In re A.F.
| Decision Date | 31 August 2022 |
| Docket Number | 21-0711 |
| Parties | In re A.F.-1, J.F., and A.F.-2 |
| Court | West Virginia Supreme Court |
Monongalia County 20-JA-227, 20-JA-228, and 20-JA-229
Petitioner Father D.F., by counsel A. Tyler Reester, appeals the Circuit Court of Monongalia County's August 6, 2021, order terminating his parental rights to A.F.-1, J.F., and A.F.-2.[1] The West Virginia Department of Health and Human Resources ("DHHR"), by counsel Patrick Morrisey and Lee Niezgoda, filed a response in support of the circuit court's order. The guardian ad litem for A.F.-1 Teresa Lyons, filed a response on behalf of that child in support of the circuit court's order. The guardian ad litem for J.F. and A.F.-2, Amanda Ray, filed a response on behalf of those children in support of the circuit court's order. On appeal, petitioner argues that the circuit court erred in (1) accepting deficient case plans (2) finding that the DHHR was making reasonable efforts to achieve permanency for the children; (3) finding that there was no reasonable likelihood that the conditions of abuse and neglect could be substantially corrected; (4) improperly relying on hearsay evidence; (5) denying petitioner a post-adjudicatory improvement period; (6) issuing a deficient dispositional order; and (7) finding that it had jurisdiction to preside over these proceedings.
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.
Prior to the proceedings giving rise to the current appeal, petitioner and the children's mother had an extensive history of Child Protective Services ("CPS") involvement after their adoption of the children several years ago. According to the evidence presented in the current matter, the parents had two prior CPS cases: one in 2013 and another in 2018. A third CPS case was opened and eventually gave rise to the current proceedings. According to the record, the prior referrals-though not followed by petitions-involved similar allegations to the instant proceedings. Additionally, the record reflects that the court referred to the instant proceedings as being the third CPS proceedings involving the parents. Relevant to the issues on appeal is the undisputed fact that petitioner received services over a period of several years prior to the filing of the instant petition.
In December of 2020, the DHHR filed an abuse and neglect petition against petitioner and the mother alleging that they failed to provide the children a safe and secure home environment, refused to supply them with necessary food and shelter, and emotionally abused them by employing harsh and neglectful disciplinary tactics. The DHHR alleged that the parents punished the children by periodically making them sleep outside alone in a tent while the rest of the family remained inside with door locked, and withheld food as a form of discipline. The DHHR further alleged that when the children removed food items from the kitchen without specific permission to do so, the parents would consider it a form of "stealing" and punished the children. The parents did not deny occasionally putting the children in the tent or withholding food as forms of punishment and claimed the tactics stemmed from a disciplinary program based in Florida. According to the petition, then thirteen-year-old A.F.-1 received more punishment than the younger children. At the time of the petition, a CPS worker traveled to Georgia to take A.F.-1 into custody, where he was attending the Alice Blount Academy of Science and Agriculture, a residential school for boys with emotional and behavioral challenges.
Later that month, following further investigation, the DHHR filed an amended petition, adding more specificity to the allegations. The DHHR alleged the parents forced the children to sit on the rim of an open five-gallon bucket for hours at a time, removed A.F.-1's bedroom door as a form of punishment, employed security cameras throughout the home to document the children committing infractions, mandated the children perform strenuous labor as punishment, restricted A.F.-1's food intake if his weight exceeded 100 pounds, and barred the children from attending school when they were subject to punishment. According to the amended petition, A.F.-1 disclosed in a Child Advocacy Center ("CAC") interview that he was subjected to the tent punishment beginning when he was ten years old. The child noted that he was sometimes required to reside in the tent without any footwear, and always without any comfort items, including a flashlight. The child noted that he was punished during his birthday week-in November of 2020-after he was caught looking inside of a kitchen cabinet for food. The child claimed he did not remove any food from the cabinet but was nevertheless forced to spend a night inside the tent. The child disclosed that he was upset about his tent punishment and broke his soup bowl, which earned him another night in the tent. The child also threw a crayon marker and hit the mother the following day and ended up spending five consecutive nights in the tent, during which time the family ate his birthday cake without him. The DHHR alleged that many of A.F.-1's disclosures were corroborated by J.F. The DHHR did not interview then nine-year-old A.F.-2, who is legally blind and deaf.
The circuit court appointed a Court-Appointed Special Advocate ("CASA") in January of 2021. The CASA worker filed three reports throughout the proceedings, including recommending an improvement period for both parents in a report prepared for the dispositional hearing.
In March of 2021, law enforcement officials executed a criminal search warrant against the parents. The items listed in the warrant were substantially similar to or identical to items requested by the DHHR in a motion to compel discovery, which the circuit court had earlier rejected. Following the execution of the criminal search warrant, the parents stated they were advised by their counsel to refrain from communicating with parties to the case without counsel present in accordance with their Fifth Amendment right against self-incrimination.
Later that month, the circuit court held an adjudicatory hearing during which the parents stipulated that they "engaged in excessive corporal punishment and failed to provide necessary food and shelter, resulting in emotional abuse." The parents then filed motions for post-adjudicatory improvement periods. The DHHR opposed the parents' motions based upon the severity of the abuse and neglect. The next month, the DHHR filed a motion requesting that the circuit court find aggravated circumstances. One day later, the guardian filed a motion to continue, which the court granted. In May of 2021, the guardian filed a report recommending post-adjudicatory improvement periods for both parents.
The circuit court held a series of hearings from May of 2021 until August of 2021 during which it heard evidence regarding the parents' motions for improvement periods as well as the DHHR's motion to terminate the parents' parental rights. The first hearing in May of 2021 was continued due to the DHHR's failure to timely file family case plans. Later that month, the guardian filed a motion for an additional guardian noting that "a conflict may arise when permanency for the children is addressed." The court granted the motion and appointed a second guardian to represent J.F. and A.F.-2. In June of 2021, the first guardian filed a supplemental report, and the newly appointed guardian filed a preliminary report on the same day. Neither guardian was opposed to an improvement period for the parents.
At a hearing in June of 2021, the DHHR objected to granting the parents' motions for improvement periods and claimed that no services were available to them. The DHHR also renewed its motion that the circuit court find aggravated circumstances in the proceedings. During the hearings, Barbara Nelson, a psychologist who performed psychological evaluations with A.F.-1 and J.F., testified that although the children were traumatized in their birth home (which led to the termination of the biological parents' parental rights), they were more recently traumatized in the home of petitioner, their adoptive parent. Ms. Nelson testified that the abuse and neglect that the children disclosed they suffered in the adoptive parents' home amounted to torture. She further testified that the parents implemented harsher disciplinary tactics than the regimen that the parents claimed they followed at the advice of professionals. Ms. Nelson noted that the program the parents claimed to follow recommended taking away privileges and recreational items as a form of punishment. However, Ms. Nelson stated that the parents took away life necessities, such as food and shelter, which was particularly troubling given the history of abuse and neglect that the children suffered prior to coming to their adoptive parents' home. As such, Ms. Nelson testified that the parents exacerbated the emotional and behavioral issues that the children developed from the abuse and neglect they suffered in the care of their biological parents.
Ms Nelson further testified that although then thirteen-year-old J.F. was not subjected to the parents' discipline tactics as often as A.F.-1, she was still traumatized by the environment created in the home. Ms....
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