In Re: N.U. ( 2015 )

STATE OF WEST VIRGINIA
SUPREME COURT OF APPEALS
FILED
In Re: N.U.
October 20, 2015
RORY L. PERRY II, CLERK
No. 15-0032 (Mingo County 14-JA-50) SUPREME COURT OF APPEALS
OF WEST VIRGINIA
MEMORANDUM DECISION
Petitioner Father A.U., by counsel Stacey Kohari, appeals the Circuit Court of Mingo
County’s December 11, 2014, order terminating his parental rights to N.U. The West Virginia
Department of Health and Human Resources (“DHHR”), by counsel Christopher S. Dodrill, filed
its response in support of the circuit court’s order and a supplemental appendix. The guardian ad
litem (“guardian”), Della Cline-Gentile, filed a response on behalf of the child supporting the
circuit court’s order. On appeal, petitioner alleges that the circuit court erred in finding that it
was in the best interests of the child to terminate his parental rights and to deny him post-
termination visitation.1
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 August of 2013, petitioner pled guilty in the Circuit Court of Kanawha County to the
felony offense of possession of materials depicting minors engaged in sexually explicit conduct
pursuant to West Virginia Code § 61-8C-3. In February of 2014, petitioner was sentenced to a
term of two years in prison and fifteen years of supervised release. Petitioner was also required
to register as a sex offender. Petitioner’s sentence was suspended and he was allowed to serve his
time under home incarceration. A condition of petitioner’s home incarceration was that he could
have no contact with any children, including his own.
1
We note that West Virginia Code §§ 49-1-1 through 49-11-10 were repealed and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.
1
After petitioner was placed on home incarceration, N.U. lived with her mother in a
separate residence.2 On July 23, 2014, the DHHR filed an abuse and neglect petition against
petitioner, the mother, and the mother’s boyfriend alleging that there was a domestic violence
incident in May of 2014 between the mother and her boyfriend and that N.U. and another child
in the home witnessed the incident. Petitioner was not present for the incident. The petition
further alleged that the home was uninhabitable.3 N.U. was approximately four years old at the
time the petition was filed.
In July of 2014, the circuit court held a preliminary hearing and found probable cause to
believe that petitioner, N.U.’s mother, and the mother’s boyfriend abused and/or neglected N.U.
and the other child in the home and that removal was the least-restrictive means to serve the
children’s best interests. The circuit court also denied visitation between petitioner and N.U.
based on his conviction and sex-offender status.
In September of 2014, the circuit court held an adjudicatory hearing and found by clear
and convincing evidence that petitioner, the mother, and the mother’s boyfriend abused and/or
neglected N.U. and again denied visitation between petitioner and N.U. In November of 2014,
the circuit court held a dispositional hearing. The DHHR recommended that petitioner be denied
an improvement period and that his parental rights be terminated. The DHHR argued that
termination would be in N.U.’s best interest. Petitioner’s probation officer testified that
petitioner’s home was not suitable for a child. The guardian testified that based on petitioner’s
conviction, N.U. would be at risk if petitioner retained his parental rights. Petitioner’s older
children testified that he was a good father, but also admitted that they testified favorably for
petitioner so that they could see N.U. The circuit court found that petitioner was unlikely to
substantially improve the conditions of abuse and neglect, that allowing him to retain his parental
rights would place N.U. at risk, and that termination of petitioner’s parental rights was in N.U.’s
best interests. The circuit court deferred its final ruling until N.U. had a psychological
evaluation.4
In December of 2014, the circuit court entered a final dispositional order terminating
petitioner’s parental rights and denying his request for post-termination visitation. It is from this
order that petitioner appeals.
2
Petitioner and the mother were married at the time of petitioner’s plea agreement. The
mother filed for divorce sometime during the criminal proceedings and N.U. was placed with
her.
3
The DHHR alleged that the children were living in squalid conditions, specifically that
the home was “in bad shape,” that there was glass and garbage on the floor, that the refrigerator
was empty, and that there were empty pill bottles lying around the home.
4
N.U.’s psychological evaluation took place on November 25, 2014. The report explained
that N.U. had no emotional response toward petitioner and that N.U. did not express any
emotional attachment to petitioner or his family. Accordingly, the psychologist did not
recommend post-termination visitation between N.U. and petitioner.
