In re L.G., B.G., A.G., and H.G. ( 2022 )

FILED
May 12, 2022
EDYTHE NASH GAISER, CLERK
STATE OF WEST VIRGINIA SUPREME COURT OF APPEALS
OF WEST VIRGINIA
SUPREME COURT OF APPEALS
In re L.G., B.G., A.G., and H.G.
No. 21-1035 (Monongalia County 20-JA-66, 20-JA-67, 20-JA-68, and 20-JA-69)
MEMORANDUM DECISION
Petitioner Father J.G., by counsel Elizabeth B. Warnick, appeals the Circuit Court of
Monongalia County’s December 3, 2021, order terminating his parental rights to L.G., B.G., A.G.,
and H.G. 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 (“guardian”), Tiffany L. Kent, filed a response on behalf of the children also in
support of the circuit court’s order. On appeal, petitioner argues that the circuit court erred in
adjudicating him as an abusing parent and denying him the assistance of counsel during the
adjudicatory hearing. 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.
The DHHR filed an abuse and neglect petition against petitioner in March of 2020. The
DHHR alleged that, on February 21, 2020, the mother and petitioner were pulled over in a traffic
stop, during which it was discovered that the license plate on their car was stolen. During the stop,
officers located marijuana on petitioner’s person and methamphetamine in the mother’s purse, but
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).
2
Petitioner’s counsel sought leave for petitioner to file a supplemental brief as a self-
represented litigant in accordance with Rule 10(c)(10)(b) of the West Virginia Rules of Appellate
Procedure. The Court granted petitioner leave to file a self-represented supplemental brief on
January 13, 2022, and petitioner filed his supplemental brief on February 16, 2022.
1
neither appeared to be under the influence. Petitioner was arrested due to the stolen license plate,
possession of marijuana, and an outstanding warrant for embezzlement. 3 At least two of the
children were in the vehicle at the time of the arrest.
On February 26, 2020, a Child Protective Services (“CPS”) worker visited petitioner’s
home. According to the petition, petitioner denied abusing drugs, but the mother admitted to
abusing methamphetamine. At that time, the CPS worker implemented a temporary protection
plan, wherein the parents agreed to submit to drug screens and participate in services. The worker
instructed the parents to submit to a drug screen the next day. On February 27, 2020, neither parent
appeared to submit to a drug screen, and that evening, the CPS worker returned to the home. The
petition indicated that petitioner was absent but that the mother admitted that she and petitioner
had abused methamphetamine together that morning. The mother further indicated that she abused
the substance as frequently as every other day. Law enforcement officers and the CPS worker
performed a search of the home and found a white powdery substance on a nightstand in the
parents’ room next to where the children were sitting. The following day, the mother submitted to
a drug screen which was positive for methamphetamine and amphetamine. Petitioner did not
submit to a screen. The parents waived their preliminary hearing.
After several continuances, the court held an adjudicatory hearing in August of 2020.
Petitioner failed to attend, but his counsel appeared on his behalf. Petitioner’s counsel moved the
circuit court to permit her to withdraw as petitioner’s counsel. Counsel stated that, shortly before
the start of the hearing, petitioner texted her to express that he did not want to move forward with
her representation and wished to speak to another attorney. Counsel stated that she believed there
had been a breakdown in communication and stated she could not represent petitioner that day.
However, because petitioner had notice of the hearing and failed to appear to request new counsel
or communicate that there had been a breakdown in communication with his counsel, the court
denied the motion and proceeded to hear evidence.
The DHHR presented the testimony of the investigating CPS worker, who stated that she
visited petitioner’s home following his arrest. The worker testified that, during her initial visit,
petitioner admitted to having been arrested and admitted to using controlled substances the day of
the worker’s visit. The mother also admitted to having knowledge that petitioner abused drugs.
The worker stated that, given the concerns of drug abuse, a temporary protection plan was
implemented but that neither parent submitted to a drug screen the following day as requested.
According to the worker, she returned to the home and noted that both parents were present and
that the mother admitted that both she and petitioner had abused methamphetamine that morning.
The worker also testified that she observed a white powdery substance on the parents’ nightstand.
Lastly, the CPS worker testified that petitioner never submitted to a drug screen or reached out to
the DHHR prior to the petition’s filing.
