In Re: J.G., L.G., and N.G. ( 2016 )

STATE OF WEST VIRGINIA
SUPREME COURT OF APPEALS
FILED
In re: J.G., L.G., and N.G.
September 6, 2016
RORY L. PERRY II, CLERK
SUPREME COURT OF APPEALS
No. 16-0337 (Fayette County 14-JA-116, 14-JA-117, & 15-JA-02) OF WEST VIRGINIA
MEMORANDUM DECISION
Petitioner Father D.G., by counsel Nancy S. Fraley, appeals the Circuit Court of Fayette
County’s March 7, 2016, order terminating his parental rights to J.G., L.G., and N.G.1 The West
Virginia Department of Health and Human Resources (“DHHR”), by counsel S.L. Evans, filed
its response in support of the circuit court’s order. The guardian ad litem, Thomas A. Rist, 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 limiting the mother’s visitation with the children,
in conducting the dispositional hearing while petitioner and the mother were unavailable, and in
terminating his parental rights.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.
In October of 2014, the DHHR filed an abuse and neglect petition alleging that petitioner
and the mother of the subject children were selling heroin and Roxicodone in the children’s
presence. The DHHR also alleged that petitioner and the mother kept illegal drugs in the home.
The DHHR further indicated that petitioner and the mother had a previous abuse and neglect
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 petitioner and the children in this
matter share the same initials, the Court will refer to the children as J.S.-1, J.S.-2, J.S.-3, and
J.S.-4 and to petitioner as J.S.-5 throughout this memorandum decision.
2
We note that West Virginia Code §§ 49-1-1 through 49-11-10 were repealed and
recodified during the 2015 Regular Session of the West Virginia Legislature. The new
enactment, West Virginia Code §§ 49-1-101 through 49-7-304, has minor stylistic changes and
became effective ninety days after the February 19, 2015, approval date. In this memorandum
decision, we apply the statutes as they existed during the pendency of the proceedings below.
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petition filed against them in Fayette County, West Virginia and petitioner had a prior
involuntary termination of his parental rights to other children in Raleigh County, West Virginia.
Petitioner and the mother were subsequently charged criminally with delivery of heroin and child
neglect creating risk of injury.
In November of 2014, the circuit court held a preliminary hearing wherein both of the
parents waived their rights to the preliminary hearing, and after an inquiry, the circuit court
accepted their waiver. The circuit court found probable cause that the children were abused and
that imminent danger existed to the children’s physical well-being. The circuit court granted both
of the parents supervised visitation with the children and ordered that they both submit to
random drug screening.
In August of 2014, the circuit court held an adjudicatory hearing wherein both of the
parents stipulated to the allegations as set forth in the petition. The circuit court accepted the
parents’ stipulations and found that petitioner and the mother were abusing parents. The circuit
court ordered that petitioner and the mother remain drug free, submit to random drug screenings,
and not violate any state, local, or federal laws. The circuit court also granted the parents
supervised visitation. Subsequent to the adjudicatory hearing, petitioner filed a motion for a post­
adjudicatory improvement period and his motion was granted.
After N.G.’s birth on January 20, 2015, the DHHR filed an amended petition
incorporating that child into the current abuse and neglect proceedings. In February of 2015, the
circuit court held an adjudicatory hearing regarding N.G. Petitioner stipulated to the allegations
as set forth in the petition and admitted that his dependency on illegal drugs impaired his ability
to parent and that he failed provide his children with a safe environment. Petitioner requested and
was granted a post-adjudicatory improvement period with regard to N.G. The improvement
period was ordered to coincide with the improvement period previously granted.
In May of 2015, petitioner pled guilty to the related criminal charges and was sentenced
to a period of not less than one year nor more than fifteen years of incarceration for the delivery
of heroin and not less than one year nor more than five years for child neglect creating risk of
injury. The circuit court ordered that petitioner’s sentences run consecutively to each other. In
the abuse and neglect proceeding, petitioner sought an extension of his improvement period,
which the circuit court denied.
In February of 2016, after several motions to continue, the circuit court held a
dispositional hearing wherein both parents failed to appear but were represented by counsel.
