In re A.P.-1

Decision Date14 March 2019
Docket NumberNo. 18-0448,18-0448
Citation827 S.E.2d 830,241 W.Va. 688
CourtWest Virginia Supreme Court
Parties IN RE A.P.-1, A.P.-2, A.P.-3
Concurring and Dissenting Opinion of Justice Workman April 12, 2019

Gavin Ward, Esq., Beckley, West Virginia, Counsel for Petitioner D.P.

Stanley I. Selden, Esq., Beckley, West Virginia, Guardian ad litem of A.P.-1, A.P.-2, and A.P.-3

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

Sidney Bell, Esq., Beckley, West Virginia, Counsel for Respondent J.B.

Sarah F. Smith, Esq., Public Defender Corporation, Beckley, West Virginia, Counsel for Respondent T.W.

WALKER, Chief Justice:

Petitioner D.P. is serving a lengthy prison sentence for first-degree murder and is ineligible for parole until 2029. He is also father to three minor children: A.P.-1, A.P.-2, and A.P.-3. In April 2018, the Circuit Court of Raleigh County terminated Petitioner’s parental rights to the three children, despite concluding three months earlier that Petitioner had not abused or neglected them. Petitioner now challenges the termination of his parental rights. Because our law is clear that a circuit court may not terminate a parent’s rights to his child without first finding that the parent abused or neglected his child, we vacate the circuit court’s April 2018 order and remand this matter to the circuit court for further proceedings.

I. FACTUAL AND PROCEDURAL BACKGROUND

On June 12, 2017, the West Virginia Department of Health and Human Resources (DHHR) filed a "Petition for Finding of Abuse and/or Neglect and/or Abandonment" with the Circuit Court of Raleigh County (the Petition) regarding Petitioner’s three minor children: A.P.-1, A.P.-2, A.P.-3.1 In the Petition, DHHR alleged that Petitioner was incarcerated at Mount Olive Correctional Facility, sentenced to life with mercy, and ineligible for parole until 2029. DHHR asked the circuit court to find that Petitioner had abandoned his children and, based upon that finding, terminate his parental rights to A.P.-1, A.P.-2, and A.P.-3. DHHR did not allege that Petitioner had otherwise neglected or abused the children.2

The circuit court held an adjudicatory hearing on October 3, 2017.3 There, DHHR argued that Petitioner had abandoned his children due to his lengthy incarceration. The circuit court was not convinced, and stated in its October 6, 2017 order that it "was of the opinion that the Department’s interpretation of the definition of abandonment was not correct." The circuit court then ordered the guardian ad litem and Petitioner to provide additional authority on that issue.4

The adjudication hearing continued on December 12, 2017. Petitioner testified to his ongoing relationship with A.P.-1, A.P.-2, and A.P.-3, stating that he was with them nearly every day before his incarceration in March 2014, and that he had provided for their physical and emotional needs. Petitioner further testified that, since entering prison, he talked to the children by telephone at least twice each week and sent his prison wages to his sister E.P., with whom the children were placed, for their maintenance.

The circuit court again continued the adjudication hearing to January 30, 2018, when the children’s mother, T.W., testified and confirmed Petitioner’s earlier statements: that he provided emotional and financial support to his children before his 2014 incarceration and that he remained involved in the children’s lives through telephone conversations and cards, post-incarceration. Petitioner’s sister, E.P., also confirmed that he maintained meaningful contact with A.P.-1, A.P.-2, and A.P.-3 from prison and supported them financially, to the best of his ability. Following argument from the parties, and the State’s concession that there was no "factual basis in good faith for the Court to make any finding of abandonment," the circuit court concluded that the facts did not support a finding that Petitioner had abandoned A.P.-1, A.P.-2, and A.P.-3 and adjudication was "not supported and [was] refused."

The circuit court then held a disposition hearing on April 17, 2018. Petitioner’s counsel "object[ed] to any type of termination on the record considering that there’s been no finding of abuse and neglect," and directed the circuit court to this Court’s decision in State v. T.C .5 The guardian ad litem for A.P.-1, A.P.-2, and A.P.-3 presented the opposite view, stating, "[t]he law does not say that because there was no finding of abuse, neglect, or abandonment at the adjudicatory phase that [Petitioner’s] parental rights can’t be terminated at a dispositional phase. It’s exactly the opposite of that." Then, the guardian ad litem drew upon this Court’s decision in In re Cecil T .6 to assure the circuit court that it could "terminate [Petitioner’s] parental rights at a dispositional hearing solely on the basis of him being incarcerated[.]"

