In re V.B., 22-0008

• Court: Supreme Court of West Virginia
• Parties: In re V.B. and A.B.
• Docket Number: 22-0008
• Decision Date: 17 November 2022

In re V.B. and A.B.

No. 22-0008

Supreme Court of Appeals of West Virginia

November 17, 2022

Boone County 19-JA-115 and 19-JA-116

MEMORANDUM DECISION

Petitioner father, L.B. ("Father"),^[1] appeals the Circuit Court of Boone County's December 16, 2021 order terminating his parental rights to V.B. and A.B. ("children").^[2]Upon review, we find that the circuit court had no jurisdiction over A.B. because she was in a subsidized guardianship at the time of the petition's filing and, therefore, was not exposed to any of the alleged abuse and neglect. Therefore, we vacate the circuit court's dispositional order, in part, regarding A.B. We find, however, that the circuit court did not err in terminating Father's parental rights to V.B. This case satisfies the "limited circumstances" requirement of Rule 21(d) of the West Virginia Rules of Appellate Procedure for resolution in a memorandum decision.

In a July 2018 order, prior to the filing of the petition at issue, the Circuit Court of Boone County terminated the parental rights of the children's mother because her abuse of and addiction to "controlled substances or drugs" seriously impaired her parenting skills. At the conclusion of the case in December 2018, Father retained legal and physical custody of V.B., who was almost three years old, while the younger child, A.B., entered a

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subsidized guardianship with her foster parents, T.B. and his wife.^[3] Father agreed to the guardianship.

The Department of Health and Human Resources ("DHHR") began investigating the safety of V.B. at Father's home in May 2019. On June 25, 2019, the DHHR completed a "WV Safety Assessment and Management System" form regarding V.B. titled a "Family Functioning Assessment" (hereinafter "Safety Assessment"). The Safety Assessment included information that Father allowed the mother contact with V.B., yet the mother was not in a caretaker role. The Safety Assessment concluded the child was not maltreated or unsafe and found no impending dangers.

In September of 2019, the DHHR filed a new petition against Father seeking immediate custody of V.B., who was four at the time, and also included A.B. in the heading of the case, although the petition did not include any allegations that A.B. was abused or neglected.^[4] The DHHR alleged that while Father knew the mother's rights were terminated and she "still ha[d] a drug problem," he allowed the mother "around [V.B.] and in the home." The petition asserted that V.B. "disclosed domestic violence" between her parents and watched "her mother shoot up." V.B. believed the mother's "shots" caused the mother to be angry and start fights with Father. The petition also explained that the mother got into an argument with Father's mother ("grandmother") at Father's house and pushed her.

At the first adjudicatory hearing on November 4, 2019, the circuit court heard evidence regarding the petition's allegations. A DHHR employee explained that she previously visited Father's residence after the mother's parental rights were terminated, but could not substantiate abuse and neglect until the DHHR filed the petition at issue. Before filing the petition, she reminded Father "numerous times" that the mother's rights were terminated and that he was not being a protective caregiver. Father admitted to the witness that he knew the mother still had a "drug problem," but he allowed her around V.B. The grandmother also informed the DHHR employee that the mother pushed her.

The DHHR employee stated further that when she interviewed V.B., the child said the mother lived down the road but "comes and goes at her dad's house whenever she wants." She testified that V.B. said that "she didn't know why [her mother and Father] fought, but that it scared her" and that her mother takes "medicine, and her mom takes

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shots in her arm" in a closet^[5] and showed the DHHR employee the bend of her arm. V.B. described to the DHHR employee that her mother "[got] very angry" when she took those shots and she sometimes started fights with Father. V.B. said "a lot of people come in and out of her dad's house that she doesn't know, and it scares her, but none of them have ever bothered her, she just doesn't like them there." The DHHR employee professed her concern that Father would continue to allow the mother around "even after he says that he wouldn't, and that the mother has a severe drug addiction that she still hasn't kicked from the last petition." She explained that her interview with V.B. led to the filing of the petition: after V.B. "disclosed something as severe as her seeing her mom shoot up, after her parental rights were terminated, then we petitioned the [c]ourt."

