In Re: E.E. ( 2019 )

STATE OF WEST VIRGINIA
SUPREME COURT OF APPEALS
FILED
In Re: E.E.
October 17, 2019
released at 3:00 p.m.
No. 19-0106 (Wood County 17-JA-150W) EDYTHE NASH GAISER, CLERK
SUPREME COURT OF APPEALS
OF WEST VIRGINIA
MEMORANDUM DECISION
Petitioner Father E.E.-2, by counsel George M. Torres, appeals the December 28, 2018,
order of the Circuit Court of Wood County, West Virginia, terminating his parental rights to his
daughter, E.E.-1.1 The West Virginia Department of Health and Human Resources (“DHHR”),
by counsel Mindy M. Parsley, filed its response in support of the circuit court’s order. The
child’s guardian ad litem, Robin S. Bonovitch, filed a response on behalf of the child also in
support of the circuit court’s order. On appeal, Petitioner argues the circuit court erred by
terminating his parental rights solely due to his incarceration, without imposing a less-restrictive
dispositional alternative, and denying post-termination visitation.
This Court has considered the parties’ briefs, their oral arguments, and the record on
appeal. Upon review, the Court discerns no substantial question of law and no prejudicial error.
Consequently, a memorandum decision affirming the order of the circuit court is the appropriate
disposition pursuant to Rule 21 of the West Virginia Rules of Appellate Procedure.
In June of 2017, the DHHR filed an abuse and neglect petition against the parents of
E.E.-1. According to the petition, the DHHR received a referral that Respondent Mother was
“living down by the river and is homeless.” Child Protective Service workers and law
enforcement officers arrived at the homeless encampment and located Mother and the child.
Mother admitted that she had been homeless for approximately two to three weeks. The child,
who was three years old at the time (almost four), appeared “disheveled, dirty, smelled of urine,
and unkempt.” The child had bug bites on her body, a cigarette burn on her face, severely rotting
teeth, and was hungry. Mother’s face and arms were covered in sores and she admitted that she
had been injecting methamphetamines.
In the petition, DHHR alleged that Mother could not provide for the child’s basic needs
like appropriate shelter, food, clothing, medical care, and supervision because of her drug use.
With regard to Petitioner, DHHR alleged he “has seen the child a few times but has not been in
1
Consistent with our long-standing practice in cases involving sensitive facts, we identify
the parties by initials only. See In re Jeffrey R.L., 190 W. Va. 24, 26 n.1, 435 S.E.2d 162, 164 n.1
(1993). Because Petitioner and the child share the same initials, we refer to Petitioner Father
E.E.-2 as “Petitioner” and E.E.-1 as “the child.”
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the child’s life consistently.” Additionally, “there has not been a paternity test, his name is not on
the birth certificate and he has not been ordered to pay child support.”
In July of 2017, the circuit court held an adjudicatory hearing. Mother stipulated to the
allegations contained in the petition. The circuit court accepted her admissions and adjudicated
her an abusive and neglectful parent. Although the circuit court granted Mother the opportunity
to participate in a post-adjudicatory improvement period, it ultimately terminated her parental
rights.
In July of 2017, the circuit court ordered that Petitioner submit to paternity testing and the
test results confirmed Petitioner was the child’s biological father. Thereafter, the circuit court
conducted status hearings in relation to Petitioner in May and July of 2018.
In September of 2018, the DHHR filed an amended petition. With regards to Petitioner,
the DHHR alleged: Petitioner had not seen the child since June of 2017 and it was unclear when
he had seen the child prior to then; during the proceedings, there had been times when Petitioner
was incarcerated in Ohio and West Virginia; Petitioner was currently incarcerated at the North
Central Regional Jail in Greenwood, West Virginia, and was being held on a breaking and
entering and destruction of property charge; prior to his incarceration, Petitioner was homeless
and did not have appropriate housing and shelter for the child; Petitioner was also recently
indicted in Ohio for grand theft for allegedly stealing a handgun out of a vehicle.
