In Re: A.L., C.K., E.K., I.K. and K.K.

STATE OF WEST VIRGINIA
SUPREME COURT OF APPEALS
FILED
November 25, 2014
RORY L. PERRY II, CLERK
In Re: A.L, C.K., E.K., I.K., & K.K. SUPREME COURT OF APPEALS
OF WEST VIRGINIA
No. 14-0675 (Hampshire County 13-JA-16, 13-JA-17, 13-JA-23 through 25)
MEMORANDUM DECISION
Petitioner Father, by counsel Karen L. Garrett, appeals the May 30, 2014, order of the
Circuit Court of Hampshire County that terminated his parental rights to six-year-old A.L, ten­
year-old C.K., four-year-old E.K., three-year-old I.K., and ten-month-old K.K. The children’s
guardian ad litem, Joyce E. Stewart, filed a response in support of the circuit court’s order. The
Department of Health and Human Resources (“DHHR”), by its counsel Lee A. Niezgoda, also
filed a response in support of the circuit court’s order. Petitioner thereafter filed a reply to each
respondent. On appeal, petitioner argues that the circuit court erred in (1) accepting petitioner’s
stipulations at the adjudicatory hearing and basing his adjudication on these stipulations; (2)
making certain findings regarding the DHHR’s efforts to achieve reunification, (3) adhering to
rules concerning notifying petitioner of the right to appeal, (4) making erroneous findings of fact,
(5) denying certain motions concerning improvement periods, (6) terminating petitioner’s
parental rights, and (7) denying petitioner’s motion for post-termination visitation and denying
sibling visitation.
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 August of 2013, the DHHR filed an amended abuse and neglect petition against
petitioner and his wife alleging that petitioner’s wife physically abused her stepdaughter,
petitioner’s daughter A.L.; that petitioner failed to protect A.L. and his other children despite the
substantiated allegations of A.L.’s abuse; and that petitioner and his wife failed to provide
adequate housing for the children due to the home’s deplorable condition. In particular, the home
had black mold, exposed insulation, areas of water damage that included water dripping from the
ceiling, a damaged roof from a fallen tree, exposed wiring, and a collapsed floor in the bathroom.
At the adjudicatory hearing in September of 2013, petitioner’s wife stipulated to inflicting bodily
injury upon A.L. that left bruises on her arm, spine, abdomen, shin, and knee, and petitioner
stipulated to the failure to protect A.L. Petitioner and his wife also stipulated to providing
inadequate and dangerous housing for the children. The circuit court adjudicated the children as
abused and neglected and granted both parents a six-month post-adjudicatory improvement
period with directions to participate in parenting classes, obtain employment, obtain and
maintain stable and appropriate housing, participate in domestic violence classes, learn and
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utilize positive coping skills to reduce conflict in relationships, and learn and practice adequate
skills for taking care of themselves and their children.
After considering testimony from petitioner and his caseworkers at the dispositional
hearing in May of 2014, the circuit court found that petitioner failed to improve during his
improvement period. The circuit court also found that he had not financially supported his
children, secured safe and stable housing, or completed counseling as directed. Based on these
findings, the circuit court concluded that there was no reasonable likelihood that the conditions
of abuse and neglect could be substantially corrected in the near future and that reunification
would be contrary to the children’s best interests. On May 30, 2014, the circuit court entered its
order terminating his parental rights.1 Petitioner now appeals.
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).
Syl. Pt. 1, In re Cecil T., 228 W.Va. 89, 717 S.E.2d 873 (2011).
Upon our review of the record, we find no error by the circuit court in adjudicating
petitioner as an abusing parent based on his stipulations to allegations contained in the amended
petition. Rule 26(a) of the West Virginia Rules of Procedure for Child Abuse and Neglect
requires that any stipulated or uncontested adjudication includes (1) the agreed upon facts
supporting court involvement concerning the subject parent’s problems, conduct, or condition,
and (2) a statement of the subject parent’s problems or deficiencies to be addressed at the final
disposition. Before the circuit court can accept a stipulated or uncontested adjudication, Rule
26(b) requires the circuit court to first determine that the subject parent understands the content
and consequences of his or her stipulations and is making the stipulations voluntarily. “‘An order
to which no objection was made and which was actually approved by counsel, will not be
reviewed on appeal.’ Syl. pt. 1, Loar v. Massey, W.Va., 261 S.E.2d 83 (1979).” Syl. Pt. 3, In re:
S.C., 168 W.Va. 366, 284 S.E.2d 867 (1981).
Petitioner argues that the allegations contained in the amended petition no longer existed
when that petition was filed. Petitioner asserts that because he and his wife moved out of the
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The circuit court also terminated the parental rights of the children’s mothers.
