In re A.F.

• Decision Date: 18 November 2021
• Docket Number: No. 20-0997,20-0997
• Parties: IN RE: A.F.
• Court: West Virginia Supreme Court

866 S.E.2d 114

IN RE: A.F.

No. 20-0997

Supreme Court of Appeals of West Virginia.

Submitted: October 5, 2021

Filed: November 18, 2021

Concurring and Dissenting Opinion of Justice Wooton November 19, 2021

M. Tyler Mason, Esq., Leslie Legal, PLLC, Dellslow, West Virginia, Counsel for Petitioner.

Denise N. Pettijohn, Esq., The Pettijohn Law Group, L.C., Lewisburg, West Virginia, Guardian ad Litem for the Infant child, A.F.

Patrick Morrisey, Esq., Attorney General, Brittany N. Ryers-Hindbaugh, Esq., Assistant Attorney General, Brandolyn N. Felton-Ernest, Esq., Assistant Attorney General, Charleston, West Virginia, Counsel for Respondent, Department of Health and Human Resources.

ARMSTEAD, Justice:

Petitioner Father, J.F. ("Petitioner"), appeals the circuit court's November 20, 2020, disposition order terminating his parental rights to the infant child, A.F.¹ Petitioner was incarcerated and awaiting trial on two felonies and numerous other charges when the abuse and neglect petition was filed. The circuit court adjudicated Petitioner of being abusive and neglectful because his incarceration rendered him unable to care for the child and unable to protect the child from the substance of abuse of the child's mother, M.M. The main factor cited by the circuit court in its disposition order terminating Petitioner's parental rights was his incarceration. On appeal, Petitioner contends that the circuit court erred in terminating his parental rights in lieu of granting him an improvement period.

In In re Cecil T. , 228 W. Va. 89, 717 S.E.2d 873 (2011), this Court addressed the factors that must be considered when incarceration is the basis for termination of parental rights. While we find that the circuit court failed to conduct an appropriate Cecil T. analysis, the appendix record is sufficient for this Court to conduct our own Cecil T. review. Upon our review, we conclude that Petitioner's parental rights should be terminated. Therefore, we affirm the circuit court's disposition order.

I. FACTUAL AND PROCEDURAL BACKGROUND

The Department of Health and Human Resources ("DHHR") filed an abuse and neglect petition against Petitioner and M.M. in June of 2020. The DHHR alleged that M.M. had overdosed while the child was in her care, and that she had tested positive for methamphetamine, amphetamine, and fentanyl. The DHHR alleged that Petitioner Father was unable to protect the child from M.M.’s drug use because he had been incarcerated since November of 2019 and was awaiting trial on multiple charges. Petitioner's charges included two felonies: 1) felon in possession of a firearm; and 2) "escape or attempt to escape from custody" which involved him allegedly tampering with his home confinement bracelet.² Petitioner was unable to post bail and remained incarcerated throughout the proceedings. He appeared at the circuit court hearings by video or teleconferencing.

During the adjudicatory hearing, M.M. stipulated that her substance abuse negatively affected her ability to parent the child. She was adjudicated as an abusing parent and was granted an improvement period. The circuit court found that Petitioner: 1) "was incarcerated at the time of [the] filing of this petition and was unable to care for the child;" 2) "is incarcerated; therefore, he does not have a safe and suitable home;" and 3) "is incarcerated and is unable to protect the child from [M.M.’s] drug use." Based on these findings, the circuit court adjudicated Petitioner as an abusive and neglectful parent and issued a no contact order between Petitioner and M.M.

Prior to the final disposition hearing, the child was in a severe car wreck and had to be hospitalized. Upon learning about the car accident, Petitioner called M.M. and asked about the child's condition.

