Opinion
No. 20-0997
11-18-2021
IN RE: A.F.
M. Tyler Mason, Esq., Leslie Legal, PLLC, Dellslow, West Virginia, Counsel for Petitioner. Denise N. Pettijohn, Esq., The Pettijohn Law Group, L.C., Lewisburg, West Virginia, Guardian ad Litem for the Infant child, A.F. Patrick Morrisey, Esq., Attorney General, Brittany N. Ryers-Hindbaugh, Esq., Assistant Attorney General, Brandolyn N. Felton-Ernest, Esq., Assistant Attorney General, Charleston, West Virginia, Counsel for Respondent, Department of Health and Human Resources.
M. Tyler Mason, Esq., Leslie Legal, PLLC, Dellslow, West Virginia, Counsel for Petitioner.
Denise N. Pettijohn, Esq., The Pettijohn Law Group, L.C., Lewisburg, West Virginia, Guardian ad Litem for the Infant child, A.F.
Patrick Morrisey, Esq., Attorney General, Brittany N. Ryers-Hindbaugh, Esq., Assistant Attorney General, Brandolyn N. Felton-Ernest, Esq., Assistant Attorney General, Charleston, West Virginia, Counsel for Respondent, Department of Health and Human Resources.
ARMSTEAD, Justice: Petitioner Father, J.F. ("Petitioner"), appeals the circuit court's November 20, 2020, disposition order terminating his parental rights to the infant child, A.F. Petitioner was incarcerated and awaiting trial on two felonies and numerous other charges when the abuse and neglect petition was filed. The circuit court adjudicated Petitioner of being abusive and neglectful because his incarceration rendered him unable to care for the child and unable to protect the child from the substance of abuse of the child's mother, M.M. The main factor cited by the circuit court in its disposition order terminating Petitioner's parental rights was his incarceration. On appeal, Petitioner contends that the circuit court erred in terminating his parental rights in lieu of granting him an improvement period.
Consistent with our long-standing practice in cases with sensitive facts, we use initials to identify the parties. See, e.g., State v. Edward Charles L. , 183 W. Va. 641, 645 n.1, 398 S.E.2d 123, 127 n.1 (1990).
In In re Cecil T. , 228 W. Va. 89, 717 S.E.2d 873 (2011), this Court addressed the factors that must be considered when incarceration is the basis for termination of parental rights. While we find that the circuit court failed to conduct an appropriate Cecil T. analysis, the appendix record is sufficient for this Court to conduct our own Cecil T. review. Upon our review, we conclude that Petitioner's parental rights should be terminated. Therefore, we affirm the circuit court's disposition order.
I. FACTUAL AND PROCEDURAL BACKGROUND
The Department of Health and Human Resources ("DHHR") filed an abuse and neglect petition against Petitioner and M.M. in June of 2020. The DHHR alleged that M.M. had overdosed while the child was in her care, and that she had tested positive for methamphetamine, amphetamine, and fentanyl. The DHHR alleged that Petitioner Father was unable to protect the child from M.M.’s drug use because he had been incarcerated since November of 2019 and was awaiting trial on multiple charges. Petitioner's charges included two felonies: 1) felon in possession of a firearm; and 2) "escape or attempt to escape from custody" which involved him allegedly tampering with his home confinement bracelet. Petitioner was unable to post bail and remained incarcerated throughout the proceedings. He appeared at the circuit court hearings by video or teleconferencing.
According to the DHHR, Petitioner's pending charges were: 1) escape or attempt to escape from custody, a felony; 2) prohibited person in possession of a firearm, a felony; 3) unauthorized acts with regard to wildlife without license or permit; 4) spotlighting; 5) hunting wildlife from a motorized vehicle; 6) hunting without written permission; 7) loaded rifle in motor vehicle; 8) "hunt closed season;" 9) "uncased firearm thirty minutes after sunset;" 10) shooting or discharging a firearm within five hundred feet of a dwelling; 11) "conspiracy to violate West Virginia Code Chapter 20, withholding information, obstructing officers;" and 12) waste of game animals.
