In re N.G. and B.G. ( 2022 )

FILED
February 1, 2022
STATE OF WEST VIRGINIA EDYTHE NASH GAISER, CLERK
SUPREME COURT OF APPEALS
SUPREME COURT OF APPEALS
OF WEST VIRGINIA
In re N.G. and B.G.
No. 21-0586 (Kanawha County 20-JA-456 and 20-JA-496)
MEMORANDUM DECISION
Petitioner Father T.G., by counsel Rebecca Strollar Johnson, appeals the Circuit Court of
Kanawha County’s June 14, 2021, order terminating his parental rights to N.G. and B.G. 1 The
West Virginia Department of Health and Human Resources (“DHHR”), by counsel Patrick
Morrisey and James W. Wegman, filed a response in support of the circuit court’s order. The
guardian ad litem, Timbera C. Wilcox (“guardian”), filed a response on the children’s behalf in
support of the circuit court’s order. On appeal, petitioner argues that the circuit court’s
adjudicatory order was not supported by the evidence; it erred in denying his motion for an
improvement period; it erred in finding that termination was the least restrictive dispositional
alternative; and it erred by relying on the guardian’s recommendations.
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 2020, the DHHR filed a child abuse and neglect petition alleging that
petitioner “whipped” then-three-year-old N.G., causing that child “severe bruising.” The DHHR
alleged that N.G.’s mother, J.R., stated that petitioner had “hit her before” and threatened her.
J.R. filed a petition for a domestic violence protective order (“DVPO”) against petitioner in
August of 2020. The DHHR also alleged that petitioner was a participant in a family court
proceeding earlier in August of 2020 and “lied under oath” regarding the location of B.G. The
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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judge presiding over that proceeding contacted law enforcement and, after an hour of searching,
the police located petitioner and B.G. at the home of J.R. During this hour-long search, petitioner
sent “threatening, angry text [messages] to” B.G.’s mother, E.S. E.S. filed a petition for a DVPO
against petitioner two days later. Finally, the DHHR alleged that a third-party to the proceedings
filed a petition for a DVPO against petitioner in early September of 2020.
The circuit court held a preliminary hearing in November of 2020. Petitioner waived his
preliminary hearing. The circuit court heard testimony from the investigating Child Protective
Services (“CPS”) worker that petitioner admitted to spanking N.G. Petitioner also admitted to
spanking the child too hard and that he was aware of the bruising he caused on N.G. Petitioner
moved for visitation with the children, asserting that the most recent DVPOs had been dismissed.
The mother of B.G. explained that her DVPO against petitioner was still active and prohibited
petitioner from contact with B.G. Accordingly, the circuit court denied petitioner’s motion. The
court also ordered petitioner to participate in a parental fitness evaluation and announced the date
of the adjudicatory hearing on the record.
In December of 2020, the circuit court held an adjudicatory hearing. Petitioner failed to
appear, but he was represented by counsel. The CPS worker reiterated her prior testimony that
petitioner admitted to bruising N.G. The CPS worker also testified that petitioner tested positive
for controlled substances during the family court proceedings in August of 2020 but admitted
that she did not know for which substances petitioner tested positive. The CPS worker testified
that she interviewed N.G.’s mother, who disclosed that petitioner had “pushed her and slapped
her in the face” on multiple occasions. According to the CPS worker, N.G.’s mother stated that
she was fearful of petitioner. Petitioner presented no evidence. Ultimately, the circuit court found
that petitioner subjected N.G.’s mother to domestic violence, severely bruised N.G., and
threatened B.G.’s mother, as alleged in the petition. The circuit court also found that petitioner
tested positive for opiates, extended opiates, and marijuana. The circuit court adjudicated him as
an abusing parent and the children as abused children.
The circuit court held a hearing in March of 2021. Petitioner appeared in person and by
counsel. The parties moved to continue the hearing, as petitioner’s psychological evaluation
report had not been completed. The circuit court continued the hearing without objection and
announced a new hearing date on the record.
Petitioner’s parental fitness evaluation report was completed later in March of 2021.
During that interview, petitioner denied that he engaged in domestic violence with the children’s
mothers. Petitioner apparently believed that N.G.’s mother told the CPS worker that he hit her
because “if she did [not], [CPS was] going to take her kid.” Petitioner also denied that he bruised
N.G., asserting that he was traveling a week prior to the alleged incident. Petitioner believed that
if he had left a bruise, “it would [have] been cleared up by the time [he] got back [to West
Virginia].” He also asserted “that if he whipped [N.G.] and caused the bruises, he would come
forward and say he did it.” Petitioner concluded his statements on the allegations by stating “I
have [not] done anything that [was] abuse and neglect, and if I did, I would [not] continue it.”
