In re B.H.

• Decision Date: 19 April 2019
• Docket Number: No. 18-1058,18-1058
• Court: West Virginia Supreme Court
• Parties: In re B.H.

In re B.H.

No. 18-1058

STATE OF WEST VIRGINIA SUPREME COURT OF APPEALS

April 19, 2019

(Mingo County 18-JA-49)

MEMORANDUM DECISION

Petitioner Father M.H., by counsel Cullen C. Younger, appeals the Circuit Court of Mingo County's October 25, 2018, order terminating his parental rights to B.H.¹ The West Virginia Department of Health and Human Resources ("DHHR"), by counsel Brandolyn N. Felton-Ernest, filed a response in support of the circuit court's order. The guardian ad litem ("guardian"), Susan J. Van Zant, 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 terminating his parental rights and denying him post-termination 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 May of 2018, the DHHR filed an abuse and neglect petition against the parents that alleged the child was born exhibiting symptoms of drug exposure and withdrawal, including "excessive high pitch crying, markedly hyper active [M]oro reflex, mild tremors undisturbed, increased muscle tone, molting, poor feeding, feeding infrequent and uncoordinated."² The child's umbilical cord blood additionally tested positive for buprenorphine, cocaine, and THC. According to the petition, the mother tested positive for "THC, . . . Subutex, [and] Gabapentin" upon the child's birth. The petition further alleged that the mother tested positive for cocaine and other drugs during her pregnancy and had track marks on her arms when she arrived at the hospital to give birth. Although petitioner and the mother were initially present at the hospital, when the petitionwas filed, the DHHR was unable to make contact with them in order to conduct an interview. The DHHR attempted a home visit and also scheduled a meeting with the parents over the phone, but the parents did not appear as scheduled. Further, the petition alleged possible domestic violence in the home based upon the mother reporting to the hospital "covered in bruises." As to petitioner, the DHHR alleged that he failed to protect the child from abuse and neglect.³

In June of 2018, the circuit court held a preliminary hearing.⁴ During the hearing, the DHHR presented evidence from a Child Protective Services ("CPS") worker that petitioner "admitted that he knew of [the mother's] drug use." In fact, the witness testified that petitioner "wanted to know if it would hurt him getting his child back or not after he'd already admitted to knowing of her drug use." On cross-examination, the witness indicated that petitioner claimed he did not know about the mother's cocaine use, but reiterated that he admitted that he knew about the THC and buprenorphine. At that time, the DHHR requested that petitioner submit to paternity testing. At the conclusion of the preliminary hearing, the circuit court found probable cause to support the child's removal and ordered that both parents submit to drug screens that same day. The circuit court also ordered the parents to attend inpatient rehabilitation. According to the record, the child's guardian ad litem contacted a rehabilitation facility one day prior to the hearing and the facility had openings to accept the parents.

In August of 2018, the circuit court held an adjudicatory hearing. Petitioner did not attend, but was represented by counsel. Counsel informed the circuit court that petitioner was supposed to check into a detoxification program that day, but, despite requesting confirmation of petitioner's submission to this program, counsel had not received any such confirmation. The circuit court took judicial notice of all prior testimony in the matter and found clear and convincing evidence existed that petitioner "abused and neglected the subject[] child[]."

In October of 2018, the circuit court held a dispositional hearing. Again, petitioner did not attend, but was represented by counsel. Once again, counsel informed the circuit court that petitioner indicated the day prior to the hearing that he was "on his way to detox." Again, counsel requested confirmation of petitioner's submission to the program and received nothing in return. A DHHR worker testified that, aside from petitioner contacting him to say he would not be present for a hearing, petitioner failed to maintain communication with the DHHR regarding the proceedings. According to the witness, the DHHR placed numerous calls and left messages with petitioner in order to complete his paternity testing, but petitioner never returned the calls. The DHHR also never received any confirmation that petitioner was enrolled in substance abuse treatment. Finally, the DHHR indicated that petitioner had "absolutely no contact with the child" after the child was released from the hospital. Based on this evidence, the circuit court found therewas no reasonable likelihood the conditions of abuse or neglect could be substantially corrected and that termination of petitioner's parental rights was necessary for the child's welfare. Accordingly, the circuit court terminated petitioner's parental rights. It is from the dispositional order that petitioner appeals.⁵

The 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 review, the Court finds no error in the proceedings below.

In support of his assignment of error regarding termination of his parental rights, petitioner sets forth several arguments related to phases of the proceedings in addition to disposition. First, petitioner argues that the evidence was insufficient to support his adjudication. Second, petitioner argues that the DHHR failed to make reasonable efforts to preserve the family. Third, petitioner argues that he was not provided an opportunity to participate in services and, therefore, the circuit court could not have made a determination as to whether the circumstances of abuse and neglect were correctable. We find no merit in these arguments and address each in turn.

The record in this matter is clear that sufficient evidence existed to support the circuit court's adjudication of petitioner. As this court has held,

"[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].' The statute, however, does not specify any particular manner or mode of testimony or evidence by which the [DHHR] is obligated to meet this burden." Syllabus Point 1, In Interest of S.C., 168 W.Va. 366, 284 S.E.2d 867 (1981).

Syl. Pt. 1, In re Joseph A., 199 W. Va. 438, 485 S.E.2d 176 (1997) (citations omitted). This Court has explained that "'clear and convincing' is the measure or degree of proof that will produce inthe mind of the factfinder a firm belief or conviction as to the allegations sought to be established." In re F.S., 233 W. Va. 538, 546, 759 S.E.2d 769, 777 (2014) (citing Brown v. Gobble, 196 W. Va. 559, 564, 474 S.E.2d 489, 494 (1996)). Additionally, in regard to a mother's substance abuse during pregnancy, this Court has recently established that

[w]hen a child is born alive, the presence of illegal drugs in the child's system at birth constitutes sufficient evidence that the child is an abused and/or neglected child, as those terms are defined by W. Va. Code § 49-1-201 (2015) (Repl. Vol. 2015), to support the filing of an abuse and neglect petition pursuant to W. Va. Code § 49-4-601 (2015) (Repl. Vol. 2015).

Syl. Pt. 1, In re A.L.C.M., 239 W. Va. 382, 801 S.E.2d 260 (2017). The Court went on to explain that "with respect to Father's alleged failure to stop Mother's illegal drug use during her pregnancy, the statutes governing abuse and neglect proceedings allow a finding of abuse to be based upon a parent's knowledge that another person is harming his/her child." Id. at 391-92, 801 S.E.2d at 269-70.

Here, petitioner admitted to his knowledge of the mother's substance abuse.⁶ Petitioner attempts to mitigate this testimony by pointing out that he was "only . . . aware of [the mother's] use of Suboxone⁷ and marijuana" and not her use of cocaine. This distinction is immaterial, as marijuana is still an illegal drug and there was never any evidence introduced that the mother had a valid prescription for Suboxone. Petitioner further argues that the CPS worker testified that "she did not know if [petitioner] was aware of the . . . [m]other's drug use at the time of the filing of the [p]etition" and that she only offered speculation. This argument,...