In re L.H., J.F., and C.F. ( 2022 )

FILED
August 31, 2022
EDYTHE NASH GAISER, CLERK
STATE OF WEST VIRGINIA SUPREME COURT OF APPEALS
OF WEST VIRGINIA
SUPREME COURT OF APPEALS
In re L.H., J.F.-1, and C.F.
No. 22-0058 (Nicholas County 20-JA-95, 20-JA-96, and 20-JA-97)
MEMORANDUM DECISION
Petitioner Father J.F.-2, by counsel Joseph M. Mosko, appeals the Circuit Court of
Nicholas County’s January 10, 2022, order denying his motion to set aside the court’s dispositional
decision and denying his request to voluntarily relinquish his parental and custodial rights to L.H.,
J.F.-1, and C.F. 1 The West Virginia Department of Health and Human Resources (“DHHR”), by
counsel Patrick Morrisey and Brittany Ryers-Hindbaugh, filed a response in support of the circuit
court’s order. The guardian ad litem, Carin Kramer, filed a response on behalf of the children in
support of the circuit court’s order. On appeal, petitioner argues that the circuit court erred in
rejecting his attempt to voluntarily relinquish his parental and custodial rights to the children.
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 September of 2020, the DHHR filed a petition alleging that petitioner physically abused
L.H. and exposed the children to domestic violence between himself and the mother. According
to the record, L.H. disclosed during a forensic interview that petitioner “grabbed her by the neck,
slammed her against the wall[,] then threw her down on a bed without a mattress.” The child also
described witnessing domestic violence between petitioner and the mother and detailed an incident
in which petitioner forced the child to stay in her room an entire day without food or water. The
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 one of the children and petitioner share the
same initials, they will be referred to as J.F.-1 and J.F.-2, respectively, throughout this
memorandum decision.
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record also shows that petitioner’s parental rights to at least one other child were terminated in
Wood County, West Virginia, in October of 2020.
In January of 2021, petitioner stipulated to his adjudication and was granted a post-
adjudicatory improvement period, which was later extended. According to the record, petitioner
failed to fully participate in his improvement period, including his failure to timely submit to an
ordered psychological evaluation. Petitioner failed to appear for the evaluation when it was
originally scheduled and did not complete the evaluation until July of 2021. Despite having
stipulated to physical abuse, petitioner accepted no responsibility during his psychological
evaluation for the physical abuse he perpetrated. By September of 2021, the DHHR filed a court
summary in which it asserted that petitioner was not compliant with services. The following
month, the DHHR filed a motion to revoke petitioner’s improvement period, alleging that
petitioner tested positive for methamphetamine in October of 2021, among other issues.
The matter came on for a dispositional hearing in December of 2021. Petitioner did not
attend the hearing but was represented by counsel. During the hearing, petitioner’s counsel
requested that petitioner be permitted to voluntarily relinquish his parental rights to the children.
The court, however, declined this request. Based on the evidence, the court found that although
petitioner was granted an improvement period, he ceased cooperating with services and drug
screens and further failed to provide credible reasons for his lack of participation. In fact, the court
found that petitioner had no good cause for his failure to appear at the dispositional hearing and
that he had abandoned the children. According to the court, petitioner tested positive for
methamphetamine in October of 2021 and had not seen the children since then. Importantly, the
court found that petitioner’s history of domestic abuse and his failure to correct that issue made it
such that any continued contact with the children would be contrary to their best interests. The
court then found that there was no reasonable likelihood that petitioner could substantially correct
the conditions of abuse and neglect, given his failure to follow through with rehabilitative services
and his continued addiction to drugs. The court also found that the children’s welfare required
termination of petitioner’s rights, as they required continuity of care and caretakers, among other
issues. As such, the court terminated petitioner’s parental and custodial rights to the children.
After the dispositional hearing but prior to the entry of the dispositional order terminating
his parental and custodial rights, petitioner filed a motion to set aside the termination of his parental
rights, alleging that he overslept on the day of the hearing. Further, petitioner again sought to
voluntarily relinquish his parental rights to the children. In January of 2022, the court held a
hearing on the motion and denied the same. It is from the order denying the motion to set aside the
dispositional decision that petitioner appeals. 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
2
L.H.’s father’s parental rights were also terminated. The children have been returned to
the legal custody of the mother, and the proceedings against her were dismissed.
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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).
On appeal, petitioner alleges that the circuit court erred in denying his attempt to
voluntarily relinquish his rights to the children because “there was scant evidence to demonstrate
that the same was in the best interests of the children.” In short, petitioner argues that “the [c]ourt
did not point to any reason why involuntary termination served the interests of the minor children
involved.” This is simply incorrect. As set forth above, the court’s dispositional order was explicit
that termination was necessary for the children because they required permanency. Further, the
court found that petitioner’s history of physical violence and his refusal to acknowledge the same
made the possibility of future contact with the children contrary to their best interests. As such,
petitioner’s argument that the court lacked evidence that termination was in the children’s best
interests is without merit.
Further, petitioner argues that the court could have prevented him from having contact with
the children through a voluntary relinquishment and that there was no evidence that the mother
would have been limited in her ability to prevent such contact under those conditions. While it
may be true that a voluntary relinquishment could have achieved some of the same objectives as
termination of petitioner’s rights, petitioner ignores the fact that the circuit court was vested with
discretion in accepting or rejecting the voluntary relinquishment. As we have explained, “[a]
circuit court has discretion in an abuse and neglect proceeding to accept a proffered voluntary
termination of parental rights, or to reject it and proceed to a decision on involuntary termination.
Such discretion must be exercised after an independent review of all relevant factors.” Syl. Pt. 4,
In re James G., 211 W. Va. 339, 566 S.E.2d 226 (2002). Here, it is clear that the court reviewed
all relevant factors—including petitioner’s extensive history of abuse, his failure to acknowledge
its impact on the children, and their need for permanency—in reaching its decision. All of
petitioner’s arguments come down to his preference for a voluntary termination, which is
insufficient to establish error. Given that the circuit court determined, upon substantial evidence,
that termination was in the children’s best interests, we find that the circuit court did not abuse its
discretion in its rejection of petitioner’s attempt to voluntarily relinquish his parental and custodial
rights.
Finally, the court not only concluded that termination of petitioner’s rights was necessary
for the children’s permanency, but it also found that there was no reasonable likelihood that
petitioner could substantially correct the conditions of abuse and neglect in the near future, a
finding petitioner does not challenge on appeal. Pursuant to West Virginia Code § 49-4-604(c)(6),
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a circuit court may terminate a parent’s parental and custodial rights upon these findings. We have
also explained as follows:
“Termination of parental rights, the most drastic remedy under the statutory
provision covering the disposition of neglected children, [West Virginia Code § 49-
4-604] . . . may be employed without the use of intervening less restrictive
alternatives when it is found that there is no reasonable likelihood under [West
Virginia Code § 49-4-604(d)] . . . that conditions of neglect or abuse can be
substantially corrected.” Syllabus point 2, In re R.J.M., 164 W.Va. 496, 266 S.E.2d
114 (1980).
Syl. Pt. 5, In re Kristin Y., 227 W. Va. 558, 712 S.E.2d 55 (2011). As such, we find no error in the
termination of petitioner’s parental and custodial rights.
For the foregoing reasons, we find no error in the decision of the circuit court, and its
January 10, 2022, order is hereby affirmed.
Affirmed.
ISSUED: August 31, 2022
CONCURRED IN BY:
Chief Justice John A. Hutchison
Justice Elizabeth D. Walker
Justice Tim Armstead
Justice William R. Wooton
Justice C. Haley Bunn
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