Ultimately, the circuit court adopted the guardian ad litem’s view, concluding that, although it explicitly found that Petitioner had not abandoned his children at the earlier adjudicatory hearing, it was not precluded from "considering the circumstances of the parties and devising a—or coming to a resolution of the question of disposition in the best interests of the child, or the children." Relying on In re Cecil T. , the court found that "the lengthy incarceration of [D.P.] does support the finding of termination to allow the Department the options to take care of [A.P.-1, A.P.-2, and A.P.-3]." The court’s written order, entered on April 24, 2018, reflected that termination ruling:

[T]hat [D.P.] has a lengthy prison sentence which includes his ineligibility for parole until March 16, 2029; that the opportunity for contact with his children is clearly limited; that the children’s interests control at disposition; that while the Court recognizes [D.P.’s] interests the same are outweighed by the children’s interests; In Re: Cecil T [.], ... controls this matter; and that the children’s best interests require termination of [D.P.’s] parental rights.

Petitioner now appeals the circuit court’s April 24, 2018 order terminating his parental rights.7

II. STANDARD OF REVIEW

In abuse and neglect appeals, this Court reviews a circuit court’s conclusions of law de novo.8 "Interpreting a statute or an administrative rule or regulation presents a purely legal question subject to de novo review."9 This Court only sets aside a circuit court’s factual findings in an abuse and neglect case when those findings are clearly erroneous and not because this Court would have decided the case differently:

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.[10 ]
III. DISCUSSION

Petitioner raises three assignments of error. We consolidate the first two because they are duplicative. They are also dispositive of this appeal; thus, we need not address the third. Petitioner contends that the circuit court erroneously terminated his parental rights at the April 17, 2018 disposition hearing because it did not find, at the earlier adjudicatory hearing, that he had abused, neglected, or abandoned A.P.-1, A.P.-2, or A.P.-3. Stated differently, Petitioner argues that the circuit court improperly moved forward to the disposition phase of the abuse and neglect proceeding without first making the prerequisite finding that he had, in fact, abused, neglected, or abandoned his children.

DHHR argues that a finding of abuse, neglect, or abandonment at an adjudicatory hearing is not a prerequisite to disposition. Alternatively, DHHR argues that, although the circuit court did not adjudicate Petitioner as an abusive or neglectful parent, or one who had abandoned his children, it did find that Petitioner had abandoned his children at the disposition hearing and that the children’s interest in permanency outweighed Petitioner’s interest in retaining his parental rights. The guardian ad litem adopts the position of DHHR on appeal. He also renews his argument that our decision, In Re Cecil T. ,11 justifies the termination of Petitioner’s parental rights at the April 17, 2018 disposition hearing and that the circuit court properly weighed A.P.-1, A.P.-2, and A.P.-3’s interests in permanency. We address these arguments in turn, below.

A.

In November 2018, during the pendency of this appeal, this Court decided In re K.H.12 There, the petitioner-father raised the same issue on appeal that Petitioner now raises: that the "circuit court erroneously terminated his parental rights at a disposition hearing after previously declining to adjudicate him as an abusive or neglectful parent on the same grounds ."13 Because the primary issues in the two cases are identical, we expressly adopt and elaborate upon the reasoning employed in In re K.H. to resolve Petitioner’s appeal.

As we did in In re K.H. , we begin our analysis with West Virginia Code §§ 49-4-601 and 49-4-604 (2015). Section 49-4-601 controls adjudicatory hearings, which are hearings "to determine whether a child has been abused and/or neglected as alleged in [DHHR’s] petition[.]"14 Section 49-4-604 controls disposition hearings, which are hearings

held after a child has been adjudged to be abused and/or neglected, at which the court reviews the child and family case plan filed by [DHHR] and determines the appropriate disposition of the case and permanency plan for the family.[15 ]

The adjudicatory hearing required by § 49-4-601 and the disposition hearing required by § 49-4-604 create a "two-stage...

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