Petitioner, while still incarcerated, made no requests to appear or be transported to this
dispositional hearing or any of the other previously scheduled dispositional hearings. The DHHR
requested the termination of parental rights for both parents, and the guardian agreed with the
recommendation. At the close of the hearing, the circuit court found that petitioner was unable or
unwilling to adequately provide for the children’s needs and there was no reasonable likelihood
that the conditions of abuse and neglect could be substantially corrected in the near future. The
circuit court further found that terminating petitioner’s parental rights was in the children’s best
interests. The circuit court determined that petitioner was incarcerated and would be for a
lengthy period of time. The circuit court noted that the children spent fifteen of the prior twenty­
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two months in foster care. Ultimately, the circuit court terminated petitioner’s parental rights to
the children by order dated March 7, 2016. It is from this order that petitioner now 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). Upon our review, we find no
error in the abuse and neglect proceedings below.
On appeal, petitioner first argues that the circuit court erred in limiting the mother’s
visitation with the children because it hampered his ability to retain his parental rights. The
record on appeal clearly demonstrates that the mother was a party to these proceedings whose
interests were represented by an attorney. Simply put, petitioner lacks standing to assert an
assignment of error on behalf of another party. We have previously held that
“[t]raditionally, courts have been reluctant to allow persons to claim standing to
vindicate the rights of a third party on the grounds that third parties are generally
the most effective advocates of their own rights and that such litigation will result
in an unnecessary adjudication of rights which the holder either does not wish to
assert or will be able to enjoy regardless of the outcome of the case.” Snyder v.
Callaghan, 168 W.Va. 265, 279, 284 S.E.2d 241, 250 (1981) (citation omitted).
Kanawha Cty. Pub. Library Bd. v. Bd. of Educ. of Cty. of Kanawha, 231 W.Va. 386, 398, 745
S.E.2d 424, 436 (2013). As such, the Court declines to address this assignment of error on
appeal.
Petitioner further argues that he was generally successful during his post-adjudicatory
improvement period and his subsequent incarceration had a “negative affect” [sic] on both
parents’ ability to complete their respective improvement periods. We have explained that West
Virginia Code §§49-4-610(1) provides the circuit court with the discretion to grant post­
adjudicatory improvement periods in abuse and neglect proceedings. Moreover, West Virginia
Code § 49-4-610(4)(A) provides that the parents are “responsible for the initiation and
completion of all terms of the improvement period.” While petitioner argues that it was the
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circuit court’s sentencing that hindered his ability to complete his improvement period, the
record indicates that it was petitioner’s own actions that impeded his ability to complete the
terms of his post-adjudicatory improvement period. According to the record, petitioner admitted
to selling heroin and Roxicodone in the children’s presence and to keeping illegal drugs in the
home. Petitioner then pled guilty to the related criminal charges and was sentenced, thereby
hindering his ability to fully comply with the terms of his improvement period. As such, we find
no error.
Next, petitioner argues that the circuit court erred in conducting the dispositional hearing
while he and the mother were unavailable.3 Upon our review, however, the Court finds
petitioner’s argument is without merit. Pursuant to West Virginia Code §§49-4-601(h) “the party
or parties having custodial or other parental rights or responsibilities to the child[ren] shall be
afforded a meaningful opportunity to be heard, including the opportunity to testify and to present
and cross-examine witnesses.” In the case at hand, the dispositional hearing was properly noticed
and the parties had the opportunity to testify, present witnesses, and cross-examine any witnesses
presented. The parties were unavailable because petitioner was incarcerated and the mother
voluntarily committed herself to a mental health facility. As such, it is clear that the circuit court
did not err in conducting the dispositional hearing while petitioner and the mother were
unavailable.
