(6) [1996] [now West Virginia Code § 49­
4604(b)(6)], the circuit court shall give priority to securing a suitable adoptive
home for the child and shall consider other placement alternatives, including
permanent foster care, only where the court finds that adoption would not provide
custody, care, commitment, nurturing and discipline consistent with the child’s
best interests or where a suitable adoptive home can not be found.
Syl. Pt. 3, State v. Michael M., 202 W.Va. 350, 504 S.E.2d 177 (1998). Finally, “[t]he guardian
ad litem’s role in abuse and neglect proceedings does not actually cease until such time as the
child is placed in a permanent home.” Syl. Pt. 5, James M. v. Maynard, 185 W.Va. 648, 408
S.E.2d 400 (1991).
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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: December 1, 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
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