In Re: A.F., K.F. and M.M. ( 2014 )

STATE OF WEST VIRGINIA
SUPREME COURT OF APPEALS
FILED
In Re: A.F., K.F., and M.M. June 16, 2014
RORY L. PERRY II, CLERK
SUPREME COURT OF APPEALS
No. 14-0189 (Braxton County 13-JA-28, 13-JA-29, and 13-JA-30) OF WEST VIRGINIA
MEMORANDUM DECISION
Petitioner Father filed this appeal by his counsel, Clinton R. Bischoff, from an order
entered on January 27, 2014, in the Circuit Court of Braxton County, which terminated his
parental rights to seven-year-old M.M., and psychological parental rights to twelve-year-old A.F.
and eleven-year-old K.F.1 The guardian ad litem for the children, David Karickhoff, filed a
response in support of the circuit court’s order. The Department of Health and Human Resources
(“DHHR”), by its attorney, S.L. Evans, also filed a response in support of the circuit court’s
order. On appeal, petitioner argues that the circuit court erred by denying his motion for an
improvement period.
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 May of 2013, the DHHR filed an abuse and neglect petition against petitioner and his
girlfriend A.R.2 The petition alleged that the children’s welfare was threatened by both adult
respondents’ failure to supply them with necessary food, clothing, supervision, and medical care.
For instance, the children disclosed that they usually only ate dinner on the weekends because
their parents would be asleep and that they were not provided with any other supervision. The
petition also alleged that petitioner sexually abused A.F., and that both parents abused drugs in
the children’s presence. Both parents waived their rights to a preliminary hearing.
At the adjudicatory hearing in June of 2013, the two older children, A.F., and K.F.,
testified about the parents’ drug abuse. A.F. testified that she saw the parents snort “beans”
through a dollar or a pen after crushing the beans with a lighter on a clipboard. A.F. testified that
after the parents crushed and snorted the beans, they acted “kind of mean.” She also testified that
other adults came into the home nearly every day and would snort these beans, smoke, or go into
1
The biological father of A.F. and K.F. is deceased. Until very recently, petitioner was thought
to be the biological father of M.M. However, the guardian ad litem provides that this is not the
case. The nature of petitioner’s relationship to each child is not an issue on appeal.
2
A.R. is the biological mother of all three children.
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closed rooms where she thought they might have been watching “bad movies.” A.F. further
testified about petitioner’s sexual abuse against her. She described, for instance, times petitioner
touched her “where [she] pee[s]” and how he “would sit [her] on top of him” while rubbing
against her. A.F. testified that whenever she told her mother about these incidents, she would
never do anything about it. The mother testified and denied any illegal drug use in the home and
denied that A.F. ever told her about petitioner’s sexual abuse. Petitioner did not testify. In its
August of 2013 adjudicatory order, the circuit court found that both parents abused and neglected
the children after finding that petitioner sexually abused A.F., that the mother failed to protect
the children by failing to take action after she was informed of the sexual abuse, and that the
parents’ drug abuse affected the welfare of the children.
At the dispositional hearing in August of 2013, the family’s caseworker testified that
neither parent rectified any of the problems identified in the home. She testified that petitioner
tested positive for drugs and had also missed drug screens after expressing that he would only
participate in drug screens on Fridays. Petitioner again did not testify. In its termination order
entered in January of 2014, the circuit court found that neither parent recognized or
acknowledged any substance abuse problems and that the mother was not willing to accept that
any sexual abuse occurred in the home. The circuit court terminated both parents’ parental rights
to all children. Petitioner now appeals.
This 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’s sole assignment of error on appeal is that the circuit court erred in denying
his motion for an improvement period. Petitioner asserts that he would have substantially
complied with the terms of an improvement period.
Upon our review of the record, we find no error by the circuit court in denying
petitioner’s motion for an improvement period. “‘Although 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,
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479 S.E.2d 589 (1996).” Syl. Pt. 2, In re Timber M., 231 W.Va. 44, 743 S.E.2d 352 (2013). We
have previously explained:
[I]n order to remedy the abuse and/or neglect problem, the problem must first be
acknowledged. Failure to acknowledge the existence of the problem, i.e., the truth
of the basic allegation pertaining to the alleged abuse and neglect or the
perpetrator of said abuse and neglect, results in making the problem untreatable
and in making an improvement period an exercise in futility at the child’s
expense.
W.Va. Dept. of Health and Human Res. ex rel. Wright v. Doris S., 197 W.Va. 489, 498, 475
S.E.2d 865, 874 (1996). The record reveals that petitioner never acknowledged the drug and
sexual abuse that occurred in the home. Petitioner’s lack of acknowledgement, coupled with
petitioner’s missed drug screens and positive drug screens, supports the circuit court’s finding
that petitioner failed to provide evidence that he would participate in a plan to correct the
conditions of abuse and neglect. Under West Virginia Code § 49-6-12, when a parent has failed
to demonstrate by clear and convincing evidence that he or she will fully participate in an
improvement period, the circuit court has the discretion to deny a motion requesting such.
This Court reminds the circuit court of its duty to establish permanency for the children.
Rule 39(b) of the Rules of Procedure for Child Abuse and Neglect Proceedings requires the
following:
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
children within twelve months of the date of the disposition 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.
Syl. Pt. 6, In re Cecil T., 228 W.Va. 89, 717 S.E.2d 873 (2011). 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], 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
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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, “[t]he guardian
ad litem’s role in abuse and neglect proceedings does not actually 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 foregoing reasons, we affirm.
Affirmed.
ISSUED: June 16, 2014
CONCURRED IN BY:
Chief Justice Robin Jean Davis
Justice Brent D. Benjamin
Justice Margaret L. Workman
Justice Menis E. Ketchum
Justice Allen H. Loughry II
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