In re J.L. ( 2023 )

FILED
April 25, 2023
STATE OF WEST VIRGINIA EDYTHE NASH GAISER, CLERK
SUPREME COURT OF APPEALS
SUPREME COURT OF APPEALS OF WEST VIRGINIA
In re J.L.
No. 22-597 (Harrison County 22-JA-3-2)
MEMORANDUM DECISION
Petitioner Father D.L.1 appeals the Circuit Court of Harrison County’s June 2, 2022,
order terminating his parental and custodial rights to J.L.2 Upon our review, we determine that
oral argument is unnecessary and that a memorandum decision affirming the circuit court’s order
is appropriate. See W. Va. R. App. P. 21.
In January of 2022, the DHHR filed a petition alleging that the mother tested positive for
multiple drugs, including methamphetamine, when she gave birth to the child. The petition
further alleged that petitioner admitted he was aware the mother abused drugs during the
pregnancy. Finally, the petition alleged that petitioner’s parental rights to an older child were
previously involuntarily terminated. The record indicates that this prior termination was based on
substance abuse and incarceration.
Shortly after the petition’s filing, petitioner was incarcerated for a parole violation and
remained incarcerated throughout the proceedings. At an adjudicatory hearing in March of 2022,
the court found that petitioner had not had a substantial change in circumstances since the prior
termination of his parental rights and that he knew the mother abused drugs during her
pregnancy. As such, the court adjudicated petitioner as a neglecting parent.
Following this hearing, petitioner underwent a psychological evaluation and moved for a
post-adjudicatory improvement period. In May of 2022, the court held a dispositional hearing.
The court detailed petitioner’s admissions during his psychological evaluation, including the fact
1
Petitioner appears by counsel Jenna L. Robey. The West Virginia Department of Health
and Human Resources (“DHHR”) appears by counsel Attorney General Patrick Morrisey and
Assistant Attorney General Lee Niezgoda. Allison S. McClure appears as the child’s guardian ad
litem.
2
We use initials where necessary to protect the identities of those involved in this case.
See W. Va. R. App. P. 40(e).
1
that his drug abuse began thirteen years prior; that he abused a range of drugs, including
fentanyl; and that he had overdosed approximately ten times. The court found that petitioner
failed to prove that he was likely to fully participate in an improvement period based, in part,
upon his history of noncompliance, and therefore denied his motion for the same. The court
further found that petitioner had not remedied the conditions that led to the involuntary
termination of his parental rights to the older child, as his “substance abuse . . . was a problem
during his prior . . . case, and he continued to abuse drugs after the termination of parental
rights.” The court noted that incarceration remained an issue across both cases. Accordingly, the
court concluded that there was no reasonable likelihood that petitioner could substantially correct
the conditions of abuse and neglect and that termination of his rights was necessary for the
child’s welfare. The court then terminated petitioner’s parental and custodial rights.3 It is from
the dispositional order that petitioner appeals.
On appeal from a final order in an abuse and neglect proceeding, this Court reviews the
circuit court’s findings of fact for clear error and its conclusions of law de novo. Syl. Pt. 1, In re
Cecil T., 228 W. Va. 89, 717 S.E.2d 873 (2011). First, petitioner argues that the circuit court
erred in denying his motion for a post-adjudicatory improvement period. Petitioner is correct that
in order to obtain a post-adjudicatory improvement period, he was required to “demonstrate[], by
clear and convincing evidence, that . . . [he was] likely to fully participate in the improvement
period.” W. Va. Code § 49-4-610(2)(B). Before this Court, petitioner simply asserts that his
motion indicated he would substantially comply with the terms thereof, and he fails to cite to any
evidence he presented below to support this assertion. On the contrary, the circuit court found
that petitioner’s history of noncompliance demonstrated that he would be unlikely to fully
comply or correct the conditions of neglect at issue. The court noted that petitioner was granted
an improvement period in the prior proceeding, yet he failed to remedy his substance abuse and
incarceration. Given that these issues persisted across two proceedings, we find no abuse of
discretion in denying petitioner’s motion. See In re Tonjia M., 212 W. Va. 443, 448, 573 S.E.2d
354, 359 (2002) (permitting circuit court discretion to deny improvement period when no
improvement is likely). Further, petitioner argues that the child’s permanency would not be
delayed because the mother was participating in an improvement period at the time. However,
the fact that the mother satisfied her burden for obtaining an improvement period has no bearing
on whether petitioner satisfied his burden and cannot entitle petitioner to relief.
Next, petitioner argues that it was error to terminate his rights when the court could have
merely “suspended” his rights under West Virginia Code § 49-4-604(c)(5). We find this
argument unavailing because, as the circuit court found, this young child requires a more
permanent outcome. As the circuit court noted,
“[c]ourts are not required to exhaust every speculative possibility of
parental improvement . . . where it appears that the welfare of the child will be
seriously threatened, and this is particularly applicable to children under the age
3
According to respondents, the mother is participating in an improvement period, and the
child has been returned to her physical custody with a permanency plan of reunification with her.
2
of three years who are more susceptible to illness, need consistent close
interaction with fully committed adults, and are likely to have their emotional and
physical development retarded by numerous placements.” Syl. Pt. 1, in part, In re
R.J.M., 164 W.Va. 496, 266 S.E.2d 114 (1980).
Cecil T., 228 W. Va. at 91, 717 S.E.2d at 875, Syl. Pt. 4. The court was correct in finding that
termination of petitioner’s parental and custodial rights was necessary to obtain the permanency
needed for the child’s development, especially considering the issues of neglect present in this
case were also the basis for the termination of petitioner’s parental rights to an older child.
Before this Court, petitioner argues that there was a reasonable likelihood that he could
correct his neglectful conditions, but their chronic nature demonstrates that the court had
sufficient evidence upon which to find that there was no reasonable likelihood the conditions of
abuse and neglect could be substantially corrected. Petitioner also argues that termination of his
rights was not necessary for the child’s welfare because the child was placed with a relative, but
this fact does nothing to undermine the court’s findings concerning the child’s need for
permanency. In short, the court had a sufficient basis upon which to make the findings necessary
to terminate petitioner’s parental and custodial rights.4 See W. Va. Code § 49-4-604(c)(6)
(permitting circuit court to terminate parental and custodial rights upon finding no reasonable
likelihood that conditions of neglect can be substantially corrected in near future and when
necessary for child’s welfare); see also Syl. Pt. 5, In re Kristin Y., 227 W. Va. 558, 712 S.E.2d
55 (2011) (permitting termination of parental and custodial rights “without the use of intervening
less restrictive alternatives when it is found that there is no reasonable likelihood . . . that
conditions of neglect . . . can be substantially corrected”).
For the foregoing reasons, we find no error in the decision of the circuit court, and its
June 2, 2022, order is hereby affirmed.
Affirmed.
ISSUED: April 25, 2023
CONCURRED IN BY:
Chief Justice Elizabeth D. Walker
Justice Tim Armstead
Justice John A. Hutchison
Justice William R. Wooton
Justice C. Haley Bunn
4
In this assignment of error, petitioner also alleges that it was error to deny him post-
termination visitation with the child. However, petitioner provides no argument in support of this
assertion. Accordingly, we decline to address this unsupported assertion. See W. Va. R. App. P.
10(c) (requiring brief to contain “an argument exhibiting clearly the points of fact and law
presented. . . and citing the authorities relied on”).
3