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home with deplorable conditions about a week before the amended petition was filed, the circuit
court erroneously accepted this stipulation. Our review of the adjudicatory hearing transcript
reveals that the parties, including petitioner and his attorney, took a twenty-minute recess to
consider the allegations of abuse and neglect. The record further shows that following this recess,
petitioner stipulated to the deplorable conditions of the home and the failure to protect A.L. The
record also shows that a family case plan was developed during the proceedings and at no time
between the adjudicatory hearing and the appeal did petitioner object to his entered stipulations,
the circuit court’s adjudicatory order, or the terms of his improvement period. Even if petitioner
and his family were no longer living in the specific home described in the amended petition,
petitioner had not acquired a safe and stable home for the children following the move or at any
point during the proceedings. Moreover, at the dispositional hearing, petitioner reiterated that he
stipulated to the deplorable conditions of the home and that he recognized that the DHHR
substantiated his failure to protect A.L. from his wife.
The circuit court also did not err in its findings concerning the DHHR and its efforts with
petitioner and his family. In particular, petitioner argues that (1) the circuit court erroneously
found that no reasonable efforts were required of the DHHR due to the imminent danger present
at the beginning of the case, (2) the DHHR did not make efforts to remedy the circumstances
alleged in the amended petition, and (3) the DHHR failed to make reasonable efforts to reunite
the children with their parents. Petitioner asserts that the DHHR did not adhere to all deadlines
for multidisciplinary team (“MDT”) reports and did not diligently provide services to petitioner.
We have held as follows:
“Where it appears from the record that the process established by the
Rules of Procedure for Child Abuse and Neglect Proceedings . . . has been
substantially disregarded or frustrated, the resulting order of disposition will be
vacated and the case remanded for compliance with that process and entry of an
appropriate dispositional order.” Syl. Pt. 5, In re Edward B., 210 W.Va. 621, 558
S.E.2d 620 (2001).
Syl. Pt. 6, In re Elizabeth A., 217 W.Va. 197, 617 S.E.2d 547 (2005). Our review of the record
shows that the circuit court’s finding concerning imminent danger did not bar the DHHR from
providing services to petitioner, as exhibited by petitioner’s treatment and family case plans. The
record reveals that petitioner was aware of the terms expected of him, yet inconsistently
complied with services. Accordingly, under the circumstances, the Rules of Procedure for Child
Abuse and Neglect Proceedings were not substantially disregarded or frustrated.
The record also shows no reversible error in the circuit court’s inquiry of petitioner and
his wife with regard to their right to appeal. Petitioner contends that the circuit court failed to
address their right to appeal after it adjudicated petitioner and his wife of abuse and neglect.
West Virginia Code § 49-6-2(e) provides that the circuit court “shall [] inquir[e] of the parents or
custodians whether or not appeal is desired and the response transcribed. A negative response
shall not be construed as a waiver.” The record shows that the circuit court addressed the
parents’ right to appeal following the dispositional hearing, to which petitioner’s counsel offered
no response. Our review also reveals that petitioner’s right to appeal was not interfered with as
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demonstrated by petitioner’s timely filings to appeal the circuit court’s termination of his
parental rights.
The circuit court did not commit reversible error in finding that petitioner would
potentially be living in a home with fourteen other people. Petitioner contends that the circuit
court miscounted the number of people who would be living in his grandparents’ home and that
accordingly, the circuit court erroneously found that petitioner’s plan to take his children to this
home was not feasible. Our review of the record shows that petitioner’s grandmother testified
that she would allow petitioner, his wife, and the five children to reside in the home with her,
petitioner’s grandfather, and three other children who already lived in the three-bedroom home.
Regardless of the actual number of people who would be living in petitioner’s grandparents’
home, the record shows, more importantly, that petitioner did not acquire and maintain stable
housing during the proceedings below. Moreover, petitioner testified at the dispositional hearing
that he would not be able to take all five of his children with him at that time, that he was behind
on child support, and that he was currently unemployed. For these reasons, it is clear that the
circuit court correctly found petitioner had not obtained suitable housing.
The Court also finds no error in the circuit court’s denial of petitioner’s motions for (1)
an extension to his improvement period, (2) a dispositional improvement period, and (3)
reconsideration of the order denying petitioner a dispositional improvement period. West
Virginia Code § 49-6-12(g) directs as follows:
A court may extend any improvement period granted . . . for a period not to
exceed three months when the court finds that the [parent] has substantially
complied with the terms of the improvement period; that the continuation of the
improvement period will not substantially impair the ability of the department to
permanently place the child; and that such extension is otherwise consistent with
the best interest of the child.
