In re J.F. and J.F. ( 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 J.F.-1 and J.F.-2
No. 21-0575 (Wood County 19-JA-243 and 19-JA-249)
MEMORANDUM DECISION
Petitioner Father M.F., by counsel Eric K. Powell, appeals the Circuit Court of Wood
County’s June 22, 2021, order terminating his parental rights to J.F.-1 and his custodial rights to
J.F.-2. 1 The West Virginia Department of Health and Human Resources (“DHHR”), by counsel
Patrick Morrisey and Lee Niezgoda, filed a response in support of the circuit court’s order. The
guardian ad litem, Keith White, filed a response on behalf of the children in support of the circuit
court’s order. Intervenor Foster Parents B.B. and M.B., by counsel Michael D. Farnsworth, filed a
response also in support of the circuit court’s order. Petitioner filed a reply. On appeal, petitioner
argues that the circuit court erred in terminating his parental rights when he was compliant with
the terms and conditions of his improvement period and erred in failing to grant an extension to
his improvement period.
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 December of 2019, the DHHR filed an abuse and neglect petition against mother J.S.
alleging that she gave birth to J.F.-1 after her parental rights to other children (not children of
petitioner) had been previously involuntarily terminated in 2013 and 2015. According to the
DHHR, J.S. admitted to using marijuana during her pregnancy with J.F.-1 and explained that
petitioner was J.F.-1’s father but he was currently incarcerated. The DHHR concluded that J.S.
had not had a change in circumstances and filed the instant petition. The DHHR filed an amended
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 share the same initials, we will
refer to them as J.F.-1 and J.F.-2, respectively, throughout this memorandum decision.
1
petition in January of 2020, adding J.F.-2 as a respondent child of petitioner and stating that the
child was in guardianship with a relative, S.A., and that petitioner exercised visitations with the
child. There were no allegations of abuse and neglect against petitioner at that time.
The circuit court held an adjudicatory hearing in February of 2020, wherein it adjudicated
J.S. as an abusive and neglectful parent and granted her a post-adjudicatory improvement period.
In June of 2020, petitioner was released from incarceration and did not independently seek custody
of J.F.-1 as a nonabusing parent. 2 Rather, he moved in with J.S. At a review hearing in September
of 2020, the court ordered the DHHR to provide petitioner services, and he participated in a de
facto preadjudicatory improvement period, as the DHHR required him to, among other things,
abstain from using drugs or alcohol and from possessing the same; maintain an appropriate home;
obtain a safe, stable living environment; participate in adult life skills and parenting education
sessions; submit to drug screens; and exercise supervised visits with the children. 3 At the same
hearing, the parties agreed to begin reunification measures with J.F.-1 and extended J.S.’s post-
adjudicatory improvement period.
However, on September 15, 2020, a few hours after J.S. and petitioner exercised their first
unsupervised home visit with J.F.-1, the couple engaged in severe domestic violence. As a result,
the DHHR filed an amended petition on September 25, 2020, alleging that law enforcement
officers reported finding both petitioner and J.S. with bloodied faces and obvious injuries. The
officers noted that J.S.’s breath smelled of alcohol and that she claimed petitioner hit himself. J.S.
also stated that petitioner grabbed her and threw her to the floor, causing her to break her nose and
that the fight started due to petitioner’s verbal abuse and alleged infidelity. She stated that she
struck petitioner in self-defense as she tried to leave the house. Petitioner told police that J.S.
“drinks a lot” and had been drinking that day when the couple had an argument at dinner. Petitioner
reported that J.S threw his plate of food on the floor and he poured her beer over her. He stated
that J.S. repeatedly hit him on the head, and he bit her arm in self-defense. After interviewing
petitioner and J.S., and observing the crime scene, officers determined that J.S. was the primary
aggressor and arrested her. Thereafter, a CPS worker interviewed J.S., who stated that petitioner
obtained a domestic violence protective order only to avoid having his parole revoked. J.S. also
admitted to purchasing beer but denied drinking it and wrote to the worker that she believed that
her progress was going well before petitioner came home from jail. J.S. stated that she alone had
“done everything” for J.F.-1 and outlined that the only supplies petitioner had provided was a
“small pack of diapers, [one] sippy cup, and one set of bowls.”
2
In cases where a parent remains in a relationship with any individual that has been deemed
inappropriate or a threat to the child or children’s wellbeing, such as a parent whose rights to any
child or children have already been terminated, the Court encourages multidisciplinary teams to
address this barrier to reunification as soon as possible. We further encourage circuit courts to
explicitly require the DHHR’s case plans to address any concerns with respondent parents
continuing to reside together if separation is necessary for one or more parents to achieve
reunification with the child or children. Such practices clarify what is required of respondent
parents and better situate the circuit courts to address any future issues arising between the parents.
