648 S.E.2d 346
Jeffrey S. Simpkins, Esq.
Simpkins Law Offices
Williamson, West Virginia
and
Susan J. Van Zant, Esq.
Law Offices of Susan Van Zant
Williamson, West Virginia
Attorneys for Bradley R.
Diana Carter Wiedel, Esq.
Guardian ad Litem
Williamson, West Virginia
Darrell V. McGraw, Jr.
Attorney General
Rebecca Stollar Johnson, Esq.
Assistant Attorney General
Charleston, West Virginia
Attorneys for DHHR
The Opinion of the Court was delivered PER CURIAM.
1. “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.” Syllabus
Point 1, In the Interest of: Tiffany Marie S., 196 W.Va. 223, 470 S.E.2d 177 (1996).
2. “'Termination of parental rights, the most drastic remedy under the statutory provision covering the disposition of neglected children, W.Va.Code, 49-6-5 [1977] may be employed without the use of intervening less restrictive alternatives when it is found that there is no reasonable likelihood under W.Va.Code, 49-6-5(b) [1977] that conditions of neglect or abuse can be substantially corrected.' Syllabus Point 2, In re R.J.M., 164 W.Va. 496, 266 S.E.2d 114 (1980).” Syllabus Point 4, In the Matter of Jonathan P., 182 W.Va. 302, 387 S.E.2d 537 (1989).
3. “'[C]ourts are not required to exhaust every speculative possibility of parental improvement before terminating parental rights where it appears that the welfare of the child will be seriously threatened ....' Syl. Pt. 1, in part, In re R.J.M., 164 W.Va. 496, 266 S.E.2d 114 (1980).” Syllabus Point 7, in part, In the Interest of Carlita B., 185 W.Va. 613, 408 S.E.2d 365 (1991).
4. “'Termination of parental rights of a parent of an abused child is authorized under W.Va.Code, 49-6-1 to 49-6-10, as amended, where such parent contends nonparticipation in the acts giving rise to the termination petition but there is clear and convincing evidence that such nonparticipating parent knowingly took no action to prevent or stop such acts to protect the child. Furthermore, termination of parental rights of a parent of an abused child is authorized under W.Va.Code, 49-6-1 to 49-6-10, as amended, where such nonparticipating parent supports the other parent's version as to how a child's injuries occurred, but there is clear and convincing evidence that such version is inconsistent with the medical evidence.' Syl. Pt. 2, In re Scottie D., 185 W.Va. 191, 406 S.E.2d 214 (1991).” Syllabus Point 5, West Virginia Dept. of Health and Human Resources ex rel. Wright v. Doris S., 197 W.Va. 489, 475 S.E.2d 865 (1996).
5. “When parental rights are terminated due to neglect or abuse, the circuit
court may nevertheless in appropriate cases consider whether continued visitation or other
contact with the abusing parent is in the best interest of the child. Among other things, the
circuit court should consider whether a close emotional bond has been established between
parent and child and the child's wishes, if he or she is of appropriate maturity to make such
request. The evidence must indicate that such visitation or continued contact would not be
detrimental to the child's well being and would be in the child's best interest.” Syllabus
Point 5, In re Christina L., 194 W.Va. 446, 460 S.E.2d 692 (1995).
Per Curiam:
This case is before this Court upon appeal of a final order of the Circuit Court
of Mingo County entered on February 3, 2006. In that order, the circuit court terminated the
parental rights of Bradley R. to the infant children Breona R. and Austin G. (See footnote 1) The circuit
court also denied Bradley R.'s motion for post-termination visitation of both children.
Bradley R. appealed the circuit court's adverse rulings against him. After reviewing the facts
of the case, the issues presented, and the relevant statutory and case law, this Court affirms
the decision of the circuit court.
On February 3, 2006, the Circuit Court of Mingo County terminated the
parental rights of Bradley R. and Alisha G. to Breona R. and Austin G. (See footnote 2) Physical and legal
custody of the infant children was granted to the West Virginia Department of Health and
Human Resources (DHHR) for permanent placement. Breona R. was born April 25, 2005,
while Austin G. was born February 18, 2003. Alisha G. is the biological mother of both
children, while Bradley R. is the biological father only to Breona R. Austin G.'s biological
father, Larry W., voluntarily terminated his parental rights on September 27, 2005.
Several months prior to the termination of Bradley R.'s parental rights, on
September 1, 2005, the DHHR filed an emergency petition alleging that Austin G. and
Breona R. were in imminent danger, as outlined by West Virginia Code § 49-6-3(a) (2004). (See footnote 3)
In its petition, the DHHR alleged that Alisha G. and Bradley R. failed to cooperate with
Child Protective Services (CPS) despite numerous visits to the home.
