In Re: P.F., C.F.-1, L.F., and J.F. ( 2017 )

STATE OF WEST VIRGINIA
SUPREME COURT OF APPEALS FILED
October 23, 2017
RORY L. PERRY II, CLERK
In re: P.F., C.F.-1, L.F., and J.F. SUPREME COURT OF APPEALS
OF WEST VIRGINIA
No. 17-0474 (Randolph County 16-JA-051, 16-JA-052, 16-JA-053, & 16-JA-054)
MEMORANDUM DECISION
Petitioner Father C.F.-2, by counsel David C. Fuellhart, appeals the Circuit Court of
Randolph County’s April 10, 2017, order terminating his parental rights to P.F., C.F.-1, L.F., and
J.F.1 The West Virginia Department of Health and Human Resources (“DHHR”), by counsel Lee
Niezgoda, filed a response in support of the circuit court’s order. The guardian ad litem
(“guardian”), Heather M. Weese, filed a response on behalf of the child in support of the circuit
court’s order. On appeal, petitioner argues that the circuit court erred in terminating his post­
adjudicatory improvement period, denying his motion for a post-dispositional improvement
period, and terminating his parental rights.
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 June of 2016, the DHHR filed an abuse and neglect petition against petitioner alleging
that his home had no working utilities, little food, and, due to non-payment of rent, the landlord
was seeking eviction. The DHHR also alleged that petitioner locked the refrigerator to prevent
the children from “wasting” food. Further, the DHHR alleged that petitioner had a history of
alcoholism and the children reported observing their parents snort pills and smoke
methamphetamine. Petitioner’s drug use was alleged to have affected his ability to maintain
employment and supervise and parent his children. Petitioner waived his preliminary hearing and
the circuit court ordered that he attend supervised visits with the 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, because one child and petitioner share the
same initials, we will refer to them as C.F.-1 and C.F.-2, respectively, throughout this
memorandum decision.
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In July of 2016, the DHHR filed an amended petition alleging petitioner’s failure to
follow through with medical treatment for C.F.-1 at the WVU Eye Institute, and failure to ensure
that C.F.-1 and P.F. wore their corrective lenses as directed. According to the DHHR, medical
records indicated that C.F.-1 and P.F. were seen at the WVU Eye Institute in 2014 and were
instructed to wear corrective lenses at all times when they were awake. The instructions also
directed the family to return for a follow up appointment for C.F.-1 in six months, but that
appointment was not kept. Also in July of 2016, the circuit court held an adjudicatory hearing
wherein petitioner filed a motion for a post-adjudicatory improvement period. Petitioner
stipulated that he failed to supply adequate shelter for his children and that he abused drugs
which affected his ability to parent the children. The circuit court granted petitioner’s motion for
a post-adjudicatory improvement period.
In September of 2016, the circuit court held a review hearing. The circuit court found that
petitioner had been participating in his improvement period and ordered the improvement period
to continue. In November of 2016, the circuit court held a review hearing to evaluate petitioner’s
improvement period. The circuit court extended petitioner’s improvement period for an
additional ninety days. In January of 2017, the circuit court held a review hearing. A Child
Protective Services (“CPS”) worker advised the circuit court that petitioner’s supervised visits
and parenting classes had been ended due to his non-compliance and that petitioner had a
positive screen for methamphetamine in December of 2016.
In February of 2017, the circuit court held a review hearing. The DHHR presented
testimony that petitioner complied with some terms and conditions of his improvement period,
such as obtaining housing and employment, but did not comply with several other terms. The
DHHR also presented evidence that petitioner had positive drug screens in December of 2016,
January of 2017, and February of 2017. A CPS worker testified that petitioner’s attendance at
visits had become inconsistent beginning in November of 2016. The circuit court specifically
found that in the six months prior to the hearing, petitioner had missed more visits, parenting and
adult life skills classes, and drug screens than he had participated in, and had a positive drug
screen within the past month, indicating that petitioner had made no effort to stop using drugs.
Petitioner did not offer any testimony that he sought any type of drug treatment or counseling.
The circuit court terminated petitioner’s post-adjudicatory improvement period for non­
compliance with its terms and conditions. Nevertheless, the circuit court allowed petitioner to
attend visits with the children until disposition.
The DHHR filed its motion to terminate petitioner’s parental rights, and on March 27,
2017, the circuit court held a dispositional hearing at which petitioner moved for a post-
dispositional improvement period. During the hearing, petitioner testified that he would be
willing to comply with the terms and conditions of an improvement period, but also admitted to
using methamphetamine after the February 22, 2017, hearing wherein the circuit court found he
failed to successfully complete his improvement period. The circuit court denied petitioner’s
motion for a post-dispositional improvement period and found no reasonable likelihood that
petitioner could substantially correct the conditions of abuse and neglect in the near future. The
circuit court found that termination of petitioner’s parental rights was consistent with the best
interest of the children and ultimately denied petitioner’s motion for a post-dispositional
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improvement period and terminated his parental rights in its April 10, 2017, order.2 It is from the
dispositional order that petitioner appeals.