3
The record contains a rubric of requirements drafted by the DHHR for a preadjudicatory
improvement period for petitioner, which stated that it began on September 4, 2020.
2
Despite initially telling the CPS worker that J.S. would not be allowed back into the home,
petitioner then requested that the domestic battery charge be dismissed. In his statement to the
prosecutor requesting dismissal, he wrote, “I want to drop the charges on [J.S.] [W]hat happen[ed]
should have never went that fare (sic) but she has fought tooth and nail for her son and I don’t
want he (sic) to lose him over all this.” Petitioner likewise failed to prosecute the domestic violence
petition he filed against J.S. Thereafter, the couple continued living together. The DHHR
concluded that the couple engaged in domestic violence and that petitioner failed to protect the
children by requesting the criminal charges against J.S. be dismissed and filed an amended petition.
In a court memorandum summary dated November 9, 2020, the assigned CPS worker
explained that she was concerned with petitioner requesting the dismissal of the criminal charges
against J.S. because he did not refute that the domestic violence took place and only requested
dismissal to allow J.S. to reunify with J.F.-1. The worker emphasized that J.S.’s prior terminations
were due in part to domestic violence and, as such, she did not believe J.S. would rectify the
conditions of abuse. She recommended the termination of J.S.’s parental rights.
In mid-November of 2020, the circuit court held an adjudicatory hearing, wherein
petitioner stipulated to failing to protect the children by requesting to dismiss the criminal case
against J.S. and failing to pursue the domestic violence protective order against J.S. The court
accepted petitioner’s stipulation and granted him a post-adjudicatory improvement period. A
DHHR provider stated in her report in December of 2020 that a barrier to petitioner’s reunification
with his children was his continued relationship with J.S. In February of 2021, the court
adjudicated J.S. on the new allegations of domestic violence and, against the objections of the
DHHR, granted her a post-dispositional improvement period. Again, in February of 2021, a
provider noted that a barrier to reunification for petitioner was the inability to perform at-home
visits with the child due to his continued living with J.S.
A couple of months later, in April of 2021, the foster parents, B.B. and M.B., filed a motion
to intervene, citing J.F.-1’s being placed in their custody for fifteen months of the most recent
twenty-two months. At a review hearing held in May of 2021, the DHHR reported that J.S. was
twenty weeks pregnant with petitioner’s child and that she and petitioner were otherwise compliant
with the terms of their improvement periods. The circuit court granted the foster parents’ motion
to intervene without objection of the parties. The circuit court ordered that services for petitioner
continue but noted that the statutory time limits contained in West Virginia Code § 49-4-605(a)(1)
had been surpassed. 4
On May 21, 2021, providers visited petitioner’s home where they found twenty-eight large
aquariums filled with fish and many without lids. The workers found a mother cat and four kittens
4
The DHHR is required to seek termination when a child
has been in foster care for 15 of the most recent 22 months as determined by the
earlier of the date of the first judicial finding that the child is subjected to abuse or
neglect or the date which is 60 days after the child is removed from the home.
W. Va. Code § 49-4-605(a)(1).
3
with an unchanged litter box causing the home to smell of cat urine. There were also two dogs,
two rabbits, a chameleon, and many flies and bugs in the home. The worker noted that the rabbits
had their own room, but there was no bedroom free of animals designated for the children. A
ceiling was also noted to be caving in, and when asked why it was not repaired, J.S. replied that it
was too expensive. When asked about the costs for all of the animals’ food, J.S. answered twelve
dollars a month for fish food and did not address the other animals. J.S. was defensive when
workers asked her to address these concerns and refused to change anything without the court
ordering it. Due to the foul odor and other issues, the providers decided to keep visits with the
children at their headquarters.
Prior to the final dispositional hearing, a CPS worker submitted a memorandum summary
stating that petitioner had not submitted summaries from his parenting education classes, had not
submitted updated employment information, and had not had contact with the worker since May
of 2021. The worker also noted numerous concerns with the conditions of the home and the amount
of time J.F.-1 had spent in foster care due to petitioner’s incarceration and eventual failure to
protect the child from J.S. after the domestic violence incident.