At the conclusion of the hearing, the court adjudicated petitioner as an abusing parent. The
court noted that the mother’s disclosure that she and petitioner abused drugs in the home and
petitioner’s failure to comply with the temporary protection plan were “very strong evidence of
3
It does not appear that petitioner was ever charged with possession of marijuana.
2
what was going on.” The court also noted that petitioner failed to submit to a drug screen and the
circuit court presumed the missed test to be positive.
Subsequent to the adjudicatory hearing, petitioner’s counsel filed a written motion to
withdraw as counsel, and the court granted said motion and appointed petitioner new counsel.
After her appointment, petitioner’s counsel filed a motion to re-open adjudication to permit
petitioner to testify in his defense. The court held a hearing in September of 2020 and addressed
petitioner’s motion to reopen adjudication. Counsel for petitioner proffered in support of the
motion that petitioner “does admit to being an addict, but he doesn’t feel like that status affects his
ability to parent his children.” The DHHR objected to the motion and noted that, immediately prior
to the hearing, it requested that petitioner submit to a drug screen and that he “flat out [said] no.”
The DHHR further indicated that petitioner “has been noncompliant with all services.” Ultimately,
the court denied petitioner’s motion to re-open adjudication. The court found that petitioner was
aware of the hearing date and chose not to attend. Further, petitioner’s counsel appeared on his
behalf at the adjudicatory hearing, and his counsel was able to “ask questions and have a
meaningful hearing on [petitioner’s] behalf.” At the conclusion of the hearing, petitioner was
offered an improvement period and he declined. Following the hearing, petitioner submitted to a
drug screen and tested positive for methamphetamine.
In November of 2020, petitioner requested a post-adjudicatory improvement period, and
the court granted the same. The court held a review hearing in March of 2021. The DHHR advised
the court that petitioner was noncompliant with services and continued to test positive for
methamphetamine. Petitioner addressed the court and denied that he abused and neglected the
children. Petitioner argued that he loved the children and that returning the children to his home
would provide the motivation he needed to achieve sobriety. Petitioner denied that he needed
inpatient treatment and, when asked what he needed to do better, he responded, “I love myself the
way that I am.” Nevertheless, the court extended petitioner’s improvement period.
In June of 2021, the court held a final review hearing for petitioner’s improvement period.
Petitioner failed to appear, but his counsel appeared on his behalf and requested another extension
to his improvement period. The DHHR objected to petitioner’s motion and advised the court that
petitioner continued to be noncompliant with services. Specifically, petitioner tested positive for
methamphetamine in March of 2021 and thereafter failed to attend seven drug screens. The DHHR
further indicated that petitioner yelled and cursed at the multidisciplinary team (“MDT”) members
during meetings. According to the DHHR, visits with the children were stopped due to the parents’
inappropriate actions during the visits as they lied to the children and caused them to be mistrustful
of their foster families, CPS workers, and therapists. The court denied petitioner’s motion for an
extension and set the matter for disposition.
The court held an initial dispositional hearing in July of 2021. Petitioner failed to appear
but was represented by counsel. The DHHR presented the testimony of three service providers
who testified as to the children’s progress in therapy and the children’s desires regarding
petitioner’s disposition. The court held a second dispositional hearing in August of 2021. Petitioner
did not appear, but his counsel appeared on his behalf. The court noted that the guardian had filed
a motion to withdraw, and the court continued the matter and appointed a new guardian for the
children.
3
The court held the final dispositional hearing in November of 2021. Petitioner failed to
appear, but his counsel appeared on his behalf. On behalf of the DHHR, a CPS worker
recommended the termination of petitioner’s parental rights to the children. The CPS worker
testified that petitioner was noncooperative with services and that parenting and adult life skills
classes were twice closed due to petitioner’s noncompliance. Petitioner also failed to comply with
counseling or participate in drug treatment. Indeed, petitioner last submitted to a drug screen in
March of 2021, which was positive for methamphetamine and amphetamine, and thereafter ceased
submitting to screens. Petitioner was also reportedly homeless as of September of 2021. The CPS
worker acknowledged that petitioner participated in a parental fitness evaluation but stated that the
evaluating psychologist opined that petitioner did not have the parental capacity to care, protect,
and change in order to provide adequately for the children at that time.
After hearing testimony, the court found that petitioner came into the case with a “terrible
attitude” and that, although he requested an improvement period, he failed to follow through with
services. Further, the court found that petitioner failed to enter drug treatment; comply with drug
screening; participate in therapy, parenting, and adult life skills classes; and obtain housing. The
court noted petitioner had “never even shown the slightest bit of compliance with any of the
services that were recommended.” Given the foregoing, the court terminated petitioner’s parental
rights upon finding 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
children’s welfare. Petitioner appeals the circuit court’s December 3, 2021, dispositional order. 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).
