In re K.H.
| Decision Date | 16 November 2018 |
| Docket Number | No. 18-0282,18-0282 |
| Court | West Virginia Supreme Court |
| Parties | In re K.H. |
W.P. (hereinafter "the petitioner" or "the father") appeals the February 26, 2018, order of the Circuit Court of Raleigh County terminating his parental rights to his son, K.H., in an abuse and neglect case.1 The respondents herein—the West Virginia Department of Health and Human Resources ("DHHR"), the child's guardian ad litem G. Todd Houck, Esquire, and the child's foster parents T.P. and K.C. who have been permitted to intervene—ask this Court to affirm the circuit court's termination decision.2 The petitioner raises four assignments of error, including that the circuit court erroneously terminated his parental rights after expressly refusing to adjudicate him as an abusive or neglectful parent.
After considering the parties' written and oral arguments, we are compelled to conclude that the petitioner's procedural rights were violated; that the portion of the circuit court's order terminating his parental rights must be vacated; and that this case must be remanded to the circuit court for further proceedings. Because this case does not present any new issues of law, it is appropriate for disposition in a memorandum decision pursuant to Rule 21 of the Rules of Appellate Procedure.
The child, K.H., was born in 2013 to the mother W.H. (hereinafter "the mother"). The child's birth certificate did not list a father. On July 13, 2015, the DHHR filed an abuse and neglect petition alleging that on April 14, 2015, the mother, while intoxicated, left K.H. with another intoxicated person who did not know how to care for a young child.3 The abuse and neglect petition identified another man, J.L., as K.H.'s father. However, during a preliminary hearing, the circuit court learned that paternity was uncertain. Accordingly, the court ordered paternity testing for J.L. and for another potential father, D.H., and ordered that publication be made for any unknown father. As a result of the filing of the petition, the child was placed in the care of foster parents.
The mother was discharged from a homeless shelter and tested positive for illegal drugs. On October 6, 2015, the mother stipulated to the allegations in the petition and was adjudicated as an abusing parent. She was granted a post-adjudicatory improvement period. At a hearing held in January of 2016, the court received test results indicating that neither J.L. nor D.H. was K.H.'s father. However, the petitioner was suggested as a potential father, and the court ordered that he be tested for paternity.
On March 17, 2016, the DHHR filed an amended abuse and neglect petition naming the petitioner as a party, alleging that the petitioner is the biological father of K.H., and alleging that the petitioner is a registered sex offender who was convicted of second degree sexual assault in the State of Wisconsin.4 In August of 2016, paternity testing established that the petitioner is the biological father of K.H.
The circuit court held the petitioner's adjudicatory hearing on August 15, 2017. The DHHR's allegations against the petitioner were limited to the issue of abandonment;specifically, the DHHR asserted that the petitioner had failed to have any contact with, and failed to financially support, K.H. for the child's entire life. The petitioner testified that he had not sought contact or provided support because K.H.'s mother had expressly denied that he was the father. The mother testified that although she and the petitioner were in a relationship and lived together for several months, they separated early in her pregnancy with K.H., and she could not recall whether she ever told the petitioner she was pregnant. She testified that she knew K.H. could belong to either the petitioner or her ex-husband D.H.; that K.H. resembles an older child she has with D.H.; and that she told D.H. that he was K.H.'s father. In her sworn testimony, the mother admitted that she had expressly told the petitioner he was not K.H.'s father. The petitioner testified that after his paternity was established by DNA testing in August 2016, he sent several letters to K.H. at the foster parents' address but was unable to visit the child because he was incarcerated for his conviction of failing to register as a sex offender.5
After hearing the evidence presented during the adjudicatory hearing, the circuit court found that the mother had misled the petitioner about K.H.'s paternity and that the evidence presented did not support a conclusion that he had had abandoned the child. As such, the court declined to adjudicate the petitioner father as an abusive or neglectful parent. This ruling was confirmed in a written order entered on August 25, 2017:
The Court then proceeded to take up the adjudication of [W.P.] [the father] as to the infant [K.H.]. Following completion of testimony and the taking of evidence, the Court was of the opinion that [W.P.] did not abandon the infant [K.H.] and, accordingly does not adjudicate him to have neglected or abused the infant, all for the reasons set forth at length on the record which are incorporated herein by referral, the Court noting the exception and objection of the Department and the Guardian ad litem.
