In re J.T.

FILED
February 7, 2023
STATE OF WEST VIRGINIA EDYTHE NASH GAISER, CLERK
SUPREME COURT OF APPEALS SUPREME COURT OF APPEALS
OF WEST VIRGINIA
In re J.T.
No. 22-0372 (Harrison County 20-JA-181-2)
MEMORANDUM DECISION
Petitioner Father T.W. 1 appeals the Circuit Court of Harrison County’s April 15, 2022,
order terminating his parental and custodial rights to J.T. 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 August of 2020, the DHHR filed a child abuse and neglect petition alleging that J.T.’s
mother abused controlled substances while pregnant with him and exposed him to her substance
abuse. The DHHR alleged that petitioner was aware of the mother’s substance abuse, failed to
protect the child from that abuse, and was also addicted to controlled substances. Finally, the
DHHR alleged that petitioner was incarcerated and failed to provide emotional or financial
support for J.T., and, therefore, had abandoned the child. In March of 2021, the circuit court
heard petitioner’s testimony that he had been unable to provide for J.T.’s care, custody, control,
supervision, or necessities due to his incarceration. The court concluded that petitioner
demonstrated a settled purpose to forego his parental duties and responsibilities and adjudicated
him as an abusing parent. In May of 2021, the circuit court granted petitioner’s motion for a
post-adjudicatory improvement period, and petitioner was released on parole shortly thereafter.
The circuit court held a final dispositional hearing in March of 2022 and heard evidence
on the DHHR’s previously filed motion to terminate petitioner’s parental rights. The court found
that petitioner was referred to random drug screening and parenting classes, but he did not
participate in either service due to an alleged lack of transportation. The circuit court considered
1
Petitioner appears by counsel Dean R. Morgan. The West Virginia Department of Health
and Human Resources (“DHHR”) appears by counsel Attorney General Patrick Morrisey and
Assistant Attorney General Katica Ribel. 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).
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this explanation incongruous with petitioner’s actions during the proceedings, as petitioner was
able to move from Preston County to Harrison County and to travel to Doddridge County for his
employment. The court further found that petitioner was arrested in January of 2022 for violating
his parole and charged with failure to register as a sex offender at his new address. The circuit
court concluded that petitioner made no effort to comply with the terms of his improvement
period and that he was reincarcerated at the time of the final dispositional hearing with no
expectation of release until 2023. Upon those findings, the circuit court determined that there
was no reasonable likelihood that petitioner could substantially correct the conditions of neglect
and abuse in the near future and that termination of petitioner’s parental and custodial rights was
necessary for J.T.’s welfare. Accordingly, the circuit court terminated petitioner’s parental and
custodial rights to J.T. by its April 15, 2022, order. Petitioner now appeals that order. 3
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). Petitioner first argues that the circuit court erred
in adjudicating him as an abusing parent. “[West Virginia Code § 49-4-601(i)], requires the
[DHHR], in a child abuse or neglect case, to prove ‘conditions existing at the time of the filing of
the petition . . . by clear and convincing [evidence].’” Syl. Pt. 1, in part, In re Joseph A., 199 W.
Va. 438, 485 S.E.2d 176 (1997) (citations omitted). An abusing parent is a “parent . . . whose
conduct . . . constitute[s] child abuse and neglect as alleged in the petition charging child abuse
and neglect.” W. Va. Code § 49-1-201. Further, a “neglected child” is defined as a child “[w]ho
is presently without necessary food, clothing, shelter, medical care, education, or supervision
because of the . . . absence of the child’s parent.” Id. Here, petitioner admitted that he was unable
to provide for J.T. while incarcerated and, critically, that the mother abused controlled
substances and neglected J.T. while petitioner was incarcerated. We agree with the circuit court
that this clear and convincing evidence supports the adjudication of petitioner as an abusing
parent.
Petitioner also argues that the circuit court erred in terminating his parental rights and
asserts that the circuit court erred in finding that there was no reasonable likelihood that the
conditions of neglect and abuse could be substantially corrected in the near future. Upon our
review, we find no error in the circuit court’s findings. See id. § 49-4-604(c)(6) (authorizing the
termination of parental rights upon said findings). The circuit court’s order clearly provides that
petitioner failed to participate in the terms of his improvement period and, by his own actions,
was reincarcerated. See id. § 49-4-604(d)(1) (providing that there is no reasonable likelihood that
the conditions of neglect and abuse can be substantially corrected when the parent has “failed to
follow through with a reasonable family case plan”). Accordingly, we find no error in the circuit
court’s decision to terminate petitioner’s parental rights to the child. 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 corrected”).
3
According to the parties, the mother voluntarily relinquished her parental rights. The
permanency plan for J.T. is adoption in his current placement.
2
For the foregoing reasons, we find no error in the decision of the circuit court, and its
April 15, 2022, order is hereby affirmed.
Affirmed.
ISSUED: February 7, 2023
CONCURRED IN BY:
Chief Justice Elizabeth D. Walker
Justice Tim Armstead
Justice John A. Hutchison
Justice William R. Wooton
Justice C. Haley Bunn
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