On June 16, 2021, the circuit court held a final dispositional hearing. The circuit court
heard arguments that J.F.-1 had been in the foster parents’ care for nearly seventeen months and
that there were no compelling circumstances to extend petitioner or J.S.’s improvement periods
beyond the statutory time limits. J.S. argued that her pregnancy was a compelling circumstance to
extend the statutory time limits, but the court disagreed, finding that petitioner’s pregnancy was a
choice she made while knowing she had a pending child abuse and neglect action and that her
parental rights to four other children had been previously involuntarily terminated. Likewise,
petitioner argued in support of his previously filed motion to extend his post-adjudicatory
improvement period and stated that he had only been granted a six-month post-adjudicatory
improvement period. The court found that the petitioner voluntarily absented himself from caring
for J.F.-1 due to his incarceration for a parole violation and failed to seek custody of J.F.-1 once
he was released in June of 2020. The court specifically found that “rather than establishing a home
for himself and [J.F.-1, petitioner] chose to leave his child in foster care and live with [J.S.]” The
court found that petitioner’s behavior was akin to “leaving the baby on a shelf while he focused
on the relationship with [J.S.]” As such, the court found that there were no compelling
circumstances to extend petitioner’s improvement period beyond the statutory time frame. The
court noted that “the test is not whether a parent is attending appointments and classes but whether
the parent has changed his/her behavior to make them an appropriate parent to have the children
safely returned.” The court also noted that petitioner’s home was unfit and that visitations were
stopped due to the home’s poor conditions. Finally, the circuit court found that there was no
reasonable likelihood that the conditions of abuse and neglect could be corrected in the near future
and that termination of petitioner’s parental rights was in J.F.-1’s best interest. The court also
terminated petitioner’s custodial rights to J.F.-2. It is from the June 22, 2021, dispositional order
that petitioner appeals. 5
5
The respective mothers’ parental rights to the children were terminated below. The
permanency plan for J.F.-1 is adoption by his foster family, and the plan for J.F.-2 is to remain in
permanent guardianship with a relative.
4
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
when he had substantially completed most of the terms and conditions of his post-adjudicatory
improvement period. Petitioner contends that he remained drug free and was appropriate during
all visits with the children. According to petitioner he increased his bond with J.F.-2 and created a
bond with J.F.-1. Petitioner’s performance and bonds with the children, he argues, should have
warranted compelling circumstances to extend his improvement period. Petitioner concedes that
J.F.-1 had been in foster care for more than the statutory time limits but argues that he was not
adjudicated and granted an improvement period until the last seven months of the proceedings.
It is undisputed that the statutory timeframes for child abuse and neglect matters were
exhausted in this matter pursuant to West Virginia Code § 49-4-610(9), which provides that
[n]otwithstanding any other provision of this section, no combination of any
improvement periods or extensions thereto may cause a child to be in foster care
more than fifteen months of the most recent twenty-two months, unless the court
finds compelling circumstances by clear and convincing evidence that it is in the
child’s best interests to extend the time limits contained in this paragraph.
Regarding improvement periods, this Court has noted that “[i]mprovement periods are . . .
regulated, both in their allowance and in their duration, by the West Virginia Legislature, which
has assumed the responsibility of implementing guidelines for child abuse and neglect proceedings
generally.” In re Emily, 208 W. Va. 325, 334, 540 S.E.2d 542, 551 (2000). We have noted that the
requirements set forth in West Virginia Code § 49-4-610
are not mere guidelines. . . . The time limitations and standards contained therein
are mandatory and may not be casually disregarded or enlarged without detailed
findings demonstrating exercise of clear-cut statutory authority. Discretion granted
to the circuit court within this framework is intended to allow the court to fashion
appropriate measures and remedies to highly complex familial and inter-personal
5
issues—it does not serve as a blanket of immunity for the circuit court to manage
abuse and neglect cases as its whim, personal desire, or docket may fancy.
In re J.G., 240 W. Va. 194, 204, 809 S.E.2d 453, 463 (2018). “Critically, ‘[a] parent’s rights are
necessarily limited . . . [as to improvement periods] because the pre-eminent concern in abuse and
neglect proceedings is the best interest of the child subject thereto.’” Id. (citation omitted).
Additionally,
the statutory limits on improvement periods (as well as our case law limiting the
right to improvement periods) dictate that there comes a time for decision, because
a child deserves resolution and permanency in his or her life, and because part of
that permanency must include at minimum a right to rely on his or her caretakers
to be there to provide the basic nurturance of life.