However, the child remained in the DHHR's legal custody, with physical custody in the foster parents/intervenors, due to the petitioner's incarceration and the mother's ongoing improvement period.
Thereafter, the court held a November 14, 2017, status hearing which was confirmed by a November 20, 2017, order. Although the appendix record on appeal does not contain a transcript of this hearing, the written order reflects that the following issue was raised:
The Court was then advised that [W.P.], father of [K.H.], who had been incarcerated for this entire case but is DNA father but Court denied a finding of abandonment, will complete his sentence on December 28, 2017 and depending on whether or not [the mother] is terminated at next hearingthe possible placement of [K.H.] with him or disposition of his paternal rights as child has been in custody for 28 months and must have permanency.
This order concluded by scheduling a "Final Improvement Period Review and/or Dispositional of Mother and an [sic] Dispositional Hearing on [the petitioner father]" on February 13, 2018.
During the February 13, 2018, disposition hearing, the petitioner asked to be permitted to develop a parent-child relationship with K.H. However, the DHHR and, particularly, counsel for the intervenors/foster parents presented additional evidence regarding the petitioner's prior knowledge that he might be K.H.'s father and his failure to take any steps to investigate paternity even before he was incarcerated in West Virginia. This additional evidence included the petitioner's admission that he had obtained photographs of the child, and that the mother had suggested he was the father when she asked him for money to support her drug habit. There was also new evidence presented about other instances of criminal conduct and convictions, and evidence that the petitioner had decided to discharge his sentence for failing to register as opposed to seeking parole so he could have a relationship with his child. Noting that the child had lived with the foster parents for several years, the DHHR and the guardian ad litem asked the circuit court to terminate the petitioner's parental rights.
The circuit court found that the evidence presented during the disposition hearing went "much further" than that presented during the adjudication hearing, and that this evidence "very firmly support[ed] a finding of abandonment." Concluding that termination was in K.H.'s best interests, the court terminated the petitioner's parental rights. The termination ruling was reflected in the court's written order entered on February 26, 2018:
Following a full evidentiary hearing, the Department moved the Court to TERMINATE the parental rights of [the father] to the infant [K.H.]. Deeming all matters submitted, the Court announced its rulings after argument. The Court noted that although it declined to find abandonment at the adjudicatory phase, the evidence adduced at the dispositional hearing firmly supports a finding of abandonment in terms of disposition; that [the father] had reason to believe he was the father of [K.H.], but did not enquire, although he should have; that the evidence produced at the adjudicatory hearing should be considered in terms of disposition; that the interest of the parents must be balanced with the interests of the child; and that the best interest of [K.H.] requires the termination of the parental rights of [the father].
Because the mother's parental rights were also terminated, the permanency plan for K.H. is adoption by the foster parents. The petitioner now appeals the February 26, 2018, termination order.
The standards of review applied in abuse and neglect appeals are well established. First, "conclusions of law reached by a circuit court are subject to de novo review[.]" Syl. Pt. 1, in part, In Interest of Tiffany Marie S., 196 W.Va. 223, 470 S.E.2d 177 (1996); accord Syl. Pt. 1, Appalachian Power Co. v. State Tax Dep't of W.Va., 195 W.Va. 573, 466 S.E.2d 424 (1995) (). Second, with respect to a circuit court's findings of fact and determination of abuse or neglect, we apply a clearly erroneous standard:
[W]hen 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,...
To continue reading
Request your trial