In re A.Y.

• Decision Date: 27 August 2021
• Docket Number: 20-0513
• Court: Virginia Supreme Court
• Parties: In re A.Y., Z.Y., and P.Y.

In re A.Y., Z.Y., and P.Y.

No. 20-0513

Supreme Court of Appeals of West Virginia

August 27, 2021

Taylor County 18-JA-112, 18-JA-111, and 18-JA-110

MEMORANDUM DECISION

Petitioner Father F.Y., by counsel Katica Ribel, appeals the Circuit Court of Taylor County's June 17, 2020, order terminating his parental rights to A.Y., Z.Y., and P.Y.^[1] The West Virginia Department of Health and Human Resources ("DHHR"), by counsel Lee A. Niezgoda, filed a response in support of the circuit court's order. The guardian ad litem, Terri L. Tichenor, filed a response on the children's behalf in support of the circuit court's order. On appeal, petitioner argues that the circuit court erred in assuming jurisdiction over the proceedings and in 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 September of 2018, the DHHR filed a child abuse and neglect petition alleging that petitioner and the mother engaged in domestic violence, substance abuse, and criminal activity. According to the DHHR, the mother and the children had relocated to West Virginia from Virginia earlier in September of 2018 to live with the maternal grandmother. While in West Virginia, the mother was arrested for possession of methamphetamine and incarcerated. The DHHR alleged that petitioner had recently been released from incarceration and was subject to an eviction proceeding in Virginia. During the DHHR's interviews with the children, they disclosed witnessing domestic violence between their parents. Further, the DHHR alleged that the parents had been unable to maintain a stable residence, and the children changed schools multiple times in Virginia in the past year as a result. Petitioner waived his right to a preliminary hearing, and the DHHR placed the children with the maternal grandmother, where they remained throughout the proceedings.

Petitioner stipulated to the allegations of abuse and neglect in December of 2018, and the circuit court adjudicated him as an abusing parent. Thereafter, the circuit court granted petitioner a three-month post-adjudicatory improvement period, which was extended in March of 2019. Petitioner was later granted a six-month post-dispositional improvement period in August of 2019. On February 7, 2020, petitioner filed a motion to dismiss the proceeding for a lack of jurisdiction, alleging that Virginia was the home state of the children under the Uniform Child Custody Jurisdiction and Enforcement Act ("UCCJEA"), and West Virginia erred in assuming jurisdiction.

The circuit court held the final dispositional hearing on February 10, 2020. The court heard argument related to petitioner's motion to dismiss. The circuit court found that the mother brought the children to West Virginia in September of 2018 and was arrested in Putnam County, West Virginia, for possession of methamphetamine soon thereafter. The circuit court further found that, upon arrest, the mother provided a West Virginia driver's license for identification, which displayed a West Virginia address, and she also provided a different West Virginia address as her mailing address. The circuit court concluded that the mother "held herself out to the Magistrate Court of Putnam County as a resident of West Virginia." The circuit court also referenced the maternal grandmother's prior testimony that the mother was relocating to West Virginia, which was why the children were at her home when the petition was filed. The circuit court concluded that there was substantial contact with West Virginia "that [was] beyond just passing." Moreover, the circuit court noted on the record that it had contacted the twenty-sixth district court of Virginia, where petitioner and the mother had prior Child Protective Services referrals, and that court advised that there were no pending cases against either parent. Furthermore, the twenty-sixth district court of Virginia declined to exercise jurisdiction over the instant proceedings. Thus, the circuit court concluded that Virginia had declined to exercise jurisdiction over these proceedings and petitioner and the mother had substantial contacts with West Virginia such that jurisdiction was proper, and petitioner's motion to dismiss was denied.

The DHHR moved to terminate petitioner's parental rights because he had failed to complete the terms of his case plan and the children had been out of his care for seventeen of the preceding twenty-two months. The circuit court heard evidence that petitioner continued to live in Virginia throughout the proceedings, despite repeated notice that the DHHR could not arrange services for petitioner in Virginia. Further, although petitioner lived within three miles of the West Virginia border, he would not travel into West Virginia for services and refused to move into West Virginia. The DHHR worker assigned to the case testified that petitioner did not participate in a scheduled psychological evaluation and could not be referred to a random drug screening facility in Virginia. Moreover, petitioner admitted that he had not completed any services related to the conditions of domestic violence. During her testimony, the mother admitted that she and petitioner could have relocated to West Virginia, but petitioner did not want to relocate.

Ultimately, the circuit court found that petitioner had failed to comply with the terms and conditions of his improvement periods and that the "core issues that led to the filing of the [p]etition ha[d] not been addressed." The circuit court further found that petitioner chose "to blame the DHHR for [his] failure to progress rather than taking any initiative." The circuit court concluded that it was in the children's best interests to terminate petitioner's parental rights. Accordingly, the circuit court terminated petitioner's parental rights by its June 17, 2020, order.^[2]

The Court has previously held:

"Although conclusions of law reached by a circuit court

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