In re P.P. ( 2022 )

FILED
September 20, 2022
EDYTHE NASH GAISER, CLERK
STATE OF WEST VIRGINIA SUPREME COURT OF APPEALS
OF WEST VIRGINIA
SUPREME COURT OF APPEALS
In re P.P.
No. 22-0168 (Cabell County 21-JA-43)
MEMORANDUM DECISION
Petitioner Father R.P., by counsel Moriah N. Myers, appeals the Circuit Court of Cabell
County’s February 2, 2022, order terminating his parental rights to P.P. 1 The West Virginia
Department of Health and Human Resources (“DHHR”), by counsel Patrick Morrisey and Andrew
T. Waight, filed a response in support of the circuit court’s order. The guardian ad litem
(“guardian”), Sarah Dixon, also filed a response on the child’s behalf in support of the circuit
court’s order. Petitioner filed a reply.
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 April of 2021, the DHHR filed a petition alleging that petitioner abused and neglected
the child as a result of his substance abuse and altercations with the mother in the hospital shortly
after the child was born drug affected. Thereafter, the circuit court accepted petitioner’s stipulation
to the allegations in the petition and adjudicated him as an abusing parent. The court also granted
petitioner a post-adjudicatory improvement period, which the DHHR moved to terminate shortly
thereafter because of petitioner’s continued positive drug screens. By November of 2021, the
circuit court denied petitioner’s motion to extend his improvement period due to his
noncompliance, including his participation in domestic altercations with the mother.
The court held a dispositional hearing in January of 2022. The DHHR presented evidence
that petitioner had enrolled in several drug treatment programs but failed to complete a single one.
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 DHHR also showed that petitioner missed thirty-three drug screens, was inconsistent with
parenting and adult life skill classes, and continuously tested positive for illicit substances when
he did submit to screens. Ultimately, the court found that petitioner failed to substantially address
his substance abuse. The circuit court determined that there was no reasonable likelihood that the
conditions of neglect or abuse could be substantially corrected in the near future and that it was
necessary for P.P.’s welfare to terminate petitioner’s parental rights. Petitioner now appeals the
February 2, 2022, dispositional order terminating his parental rights. 2
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).
On appeal, petitioner first argues that the circuit court erred in terminating his parental
rights when the DHHR filed the case plan five months late. Petitioner correctly states that after the
granting of a post-adjudicatory improvement period, the DHHR must file a case plan within thirty
days, which admittedly did not occur below. See Rule 37 of the Rules of Procedure for Child Abuse
and Neglect Proceedings. However, petitioner fails to establish how he was prejudiced in any way
by the DHHR’s failure to comply with this rule, given that the MDT adopted the terms of his case
plan in July of 2021 and the DHHR began offering services to petitioner thereafter. Clearly,
petitioner was fully on notice of what was required of him to successfully address the conditions
of abuse and neglect and he does not argue that he was confused or unaware of the court’s
expectations of him during these proceedings. We have explained that the “purpose of the family
case plan . . . is to clearly set forth an organized, realistic method of identifying family problems
and the logical steps to be used in resolving or lessening these problems.” Syl. Pt. 2, in part, In re
Desarae M., 214 W. Va. 657, 591 S.E.2d 215 (2003) (citation omitted). Because petitioner was
aware of the steps necessary to remedy the conditions of abuse and neglect, we find that vacation
of the dispositional order is not warranted under the specific circumstances of this case. Syl. Pt.
3, In re Emily G., 224 W. Va. 390, 686 S.E.2d 41 (2009) (requiring vacation of dispositional orders
when the process of abuse and neglect proceedings has been “substantially disregarded or
frustrated”).
2
The mother’s parental rights were also terminated below. According to the parties, the
permanency plan for the child is adoption by the foster family.
2
Further, the DHHR filed the case plan prior to the dispositional hearing, and the plan clearly
shows that the DHHR requested termination of petitioner’s parental rights and that the permanency
plan for P.P. was adoption. Additionally, the DHHR’s court summary prior to the dispositional
hearing requested termination of his parental rights, thereby demonstrating that petitioner’s
argument that the child’s permanency plan was never communicated to the parents is without
merit. Accordingly, any argument petitioner raises on appeal regarding a lack of notice cannot
succeed. 3
Next, petitioner argues that the DHHR failed to make reasonable efforts to reunify the
family. However, petitioner’s arguments are utterly belied by the record which shows that the
DHHR provided numerous services to petitioner throughout his improvement period. Petitioner
was provided drug screening but missed them or tested positive for illicit substances. Petitioner’s
parenting and education provider assisted him with seeking drug treatment, but petitioner either
was removed from programs or quit without completing a single program. Petitioner attended only
a few parenting education and adult life skills classes, lied about his employment, and could not
exercise visits with the child due to the couple’s constant fighting and altercations.
Petitioner ignores that “[w]hen any improvement period is granted to a respondent pursuant
to this section, the respondent shall be responsible for the initiation and completion of all terms of
the improvement period.” W. Va. Code § 49-4-610(4)(A). Although the Court is concerned with
the DHHR’s untimely filing of the case plan, under the specific circumstances of this case, we
believe that petitioner was fully aware that achieving and maintaining sobriety was required of
him. Furthermore, petitioner blames the DHHR worker for not obtaining information regarding
his alleged medication-assisted treatment and residing at a sober living home, but petitioner failed
to sign medical releases of information. See W. Va. Code § 49-4-610(4)(B) (requiring respondents
to execute a “release of all medical information” including “information provided by mental health
and substance abuse professionals and facilities”). In short, petitioner completely failed to respond
to the DHHR’s reasonable efforts to reunify the family and, as such, cannot dispute the circuit
court’s findings that there was no reasonable likelihood that he could correct the conditions of
abuse and neglect in the near future and that termination was necessary for the child’s welfare. See
W. Va. Code § 49-4-604(d)(3).
For the foregoing reasons, we find no error in the decision of the circuit court, and its
February 2, 2022, order is hereby affirmed.
Affirmed.
ISSUED: September 20, 2022
3
Petitioner also alleges that he was not properly served with the case plan. However,
petitioner did not raise the alleged lack of service of the case plan prior to or during the
dispositional hearing, thereby waiving the issue. Noble v. W. Va. Dep’t of Motor Vehicles, 223 W.
Va. 818, 821, 679 S.E.2d 650, 653 (2009) (“Our general rule is that nonjurisdictional questions . .
. raised for the first time on appeal, will not be considered.”) (citation omitted).
3
CONCURRED IN BY:
Chief Justice John A. Hutchison
Justice Elizabeth D. Walker
Justice Tim Armstead
Justice William R. Wooton
Justice C. Haley Bunn
4