Petitioner further contends the circuit court erred in conducting the dispositional hearing
because he was not present and claims that his presence at the dispositional hearing would have
provided the circuit court with “clarity” in his case and that protections should have been
afforded to him as an incarcerated parent. In support of his contention, petitioner relies upon
State ex rel. Jeanette H. v. Pancake, 207 W.Va. 154, 529 S.E.2d 865 (2000).4 However, we find
Pancake to be inapposite to petitioner's assignment of error raised herein. In Pancake, we
explained that “an incarcerated parent’s right to a meaningful hearing is not accompanied by an
automatic or absolute right to be physically present at termination proceedings.” Id. at 162, 529
S.E.2d at 873 (2000). We further held that “[w]hether an incarcerated parent may attend a
dispositional hearing addressing the possible termination of his or her parental rights is a matter
committed to the sound discretion of the circuit court.” Id. at 158, 529 S.E.2d at 869, Syl. Pt. 10.
In the case at hand, and contrary to the facts presented in Pancake, petitioner made no requests to
be transported to any hearing that took place after his incarceration and made no request to be
physically present for the dispositional hearing. There is no indication on the record that
petitioner sought transportation to the dispositional hearing or that he was otherwise prohibited
3
Because the permanency hearing in this matter took place after May 20, 2015, the day
the revisions to West Virginia Code §§ 49-1-101 through 49-7-304 became effective, the Court
will apply the revised versions of those statutes on appeal.
4
The relevant facts of Pancake are as follows: petitioner was in the custody of the West
Virginia Department of Corrections for violating conditions imposed by parole. The DHHR filed
a petition to gain immediate custody of petitioner’s five children. After receiving notice of the
termination proceedings, petitioner presented the circuit court with a proposed order directing
her transportation from the jail so that she might attend the proceedings. The circuit court
declined to enter the order and petitioner filed a motion for a writ of prohibition with this Court.
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from making such a request. For these reasons, we find that the circuit court did not abuse its
discretion in conducting the dispositional hearing.
Finally, petitioner argues that the circuit court erred in terminating his parental rights
based upon the proffered multidisciplinary team (“MDT”) report and in the absence of
testimony. Upon our review, we find that petitioner’s argument lacks merit. While petitioner is
correct that no testimony was taken and no cross-examination was afforded, he ignores the
evidence on the record. Although petitioner was not present at the dispositional hearing, he was
represented by counsel who chose to call no witnesses on his behalf. As such, the circuit court
took judicial notice of the MDT reports and the prior pleadings in the case, including petitioner’s
stipulation and the evidence of his prior involuntary termination, in addition to what was
proffered. Petitioner’s counsel did not object to the proffered information or to the information
contained in the MDT reports.
Moreover, it is clear from the record that the evidence supported termination. In addition
to his incarceration during the pendency of these proceedings, the record on appeal reveals that
petitioner’s prior involuntary termination of parental rights was for selling illegal drugs out of the
home and he is currently incarcerated for the delivery of heroin and child neglect creating risk of
injury. Finally, the record indicates that petitioner will not be eligible for parole until 2017.
Petitioner also admitted that his dependency on illegal drugs impaired his ability to parent and
that he failed to provide his children with a safe environment. Additionally, the circuit court
found that the children spent fifteen of the last twenty-two months in foster care and need
permanency.
Pursuant to West Virginia Code § 49-4-604(c)(1), a situation in which there is no
reasonable likelihood that the conditions of abuse or neglect can be substantially corrected
includes one in which
[t]he abusing parent . . . [has] habitually abused or [is] addicted to alcohol,
controlled substances or drugs, to the extent that proper parenting skills have been
seriously impaired and the person or persons have not responded to or followed
through the recommended and appropriate treatment which could have improved
the capacity for adequate parental functioning[.]
In the proceedings below, the circuit court specifically made this finding based on petitioner’s
stipulation to drug abuse and the resulting impairment of his ability to parent. The circuit court
also found that termination of his parental rights was necessary for the children’s well-being.
Pursuant to West Virginia Code § 49-4-604(b)(6), circuit courts are directed to terminate parental
rights upon these findings. For these reasons, we find no error in the circuit court’s order
terminating petitioner’s parental rights.
For the foregoing reasons, the circuit court’s March 7, 2016, order terminating
petitioner’s parental rights to the children is hereby affirmed.
Affirmed.
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ISSUED: September 6, 2016
CONCURRED IN BY:
Chief Justice Menis E. Ketchum
Justice Robin Jean Davis
Justice Brent D. Benjamin
Justice Margaret L. Workman
Justice Allen H. Loughry II
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