In re V.L.

Decision Date12 May 2022
Docket Number21-1007
PartiesIn re V.L., Z.L., and K.L.,
CourtSupreme Court of West Virginia

(Harrison County 21-JA-200-1, 21-JA-201-1, and 21-JA-202-1)

MEMORANDUM DECISION

Petitioner Father H.L., by counsel Jenna L. Robey, appeals the Circuit Court of Harrison County's November 22, 2021, order terminating his parental rights to V.L., Z.L., and K.L.[1] The West Virginia Department of Health and Human Resources ("DHHR"), by counsel Patrick Morrisey and Lee Niezgoda, filed a response in support of the circuit court's order. The guardian ad litem, Dreama Sinkkanen ("guardian"), filed a response on the children's behalf in support of the circuit court's order. On appeal, petitioner argues that the circuit court erred in terminating his parental rights rather than imposing a less restrictive dispositional alternative.

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.

In September of 2021, the DHHR filed a child abuse and neglect petition as well as an amended petition alleging that petitioner and the mother abused controlled substances engaged in domestic violence, exposed the children to a drug environment, failed to provide a sanitary home, failed to supervise the children, and educationally neglected the children. Specifically, the DHHR alleged that the investigating Child Protective Services ("CPS") worker visited the home on August 31, 2021, and found a drug pipe, scissors, a torch, and knives within reach of the children, and that the home was in an unsanitary state with large piles of dirty clothes, overflowing garbage, and animals' feces. The children were also alone and unsupervised. Due to the dangerous conditions of the home the parents were arrested on August 31, 2021, and charged with the felony offense of child abuse creating risk of injury. The DHHR also alleged that then-ten-year-old V.L. had over twenty-five unexcused school absences for the 2019-2020 school year and twenty unexcused absences for the 2020-2021 school year. Then-eight-year-old Z.L. had over twenty-nine unexcused school absences for the 2019-2020 school year and twenty-seven unexcused absences for the 2020-2021 school year.[2] Additionally, Z.L. underwent a Child Advocacy Center ("CAC") interview and reported watching petitioner beat the mother and that petitioner also smacked him or beat him with a belt. Z.L. reported that he had no bed to sleep in, that the parents leave "forever" including full nights, and that they leave Z.L. and V.L. to take care of their toddler sibling K.L. During V.L.'s CAC interview, she disclosed that the home had dog feces, rats, and mice. She stated that the parents fight over cigarettes and cheating, and that she takes K.L. away from the fighting when it breaks out. V.L. stated that she cared for K.L. by changing her diapers, that she had seen bruises on the mother from petitioner's beatings, and that she did not make it to school because the parents stayed asleep or did not have gas in the car. V.L. also stated that the parents "smoke weed," the mother stayed awake once for five days straight, and the parents had white powder on a piece of paper in their room. Thereafter, petitioner tested positive for methamphetamine at his waived preliminary hearing.

The circuit court held an adjudicatory hearing in October of 2021, and petitioner stipulated to the allegations in the petition, including that he abused drugs, failed to supply a safe home due to deplorable living conditions, and neglected the two oldest children's educational needs. The court adjudicated petitioner as an abusing parent. Although the record does not reflect a motion for an improvement period, the court ordered petitioner to participate in parenting and adult life skills classes, supervised visitation with the children, and random drug screening.

The circuit court held a final dispositional hearing in November of 2021 during which the DHHR recommended the termination of the parents' parental rights based on their noncompliance with services. The DHHR admitted petitioner's drug screen records into evidence, which showed that he submitted only one drug screen and that it was positive for methamphetamine. A CPS worker testified that her first and only contact with the parents was at the November 1, 2021, multidisciplinary team meeting, where the team members discussed closing services for the parents due to their noncompliance, but ultimately decided to allow services to continue. Petitioner testified that he had last used methamphetamine approximately ten days prior to the dispositional hearing. Petitioner acknowledged that he was unable to care for the children but argued that the circuit court should terminate his custodial rights only to allow him time to address his drug addiction and other issues.

After considering the evidence, the circuit court found that petitioner submitted to only one drug screen during the entire proceeding, and that screen tested positive for methamphetamine. Petitioner admitted that he last used methamphetamine only ten days before the final dispositional hearing, and as such, the court found that petitioner had taken no steps to address his drug addiction. The court further found that petitioner did not participate in supervised visitation with the children, and he had not participated in individualized parenting classes or adult life skills classes for the prior two months. The court found that petitioner had not addressed the conditions of abuse and neglect, had refused to follow through with a reasonable case plan, and had not responded to reasonable efforts to reunify the family. The court ultimately found that there was no reasonable likelihood that petitioner could substantially correct the conditions of neglect or abuse in the near future and that termination was necessary for the children's welfare. Accordingly, the court entered its November 22, 2021, order, terminating his parental rights to the children. Petitioner now appeals that order.[3]

The Court has previously held:

"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 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).

On appeal, petitioner argues that the circuit court erred in terminating his parental rights. According to petitioner, termination was not in the children's best interests, and the court should have implemented a less restrictive alternative disposition pursuant to West Virginia Code § 49-4-604(c)(5), which allows for a child to be committed to the care, custody, and control of a guardian. Without further explanation or citation to the record, petitioner claims that there was a "stable and appropriate home, where guardianship would be an appropriate form of permanency." Petitioner asserts that there was a reasonable likelihood that the conditions of neglect or abuse could be substantially corrected in the near future and that termination was not necessary for the children's welfare. We disagree.

Petitioner correctly cites West Virginia Code § 49-4-604(c)(6) and further cites West Virginia Code § 49-4-604(d), which provides that a circuit court may find that there is no reasonable likelihood that the conditions of abuse and neglect can be...

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