2
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 ruling that terminating petitioner’s parental rights was in N.U.’s
best interests or in denying petitioner post-termination visitation. On appeal, petitioner argues
that the circuit court erred in terminating his parental rights because the petition did not allege
that he was actively abusing N.U. and that his right as a natural parent to his child is paramount
to that of any other person, as set forth in syllabus point one of In re Willis, 157 W.Va. 225, 207
S.E.2d 129 (1973). Thus, termination was not in the child’s best interest. We disagree and find
that petitioner’s argument ignores the evidence set forth in the record on appeal.
It is clear from the record on appeal that petitioner is incapable of assuming custody of
N.U. As the circuit court found, petitioner’s living conditions were unsuitable for a child,
petitioner’s conviction for possession of child pornography would put N.U. at risk, and that
having contact with petitioner would put N.U. at risk. Further, N.U.’s psychological evaluation
showed that she had no emotional response or attachment to petitioner. Accordingly, the circuit
court found that petitioner was unlikely to substantially improve the conditions of abuse and
neglect, that allowing him to retain his parental rights would place N.U. at risk, and that
termination of petitioner’s parental rights was in N.U.’s best interests. There is no reasonable
likelihood that the conditions which led to the filing of the petition can be corrected, and the
evidence shows that N.U.’s welfare would be threatened should she be placed in petitioner’s
home. Pursuant to West Virginia Code § 49-6-5(a)(6), circuit courts are directed to terminate
parental rights upon such a finding, and the Circuit Court of Mingo County did not err is making
such a ruling.
This Court has recognized that “[a]lthough parents have substantial rights that must be
protected, the primary goal in cases involving abuse and neglect, as in all family law matters,
must be the health and welfare of the children.” Syl. Pt. 3, In re Katie S., 198 W.Va. 79, 479
S.E.2d 589 (1996). Contrary to petitioner’s argument that the evidence demonstrated that he is
not a threat to N.U. or her well-being, the circuit court found that while petitioner’s probation
officer and therapist did not believe that he presented any risk to N.U., those witnesses lacked the
necessary knowledge to make such determinations. Similarly, the circuit court found that even
3
though petitioner’s older children testified as to his good character, they did so in an effort to
maintain contact with N.U. Both the DHHR and the guardian presented evidence which
established that allowing petitioner to retain his parental rights would put N.U. at risk. Therefore,
we find no error in the circuit court’s determination that termination of petitioner’s parental
rights was in N.U.’s best interests.
Finally, the Court finds no error in the circuit court’s denial of petitioner’s request for
post-termination visitation or in its finding that the denial is in the best interests of N.U. We 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).
Syl. Pt. 11, In re Daniel D., 211 W.Va. 79, 562 S.E.2d 147 (2002).5 In the instant case, petitioner
argues that post-termination visitation would be beneficial and would develop his bond with
N.U. Given the evidence before it, the circuit court correctly found the child’s best interests were
served by denying post-termination visitation with petitioner, based on its findings that
petitioner’s living conditions were unsuitable for a child, that his conviction for possession of
child pornography would put N.U. at risk, and that having further contact with him would
impede N.U.’s emotional recovery. Further, N.U.’s psychological evaluation showed that she
had no emotional response or attachment to the petitioner. Following a thorough review of the
record on appeal, we find that the circuit court did not err in denying such post-termination
visitation.
For the foregoing reasons, we find no error in the decision of the circuit court and its
December 11, 2014, order is hereby affirmed.
Affirmed.
5
We have also held that the word “may” is permissive and connotes discretion. See Gebr.
Eickhoff Maschinenfabrik Und Eisengieberei mbH v. Starcher, 174 W.Va. 618, 626 n. 12, 328
S.E.2d 492, 500 n. 12 (1985) (providing that “[a]n elementary principle of statutory construction
is that the word ‘may’ is inherently permissive in nature and connotes discretion.”) (citations
omitted).
4
ISSUED: October 20, 2015
CONCURRED IN BY:
Chief Justice Margaret L. Workman
Justice Robin Jean Davis
Justice Brent D. Benjamin
Justice Menis E. Ketchum
Justice Allen H. Loughry II
5