In Re: A.D. and T.D. ( 2017 )

STATE OF WEST VIRGINIA
SUPREME COURT OF APPEALS
FILED
In re: A.D. and T.D. March 24, 2017
RORY L. PERRY II, CLERK
No. 16-1054 (Wood County 15-JA-172 & 15-JA-173) SUPREME COURT OF APPEALS
OF WEST VIRGINIA
MEMORANDUM DECISION
Petitioner Father C.D., by counsel Eric K. Powell, appeals the Circuit Court of Wood
County’s September 23, 2016, order terminating his parental rights to six-year-old A.D. and
four-year-old T.D.1 The West Virginia Department of Health and Human Resources (“DHHR”),
by counsel Lee Niezgoda, filed its response in support of the circuit court’s order. The guardian
ad litem (“guardian”), Jessica E. Myers, filed a response on behalf of the children also in support
of the circuit court’s order. Petitioner filed a reply. On appeal, petitioner argues that the circuit
court erred in denying his motion to continue the dispositional hearing and his motion for post-
termination visitation.
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 November of 2015, the DHHR filed a petition for abuse and neglect against petitioner
alleging that he abused prescription drugs, left drug paraphernalia in the reach of his children,
and was under the influence of drugs while being the primary caretaker for his children. The
following month, petitioner stipulated to the conditions of abuse and neglect as alleged in the
petition. Thereafter, the circuit court granted petitioner a post-adjudicatory improvement period.
The terms and conditions of petitioner’s improvement period required him to undergo substance
abuse and psychological evaluations, to participate in parenting and adult life skills classes, and
to submit to random drug screens. The circuit court also granted petitioner visitation with his
children.
Subsequently, the circuit court held several hearings to review petitioner’s compliance
with the terms and conditions of his improvement period. While the DHHR presented evidence
that petitioner visited with his children, the evidence established that he failed to comply with
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).
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other terms of his improvement period. Specifically, the DHHR presented evidence that
petitioner failed to undergo a psychological and substance abuse evaluation, failed to submit to
drug screens, and was inconsistent in participating with parenting and adult life skills classes.
Furthermore, petitioner admitted to smoking marijuana. Despite this evidence, the circuit court
continued petitioner’s improvement period.
In July of 2016, the circuit court held a hearing on the DHHR’s motion to terminate
petitioner’s improvement period during which the DHHR presented evidence that petitioner
continued to abuse drugs and did not participate in therapy or parenting and adult life skills
classes. The DHHR also presented evidence that petitioner’s visitations with his children were
“not happy, bonding, or even healthy for the children,” that petitioner engaged in
“argumentative” behavior with the children, and that petitioner failed to incorporate appropriate
parenting techniques. For these reasons, the circuit court terminated petitioner’s post­
adjudicatory improvement period by order entered August 11, 2016.
In September of 2016, the circuit court held a dispositional hearing during which the
DHHR presented evidence that petitioner could not correct the conditions of abuse and neglect
because he failed to comply with the terms and conditions of his improvement period.2 The
DHHR presented evidence that they had not had contact with petitioner since July 11, 2016, and
that he failed to attend an outpatient drug rehabilitation program and parenting and adult life
skills classes. The circuit court was also presented with evidence that petitioner failed eleven
drug screens and had admitted to smoking marijuana. Finally, the DHHR presented evidence that
services providers discharged petitioner from therapy services due to his noncompliance.
Accordingly, the circuit court terminated petitioner’s parental rights to his children by order
entered on September 23, 2016.3 This appeal followed.
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
2
Petitioner’s appointed counsel was unavailable to attend the dispositional hearing
because he was hospitalized. However, appointed counsel arranged for substitute counsel to
represent petitioner at the dispositional hearing and to request a continuance. Ultimately, the
circuit court denied petitioner’s motion for a continuance based in part on the fact that petitioner
had stopped participating in services and that the dispositional hearing had previously been
continued.
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The circuit court also terminated the parental rights of the children’s mother. According
to the guardian, as of the filing of her response brief, the permanency plan for the children is
adoption by their paternal grandmother.
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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). Further, our case law is clear that
“in the context of abuse and neglect proceedings, the circuit court is the entity charged with
weighing the credibility of witnesses and rendering findings of fact.” In re Emily, 208 W.Va.
325, 339, 540 S.E.2d 542, 556 (2000) (citing Syl. Pt. 1, in part, In re Travis W., 206 W.Va. 478,
525 S.E.2d 669 (1999)); see also Michael D.C. v. Wanda L.C., 201 W.Va. 381, 388, 497 S.E.2d
531, 538 (1997) (stating that “[a] reviewing court cannot assess witness credibility through a
record. The trier of fact is uniquely situated to make such determinations and this Court is not in
a position to, and will not, second guess such determinations.”).
On appeal, petitioner assigns error to the circuit court’s failure to grant him post-
termination visitation with his children. With respect to post-termination visitation, we
previously have 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). Under our holding in
Christina L., the decision to grant post-termination visitation is a discretionary one for the circuit
court based on its consideration of the circumstances of the case before it.
Here, petitioner maintains that post-termination visitation was in the children’s best
interests because he shared a bond with them and continued visitation was not detrimental to
their well-being. Following our review of the record on appeal, the parties’ arguments, and
pertinent legal authority, we find no abuse of discretion in the circuit court’s decision to deny
post-termination visitation based on the facts of this case. The record on appeal clearly shows
that, while petitioner participated in supervised visitation with his children, the visitations
became unhealthy for the children and that he failed to implement appropriate parenting
techniques during visitation. Furthermore, petitioner admitted to smoking marijuana and tested
positive eleven times for various drugs such as amphetamine, methamphetamine, codeine, and
morphine.
Finally, petitioner argues that the circuit court erred in denying his motion for
continuance of his dispositional hearing, because substitute counsel was ill-equipped to
adequately represent petitioner’s parental rights. This Court has held that “[c]hild abuse and
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neglect cases must be recognized as being among the highest priority for the courts’ attention.
Unjustified procedural delays wreak havoc on a child’s development, stability and security.” Syl.
Pt. 1, in part, In the Interest of Carlita B., 185 W.Va. 613, 408 S.E.2d 365 (1991). We also bear
in mind the following:
The granting of a continuance is a matter within the sound discretion of
the trial court, though subject to review, and the refusal thereof is not ground for
reversal unless it is made to appear that the court abused its discretion, and that its
refusal has worked injury and prejudice to the rights of the party in whose behalf
the motion was made.
Syl. Pt. 1, State v. Jones et al., 84 W.Va. 85, 99 S.E. 271 (1919). See In Interest of Tiffany Marie
S., 196 W.Va. 223, 235, 470 S.E.2d 177, 189 (1996) (establishing “four salient factors that
appellate courts consider when reviewing denials of requests for a continuance.”)
Here, the circuit court heard evidence that substitute counsel had approximately one
week to prepare for the dispositional hearing. Further, at the time of the request for continuance,
the parties were aware of the relevant issues because the dispositional hearing had already been
continued on a prior occasion. As noted above, petitioner failed to participate in his post­
adjudicatory improvement period, admitted to using marijuana, and tested positive for other
illegal substances. For these reasons, we find no abuse of discretion.
For the foregoing reasons, we hereby affirm the circuit court’s September 23, 2016,
order.
Affirmed.
ISSUED: March 24, 2017
CONCURRED IN BY:
Chief Justice Allen H. Loughry II
Justice Robin Jean Davis
Justice Margaret L. Workman
Justice Menis E. Ketchum
Justice Elizabeth D. Walker
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