The DHHR believed that Alisha G. and Bradley R. were making efforts to
avoid CPS since DHHR employees rarely saw the children when they stopped at their home.
Alisha G. and Bradley R. often made excuses for Breona R.'s absences such as claiming the
newborn was visiting friends in Virginia even though they were unable to provide names,
addresses, or phone numbers of any of these individuals. The DHHR determined that Alisha
G. and Bradley R. were not meeting the infant children's basic needs. For instance, there
was no electricity in the home, the parents were neglecting the children's medical care by not
keeping their scheduled doctors' appointments, and they were not getting the children's
medical prescriptions filled.
Another factor causing concern for the DHHR was the fact that Alisha G.
tested positive for opiates and barbiturates at the time of Breona R.'s birth. Alisha later
reported to CPS workers that she had taken Valium, Lortab, and Xanax prior to the birth of
Breona R. While Breona R. did not test positive for drugs, she did have symptoms of
withdrawal.
On April 27, 2005, Alisha G. signed a protection plan with CPS. At the time,
both children were being kept by their paternal grandmother, Margaret V., who is a registered
sex offender in the State of West Virginia. Years earlier, Margaret V. pled guilty to violating
W.Va. Code § 61-8D-5B, (See footnote 4) for knowingly procuring another person to engage or attempt to
engage in sexual exploitation of a child under the age of sixteen years. (See footnote 5) The circuit court
found that both Margaret V. and her husband, Billy Ray V., had a long and adverse history
with the DHHR and repeatedly failed to protect children in their care throughout the years.
In June of 2005, it was also determined by the Mingo County DHHR that
Bradley R. had another child in Wyoming County, separate from the underlying proceedings
involving Breona R. and Austin G. With regard to that child, there were substantiated facts
of abuse and neglect against Bradley R. for substance abuse. At the time of the proceedings
before this Court, that child was in foster care.
During a September 6, 2005, preliminary hearing, the circuit court granted
Bradley R. a pre-adjudicatory improvement period for ninety days. The circuit court outlined
specific requirements such as random drug and alcohol screens, parenting classes,
undergoing psychological tests, and attending substance abuse counseling. On January 25,
2006, the circuit court terminated the parental rights of Bradley R. and denied his motion for
post-termination visitation. It concluded:
The evidence clearly reflects the Respondent father,
Bradley R., has not meaningfully participated in these
proceedings. At the Status hearing on September 27, 2005 the
children's Guardian ad Litem reported both Respondent parents
were doing well. However, since then, [Bradley R.] has failed
to participate in services or to make substantial efforts. CPS
Supervisor Webb testified the Department offered numerous
services to [Bradley R.], including Advance Skills; Parenting
training; Transportation assistance; In-home services through
KVC and Family Options; Psychological evaluations, and; drug
screening. [Bradley R.] was non-compliant with all offered
services, and did not, in fact comply with any offered service.
[Bradley R.] did not attend the Adjudicatory hearing, citing
alleged transportation difficulties. [Bradley R.] was incarcerated
during the Dispositional hearing but could have been transported
to the hearing if he desired, or in the alternative, could have
appeared via videoconference. However, he chose to
voluntarily absent himself from the proceedings.
The circuit court found there was no reasonable likelihood that Bradley R.
could substantially correct the conditions of abuse and neglect; that he had presented no
evidence that he would meaningfully participate in an improvement period were he granted
one by the circuit court; that he was unwilling to adequately care for the needs of the minor
children, Austin G. and Breona R.; and that the continuation in his home was not in the best
interests of the minor children. The circuit court permanently terminated Alisha G. and
Bradley R.'s parental rights to Austin G. and Breona R. Bradley R. subsequently appealed
the circuit court's order with regard to the termination of his parental rights and denial of
post-termination visitation of both children.
In this case, Bradley R. contends that the circuit court erred in terminating his
parental rights and denying his motion for visitation to his biological daughter Breona R. and
to Austin G. This Court explained in In re Emily, 208 W.Va. 325, 332, 540 S.E.2d 542, 549
(2000) that, “For appeals resulting from abuse and neglect proceedings, such as the case sub
judice, we employ a compound standard of review: conclusions of law are subject to a de
novo review, while findings of fact are weighed against a clearly erroneous standard.” Also,
in Syllabus Point 1 of In the Interest of: Tiffany Marie S., 196 W.Va. 223, 470 S.E.2d 177
(1996), this Court held that:
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.
With these standards in mind, we now consider whether the circuit court erred
in this case.