4
The mother’s parental rights to the children were terminated below. The permanency plan
for A.G. and H.G. is adoption in their foster home. L.G. and B.G. are currently receiving treatment
for behavioral issues. The permanency plan for those children after their release from treatment is
to complete an independent living program.
4
On appeal, petitioner, by counsel, raises two assignments of error regarding his
adjudication. First, petitioner argues that he was effectively denied assistance of counsel during
his adjudicatory hearing because his counsel requested to withdraw based on a breakdown in
communication. Thereafter, petitioner was appointed new counsel, who moved the court to reopen
adjudication, and that request was also denied. Accordingly, petitioner claims that he was not able
to present a defense and that, had he been permitted to do so, the court “may have made a different
finding at the Adjudicatory Hearing.” Petitioner also avers that there was insufficient evidence
upon which to adjudicate him as an abusing parent when the powdery substance on his nightstand
was never tested and when he never tested positive for any substances prior to the petition’s filing.
Additionally, petitioner also claims that the DHHR’s witness was not credible as her testimony
contradicted the written petition.
Upon our review, we find no error in the circuit court’s denial of the motion to withdraw.
West Virginia Code § 49-4-601(f)(4) states, in relevant part, that
[a] parent, guardian, custodian, or other person standing in loco parentis with the
child who is alleged to have neglected or abused the child and who has not retained
counsel and is financially unable to retain counsel beyond the initial hearing, shall
be afforded appointed counsel at every stage of the proceedings.
Based upon our review of the record, it is clear that petitioner was represented at all stages of the
proceedings below by appointed counsel. In its order denying the motion, the court found that
petitioner failed to appear in person and, as such, was unable to inform the court as to why he
wanted other appointed counsel. Accordingly, the Court finds that the circuit court did not err in
denying counsel’s motion to withdraw, as petitioner was afforded the representation that West
Virginia Code § 49-4-601(f)(4) requires.
Additionally, petitioner simply does not demonstrate that the circuit court’s denial of a
motion to re-open adjudication was error. “On an appeal to this Court the appellant bears the
burden of showing that there was error in the proceedings below resulting in the judgment of which
he complains, all presumptions being in favor of the correctness of the proceedings and judgment
in and of the trial court.” Syl. Pt. 2, Perdue v. Coiner, 156 W. Va. 467, 194 S.E.2d 657 (1973).
First, petitioner fails to provide any proper legal authority to show that the circuit court’s failure
to reopen adjudication could constitute error. In any event, petitioner does not dispute that he
received proper notice of the adjudicatory hearing, and the record shows that he was represented
by counsel at the adjudicatory hearing and that his counsel had the opportunity to cross-examine
witnesses and present witnesses. Lastly, petitioner’s counsel proffered to the court when arguing
in support of petitioner’s motion to re-open adjudication that petitioner admitted that he was an
addict but simply did not believe his addiction negatively impacted his ability to parent. Given the
foregoing, we find that petitioner is entitled to no relief in this regard.
We further find that there was sufficient evidence upon which to adjudicate petitioner as
an abusing parent. This Court has held that
“[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 . .
5
. 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) (citation omitted). “[T]he 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. (citation
omitted).
Here, sufficient evidence existed to adjudicate petitioner as an abusing parent on the basis
of substance abuse. While petitioner argues that the powdery substance was never tested and that
he never tested positive for drugs prior to the petition’s filing, the evidence presented below
demonstrated that (1) petitioner was arrested during a traffic stop and marijuana was found on his
person; (2) the mother informed the CPS worker that she and petitioner abused drugs together, and
she tested positive for methamphetamine shortly thereafter; and (3) petitioner failed to comply
with his temporary protection plan. While petitioner argues that, contrary to the CPS worker’s
testimony, he never disclosed substance abuse and was absent from the home on a date the CPS
worker claimed he was there, we find that the evidence listed above was sufficient to support
petitioner’s adjudication despite any alleged inconsistencies. Accordingly, we find that the circuit
court did not err in adjudicating petitioner as an abusing parent.