During the adjudicatory hearing, M.M. stipulated that her substance abuse negatively affected her ability to parent the child. She was adjudicated as an abusing parent and was granted an improvement period. The circuit court found that Petitioner: 1) "was incarcerated at the time of [the] filing of this petition and was unable to care for the child;" 2) "is incarcerated; therefore, he does not have a safe and suitable home;" and 3) "is incarcerated and is unable to protect the child from [M.M.’s] drug use." Based on these findings, the circuit court adjudicated Petitioner as an abusive and neglectful parent and issued a no contact order between Petitioner and M.M.
Prior to the final disposition hearing, the child was in a severe car wreck and had to be hospitalized. Upon learning about the car accident, Petitioner called M.M. and asked about the child's condition.
Petitioner's disposition hearing occurred on November 13, 2020. Petitioner and a DHHR employee testified at this hearing. Petitioner pled the Fifth Amendment in response to questions about the criminal charges he was facing. The State responded that "the Court can make a negative inference from your failure to answer these questions[.]" Further, Petitioner testified that prior to his current incarceration, he was unaware that M.M. had any substance abuse problems and stated that, to his knowledge, her drug abuse started after he was incarcerated. When asked if he would be capable of participating in an improvement period by telephone, including parenting classes and visitation with the child, Petitioner stated, "I'm sure I could arrange that."
At that time, Petitioner had been moved to the Carter County Detention Center in Kentucky. Petitioner's brief to this Court notes that he had been moved to this facility by "the Federal Authorities after he was indicted on Federal charges for prohibited person in possession of a firearm and ammunition."
The State asked Petitioner about his prior criminal convictions. Petitioner testified that he had prior convictions for manslaughter and arson, had been incarcerated for those convictions, and was released in 2016. Regarding the phone call to M.M. after the car accident, Petitioner stated that he learned that his child was involved in a car accident but was unable to obtain the details from his friends and family. Therefore, he called M.M. even though he knew that it was in violation of the circuit court's no contact order.
Petitioner was also asked about the status of his rights to his other children. He testified that he has a 16-year-old daughter with S.D., with whom he shares joint custody. He stated that he had an additional child with A.J., and that this child had been adopted by A.J.’s brother after Petitioner was incarcerated on the prior charges.
DHHR employee Rodney Blankenship testified that the DHHR was recommending that the circuit court terminate Petitioner's parental rights. He testified that the DHHR was against granting Petitioner an improvement period due to Petitioner's incarceration and the uncertainty surrounding the duration of his incarceration. On cross-examination, Mr. Blankenship testified that he did not know if parenting classes could be provided over the phone or by video conference. He stated, "I don't know what Carter County, Kentucky [Detention Center] does."
Following this testimony, counsel for each of the parties addressed the court. Petitioner's counsel noted that Petitioner was adjudicated on his failure to protect the child from M.M.’s substance abuse. At the time this disposition hearing was held, M.M. was complying with the terms of her improvement period. Petitioner's counsel asserted that if M.M. continued to successfully address her substance abuse issues, the basis for Petitioner's adjudication—failure to protect the child from M.M.’s substance abuse—would cease to exist. However, Petitioner's counsel conceded that if M.M. "failed to comply with her improvement period, if her rights were terminated, then frankly [Petitioner's] rights could be terminated right along with it." Finally, Petitioner's counsel argued that incarceration alone, particularly pre-trial incarceration, was an insufficient basis upon which to terminate Petitioner's parental rights.