In this case, Bradley R. maintains that it is in the best interests of Breona R. and
Austin G. that both children be placed in his custody. He contends that in James M. v.
Maynard, 185 W.Va. 648, 408 S.E.2d 400 (1991), this Court held that when placing a child
outside the custody of a natural parent, there is a preference to effectuate placement with the
child's relatives. He further states that he has sought custody of both children from the
beginning of the underlying proceedings and that he has a bond with both children.
Bradley R. further states that the DHHR initially did not oppose an
Improvement Period for him, did not oppose visitation with the children, and that the circuit
court granted custody to the DHHR in complete disregard to Maynard. He states that he was
unable to attend the Dispositional Hearing because he was incarcerated at the time and
maintains that due to his absence, the DHHR opposed placing the children with him and
allowing him to have visitation. He believes that it would be in the children's best interest
to be placed together in his home due to the familial relationship. Moreover, he states that
the DHHR failed to prove he was an abusive parent and that the only allegation against him
was that he had a substance abuse problem. He admits, however, that there were “slight
instances” of domestic violence toward the children's mother Alicia G. Nonetheless, he
concludes that since there were no allegations of abuse and/or neglect against him, he should
have been granted custody of both children.
Conversely, Diana Carter Wiedel, the Guardian ad Litem for both children,
states she is in complete agreement with the circuit court's ruling terminating Bradley R.'s
parental rights. She states that Bradley R. was unwilling and unable to care for the children
and maintains that he failed to participate in any of the DHHR's offered services or to
comply with the circuit court's directives. She points out that the children are very young,
need a permanent placement, and that at no time during the course of the proceedings has
Bradley R. demonstrated any ability or desire to provide the children with a safe, stable,
environment.
Likewise, the DHHR responds that according to this Court in In re R.J.M, 164
W.Va. 496, 266 S.E.2d 114 (1980), termination of parental rights may be employed without
the use of intervening less restrictive alternatives when there is no likelihood that the
conditions of neglect or abuse can be substantially corrected as outlined by W.Va. Code §
49-6-5(b). (See footnote 6)
Having thoroughly reviewed the entire record as well as the relevant statutory and case law in this matter we agree with the DHHR. This Court has held that:
“Termination of parental rights, the most drastic remedy
under the statutory provision covering the disposition of
neglected children, W.Va.Code, 49-6-5 [1977] may be employed
without the use of intervening less restrictive alternatives when
it is found that there is no reasonable likelihood under
W.Va.Code, 49-6-5(b) [1977] that conditions of neglect or
abuse can be substantially corrected.” Syllabus Point 2, In re
R.J.M., 164 W.Va. 496, 266 S.E.2d 114 (1980).
Syllabus Point 4, In the Matter of Jonathan P., 182 W.Va. 302, 387 S.E.2d 537 (1989). In
addition, this Court has declared that:
“[C]ourts are not required to exhaust every speculative
possibility of parental improvement before terminating parental
rights where it appears that the welfare of the child will be
seriously threatened ....” Syl. Pt. 1, in part, In re R.J.M., 164
W.Va. 496, 266 S.E.2d 114 (1980).
Syllabus Point 7, in part, In the Interest of Carlita B., 185 W.Va. 613, 408 S.E.2d 365 (1991).
Moreover,
“Termination of parental rights of a parent of an abused
child is authorized under W.Va. Code, 49-6-1 to 49-6-10, as
amended, where such parent contends nonparticipation in the
acts giving rise to the termination petition but there is clear and
convincing evidence that such nonparticipating parent
knowingly took no action to prevent or stop such acts to protect
the child. Furthermore, termination of parental rights of a parent
of an abused child is authorized under W.Va.Code, 49-6-1 to
49-6-10, as amended, where such nonparticipating parent
supports the other parent's version as to how a child's injuries
occurred, but there is clear and convincing evidence that such
version is inconsistent with the medical evidence.” Syl. Pt. 2, In
re Scottie D., 185 W.Va. 191, 406 S.E.2d 214 (1991).
Syllabus Point 5, West Virginia Dept. of Health and Human Resources ex rel. Wright v.
Doris S., 197 W.Va. 489, 475 S.E.2d 865 (1996).
In this case, Bradley R. was given numerous opportunities to become a part of
these children's lives, but chose not to do so. For instance, in its September 6, 2005, order,
the circuit court ordered psychological testing for both Alicia G. and Bradley R., along with
random drug and alcohol screening, parenting classes, substance abuse counseling, and
supervised visitation with the children one time per week. In spite of the circuit court's
order, Bradley R. did not visit the infant children a single time during the months of
November and December 2005. Moreover, he did not keep his appointment for
psychological treatment, attend parenting classes, or cooperate with in-home drug screens.