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 findings below.
First, petitioner argues that the circuit court erred in terminating his post-adjudicatory
improvement period because he substantially complied with the terms of the improvement period
and obtained housing and employment. We disagree. Under West Virginia Code § 49-4-610(7)
“the court shall terminate any improvement period granted pursuant to this section when the
court finds that respondent has failed to fully participate in the terms of the improvement
period[.]” Although petitioner obtained housing and employment, he failed to attend visits with
the children and failed to participate in parenting and adult life skills services. Further, petitioner
failed to take consistent drug screens and tested positive for methamphetamine in December of
2016, and in January and February of 2017. This evidence shows that petitioner did not fully
comply with the terms of his improvement period and, therefore, the circuit court did not err in
terminating his post-adjudicatory improvement period.
Next, petitioner argues that he should have been granted a post-dispositional
improvement period because he substantially complied with his post-adjudicatory improvement
period. However, as stated above, petitioner did not substantially comply with his post­
adjudicatory improvement period. In order to obtain a post-dispositional improvement period,
West Virginia Code § 49-4-610(3)(B) requires that the parent “demonstrates, by clear and
convincing evidence, that [the parent] is likely to fully participate in an improvement period . . .
.” Further, we have often noted that the decision to grant or deny an improvement period rests in
the sound discretion of the circuit court. See In re: M.M., 236 W.Va. 108, 115, 778 S.E.2d 338,
2
Both parents’ parental rights were terminated below. According to the guardian and the
DHHR, the children are placed in the custody of the paternal uncle with a goal of adoption in
that home.
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345 (2015) (holding that “West Virginia law allows the circuit court discretion in deciding
whether to grant a parent an improvement period”); Syl. Pt. 6, in part, In re Katie S., 198 W.Va.
79, 479 S.E.2d 589 (1996) (holding that “[i]t is within the court’s discretion to grant an
improvement period within the applicable statutory requirements”). Additionally, under West
Virginia Code § 49-4-610(3)(D), if a parent has experienced a substantial change in
circumstances since the initial improvement period, the parent “shall demonstrate that due to that
change in circumstances, the [parent] is likely to fully participate in the improvement period.”
Here, petitioner does not assert that he has had a substantial change in circumstances
since the termination of his post-adjudicatory improvement period. Petitioner also failed to prove
by clear and convincing evidence that he was likely to substantially comply with the terms and
conditions of a post-dispositional improvement period because his post-adjudicatory
improvement period was terminated for failure to comply with its terms and conditions. As
discussed above, petitioner failed to attend visits with the children, failed to comply with
consistent drug screens, and tested positive for methamphetamine multiple times throughout the
proceedings. Based on this evidence, petitioner did not prove by clear and convincing evidence
that he was likely to substantially comply with the terms and conditions of a post-dispositional
improvement period and, therefore, the circuit court did not err in denying petitioner’s motion for
a post-dispositional improvement period.
Finally, petitioner argues that the circuit court erred in terminating his parental rights.
Petitioner asserts that the circuit court should have considered a less-restrictive alternative. We
disagree. West Virginia Code § 49-4-604(b)(6) provides that circuit courts are to terminate
parental rights upon findings that there is “no reasonable likelihood that the conditions of neglect
or abuse can be substantially corrected in the near future” and that termination is necessary for
the children’s welfare. West Virginia Code § 49-4-604(c)(3) provides that no reasonable
likelihood that the conditions of abuse or neglect can be substantially corrected exists when
“[t]he abusing parent . . . ha[s] not responded to or followed through with a reasonable family
case plan or other rehabilitative efforts[.]”
Further, we have previously held that
“[t]ermination of parental rights, the most drastic remedy under the
statutory provision covering the disposition of neglected children, W. Va.Code [§]
49-6-5 [now 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 W. Va.Code [§] 49-6-5(b) [now West Virginia Code
§ 49-4-604(c)] . . . 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). Here, it is clear that there was
no reasonable likelihood that petitioner could have substantially corrected the conditions of
abuse or neglect in the near future. As discussed above, petitioner failed to attend visits and
comply with services, including parenting classes and consistent drug screens. Additionally,
petitioner tested positive for methamphetamine during the proceedings below and did not seek
any drug treatment or counseling. Moreover, the circuit court also found that termination was
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necessary for the child’s welfare. As previously stated, pursuant to West Virginia Code § 49-4­
604(b)(6), circuit courts are directed to terminate parental rights upon these findings. For these
reasons, we find no error in the circuit court’s termination of petitioner’s parental rights.
For the foregoing reasons, we find no error in the decision of the circuit court, and its
April 10, 2017, order is hereby affirmed.
Affirmed.
ISSUED: October 23, 2017
CONCURRED IN BY:
Chief Justice Allen H. Loughry II
Justice Robin Jean Davis
Justice Margaret L. Workman
Justice Menis E. Ketchum
Justice Elizabeth D. Walker
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