During the evaluation, petitioner admitted to “misusing” Promethazine and Codeine,
which he had been prescribed for pain following a car accident in 2018. Petitioner asserted that
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he discontinued opioid use after he tested positive for those substances in August of 2020. The
evaluator noted that “[w]hen evaluating parental fitness, a number of factors are considered.
Perhaps the most important of these is acceptance of responsibility as it tends to be predictive of
an individual’s motivation to make the necessary changes to their life to improve their
parenting.” The evaluator stated that petitioner “does not accept responsibility for the bruises
observed on [N.G.]” and he was not “completely aware” that he did something abusive or
neglectful. Finally, the evaluator concluded that, due to petitioner’s failure to accept
responsibility for the physical abuse suffered by N.G. or the domestic violence reported by his
mother, petitioner’s prognosis for improvement in his parenting was “extremely poor.”
The circuit court held the final dispositional hearing in May of 2021. Petitioner did not
appear, but counsel represented him. The DHHR moved to terminate petitioner’s parental rights
to the children. In support, a CPS worker testified that petitioner failed to acknowledge the
conditions of abuse and neglect, as described above, and failed to remain in contact with the
DHHR. Petitioner moved for a post-adjudicatory improvement period or, alternatively, post-
termination visitation with the children. He presented no evidence.
Ultimately, the circuit court found that there was no reasonable likelihood that petitioner
could substantially correct the conditions of abuse and neglect and that he had made no effort to
rectify the circumstances that led to the filing of the petition. The circuit court also found that it
was in the children’s best interests to terminate petitioner’s parental rights and that there was no
less drastic alternative. Accordingly, the circuit court denied petitioner’s motion for an
improvement period and terminated his parental rights by its June 14, 2021, order. Petitioner
now appeals that order. 2
The Court has previously held:
“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
The children’s mothers were nonabusing parents below, and the children have achieved
permanency in their respective custody.
3
Syl. Pt. 1, In re Cecil T., 228 W. Va. 89, 717 S.E.2d 873 (2011).
Petitioner argues on appeal that the circuit court erred in finding that he tested positive
for “opiates, extended opiates, and marijuana” in August of 2020, as alleged in the petition. He
emphasizes that the testifying CPS worker stated that she was unaware of the specific substances
for which petitioner tested positive in August of 2020 and was only aware that he tested positive
for controlled substances. Petitioner further argues that this erroneous finding was later used
against him to terminate his parental rights. We find petitioner is entitled to no relief in this
regard.
“[West Virginia Code § 49-4-601(i)], requires the [DHHR], in a child
abuse or neglect case, to prove ‘conditions existing at the time of the filing of the
petition . . . by clear and convincing [evidence].’ The statute, however, does not
specify any particular manner or mode of testimony or evidence by which the
[DHHR] is obligated to meet this burden.” Syllabus Point 1, In Interest of S.C.,
168 W.Va. 366, 284 S.E.2d 867 (1981).
Syl. Pt. 1, In re Joseph A., 199 W. Va. 438, 485 S.E.2d 176 (1997) (citations omitted). This
Court has explained that “‘clear and convincing’ is the measure or degree of proof that will
produce in the mind of the factfinder a firm belief or conviction as to the allegations sought to be
established.” In re F.S., 233 W. Va. 538, 546, 759 S.E.2d 769, 777 (2014). However, “the clear
and convincing standard is ‘intermediate, being more than a mere preponderance, but not to the
extent of such certainty as is required beyond a reasonable doubt as in criminal cases.’” Id.Here, the DHHR presented evidence that petitioner admitted to spanking N.G. and that he
was aware of the bruising petitioner caused. The DHHR also presented evidence that the
children’s respective mothers petitioned for DVPOs against petitioner and reported to the CPS
worker that petitioner committed acts of domestic violence against them. Notably, petitioner
failed to rebut any of the evidence presented. 3
3
Petitioner also argues on appeal that the circuit court implemented a “call in” system for
virtual hearings that was unduly burdensome. He asserts that he was unable to attend hearings
due to counsel’s failure to provide him information on how to attend such hearings or otherwise
arranging his attendance for those hearings. However, there is nothing in the record to support
his claim. The West Virginia Rules of Appellate Procedure require that
[t]he brief must contain an argument exhibiting clearly the points of fact and law
presented, the standard of review applicable, and citing the authorities relied on . .
