In Re: P.L. ( 2013 )

STATE OF WEST VIRGINIA
SUPREME COURT OF APPEALS
In Re: P.L. FILED
March 12, 2013
RORY L. PERRY II, CLERK
No. 12-1372 (Webster County 11-JA-39) SUPREME COURT OF APPEALS
OF WEST VIRGINIA
MEMORANDUM DECISION
Petitioner Father filed this appeal, by counsel Christina C. Flanigan, from the Circuit
Court of Webster County which terminated his parental rights to P.L. by order entered on
October 24, 2012.1 The guardian ad litem for the child, David Karickhoff, has filed a response
supporting the circuit court’s order. The Department of Health and Human Resources
(“DHHR”), by its attorney Lee Niezgoda, also filed a response in support of the circuit court’s
order.
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 is appropriate under Rule 21 of the Rules of Appellate
Procedure.
The DHHR filed the first petition of this case in July of 2011, alleging the parents’ drug
and alcohol abuse. Throughout the duration of these proceedings, the circuit court granted
petitioner at least two improvement periods with terms and conditions to remain free of drugs
and alcohol.2 Nevertheless, Petitioner Father appeared to circuit court intoxicated on at least one
occasion and, in other instances, tested positive for alcohol and other drugs such as
methamphetamine. The DHHR filed a motion to terminate petitioner’s rehabilitation period and
to terminate his parental rights to P.L. After a hearing on these motions, the circuit court found
that petitioner has the ability to comply with rehabilitation, but that his choice not to do so and
his denial of his addiction issues were not in the child’s best interests. Consequently, the circuit
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Both the transcript of the dispositional hearing and the circuit court’s termination order reflect
that petitioner’s rights as a psychological parent were terminated to two other children involved
in the underlying proceedings. These children were half-siblings to P.L. and not biological
children of Petitioner Father. On appeal, Petitioner Father only argues against the termination of
his parental rights to P.L.
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At one point, petitioner was dismissed from the case and made a nominal party. At this
dismissal, the circuit court ordered that the DHHR conduct a walk-through of petitioner’s
residence in consideration of placing P.L. with him. Upon this walk-through, however, the
DHHR discovered three individuals entering and exiting petitioner’s residence with bags of
alcohol containers. The DHHR subsequently filed its second amended petition, re-including
petitioner into the proceedings.
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court terminated Petitioner Father’s parental rights in October of 2012, from which Petitioner
Father now appeals.
Petitioner Father appeals, arguing that the circuit court erred by terminating his parental
rights because there was a significant bond between him and the child, he was granted a
rehabilitation period of a year for his substance abuse, and the child’s mother was compliant with
her improvement period. In response, the child’s guardian ad litem and the DHHR both contend
that the circuit court did not commit error. They argue that the circuit court correctly based its
termination of petitioner’s parental rights on his inability to care for himself, much less the
subject child, due to his drug and alcohol abuse. They argue that, accordingly, the circuit court
properly terminated petitioner’s parental rights pursuant to West Virginia Code §§ 49-6-5(a)(6)
and (b)(1).
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 termination of Petitioner
Father’s rehabilitation period or in its termination of Petitioner Father’s parental rights. The
circuit court has the discretion to terminate a subject parent’s period of improvement before it
has expired. See Syl. Pt. 6, In re Katie S., 198 W.Va. 79, 479 S.E.2d 589 (1996). The Court finds
that the circuit court was presented with sufficient evidence upon which it could have based
findings that there was no reasonable likelihood to believe that the conditions of abuse and
neglect could be substantially corrected in the near future and upon which it based findings that
termination was necessary for the children’s welfare. Pursuant to West Virginia Code § 49-6­
5(a)(6), circuit courts are directed to terminate parental rights upon such findings.
For the foregoing reasons, we affirm the circuit court’s order terminating petitioner’s
parental rights to the subject child.
Affirmed.
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ISSUED: March 12, 2013
CONCURRED IN BY:
Chief Justice Brent D. Benjamin
Justice Robin Jean Davis
Justice Margaret L. Workman
Justice Menis E. Ketchum
Justice Allen H. Loughry II
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