In October of 2018, the circuit court held an adjudicatory hearing. Petitioner testified that
he resided with Mother during her pregnancy.2 Petitioner stated that after their child was born, he
and Mother were in a relationship for two and a half years before breaking up. Petitioner claimed
he had frequent visitation with the child for about a year after the relationship ended with
Mother. Petitioner stated he had been incarcerated various times throughout these proceedings
and was currently incarcerated. Petitioner admitted to having a pending fugitive charge from
Ohio. He further admitted to not providing food, clothing, shelter, or supervision to the child
since May of 2017. Petitioner claimed that he did not seek visitation with the child because
Mother told him there was no need to get involved in the case as he was not on the birth
certificate and she believed DHHR would eventually return the child to her.
The circuit court entered its adjudicatory order in November of 2018. It found that, based
upon the conditions existing at the time of the petition’s filing, the child was abused and
neglected as defined by West Virginia Code § 49-6-2(c). The circuit court stated Petitioner failed
to provide the child with necessary food, clothing, shelter, supervision, or medical care.
Moreover, Petitioner had no contact with the child for more than six months and failed to support
her financially, educationally, or emotionally. The circuit court noted that prior to Petitioner’s
2
Because Mother was married to another man, R.D., when the child was born, R.D. was
the child’s legal father on the birth certificate. After paternity tests revealed Petitioner was her
father, the circuit court dismissed R.D. from this action and directed the DHHR to petition for
amendment of the birth certificate.
2
most recent incarceration, he was homeless and did not have appropriate housing for the child.3
From approximately May of 2017, to the day of the adjudicatory hearing, Petitioner had no
contact with the child and made no request to visit her.
In December of 2018, the circuit court held a dispositional hearing during which
Petitioner testified that his first incarceration after the initial petition was filed was October of
2017. Petitioner stated that he was currently incarcerated. Petitioner claimed he was involved in
the child’s life for the first three and a half years, and last saw the child in May of 2017.
Petitioner stated he was staying with a friend in Marietta, Ohio, when DHHR took custody of the
child and learned this happened about a week later when he spoke with Mother. Petitioner stated
that he would like to have visitation with the child when he is released from jail but he could not
predict when that would occur.
The circuit court terminated Petitioner’s parental rights. In its dispositional order, the
circuit court stated that had Petitioner come forward earlier, he could have potentially
participated in services prior to his most recent incarceration. It held that Petitioner had not
provided the child with necessary food, clothing, shelter, supervision or medical care and failed
to support the child financially, educationally, or emotionally. The circuit court determined there
was no reasonable likelihood that the conditions of neglect and abuse could be substantially
corrected in the near future. It is from this order that Petitioner appeals.
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).
Petitioner argues that the circuit court erred in terminating his parental rights based solely
upon his incarceration and without imposing a less-restrictive dispositional alternative. We do
3
Petitioner is a registered sex offender in the State of Ohio; prior to these proceedings,
Petitioner registered various addresses for himself including his mother’s address as well as
being homeless.
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not agree. In discussing the termination of an incarcerated parent’s rights, we have held as
follows:
When no factors and circumstances other than incarceration are raised at a
disposition hearing in a child abuse and neglect proceeding with regard to a
parent’s ability to remedy the condition of abuse and neglect in the near future,
the circuit court shall evaluate whether the best interests of a child are served by
terminating the rights of the biological parent in light of the evidence before it.
This would necessarily include but not be limited to consideration of the nature of
the offense for which the parent is incarcerated, the terms of the confinement, and
the length of the incarceration in light of the abused or neglected child’s best
interests and paramount need for permanency, security, stability and continuity.
Cecil T., 228 W. Va. at 91, 717 S.E.2d at 875, Syl. Pt. 3. Although the circuit court discussed
Petitioner’s incarceration in its dispositional order, it relied on other factors when terminating his
parental rights. Namely, prior to Petitioner’s incarceration, he failed to provide the child with
basic needs such as food, clothing, shelter, or supervision. At the adjudicatory hearing, Petitioner
admitted that, prior to May of 2017, he failed to provide the child with these basic needs. As
such, the circuit court considered relevant factors—other than incarceration—that affected the
child’s well-being in reaching its determination.
