In Re: C.D., A.D. and K.D.

STATE OF WEST VIRGINIA
SUPREME COURT OF APPEALS
FILED
May 23, 2016
In re: C.D., A.D., and K.D. RORY L. PERRY II, CLERK
SUPREME COURT OF APPEALS
No. 16-0081 (Wayne County 14-JA-17, 14-JA-18, & 14-JA-19) OF WEST VIRGINIA
MEMORANDUM DECISION
Petitioner Father S.D., by counsel Todd R. Meadows, appeals the Circuit Court of Wayne
County’s June 3, 2015, order terminating his parental rights to twelve-year-old C.D., eleven­
year-old A.D., and seven-year-old K.D. The West Virginia Department of Health and Human
Resources (“DHHR”), by counsel S.L. Evans, filed its response in support of the circuit court’s
order and a supplemental appendix. The guardian ad litem, Alison R. Gerlach, filed a response
on behalf of the children also in support of the circuit court’s order.1 Petitioner filed a reply. On
appeal, petitioner alleges that the circuit court erred in terminating his parental rights because it
considered irrelevant evidence.2
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 March of 2014, the DHHR filed an abuse and neglect petition against petitioner and
the children’s mother R.N. As to petitioner, the DHHR alleged that he abused illegal drugs, was
arrested for manufacturing methamphetamine, and failed to provide the children with appropriate
housing. Shortly thereafter, the circuit court held an adjudicatory hearing during which petitioner
1
The guardian’s response to this Court failed to include a section regarding the status of
the children. Such information is of the utmost importance to this Court. The guardian’s response
also failed to cite to the record on appeal. We refer the guardian to Rules 10(c) and 11(j) of the
Rules of Appellate Procedure, which require briefs in abuse and neglect appeals to contain a
section on the status of the children and require all respondents’ briefs and summary responses to
clearly exhibit appropriate citations to the record on appeal. We decline to employ its use in this
matter, but we caution the guardian that Rule 10(j) provides for the imposition of sanctions
where a party’s brief does not comport with the Rules.
2
We note that West Virginia Code §§ 49-1-1 through 49-11-10 were repealed and
recodified during the 2015 Regular Session of the West Virginia Legislature. The new
enactment, West Virginia Code §§ 49-1-101 through 49-7-304, has minor stylistic changes and
became effective ninety days after the February 19, 2015, approval date. In this memorandum
decision, we apply the statutes as they existed during the pendency of the proceedings below.
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stipulated to allegations in the petition. Petitioner admitted that he neglected his children based
upon pending felony charges for manufacturing methamphetamine and “inappropriate and
unstable” housing. The circuit court granted petitioner supervised visitation with his children.
In June of 2014, petitioner filed a motion for an improvement period, which the circuit
court granted. The terms and conditions of the improvement period required petitioner to
participate in long-term drug rehabilitation, submit to random drug screens, and attend
individualized parenting classes. Subsequently, the circuit court granted petitioner an extension
of his improvement period.
In March of 2015, the circuit court held a review hearing on the status of petitioner’s
extended improvement period, during which it heard testimony that petitioner was minimally
compliant with the terms and conditions of his improvement period. By order entered April 9,
2015, the circuit court set a dispositional hearing following the completion of petitioner’s
extended improvement period.
On May 15, 2015, the circuit court held its first dispositional hearing during which it
heard testimony from petitioner’s caseworker. According to the caseworker, petitioner failed to
attend long-term drug rehabilitation, substance abuse therapy classes, and individualized
parenting classes. The caseworker also testified that petitioner admitted to using marijuana and
tested positive for opiates on two separate occasions. However, according to the caseworker,
petitioner participated in supervised visitations. Thereafter, the circuit court granted petitioner’s
motion to continue the dispositional hearing. During the continued dispositional hearing,
petitioner testified in his defense wherein he admitted to using pain pills since 1997.
Furthermore, petitioner confessed that during the underlying proceedings he purchased pain pills
off the streets, used cocaine, and failed three drug tests. By order entered June 3, 2015, the circuit
court found that petitioner failed to successfully complete his improvement period and
terminated his parental rights. This appeal followed.
This 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).
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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 termination of petitioner’s parental rights.
On appeal, petitioner alleges that the circuit court erred in terminating his parental rights
because it considered evidence regarding his substance abuse problems for which he was not
adjudicated. Specifically, petitioner alleges that he stipulated that he was a neglectful parent for
failing to provide stable housing and pending felony charges, while the dispositional hearing
included evidence concerning irrelevant issues such as his failure to attend drug rehabilitation
and participate in services and his admitted drug use during the underlying proceedings. Upon
our review, we find no error in this regard because petitioner’s argument lacks merit. The record
is clear that the terms of petitioner’s improvement period required him to participate in long-term
drug rehabilitation, submit to random drug screens, and attend individualized parenting classes,
among other requirements. As such, evidence of petitioner’s failures to comply with these terms
was clearly relevant, the basis for the stipulated adjudication notwithstanding.
Moreover, the evidence of which petitioner complains clearly illustrates his failure to
comply with the terms of his improvement period. Petitioner admitted to taking pain pills since
1997 and using cocaine and pain pills during his extended improvement period. Pursuant to West
Virginia Code § 49-4-604(c)(3), a situation in which there is no reasonable likelihood that the
conditions of abuse or neglect can be substantially corrected includes one in which
[t]he abusing parent . . . [has] not responded to or followed through with a
reasonable family case plan or other rehabilitative efforts of social, medical,
mental health or other rehabilitative agencies designed to reduce or prevent the
abuse or neglect of the child, as evidenced by the continuation or insubstantial
diminution of conditions which threatened the health, welfare or life of the
child[.]
In addition to his failure to comply with drug rehabilitation and parenting classes, the record is
devoid of relevant evidence that petitioner established a suitable home, a condition that formed
the basis of his stipulated adjudication that he neglected the children by providing them with
“inappropriate and unstable” housing. In his brief on appeal to this Court, petitioner concedes
that the evidence adduced during the dispositional hearings proved at best that he “may have”
established stable housing. More importantly, petitioner admitted that he neglected his children
due to his pending felony charges for manufacturing methamphetamine. As such, it is clear that
the evidence of petitioner’s illegal drug abuse was extremely relevant to establish his failure to
comply with services below.
For the foregoing reasons, we find no error in the decision of the circuit court, and its
June 3, 2015, order is hereby affirmed.
Affirmed.
ISSUED: May 23, 2016
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CONCURRED IN BY:
Chief Justice Menis E. Ketchum
Justice Robin Jean Davis
Justice Brent D. Benjamin
Justice Margaret L. Workman
Justice Allen H. Loughry II
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