In re A.B.-1, 22-0077

CourtSupreme Court of West Virginia
PartiesIn re A.B.-1
Docket Number22-0077
Decision Date31 August 2022

In re A.B.-1

No. 22-0077

Supreme Court of Appeals of West Virginia

August 31, 2022


Kanawha County 20-JA-74

MEMORANDUM DECISION

Petitioner Father A.B.-2, by counsel Edward L. Bullman, appeals the Circuit Court of Kanawha County's December 29, 2021, order terminating his parental rights to A.B.-1.[1] The West Virginia Department of Health and Human Resources ("DHHR"), by counsel Patrick Morrisey and Mindy M. Parsley, filed a response in support of the circuit court's order. The guardian ad litem, Catherine Bond Wallace, 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 adjudicating him as an abusing parent and in terminating his parental rights instead of employing a less restrictive alternative.

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 February of 2020, the DHHR filed a child abuse and neglect petition alleging that the mother reported that petitioner was not involved in caring for A.B.-1. The DHHR also asserted that petitioner had abandoned A.B.-1. In the petition, petitioner's address was listed as unknown and, as such, he was not served with this petition until August of 2020. The circuit court held a preliminary hearing in November of 2020 in which petitioner did not attend but counsel appeared on his behalf.

1

The DHHR filed a second amended petition in September of 2020 alleging that petitioner stated that he had daily contact with A.B.-1, was involved with the child, and cared for the child while the mother was working.[2] According to the second amended petition, petitioner stated he had been living with the mother's aunt and uncle and acknowledged he was no longer in a relationship with the child's mother. The DHHR alleged that the mother tested positive for methamphetamine and the child was removed from her custody. According to the DHHR, because the child "was reported to be small for his age and in need of a dentist," a referral was made for the child to participate in Birth to Three services. As a result, the DHHR alleged that A.B.-1 was a neglected child and that he was threatened by a "refusal, failure or inability of the [petitioner] to supply the [child] with necessary food, clothing, shelter, supervision, medical care or education."[3]

In August of 2021, the circuit court held an adjudicatory hearing during which petitioner testified he had been incarcerated since December of 2020 after violating parole to visit his father in Ohio. Petitioner noted that he was serving parole after a prior felony conviction of breaking and entering. According to petitioner, he had been in and out of jail for a variety of reasons over the years, including when his bond was revoked during his criminal proceedings after missing hearings. Petitioner testified that he was involved in the care of A.B.-1 prior to the mother ending their relationship but admitted that he saw the child more infrequently after the mother entered into a relationship with her new boyfriend, J.B. Specifically, petitioner stated that after the first six months of the child's life, he did not assist in the care of the child on a regular basis, but would visit the child. Petitioner acknowledged that he had been incarcerated for the prior ten to eleven months but argued he was scheduled to be released in February of 2022. Petitioner further claimed to provide the child's mother with diapers and money, though he acknowledged that he was not always able to interact with the child directly.

Next, the DHHR presented evidence that petitioner failed to provide A.B.-1 with food, clothing, shelter, and was unable to provide for his daily needs. A Child Protective Services ("CPS") worker testified that petitioner did not have adequate housing at the time of the petition's filing. The worker stated that petitioner was living with the mother's aunt and uncle in a "deplorable living situation." According to the worker, she visited the home and noted that the house had been raided by local police departments on multiple occasions "because of drug dealing in that house" and that there were prior CPS investigations involving other children who resided in the home. The worker further explained that the house was extremely cluttered with excess trash throughout the residence. Additionally, she stated that the condition of the house was especially concerning because petitioner would visit with the child inside the home. The worker stated that she warned petitioner about the conditions inside the house, but petitioner maintained that he lacked other housing.

2

The worker went on to explain that A.B.-1 had been placed in foster care in August of 2020 and petitioner had been unable or unwilling to provide care for the child since that time. The worker indicated that petitioner had no involvement with the child whatsoever from August of 2020 until his arrest on outstanding warrants in late December of 2020. According to the worker, she spoke with petitioner when he was served with the initial petition in August of 2020, at which time she pleaded with petitioner to participate in services and to stay in contact with his counsel and CPS workers. However, the worker noted that there were four court hearings in the proceedings from August of 2020 until late December of 2020, and petitioner failed to appear for all four hearings. The worker further explained that petitioner failed to contact CPS workers, the circuit court, and made no effort to inquire about the child. Indeed, petitioner had no contact with the child from when he was served with the petition in August of 2020 until the adjudicatory hearing in August of 2021-a one year period. Based on the evidence, the court adjudicated the child as a neglected child and found that petitioner "failed to provide the necessities of life for his child such as food, clothing, and shelter." The court found that petitioner was "more concerned about his outstanding warrants than the welfare of his child." The court also noted that petitioner "made no meaningful efforts or no efforts at all to inquire of his son," that he had abandoned the child, and adjudicated him as an abusing and neglecting parent.

The circuit court held a dispositional hearing in December of 2021 during which the DHHR attempted to proffer that petitioner had prior CPS referrals. After petitioner's counsel objected to the proffer, the written reports of referrals were entered into the record. Petitioner also noted for the record that a home study ordered by the circuit court for his mother's home in Ohio had not yet begun and noted an objection to the delay. A CPS worker then testified that the DHHR recommended that petitioner's parental rights be terminated. The worker noted that petitioner had failed to participate in the proceedings for several months as he attempted to avoid outstanding warrants and that the termination of his parental rights was the least restrictive alternative and would create permanency for the child. According to the witness, petitioner acknowledged that he lacked his own housing and was living in inappropriate housing with relatives of the child's mother. The worker detailed that the child had medical, emotional, and behavioral issues that had to be corrected upon his removal from the parents' care. Importantly, the worker explained that the four-year-old child does not even recognize petitioner as his father, instead recognizing J.B.- the mother's most recent partner-as his father. Next, petitioner testified that he was incarcerated but noted that the child could be placed with the paternal grandmother until petitioner's release from incarceration. Petitioner acknowledged that his release date...

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