In re M.L., 14-0501

• Decision Date: 12 January 2015
• Docket Number: No. 14-0501,14-0501
• Court: West Virginia Supreme Court
• Parties: In Re: M.L. & B.L.

In Re: M.L. & B.L.

No. 14-0501

STATE OF WEST VIRGINIA SUPREME COURT OF APPEALS

January 12, 2015

(Jackson County 13-JA-51 & 13-JA-52)

MEMORANDUM DECISION

Petitioner Father, pro se, appeals the Circuit Court of Jackson County's May 1, 2014, order terminating his parental rights to M.L. and B.L. The Department of Health and Human Resources ("DHHR"), by counsel, Michael L. Jackson, filed a response in support of the circuit court's order as to the first assignment of error.¹ The guardians ad litem, Anita H. Ashley and Erica B. Gunn, filed a joint response on behalf of the children supporting the circuit court's order. Petitioner filed a reply. Petitioner presents several assignments of error on appeal. We will address each seriatim.

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.

On September 6, 2013, the DHHR filed an abuse and neglect petition against petitioner and S.L., who is petitioner's wife and the biological mother of the children. The petition alleged that the couple had a history of severe domestic violence, which included a report from 2012 that petitioner burned her with a hot frying pan and a hot iron, and according to the petition, this domestic violence occurred in the presence of M.L., which caused that child to become "extremely upset and start to cry," constituting emotional harm to the child.² On September 16, 2013, the DHHR filed an amended petition alleging the following: (a) domestic violence; (b) violence and threats of violence against the children's maternal grandparents; and (c) medical concerns for the children. According to the amended petition, in June of 2012, petitioner's wife exhibited severe injuries allegedly caused by petitioner, which included disfigured hands and feet and severe burns to her back and chest. For approximately one year, the maternal grandparents had guardianship of M.L. However, in August of 2013, due to alleged acts of violence andthreats of violence by petitioner, the maternal grandparents moved for and were granted relinquishment of that guardianship. Upon relinquishment of guardianship and following B.L.'s birth, the DHHR received temporary custody of both children, pending further proceedings. The amended petition also alleged that when the DHHR took B.L. from petitioner and his wife, the Child Protective Services ("CPS") worker and medical personnel noticed that she had a severe diaper rash and yeast infection.

At the first preliminary hearing on September 13, 2013, petitioner moved the circuit court to relieve his court-appointed counsel and stated his intention to hire private counsel to represent him. The circuit court granted the motion, and the hearing was continued. On September 25, 2013, petitioner appeared with hired counsel for the continued preliminary hearing, and, following the presentation of several hours of evidence, the circuit court again continued the preliminary hearing for the purpose of taking additional evidence. On October 7, 2013, petitioner moved to relieve his hired counsel and move forward pro se. The circuit court granted the motion, and petitioner continued pro se until late 2013 when petitioner was again appointed counsel. In January of 2014, at a motions hearing in this matter, petitioner again moved to relieve his court-appointed counsel and requested new appointed counsel. The circuit court denied the motion to relieve his court-appointed counsel at that time.

Thereafter, petitioner stipulated to domestic violence causing harm to M.L., and the children were adjudicated as abused. At the March 26, 2014, dispositional hearing, the circuit court took judicial notice of testimony from the preliminary and motions hearings. The CPS worker testified that petitioner only "recently" demonstrated a willingness to participate in and comply with services to correct the conditions of abuse. The CPS worker's testimony also established that petitioner had a history of noncompliance with the DHHR. Dr. Timothy Saar testified that petitioner had the intellectual ability to comply with rules imposed by the DHHR, but that he had shown a "defensive" posture toward the proceedings and the DHHR. Petitioner testified that he had been going to therapy and a domestic violence class, but he admitted that he had only two visits with his children and chose not to visit them from September of 2013 until February of 2014 because he did not want to interact with the DHHR. The circuit court continued the dispositional hearing to secure the testimony of Dr. Bobby Miller to present evidence of his evaluation of petitioner's wife. On March 28, 2014, Dr. Miller testified as to that evaluation, and the circuit court took the matter of petitioner's disposition under advisement. The circuit court denied petitioner's motion for a post-adjudicatory improvement period and terminated petitioner's parental rights. This appeal followed.

This 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 beencommitted. 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).

In his first assignment of error, petitioner argues that the circuit court erred in terminating his parental rights without being granted an improvement period. Upon review of the record, we find no error in this regard. Petitioner claims that, between approximately January of 2014 and present, he has undergone therapy and other services, on his own initiative, to correct the domestic violence concerns at issue herein. He also maintains that he demonstrated to the circuit court that he would fully comply with the terms of an improvement period, which was recommended by the DHHR. In a separate assignment of error, petitioner claims the circuit court erred and abused its discretion in finding that petitioner was not likely to fully comply with the terms of an improvement period "based upon [petitioner and his wife's] frequent filing of motions relating to the care of their children, their Libertarian political beliefs, their religion[,] and their firm assertion of their rights under the law." We address these assignments of error together.

As petitioner correctly notes, circuit courts have discretion in the consideration of motions for post-adjudicatory and dispositional improvement periods. W.Va. Code § 49-6-12(b) (providing circuit courts discretion in granting post-adjudicatory improvement periods upon finding that parent is likely to fully participate in same); W.Va. Code § 49-6-12(c) (providing circuit courts discretion in granting dispositional improvement periods upon written motion and showing, by clear and convincing evidence, that parent is likely to fully participate in same). We have long held that "[a] reviewing court cannot assess witness credibility through a record. The trier of fact is uniquely situated to make such determinations and this Court is not in a position to, and will not, second guess such determinations." Michael D.C. v. Wanda L.C., 201 W.Va. 381, 388, 497 S.E.2d 531, 538 (1997); "in the context of abuse and neglect proceedings, the circuit court is the entity charged with weighing the credibility of witnesses and rendering findings of fact." In re: Emily, 208 W.Va. 325, 339, 540 S.E.2d 542, 556 (2000) (citing Syl. Pt. 1, in part, In re: Travis W., 206 W.Va. 478, 525 S.E.2d 669 (1999)). As to petitioner's credibility, the circuit court did not err in finding that petitioner was not genuine in his statement that he would comply with the terms of an improvement period. At the October 23, 2013, preliminary hearing, petitioner testified that he did not commit domestic violence towards his wife, and Dr. Saar testified that petitioner made no admissions of domestic violence while in therapy at his office. However, in February of 2014, petitioner admitted to domestic violence against his wife. At the October 23, 2013, preliminary hearing, petitioner also testified that while he was on bond in a criminal matter, he violated a condition of that bond prohibiting contact with his wife. Further, despite petitioner's claims of cooperation with the DHHR in the development of a family case plan and his willingness to fully participate in services, petitioner does not dispute that he chose not to visit his children from September of 2013, until approximately February of 2014, so as to avoid contact with the DHHR. Dr. Saar categorized petitioner as "defensive" and "guarded." He also noted that petitioner had not been "the most cooperativeindividual[]" and that there had been "much hostility between certain [DHHR] providers and [petitioner]." Due to these concerns regarding petiti...