The circuit court terminated Petitioner Father's parental rights and denied Petitioner's request for a post-adjudication improvement period based mainly on Petitioner's incarceration. The circuit court found: 1) Petitioner was unable to participate in an improvement period due to his incarceration; 2) Petitioner had not seen the child since he was incarcerated in 2019; 3) it would not be in the child's best interest to delay permanency by awaiting the uncertain results of Petitioner's pending charges; 4) Petitioner failed to protect the child from M.M.’s drug use; 5) Petitioner had not yet been tried, and it was unknown if a trial date had been set; and 6) given the speculative nature of Petitioner's trial date and the duration of his incarceration, it was unlikely that he could correct the conditions of abuse and neglect in the near future. The circuit court also found that Petitioner had been incarcerated for much of the child's life and "the child needs continuity of care and caretakers, and a significant amount of time is required to be integrated into a stable and permanent home environment."
Additional factors cited by the circuit court include the following: the court drew a negative inference from Petitioner's refusal to answer several questions about his criminal charges; Petitioner was previously convicted of voluntary manslaughter, served prison time, and was released in 2016; Petitioner has other children that he does not have custody of; Petitioner assisted M.M. in violating the terms of her improvement period (the no contact order); and Petitioner violated the no contact order by calling M.M.
Based on the foregoing, the circuit court concluded that there was no reasonable likelihood that Petitioner could correct the conditions of abuse and neglect and that termination of Petitioner's parental rights was necessary for the child's welfare. Following entry of the disposition order terminating his parental rights, Petitioner filed the instant appeal.
II. STANDARD OF REVIEW
We apply 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 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 the 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. With this standard in mind, we consider the parties’ arguments.
III. ANALYSIS
Petitioner argues that the circuit court committed "plain error when it failed to grant [his] motion for a post-adjudicatory improvement period and terminated his parental rights.... In practice, the success of his improvement period would inherently be tethered to the success of [M.M.’s] improvement period." In his brief to this Court, Petitioner argued that as long as M.M. was successfully completing her improvement period in an effort to have her parental rights restored, the child's permanency would not be delayed by keeping Petitioner's parental rights intact. Further, Petitioner asserted that the circuit court's Cecil T. analysis was erroneous because it failed to give substantial weight "to the fact that Petitioner has not yet been convicted of anything."
The factual circumstances have significantly changed since the circuit court entered its disposition order and since the parties filed their briefs. When the disposition order was entered and when the parties filed their briefs, 1) Petitioner had not been convicted of any of his current charges, 2) his incarceration term was uncertain, and 3) M.M. was successfully participating in her improvement period and hoped to be reunified with the child. In the parties’ Rule 11(j) updates to this Court, it was revealed that 1) Petitioner pled guilty to the federal felony charge of "felon in possession of firearm" and that he was sentenced to an incarceration term of 78 months; 2) Petitioner was re-indicted on the felony escape charge involving tampering with his home confinement bracelet; and 3) M.M.’s parental rights were involuntarily terminated by the circuit court on September 16, 2021. With this background in mind, we proceed to examine our law regarding the impact of incarceration when considering whether to terminate a person's parental rights, the circuit court's Cecil T. analysis, and our analysis in light of the new factual developments that have occurred.
Pursuant to Rule 11(j) of the West Virginia Rules of Appellate Procedure, "[t]he parties shall provide a written statement of any change in the circumstances that were set forth in the briefs within one week of any oral argument scheduled by the Court or within such other time as may be specified by order."
The escape charge had been dismissed without prejudice in February of 2021 by an order "Granting State's Motion to Nolle Prosequi."
The child has been placed with her grandparents since the inception of this matter. The permanency plan is adoption by the grandparents.