The circuit court found that the DHHR met its burden regarding V.B., then stated, "I think it's very depressing and sad that we go through this once, [the mother] is an obvious drug addict, and [F]ather does little to nothing to protect the child from the mother again. It's horrible." The circuit court adjudicated only V.B. as an abused and neglected child, explaining that "the Department is going to have to make some kind of amendment, because I'm not making a finding with respect to [A.B.], because [A.B.] was not present [in Father's home] at the time [of the petition's filing]."

At the hearing, Father requested an improvement period, which the guardian ad litem and the DHHR opposed. The circuit court denied the motion. The guardian ad litem also notified the court that he planned to seek termination of Father's parental rights.

After the hearing, the circuit court entered an adjudicatory order on November 26, 2019, including the following findings of fact and conclusions of law:

Whereupon, the Court, in consideration of the pleadings filed herein, argument of counsel and evidence presented, and in conjunction with reports, and recommendations of record, does make the following FINDINGS of FACT and CONCLUSIONS of LAW as to whether the children were abused and/or neglected based on the conditions existing at the time of the filing of the petition and proven by clear and convincing evidence

The Court FINDS that the Adult Respondent [Father] has abused and neglected the children as alleged in the petition. The Court, therefore ADJUDICATES the children^[6] as abused

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and neglected children, pursuant to West Virginia Code § 49-4-602.

On December 2, 2019, the DHHR filed an amended petition, adding an additional allegation that Father abandoned A.B. and "made no efforts to have any contact with her." After the DHHR filed the amended petition, the court held status, adjudicatory, and dispositional hearings over the next 23 months. The circuit court never entered an order adjudicating A.B. as abused or neglected. Father filed a written motion requesting a post-adjudicatory improvement period in March of 2020. The circuit court denied this motion on June 14, 2021, on the record at a dispositional hearing. While the guardian ad litem participated in the case and attended hearings, pursuant to the record before us, he never filed a report with the court. The record also does not indicate that a child or family case plan was ever filed, but during the final dispositional hearing in November 2021, the DHHR's attorney, Father's attorney, and a DHHR employee appeared to agree that the family case plan was filed, although no one seemed certain of the date.

During a dispositional hearing in July 2021, the DHHR introduced video in which Father purportedly sold controlled substances to a confidential informant during a controlled drug buy.^[7] In the recording, which apparently occurred before the DHHR filed the initial petition in this case, Father instructed V.B. to get in the house with her mother. The circuit court also heard evidence that when the DHHR visited Father's home, even after V.B. was removed, the mother appeared; Father reported that the mother helped him with the grandmother, who needed care. At the final dispositional hearing on November 8, 2021, Father testified, "it's hard to say you can't be around your biological mother. . . . And as long as I didn't feel like there was no danger that [her mother] was giving to her, I don't feel that I was in the wrong." He went on, stating, "But now, if it was told to me by the judge, 'Hey you're not allowed to have her around you,' or my lawyer said 'She's not allowed to be around her,' then, yeah." When the guardian ad litem questioned Father whether "it never crossed your mind" that maybe the mother should not be around the children, Father explained that "Your rights are terminated, no, she shouldn't be around her, but shouldn't that be under the obligation of a parent to say what's right and what's wrong for their child?"

Also at the final dispositional hearing, the court denied Father's oral motion for a post-dispositional improvement period after hearing evidence that the mother remained around Father. The court further determined that Father had not corrected the matter that

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led to the initial filing of the petition, i.e., the mother at Father's home, because when the DHHR visited the home, the mother was there. The circuit court found that the conditions that led to the filing of the petition could not be corrected in the near future, and it was in the best interests of the children to terminate the parental rights of Father. The Amended Order ("dispositional order") filed on December 16, 2021, reflected these findings, and Father now appeals.^[8]

On appeal from a final order in an abuse and neglect proceeding, this Court reviews the circuit court's findings of fact for clear error and its conclusions of law de novo. Syl. pt. 1, In re Cecil T., 228 W.Va. 89, 717 S.E.2d 873 (2011). "'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...