Petitioner's disposition hearing occurred on November 13, 2020.³ Petitioner and a DHHR employee testified at this hearing. Petitioner pled the Fifth Amendment in response to questions about the criminal charges he was facing. The State responded that "the Court can make a negative inference from your failure to answer these questions[.]" Further, Petitioner testified that prior to his current incarceration, he was unaware that M.M. had any substance abuse problems and stated that, to his knowledge, her drug abuse started after he was incarcerated. When asked if he would be capable of participating in an improvement period by telephone, including parenting classes and visitation with the child, Petitioner stated, "I'm sure I could arrange that."

The State asked Petitioner about his prior criminal convictions. Petitioner testified that he had prior convictions for manslaughter and arson, had been incarcerated for those convictions, and was released in 2016. Regarding the phone call to M.M. after the car accident, Petitioner stated that he learned that his child was involved in a car accident but was unable to obtain the details from his friends and family. Therefore, he called M.M. even though he knew that it was in violation of the circuit court's no contact order.⁴

DHHR employee Rodney Blankenship testified that the DHHR was recommending that the circuit court terminate Petitioner's parental rights. He testified that the DHHR was against granting Petitioner an improvement period due to Petitioner's incarceration and the uncertainty surrounding the duration of his incarceration. On cross-examination, Mr. Blankenship testified that he did not know if parenting classes could be provided over the phone or by video conference. He stated, "I don't know what Carter County, Kentucky [Detention Center] does."

Following this testimony, counsel for each of the parties addressed the court. Petitioner's counsel noted that Petitioner was adjudicated on his failure to protect the child from M.M.’s substance abuse. At the time this disposition hearing was held, M.M. was complying with the terms of her improvement period. Petitioner's counsel asserted that if M.M. continued to successfully address her substance abuse issues, the basis for Petitioner's adjudication—failure to protect the child from M.M.’s substance abuse—would cease to exist. However, Petitioner's counsel conceded that if M.M. "failed to comply with her improvement period, if her rights were terminated, then frankly [Petitioner's] rights could be terminated right along with it." Finally, Petitioner's counsel argued that incarceration alone, particularly pre-trial incarceration, was an insufficient basis upon which to terminate Petitioner's parental rights.

The circuit court terminated Petitioner Father's parental rights and denied Petitioner's request for a post-adjudication improvement period based mainly on Petitioner's incarceration. The circuit court found: 1) Petitioner was unable to participate in an improvement period due to his incarceration; 2) Petitioner had not seen the child since he was incarcerated in 2019; 3) it would not be in the child's best interest to delay permanency by awaiting the uncertain results of Petitioner's pending charges; 4) Petitioner failed to protect the child from M.M.’s drug use; 5) Petitioner had not yet been tried, and it was unknown if a trial date had been set; and 6) given the speculative nature of Petitioner's trial date and the duration of his incarceration, it was unlikely that he could correct the conditions of abuse and neglect in the near future.⁵ The circuit court also found that Petitioner had been incarcerated for much of the child's life and "the child needs continuity of care and caretakers, and a significant amount of time is required to be integrated into a stable and permanent home environment."

Based on the foregoing, the circuit court concluded that there was no reasonable likelihood that Petitioner could correct the conditions of abuse and neglect and that termination of Petitioner's parental rights was necessary for the child's welfare. Following entry of the disposition order terminating his parental rights, Petitioner filed the instant appeal.

II. STANDARD OF REVIEW

We apply 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 the 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. With this standard in mind, we consider the parties’ arguments.

III. ANALYSIS

Petitioner argues that the circuit court committed "plain error when it failed to grant [his] motion for a post-adjudicatory improvement period and terminated his parental rights.... In practice, the success of his improvement period would inherently be tethered to the success of [M.M.’s] improvement period." In his brief to this Court, Petitioner argued that as long as M.M. was successfully completing her improvement period in an effort to have her parental rights restored, the child's permanency would not be delayed by keeping Petitioner's parental rights intact. Further, Petitioner asserted that the circuit court's Cecil T. analysis was erroneous because it failed to give substantial weight "to the fact that Petitioner has not yet been convicted of anything."

The factual circumstances have significantly...