. [and] must contain appropriate and specific citations to the record on appeal . . . .
The Court may disregard errors that are not adequately supported by specific
references to the record on appeal.
W. Va. R. App. P. 10(c)(7) (emphasis added). Additionally, in an Administrative Order entered
December 10, 2012, Re: Filings That Do Not Comply With the Rules of Appellate Procedure,
(continued . . . )
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Because the purpose of an abuse and neglect proceeding is remedial,
where the parent or guardian fails to respond to probative evidence offered against
him/her during the course of an abuse and neglect proceeding, a lower court may
properly consider that individual’s silence as affirmative evidence of that
individual’s culpability.
Syl. Pt. 2, W. Va. Dep’t of Health & Human Res. ex rel. Wright v. Doris S., 197 W. Va. 489, 475
S.E.2d 865 (1996). Therefore, there was sufficient evidence for the circuit court to adjudicate
petitioner as an abusing parent. 4 Notably, while petitioner asserts that the circuit court’s finding
regarding his positive drug screen result is erroneous, petitioner admitted to “misusing”
Promethazine and Codeine during his parental fitness evaluation, stating that he discontinued
opioid use after he tested positive for those substances in August of 2020. Furthermore, as more
fully addressed herein, neither the DHHR nor the guardian focused on petitioner’s alleged
substance abuse as the most significant factor for the termination of his parental rights to the
children. The most significant factor tending toward termination was petitioner’s failure to
acknowledge his abuse of N.G. and his failure to participate in these proceedings below.
Petitioner argues that the circuit court erred in denying his motion for an improvement
period, which we find to be meritless. In order to be granted a post-adjudicatory improvement
the Court specifically noted that “[b]riefs with arguments that do not contain a citation to legal
authority to support the argument presented and do not ‘contain appropriate and specific citations
to the record on appeal’ as required by rule 10(c)(7)” are not in compliance with this Court’s
rules. In that order, the Court went on to instruct that “all of the requirements of the Rules must
be strictly observed by litigants” because “[t]he Rules are not mere procedural niceties; they set
forth a structured method to permit litigants and this Court to carefully review each case.” Here,
petitioner cannot cite to any points of fact to support this argument and, therefore, it is precluded
from review.
The Court notes, however, that petitioner was properly provided notice of all of the
hearings. See W. Va. Code § 49-4-601(e) (requiring “at least [ten] days’ notice” of adjudicatory
and dispositional hearings). Specifically, the date and time of the adjudicatory hearing, which
petitioner did not attend, was provided during the preliminary hearing while petitioner was
present. Likewise, the date and time of the dispositional hearing was provided during a hearing
in March of 2021, where petitioner was in attendance. Accordingly, petitioner had actual notice
of these hearings as required by statute.
4
Assuming, arguendo, that the circuit court’s finding regarding petitioner’s positive drug
screen result is erroneous, such error would be harmless because the evidence supports the
circuit court’s finding that petitioner physically abused N.G. and subjected the children’s
mothers to domestic violence. As this Court has recognized, “[m]ost errors, including
constitutional ones are subject to harmless error analysis.” State ex. Rel. Waldron v. Scott, 222
W. Va. 122, 126, 663 S.E.2d 576, 580 (2008).
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period under West Virginia Code § 49-4-610(2)(B), the parent must first “demonstrate[], by clear
and convincing evidence, that the [parent] is likely to fully participate in the improvement
period.” “West Virginia law allows the circuit court discretion in deciding whether to grant a
parent an improvement period.” In re M.M., 236 W. Va. 108, 115, 778 S.E.2d 338, 345 (2015);
see also In re Tonjia M., 212 W. Va. 443, 448, 573 S.E.2d 354, 359 (2002) (holding that a circuit
court has the discretion to deny a motion for an improvement period when no improvement is
likely). Critically, petitioner failed to acknowledge the conditions of abuse and neglect. This
Court has held that
[i]n order to remedy the abuse and/or neglect problem, the problem must first be
acknowledged. Failure to acknowledge the existence of the problem, i.e., the truth
of the basic allegation pertaining to the alleged abuse and neglect or the
perpetrator of said abuse and neglect, results in making the problem untreatable
and in making an improvement period an exercise in futility at the child’s
expense.
