In re B.P.

• Docket Number: 22-698
• Decision Date: 08 November 2023
• Parties: IN RE: B.P.
• Court: West Virginia Supreme Court

1

IN RE: B.P.

No. 22-698

Supreme Court of Appeals of West Virginia

November 8, 2023

Submitted: October 18, 2023

Appeal from the Circuit Court of Hampshire County Honorable C Carter Williams, Judge Civil Action No. 21-JA-106

Grant M. Sherman, Esq. Sherman Law Firm Romney, West Virginia Attorney for Petitioner G.F.

Julie A. Frazer, Esq. Keaton, Frazer, Milleson, and Dante, PLLC Romney, West Virginia Guardian ad Litem

Patrick Morrisey, Esq. Attorney General Charleston, West Virginia Lee Niezgoda, Esq. Assistant Attorney General Fairmont, West Virginia Attorneys for WV DHHR

JUSTICE HUTCHISON delivered the Opinion of the Court. JUSTICE WOOTON dissents and reserves the right to file a dissenting opinion.

SYLLABUS BY THE COURT

1. "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).

2. "Where the issue on an appeal from the circuit court is clearly a question of law or involving an interpretation of a statute, we apply a de novo standard of review." Syl. Pt. 1, Chrystal R.M. v. Charlie A.L., 194 W.Va. 138, 459 S.E.2d 415 (1995).

3. A parent's absence from a child's life because of incarceration that results in the inability of the parent to provide necessary food, clothing, shelter, medical care, education, or supervision is a form of neglect under the definition of "neglected child" set forth in West Virginia Code § 49-1-201 (2018).

4. "A natural parent of an infant child does not forfeit his or her parental right to the custody of the child merely by reason of having been convicted of one or more charges of criminal offenses." Syl. Pt. 2, State ex rel. Action v. Flowers, 154 W.Va. 209, 174 S.E.2d 742 (1970).

5. "When no factors and circumstances other than incarceration are raised at a disposition hearing in a child abuse and neglect proceeding with regard to a parent's ability to remedy the condition of abuse and neglect in the near future, the circuit court shall evaluate whether the best interests of a child are served by terminating the rights of the biological parent in light of the evidence before it. This would necessarily include but not be limited to consideration of the nature of the offense for which the parent is incarcerated, the terms of the confinement, and the length of the incarceration in light of the abused or neglected child's best interests and paramount need for permanency, security, stability and continuity." Syl. Pt. 3, In re Cecil T., 228 W.Va. 89, 717 S.E.2d 873 (2011).

6. "'"'Termination of parental rights, the most drastic remedy under the statutory provision covering the disposition of neglected children, W.Va. Code, 49-6-5 [1977] may be employed without the use of intervening less restrictive alternatives when it is found that there is no reasonable likelihood under W.Va. Code, 49-6-5(b) [1977] that conditions of neglect or abuse can be substantially corrected.' Syllabus Point 2, In re R.J.M., 164 W.Va. 496, 266 S.E.2d 114 (1980)." Syllabus point 4, In re Jonathan P., 182 W.Va. 302, 387 S.E.2d 537 (1989).' Syl. Pt. 1, In re Jeffrey R.L., 190 W.Va. 24, 435 S.E.2d 162 (1993)." Syl. Pt. 6, In re Isaiah A., 228 W.Va. 176, 718 S.E.2d 775 (2010).

7. "'[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).

HUTCHISON, Justice:

The petitioner, G.F.,^[1] appeals the July 13, 2022, order of the Circuit Court of Hampshire County terminating his parental rights to his daughter, B.P. In this appeal, the petitioner contends that the circuit court erred by adjudicating him as an abusive and/or neglectful parent based on drug use because he was incarcerated at the time the respondent, the West Virginia Department of Health and Human Resources ("DHHR"), filed the abuse and neglect petition against him. Upon review of the parties' briefs and oral arguments, the submitted appendix record, and the pertinent authorities, we find that the circuit court did not base its adjudication of the petitioner on drug use, but instead, properly adjudicated the petitioner as a neglectful parent because of his failure to provide for B.P.'s basic needs due to his absence from her life as a result of his incarceration. Accordingly, we affirm the circuit court's order.

I. Facts and Procedural Background

On November 18, 2021, three days after B.P. was born, the DHHR filed a petition alleging that her mother, T.P., had abused and/or neglected B.P. because both tested positive for methamphetamine at the time of the child's birth. When the petition was filed, paternity had not yet been established. The man initially identified by T.P. as B.P.'s potential father was excluded by a paternity test. The petitioner was not determined to be the father of B.P. until January 27, 2022. At that time, the petitioner was incarcerated in the Potomac Highlands Regional Jail having been convicted of two counts of possession with the intent to deliver a controlled substance, specifically methamphetamine, in violation of West Virginia Code § 60A-4-401(a)(i) (2020). The petitioner had pled guilty to these two felonies and was serving two terms of one to fifteen years in prison concurrently.^[2] The petitioner had been incarcerated since September 2, 2021.

On March 1, 2022, the DHHR filed an amended petition alleging that the petitioner had abused and/or neglected B.P. The record reflects that the DHHR used the same petition it had filed against T.P., which included an allegation of abandonment with respect to the unknown father. The following allegations concerning the petitioner were added:

On January 27, 2022, [G.F.] was determined to be the biological father of [B.P.]

That [G.F.] was convicted of two counts of Possession with intent to Deliver a Controlled Substance: Methamphetamine December 1, 2021; and that [G.F.] was denied probation and sentenced to the penitentiary.

Since the infant child's birth, [G.F.] has had no contact nor has he provided any financial support for the infant child.

The petitioner's adjudicatory hearing was held on May 16, 2022.^[3] At that hearing, the petitioner testified that he and T.P. "just knew the same people" and were never in a relationship. He further testified that he did not know that T.P. was a drug addict and was unaware that she had possibly given birth to his child until he was ordered to undergo paternity testing. On June 29, 2022, the circuit court entered an adjudicatory order in which it took judicial notice of the fact that the petitioner had been identified as the boyfriend of T.P in the prior abuse and neglect proceeding that concerned her five older children. The circuit court then found "that [G.F.'s] incarceration is due to his involvement in drugs" and "that [G.F.] has failed to emotionally and financially support his child." Thus, the circuit court adjudicated the petitioner as an abusive and/or neglectful parent.

The circuit court held the petitioner's disposition hearing on June 28, 2022. The DHHR presented evidence that the petitioner had declined to participate in services offered to him in prison. The petitioner testified that he refused the recommended services because it would require him to participate in a six-month program that could possibly delay his release. He testified that he hoped to be paroled in a couple of months, but acknowledged that if he was released, he had no home. He said he intended to seek admission into a halfway house program for twelve months. He further testified that he would need to obtain employment but admitted that transportation might be an issue because his driver's license had been suspended. The DHHR also presented testimony that indicated that B.P. was thriving in her foster home and had a close bond with her foster parents and her half-siblings who were residing with her.

The circuit court entered its dispositional order terminating the petitioner's parental rights on July 13, 2022. In that order, the circuit court found:

[A]s we sit here today, [G.F.] remains incarcerated; however, [G.F.] testified that he plans to seek parole in September of 2022. This Court has no way of knowing whether or not [G.F.] will be granted parole in September 2022 or whether he will be required to serve the remainder of his sentence of not less than one (1) nor more than fifteen (15) years in the penitentiary of this state, and to delay permanency for the minor child, [B.P.], would be detrimental to her health,

...