Further, this same evidence supports the circuit court’s termination of Petitioner’s
parental rights instead of a less-restrictive dispositional alternative. According to West Virginia
Code § 49-4-604(b)(6), circuit courts are directed to terminate parental and custodial rights upon
findings that there is no reasonable likelihood the conditions of abuse and neglect can be
substantially corrected and that termination is necessary for the child’s welfare. Here, the circuit
court made the necessary findings, based upon substantial evidence, to support termination of
Petitioner’s parental rights.
According to West Virginia Code § 49-4-604(c)(3), a situation in which there is no
reasonable likelihood the conditions of abuse and neglect can be substantially corrected includes
one in which the abusing parent has not responded to or following through with rehabilitative
efforts. The circuit court specifically found that Petitioner could have made more of an effort at
the onset of this case to avail himself of services and possible supervised visitation. We agree.
Petitioner’s excuse for not seeking visitation with the child because Mother supposedly told him
he could not as he was not on her birth certificate rings hollow. Petitioner was named
Respondent Father and appointed counsel at the onset of this proceeding. Petitioner admitted he
was aware the child was in DHHR’s custody within a week but still failed to respond or seek
visitation. As such, it is clear that the circuit court had sufficient evidence upon which to find
that there was no reasonable likelihood Petitioner could substantially correct the conditions of
abuse and neglect in the near future and that termination of his parental rights was necessary for
the child’s welfare.
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We have also held that
“[t]ermination of parental rights, the most drastic remedy under the
statutory provision covering the disposition of neglected children, W. Va. Code
[§] 49-6-5 [now 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 W. Va. Code [§] 49-6-5(b) [now West Virginia Code
§ 49-4-604(c) ] . . . 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). Because the record is clear
that the circuit court had ample evidence upon which to base its findings, we find no error in the
termination of Petitioners’ parental rights.
Finally, the Court finds no error in the circuit court’s denial of post-termination visitation.
In support of this assignment of error, Petitioner argues that his bond with the child during the
first few years of her life necessitates post-termination visitation.4 We disagree. This Court has
held that
“[w]hen parental rights are terminated due to neglect or abuse, the circuit
court may nevertheless in appropriate cases consider whether continued visitation
or other contact with the abusing parent is in the best interest of the child. Among
other things, the circuit court should consider whether a close emotional bond has
been established between parent and child and the child’s wishes, if he or she is of
appropriate maturity to make such request. The evidence must indicate that such
visitation or continued contact would not be detrimental to the child’s well being
and would be in the child’s best interest.” Syl. Pt. 5, In re Christina L., 194 W.
Va. 446, 460 S.E.2d 692 (1995).
Syl. Pt. 11, In re Daniel D., 211 W. Va. 79, 562 S.E.2d 147 (2002).
At the dispositional hearing, Petitioner offered no evidence whatsoever that post-
termination visitation would be in the child’s best interest. Likewise, he does not make this
argument on appeal. This Court has repeatedly recognized that a child’s welfare acts as “the
polar star by which the discretion of the court will be guided.” In re Clifford K., 217 W. Va. 625,
634, 619 S.E.2d 138, 147 (2005) (internal citation omitted). Thus, we find no error in the circuit
court denying post-termination visitation.
This Court reminds the circuit court of its duty to establish permanency for the child.
Rule 39(b) of the Rules of Procedure for Child Abuse and Neglect Proceedings requires:
4
Petitioner contends that the circuit court made the erroneous finding that a parent-child
bond did not exist. However, the circuit court made no such finding in its dispositional order.
Rather, it found that Petitioner “has not seen the above-named child in 18 months.” This fact is
undisputed.
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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
Procedures 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 W.Va. Code § 49-6-5(a)(6) [1996] [now West Virginia Code § 49-46-
4(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 can not be found.
Syl. Pt. 3, State v. Michael M., 202 W. Va. 350, 504 S.E.2d 177 (1998). Finally, we note that the
guardian ad litem’s role in this proceeding will not 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).
For the reasons set forth above, we affirm the December 28, 2018, order of the Circuit
Court of Wood County.
Affirmed.
ISSUED: October 17, 2019
CONCURRED IN BY:
Chief Justice Elizabeth D. Walker
Justice Margaret L. Workman
Justice Tim Armstead
Justice Evan H. Jenkins
Justice John A. Hutchison
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