In re Timber M., 231 W. Va. 44, 55, 743 S.E.2d 352, 363 (2013) (citation omitted). The record
shows that, during the parental fitness evaluation, petitioner denied that he had “done anything
that [was] abuse and neglect.” Petitioner excused the bruising on N.G., stating that any bruising
he may have caused from spanking the child should have “cleared up” while he was out of state.
Further, petitioner denied that he engaged in domestic violence with the children’s mothers. In
sum, petitioner failed to acknowledge or accept responsibility for the abuse and neglect that gave
rise to the filing of the petition, and, therefore, an improvement period would be an exercise in
futility. Petitioner’s argument on appeal that, if granted an opportunity, he would have
“acknowledged the need for services” is unavailing. Petitioner was granted an opportunity to
acknowledge the conditions of abuse and neglect and, instead, denied them. Therefore, he is
entitled to no relief in this regard.
Petitioner also argues that the circuit court erred in finding that termination of his parental
rights was the least restrictive dispositional alternative. He asserts that the children could achieve
permanency in their mothers’ custody, regardless of whether the circuit court terminated his
parental rights. In petitioner’s view, he “is not a bad parent. He is an individual who loves his
children and took appropriate care of them when given the chance.” We find this argument
unpersuasive.
Pursuant to West Virginia Code § 49-4-604(c)(6), a circuit court may terminate a parent’s
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 welfare of the children. West Virginia Code § 49-4-604(d) provides that there is no
reasonable likelihood that the conditions of neglect or abuse can be substantially corrected when
“based upon the evidence before the court, the abusing adult or adults have demonstrated an
inadequate capacity to solve the problems of abuse or neglect on their own or with help.” Here,
petitioner’s failure to acknowledge the conditions of neglect and abuse is an insurmountable
barrier to parental improvement. Consistent with our prior holdings, the circuit court was
justified in finding that there was no reasonable likelihood that the conditions of neglect and
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abuse could be substantially corrected based on petitioner’s failure to acknowledge the
conditions of abuse and neglect.
Furthermore, this Court has held
“[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). Therefore, the circuit court
had the discretion to terminate petitioner’s parental rights, and we find no abuse of discretion in
this instance. We also reject petitioner’s argument that termination of his parental rights was
unnecessary because the children achieved permanency in their mother’s custody. We have
previously held that West Virginia Code § 49-4-604 “permits the termination of one parent’s
parental rights while leaving the rights of the nonabusing parent completely intact, if the
circumstances so warrant.” In re Emily, 208 W. Va. 325, 344, 540 S.E.2d 542, 561 (2000).
Further, “simply because one parent has been found to be a fit and proper caretaker for [the]
child does not automatically entitle the child’s other parent to retain his/her parental rights if
his/her conduct has endangered the child and such conditions of abuse and/or neglect are not
expected to improve.” Id. We find no error in the circuit court’s findings or ultimate decision
upon our review.
Finally, petitioner argues that the circuit court erred in relying upon the recommendations
of the guardian when the guardian failed to issue a dispositional report and failed to conduct an
independent investigation. However, petitioner did not raise this issue below. “‘Our general rule
is that nonjurisdictional questions . . . raised for the first time on appeal, will not be considered.’
Shaffer v. Acme Limestone Co., Inc., 206 W.Va. 333, 349 n. 20, 524 S.E.2d 688, 704 n. 20
(1999).” Noble v. W. Va. Dep’t of Motor Vehicles, 223 W. Va. 818, 821, 679 S.E.2d 650, 653
(2009). We have explained that
[t]he rationale behind this rule is that when an issue has not been raised below, the
facts underlying that issue will not have been developed in such a way so that a
disposition can be made [. . . .] Moreover, we consider the element of fairness.
When a case has proceeded to its ultimate resolution below, it is manifestly unfair
for a party to raise new issues [before this Court]. Finally, there is also a need to
have the issue refined, developed, and adjudicated by the trial court, so that we
may have the benefit of its wisdom.
In re E.B., 229 W. Va. 435, 468, 729 S.E.2d 270, 303 (2012) (quoting Whitlow v. Bd. of Educ. of
Kanawha Cnty., 190 W.Va. 223, 226, 438 S.E.2d 15, 18 (1993). Rather than raise the issue
before the circuit court and provide the guardian an opportunity to respond, petitioner now
assumes on appeal that the guardian did not conduct an investigation and “simply reiterated what
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was in the [DHHR’s] [p]etition.” Due to the insufficient record on this matter, we decline to
address this assignment of error.
For the foregoing reasons, we find no error in the decision of the circuit court, and its
June 14, 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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