In re B.A.-1 and K.A. ( 2022 )

FILED
September 20, 2022
EDYTHE NASH GAISER, CLERK
SUPREME COURT OF APPEALS
STATE OF WEST VIRGINIA OF WEST VIRGINIA
SUPREME COURT OF APPEALS
In re B.A.-1 and K.A.
No. 22-0141 (Kanawha County 21-JA-70 and 21-JA-71)
MEMORANDUM DECISION
Petitioner Father B.A.-2, by counsel Jason S. Lord, appeals the Circuit Court of Kanawha
County’s January 19, 2022, order terminating his parental rights to B.A.-1 and K.A. 1 The West
Virginia Department of Health and Human Resources (“DHHR”), by counsel Patrick Morrisey
and Brittney N. Ryers-Hindbaugh, filed a response in support of the circuit court’s order. The
guardian ad litem (“guardian”), Sharon K. Childers, also filed a response on the children’s behalf
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 affirming the circuit court’s order is appropriate under Rule 21
of the Rules of Appellate Procedure.
In February of 2021, the DHHR filed a child abuse and neglect petition alleging that
petitioner’s substance abuse resulted in abuse and neglect of the children. As set forth in the
petition, the children disclosed that they witnessed petitioner inject heroin intravenously, and the
DHHR alleged that petitioner’s used needles were left in reach of the children, who were then
ages six and seven. In April of 2021, the circuit court held a contested adjudicatory hearing,
during which it heard testimony consistent with the allegations in the petition. The court
adjudicated petitioner as an abusing parent and the children as abused and neglected children.
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, as a child and petitioner share the same
initials, we refer to them as B.A.-1 and B.A.-2, respectively, throughout this memorandum
decision.
1
The circuit court held two contested dispositional hearings, beginning in December of
2021 and ending in January of 2022. Upon the evidence presented, the circuit court found that
petitioner failed to acknowledge the conditions of neglect or abuse and continued to deny that he
suffered from substance abuse addiction. The court also found petitioner inconsistently
participated in reunification services, tested positive for methamphetamine “for the few drug
tests he participated in,” appeared intoxicated during meetings with service providers, and had
yet to begin any substance abuse treatment programs. The court determined that petitioner
continued to abuse drugs throughout the proceedings. It further noted that petitioner was
unemployed, had no independent housing, and could not financially support the children. The
circuit court ultimately concluded that there was no reasonable likelihood that the conditions of
neglect or abuse could be substantially corrected in the near future and that it was necessary for
the children’s welfare to terminate petitioner’s parental rights. The circuit court terminated
petitioner’s parental rights upon these findings. Petitioner now 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
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 argues that the circuit court erred in terminating his parental rights
and that it should have granted him a post-adjudicatory improvement period. However, petitioner
fails to show that he filed a written motion to request a post-adjudicatory improvement period.
This Court recently held that “[a] circuit court may not grant a post-adjudicatory improvement
period under W. Va. Code § 49-4-610(2) (eff. 2015) unless the respondent to the abuse and
neglect petition files a written motion requesting the improvement period.” Syl. Pt. 4, State ex
rel. P.G.-1 v. Wilson, -- W. Va. --, -- S.E.2d --, 2021 WL 5355634 (W. Va. Nov. 17, 2021).
2
The mother’s parental rights were also terminated below. According to the parties, the
permanency plan for the children is adoption by their current foster parents.
2
Therefore, in the absence of petitioner’s motion, the circuit court was not at liberty to grant
petitioner a post-adjudicatory improvement period.
Moreover, the circuit court found that petitioner failed to acknowledge the conditions of
abuse and neglect, and petitioner does not challenge that finding on appeal. This Court has held
that
[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.
In re Timber M., 231 W. Va. 44, 55, 743 S.E.2d 352, 363 (2013) (citation omitted). Based on the
record before this Court, we find that granting petitioner an improvement period would have
been an exercise in futility, and we conclude that petitioner was entitled to no relief in this
regard.
Further, we find no error in the circuit court’s termination of petitioner’s parental rights
to the children. Based on petitioner’s failure to acknowledge the conditions of abuse and neglect,
his ongoing substance abuse, and his inconsistent participation in services, the circuit court found
that there was no reasonable likelihood that the conditions of abuse and neglect could be
substantially corrected in the near future and that termination of petitioner’s parental rights was
in the children’s best interest. These findings, which are fully supported by the record, are
sufficient to terminate a parent’s parental rights. See W. Va. Code § 49-4-604(c)(6) (authorizing
the termination of parental rights upon said findings). See also Syl. Pt. 5, In re Kristin Y., 227 W.
Va. 558, 712 S.E.2d 55 (2011) (holding that “[t]ermination of parental rights . . . may be
employed . . . when it is found that there is no reasonable likelihood . . . that the conditions of
neglect or abuse can be substantially correct”).
For the foregoing reasons, we find no error in the decision of the circuit court, and its
January 19, 2021, order is hereby affirmed.
Affirmed.
ISSUED: September 20, 2022
CONCURRED IN BY:
Chief Justice John A. Hutchison
Justice Elizabeth D. Walker
Justice Tim Armstead
Justice William R. Wooton
Justice C. Haley Bunn
3