In Re: J.K. and M.K. ( 2013 )

STATE OF WEST VIRGINIA
SUPREME COURT OF APPEALS
In Re: J.K. & M.K. FILED
March 12, 2013
No. 12-1161 (Jackson County 11-JA-52 & 53) RORY L. PERRY II, CLERK
SUPREME COURT OF APPEALS
OF WEST VIRGINIA
MEMORANDUM DECISION
Petitioner Father’s appeal, by counsel Erica Brannon Gunn, arises from the Circuit Court
of Jackson County, wherein his parental rights to the children were terminated by order entered
on September 20, 2012.1 The West Virginia Department of Health and Human Resources
(“DHHR”), by counsel Lee A. Niezgoda, has filed its response. The guardian ad litem, Laurence
W. Hancock, has filed a response on behalf of the children.
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 is appropriate under Rule 21 of the Rules of Appellate
Procedure.
On November 1, 2011, the DHHR filed its initial petition alleging that petitioner abused
and/or neglected the children by using drugs in the home in front of the children and using
excessive discipline. Petitioner later stipulated to certain allegations and the children were
adjudicated as abused and neglected. Petitioner was granted a post-adjudicatory improvement
period, but the DHHR later alleged non-compliance with the terms thereof. The circuit court
thereafter denied petitioner’s motion to extend his improvement period and terminated his
parental rights at disposition.
On appeal, petitioner alleges several assignments of error. First, he alleges that the circuit
court erred in determining that he had not substantially complied with the terms of his post­
adjudicatory improvement period. According to petitioner, he was unable to fully comply with
certain terms because he had gained employment, which was also a term of his improvement
period. As such, petitioner also alleges it was error to deny his motion for an extension to his
improvement period. Next, petitioner alleges that the circuit court erred in finding that termination
of his parental rights was in the children’s best interest. According to petitioner, the DHHR
admitted that there would be no harm to the children if he had been granted an additional period
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Two additional children were the subject of the DHHR’s petition below. However,
petitioner is the biological father of J.K. and M.K. only, and the circuit court accordingly
addressed only petitioner’s rights in relation to these children.
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of improvement. Lastly, petitioner argues that the circuit court erred in finding that there was no
reasonable likelihood that he could substantially correct the conditions of abuse and neglect in the
near future because the evidence established that he was making such progress.
Both the DHHR and the guardian ad litem respond in support of the circuit court’s
termination of petitioner’s parental rights. These respondents argue that the circuit court was
correct in denying petitioner an extension to his improvement period because the evidence
established petitioner failed to substantially comply with the terms of his improvement period.
According to the respondents, petitioner admits that he only complied with the requirement that
he maintain employment. They further argue that petitioner failed to properly communicate with
the DHHR to make proper arrangements for services. Respondents also cite to petitioner’s two
failed drug screens during his improvement period. Additionally, respondents cite these factors as
sufficient to support the circuit court’s termination of petitioner’s parental rights.
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 circuit court’s denial of petitioner’s
motion to extend his improvement period or in the termination of petitioner’s parental rights.
While the parties admit that petitioner initially showed compliance, the evidence establishes that
he failed to comply with the terms of his improvement period after he gained employment. As
such, we find that the evidence was sufficient to establish that petitioner failed to substantially
comply with the terms of his improvement period. West Virginia Code § 49-6-12(g) requires that,
to obtain an extension to a post-adjudicatory improvement period, the circuit court must find the
respondent substantially complied with the terms thereof. Therefore, based on the foregoing, it
was not error to deny petitioner’s motion.
In regard to petitioner’s argument that termination was not in the children’s best interest,
we find no merit in this argument. Petitioner basically argues that because the children would
remain in the same placement regardless of whether he was granted an extension to his
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improvement period, they would not be harmed. However, we have previously held that
“‘[u]njustified procedural delays wreak havoc on a child’s development, stability and security.’
Syl. Pt. 1, in part, In re Carlita B., 185 W.Va. 613, 408 S.E.2d 365 (1991).” Syl. Pt. 3, in part, In
re Jonathan G., 198 W.Va. 716, 482 S.E.2d 893 (1996). Based upon our prior holding, and for the
reasons addressed herein, it is clear that termination of petitioner’s parental rights was in the
children’s best interest.
As to petitioner’s argument that it was error to find that there was no reasonable likelihood
that he could substantially correct the conditions of abuse and neglect in the near future, we find
no merit to this argument. Upon our review of the record, the Court finds that the circuit court
was presented with sufficient evidence upon which it found that that there was no reasonable
likelihood that the conditions of abuse and neglect could be substantially corrected in the near
future and that termination was necessary for the children’s welfare. Pursuant to West Virginia
Code § 49-6-5(a)(6), circuit courts are directed to terminate parental rights upon these findings.
For the foregoing reasons, we find no error in the decision of the circuit court, and the
termination of petitioner’s parental rights is hereby affirmed.
Affirmed.
ISSUED: March 12, 2013
CONCURRED IN BY:
Chief Justice Brent D. Benjamin
Justice Robin Jean Davis
Justice Margaret L. Workman
Justice Menis E. Ketchum
Justice Allen H. Loughry II
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