Petitioner also filed a self-represented brief wherein he raised approximately fourteen
assignments of error. 5 However, we easily dispense with these claims. At least four assignments
of error pertain to issues of adjudication that we have already addressed above. Petitioner also
raises other assignments of error regarding alleged deficiencies during the preliminary hearing.
The record demonstrates that petitioner waived his preliminary hearing and, as such, he has waived
his right to challenge this issue on appeal. Petitioner raises at least two assignments of error
regarding visitation with the children. To the extent petitioner claims that the circuit court
somehow erred in denying him visitation with the children during the proceedings below, we find
no error. The record demonstrates that petitioner completely failed to comply with drug screens
during the last eight months of the proceedings and tested positive for methamphetamine on the
few occasions he submitted to screens during the beginning of the case and, as such, was prohibited
from visits with the children. We find no error in this regard.
Petitioner further argues that the circuit court erred by failing to protect the children from
abuse during their first foster placement, that the first guardian failed to satisfactorily represent the
children, and that the circuit court violated petitioner’s “civil rights.” However, petitioner failed to
cite to the record demonstrating such alleged errors and further fails to demonstrate what remedy
he seeks for alleged “errors” such as these. Indeed, in the argument section of his brief, petitioner
5
Petitioner’s assignments of error are not well-formatted and the numbering for at least one
assignment of error is incorrect.
6
entirely fails to address to which civil rights he is referring. Rule 10(c)(7) of the West Virginia
Rules of Appellate Procedure requires that a petitioner’s “brief must contain an argument
exhibiting clearly the points of . . . law presented . . . and citing the authorities relied on” and that
“[t]he argument must contain appropriate and specific citations to the record on appeal.” In failing
to comply with this rule, petitioner has failed to demonstrate that he is entitled to relief.
In another assignment of error, petitioner claims that the circuit court expressed bias
towards him when it instructed him to submit to a psychological evaluation. However, in his
argument, petitioner claims that the prosecutor informed the circuit court that she did not want to
afford petitioner the opportunity to participate in a psychological evaluation because he “will just
go in and persuade the doctor into saying he[’]s a good dad.” In any event, even assuming
petitioner’s claims are true, we fail to see how any error occurred when petitioner was, in fact,
afforded a psychological evaluation and participated in the same. Accordingly, petitioner is
entitled to no relief on this point.
Lastly, petitioner argues that the circuit court erred in terminating his parental rights rather
than imposing disposition pursuant to West Virginia Code § 49-4-604(c)(5). 6 We disagree. 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. As noted above, petitioner was granted an
improvement period but failed to comply with or complete any aspect of the same. Petitioner tested
positive for methamphetamine during the first half of the proceedings and thereafter ceased
submitting to screens altogether. Petitioner also failed to seek drug treatment and has maintained
throughout the proceedings, as well as on appeal, that his substance abuse does not negatively
impact his ability to parent. Petitioner further failed to comply with counseling and failed to obtain
housing. Importantly, petitioner absented himself from the proceeding and failed to attend his
adjudicatory hearing as well as the last three dispositional hearings. Accordingly, the circuit court
found that there was no reasonable likelihood that petitioner would correct the conditions of abuse
and neglect in the near future and that termination was necessary for the children’s welfare. We
agree and find that these findings are sufficient to support the termination of petitioner’s parental
rights. We have held that
6
West Virginia Code § 49-4-604(c)(5) provides:
Upon a finding that the abusing parent or battered parent or parents are presently
unwilling or unable to provide adequately for the child’s needs, commit the child
temporarily to the care, custody, and control of the department, a licensed private
child welfare agency, or a suitable person who may be appointed guardian by the
court.
7
“[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). Given the evidence as set forth
above, we find that the circuit court did not err in terminating petitioner’s parental rights.
Finally, because two of the children have not yet achieved permanency, this Court reminds
the circuit court of its duty to establish permanency for the children. 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 child
within twelve months of the date of the dispositional order. As this Court has stated,
[t]he [twelve]-month period provided in Rule 43 of the West Virginia Rules
of Procedure[] 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 [West Virginia Code § 49-4-604(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 [cannot] 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).
8
For the foregoing reasons, we find no error in the decision of the circuit court, and its
December 3, 2021, order is hereby affirmed.
Affirmed.
ISSUED: May 12, 2022
CONCURRED IN BY:
Chief Justice John A. Hutchison
Justice Elizabeth D. Walker
Justice Tim Armstead
Justice William R. Wooton
Justice C. Haley Bunn
9