He also failed to attend the December 5, 2005, adjudicatory hearing, and did not attend the
January 26, 2006, final dispositional hearing. We recognize that at the time of the January
26, 2006, hearing, Bradley R. was incarcerated at the South West Regional Jail. Nonetheless,
even though he was aware of the hearing and knew his parental rights were at stake, he made
no request to be transported, nor did he request to appear via video conference.
It is clear to us that the DHHR made every effort to allow Bradley R. to be a
good parent and he failed to partake in any of the services offered. Moreover, his failure to
appear at court hearings to protect his interests, knowing that his rights to his children were
in jeopardy, coupled with his lack of action with the directives of case law and the West
Virginia State Code, lead us to conclude that the circuit court was correct in terminating the
parental rights of Bradley R.
With regard to Bradley R.'s contention that he should have received post-
termination visitation, the DHHR maintains that when no bond exists with the children, the
consideration of post-termination visitation is not required. The DHHR contends that the
circuit court properly denied such visitation. We agree.
We have long recognized that “[w]hen parental rights are terminated due to
neglect or abuse, the circuit court may nevertheless in appropriate cases consider whether
continued visitation or other contact with the abusing parent is in the best interest of the
child. Among other things, the circuit court should consider whether a close emotional bond
has been established between parent and child and the child's wishes, if he or she is of
appropriate maturity to make such request. The evidence must indicate that such visitation
or continued contact would not be detrimental to the child's well being and would be in the
child's best interest.” Syllabus Point 5, In re Christina L., 194 W.Va. 446, 460 S.E.2d 692
(1995).
In the case at hand, the DHHR made repeated efforts to visit with the infant
children attempting to make sure that they were being properly cared for by Bradley R. and
Alisha G. During those numerous visits, the DHHR found that Breona R. was not in the
home for weeks at a time, but rather was “staying with friends in Virginia” even though she
was only a newborn. The DHHR believed that Bradley R. was making an effort to avoid
CPS since DHHR employees rarely saw the children when they stopped at their home. It
further determined that neither Bradley R. nor Alisha G. were meeting the infant children's
basic needs which included their medical care.
We find no evidence in the underlying facts to conclude that Bradley R. has
developed a bond with either of these children. In fact, with regard to Breona R., the infant
child has been in the custody of the DHHR since she was five months old and has been in
her current foster home longer than she was in Bradley R.'s home. Furthermore, Austin G.,
who is not the biological child of Bradley R., never continuously lived in Bradley R.'s home.
Instead, Austin G. spent a great deal of time with his grandparents, one of whom is a
registered sex offender. Moreover, Bradley R. did not make a single visit with the children
in November or December of 2005 despite having the opportunity to see them and with the
full knowledge that his parental rights were in jeopardy. In addition, Bradley R. did not
bother to take the drug tests the circuit court ordered, did not have a psychological
examination completed, and did not attend parenting classes.
The DHHR points out that Austin G. and Breona R. are currently together in
a pre-adoptive home where they have resided since March 2006 and are doing well in their
placement. Conversely, as previously discussed, Bradley R. has made no effort to rectify his
situation and there is no evidence that he has attempted to resolve the issues surrounding his
drug use. This is further evidenced by the unresolved separate action filed against him by
the DHHR in Wyoming County wherein Bradley R. was charged with substantiated abuse
and neglect against him for substance abuse with regard to another child who is not a part of
these proceedings. Moreover, Bradley R.'s actions with regard to his refusal to comply with
any of the circuit court's directives demonstrate a willful rejection and unwillingness to
cooperate in the development of a reasonable family case plan designed to lead to the
children's return to his care, custody and control.
Finally, Bradley R.'s failure to follow through with any rehabilitative efforts
of “social, medical, mental health or other rehabilitative agencies designed to reduce or
prevent the abuse or neglect of the child, as evidenced by the continuation or insubstantial
diminution of conditions which threatened the health, welfare or life of the child” weigh
heavily in this Court's decision. See W.Va. Code § 49-6-5(b). Thus, due to Bradley R.'s
drug use, his failure to have any meaningful participation in his improvement period, along
with his refusal to attend scheduled court hearings, we believe it is not in the best interest of
these children to have post-termination visitation with Bradley R.
Consequently, we find that the circuit court did not abuse its discretion in
terminating Bradley R.'s parental rights and denying his motion for post-termination
visitation. Therefore, we affirm the February 3, 2006, final order of the circuit court.
Accordingly, for the reasons set forth above, the final order of the Circuit Court
of Mingo County entered on February 3, 2006, is affirmed.
Affirmed.