State ex rel. Amy M. v. Kaufman, 196 W. Va. 251, 260, 470 S.E.2d 205, 214 (1996). Finally,
“[p]ursuant to West Virginia Code § 49-[4-610(6) (eff. 2015)], before a circuit court
can grant an extension of a post-adjudicatory improvement period, the court must
first find that the respondent has substantially complied with the terms of the
improvement period; that the continuation of the improvement period would not
substantially impair the ability of the Department of Health and Human Resources
to permanently place the child; and that such extension is otherwise consistent with
the best interest of the child.” Syl. Pt. 7, in part, In re Isaiah A., 228 W. Va. 176,
718 S.E.2d 775 (2010) (per curiam).
Syl. Pt. 7, State ex rel. P.G.-1 v. Wilson, -- W. Va. --, -- S.E.2d --, 2021WL 5355634 (2021).
Here, the circuit court specifically found no compelling circumstances to extend
petitioner’s improvement period to allow J.F.-1 to continue in foster placement beyond fifteen
months. Notably, by the dispositional hearing, J.F.-1 had been with the intervening foster parents
for seventeen months, and the circuit court relied heavily on petitioner’s apparent lack of interest
in independently parenting J.F.-1. Indeed, for the majority of the time that J.F.-1 had been placed
with the intervening foster parents, he could have been living with petitioner, but petitioner chose
to live with J.S. instead. Accordingly, petitioner cannot complain of the length of time J.F.-1 had
been in foster care, and thus the fifteen-month time limit, as he had the ability for a large portion
of the case to have J.F.-1 in his own care as a nonabusing parent. In fact, petitioner’s adjudication
was essentially due to his failure to protect the children by failing to leave J.S. Had petitioner
proceeded with the criminal charges against J.S. and the domestic violence petition, he could have
remained a nonabusing parent and able to take custody of J.F.-1. However, due to petitioner’s own
poor choices, J.F.-1 remained in the care of the foster parents.
Additionally, petitioner failed to show how an extension to his improvement period would
not have substantially impaired the DHHR’s ability to permanently place J.F.-1 and that “such
extension [wa]s otherwise consistent with the best interest of the child.” Id. Although petitioner
complied with many terms of his post-adjudicatory improvement period, he fails to show how J.F.-
1’s placement in foster care while sitting in legal limbo did not jeopardize the child’s ultimate need
6
for permanency. Most importantly, petitioner cannot show how more time spent in foster
placement rather than permanent placement was in J.F.-1’s best interest. J.F.-1 had lived with the
intervening foster parents for the entirety of his short life and deserved permanency and stability.
This court has held the following:
“[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, and this is particularly applicable to children under the age of
three years who are more susceptible to illness, need consistent close interaction
with fully committed adults, and are likely to have their emotional and physical
development retarded by numerous placements.” Syl. Pt. 1, in part, In re R.J.M.,
164 W.Va. 496, 266 S.E.2d 114 (1980).
Cecil T., 228 W. Va. at 91, 717 S.E.2d at 875, Syl. Pt. 4. While petitioner argues that he should
have been given more time, our case law makes it abundantly clear that a parent’s opportunity to
continue to participate in an improvement period is not upheld to the detriment of the children.
Accordingly, we find no error in the circuit court’s denial of petitioner’s motion for an extension
to his post-adjudicatory improvement period.
The evidence, as set forth above, likewise supports the circuit court’s decision to terminate
petitioner’s parental rights. 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) 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 “demonstrated an inadequate capacity to
solve the problems of abuse or neglect on [his or her] own or with help.”
The record establishes that petitioner demonstrated an inadequate capacity to solve the
problems of abuse or neglect on his own or with help. Petitioner was not only granted more than
six months of services during his post-adjudicatory improvement period but was also provided
three months of services during his de facto preadjudicatory improvement period. Petitioner’s
possession of alcohol as well as the domestic violence incident with J.S. were clearly violations of
the terms and conditions of his preadjudicatory improvement period. Likewise, petitioner failed to
maintain safe, stable, and adequate housing during his post-adjudicatory hearing as evidenced by
the visitation providers ceasing home visits due to the home’s condition. This evidence supports
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. As such, we find no error in the
circuit court terminating petitioner’s parental rights to J.F.-1 or his custodial rights to J.F.-2.
For the foregoing reasons, we find no error in the decision of the circuit court, and its June
22, 2021, order is hereby affirmed.
Affirmed.
ISSUED: February 1, 2022
7
CONCURRED IN BY:
Chief Justice John A. Hutchison
Justice Elizabeth D. Walker
Justice Tim Armstead
Justice Evan H. Jenkins
Justice William R. Wooton
8