West Virginia Code § 49-6-12(c) directs that, if a subject parent has previously received an
improvement period, the circuit court has the discretion at the dispositional hearing to grant
petitioner another improvement period if the parent is able to show that he or she has
experienced a substantial change in circumstances and that, due to the change in circumstances,
is likely to fully participate in the improvement period. The record establishes that petitioner
failed to meet either burden for his motion to extend his original improvement period or his
motion for a dispositional improvement period. At the dispositional hearing, petitioner’s Home
Base worker testified that she attended every MDT meeting and that petitioner and his wife had
made some progress throughout the case but also had some regression. The evidence showed that
petitioner had yet to obtain stable and safe independent housing for his family and did not
consistently participate in services that had been provided to him for nearly a year, such as
individualized parenting, adult life skills, psychological services, and family therapy. A copy of
one of the more recent MDT meetings reveals that petitioner and his wife continued to
misunderstand the “core concepts” from their parenting classes, minimize the gravity of their
situation, and resist the need for Child Protective Services (“CPS”) involvement. Because the
circuit court properly denied petitioner’s motion for a dispositional improvement period and no
new evidence was presented at the hearing on petitioner’s motion for reconsideration, the Court
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finds no error in the circuit court’s denial of petitioner’s motion to reconsider its decision
denying his motion for a dispositional improvement period.
Upon our review of the record and the circumstances of this case, we find no error by the
circuit court in terminating petitioner’s parental rights. “‘Although parents have substantial rights
that must be protected, the primary goal in cases involving abuse and neglect, as in all family law
matters, must be the health and welfare of the children.’ Syl. Pt. 3, In re Katie S., 198 W.Va. 79,
479 S.E.2d 589 (1996).” Syl. Pt. 2, In re Timber M., 231 W.Va. 44, 743 S.E.2d 352 (2013).
“[T]he best interests of the child[ren] is the polar star by which decisions must be made which
affect children.” Michael K.T. v. Tina L.T., 182 W.Va. 399, 405, 387 S.E.2d 866, 872 (1989)
(citing State ex rel. Cash v. Lively, 155 W.Va. 801, 187 S.E.2d 601, 604 (1972). We have also
held as follows:
“[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
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).
Syl. Pt. 4, In re Cecil T., 228 W. Va. 89, 717 S.E.2d 873 (2011).
Under West Virginia Code § 49-6-5(b)(3), a subject parent’s failure to follow through
with rehabilitative efforts to reduce or prevent the abuse and neglect of the children constitutes
circumstances in which there is no reasonable likelihood that the conditions of abuse or neglect
can be substantially corrected. The evidence supports the circuit court’s findings of fact and
conclusions of law that petitioner made little improvement since the matter was initiated, that he
demonstrated an inadequate capacity to resolve the problems of abuse or neglect, and,
accordingly, there was no reasonable likelihood that the conditions of abuse and/or neglect could
be substantially corrected in the near future and termination was in the children’s best interests.
Pursuant to West Virginia Code § 49-6-5(a)(6), circuit courts are directed to terminate parental,
custodial, and guardianship rights upon such findings.
We also find no error in the circuit court’s decisions concerning post-termination
visitation or sibling visitation. We have held as follows:
“When parental rights are terminated due to neglect or abuse, the circuit
court may nevertheless in appropriate cases consider whether continued visitation
or other contact with the abusing parent is in the best interest of the child. Among
other things, the circuit court should consider whether a close emotional bond has
been established between parent and child and the child’s wishes, if he or she is of
appropriate maturity to make such request. The evidence must indicate that such
visitation or continued contact would not be detrimental to the child’s well being
and would be in the child’s best interest.” Syl. Pt. 5, In re Christina L., 194 W.Va.
446, 460 S.E.2d 692 (1995).
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Syl. Pt. 2, In re Billy Joe M., 206 W.Va. 1, 521 S.E.2d 173 (1999). With regard to sibling
visitation, we bear in mind the following:
In cases where there is a termination of parental rights, the circuit court
should consider whether continued association with siblings in other placements
is in the child's best interests, and if such continued association is in such child’s
best interests, the court should enter an appropriate order to preserve the rights of
siblings to continued contact.
Syl. Pt. 4, James M. v. Maynard, 185 W.Va. 648, 408 S.E.2d 400 (1991). Our review of the
record shows that the circuit court considered the circumstances of the case and the children’s
best interests in making its determinations concerning visitation. For instance, the circuit court
considered the children’s bond with their pre-adoptive families; their favorable circumstances in
these homes; and their young ages, with the youngest less than six months old at the time of the
hearing. The circuit court also considered the guardian ad litem’s assertion that the parents were
not consistent with visitation, i.e., there were delays and, at times, difficulty with assessing at
each visitation whether another would occur.2 As such, the circuit court did not err in denying
visitation with petitioner or among siblings because it was not in the children’s best interests.
For the foregoing reasons, we affirm the circuit court’s May 30, 2014, order terminating
petitioner’s parental rights to A.L, C.K., E.K., I.K., and K.K.
Affirmed.
ISSUED: November 25, 2014
CONCURRED IN BY:
Chief Justice Robin Jean Davis
Justice Brent D. Benjamin
Justice Margaret L. Workman
Justice Menis E. Ketchum
Justice Allen H. Loughry II
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We note that the May 30, 2014, transcript indicates that the circuit court permitted the
parents’ visitation schedule to continue pending appeal.
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