Pursuant to West Virginia Code § 49-4-604(c)(6) (2020), a circuit court is directed to terminate parental rights upon a finding that there is no reasonable likelihood that the conditions of abuse and neglect can be substantially corrected in the near future and when necessary for the child's welfare. "No reasonable likelihood that conditions of neglect or abuse can be substantially corrected" is statutorily defined as "based upon the evidence before the court, the abusing adult or adults have demonstrated an inadequate capacity to solve the problems of abuse or neglect on their own or with help." W. Va. Code § 49-4-604(d). We have held that "[t]ermination ... may be employed without the use of intervening less restrictive alternatives when it is found that there is no reasonable likelihood ... that conditions of neglect or abuse can be substantially corrected." Syl. Pt. 7, in part, In re Katie S. , 198 W. Va. 79, 479 S.E.2d 589 (1996). We have also held that "[a]lthough parents have substantial rights that must be protected, the primary goal in cases involving abuse and neglect, as in all family law matters, must be the health and welfare of the children." Syl. Pt. 3, In re Katie S.
This Court has explained that termination of parental rights may be based on incarceration after a court considers a number of factors. In Cecil T. , the Court held:
When no factors and circumstances other than incarceration are raised at a disposition hearing in a child abuse and neglect proceeding with regard to a parent's ability to remedy the condition of abuse and neglect in the near future, the circuit court shall evaluate whether the best interests of a child are served by terminating the rights of the biological parent in light of the evidence before it. This would necessarily include but not be limited to consideration of the nature of the offense for which the parent is incarcerated, the terms of the confinement, and the length of the incarceration in light of the abused or neglected child's best interests and paramount need for permanency, security, stability and continuity.
Syl. Pt. 3, 228 W. Va. 89, 717 S.E.2d 873.
Justice Workman addressed the Court's holding in Cecil T. in a recent case and emphasized that the nature of the offense is an important factor that a court must consider when conducting a Cecil T. analysis:
Unquestionably, a parent whose term of incarceration is so lengthy that his children will be almost grown before the father is released from prison is a critical consideration under the statutory definition of neglect and is a permissible consideration under In re Cecil T . Another consideration under In re Cecil T . is the nature of the offense. Here the petitioner committed murder, not a garden-variety, nonviolent crime, obviously without considering the impact of his criminal conduct on his children. His actions alone resulted in his lengthy term of incarceration, which will preclude him from meeting even his minimal parenting responsibilities.
In short, the Cecil T. factors, along with the statutory definitions for "abandonment" and "neglect" in West Virginia Code § 49-1-201, are all unquestioningly relevant to determining whether the Department has established that the parent is abusing or neglecting[.]
In Re A.P.-1 , 241 W. Va. 688, 697, 827 S.E.2d 830, 839 (2019) (Workman, J., concurring, in part, and dissenting, in part).
In the instant case, the circuit court was in an unusual procedural position when it entered its disposition order—evaluating the Cecil T. factors based on Petitioner's pre-trial incarceration. With this unusual procedural position in mind, we note that the circuit court's Cecil T. analysis did not include any discussion of the potential length of incarceration Petitioner was facing. Further, there was no discussion of the substance of the underlying criminal charges Petitioner faced. Instead, the circuit court's order focused largely on the uncertain duration of Petitioner's incarceration.
Additionally, the circuit court's order does not include any substantive discussion of the nature, length, and terms of Petitioner's incarceration "in light of the abused or neglected child's best interests and paramount need for permanency, security, stability and continuity." Syl. Pt. 3, Id. When the circuit court entered its disposition order, Petitioner had not been convicted or sentenced, and M.M. was successfully complying with the terms of her improvement period. Therefore, the circuit court should have addressed how terminating Petitioner's parental rights in November of 2020 served the child's need for permanency, security, stability, and continuity.
Based on the foregoing, we find that the circuit court's Cecil T. analysis was erroneous. However, that is not the end of our inquiry. "This Court may, on appeal, affirm the judgment of the lower court when it appears that such judgment is correct on any legal ground disclosed by the record, regardless of the ground, reason or theory assigned by the lower court as the basis for its judgment." Syl. Pt. 3, Barnett v. Wolfolk , 149 W. Va. 246, 140 S.E.2d 466 (1965). As discussed below, the parties’ Rule 11(j) updates provide this Court with a sufficient basis to conduct our own Cecil T. review. Upon such review, we conclude that Petitioner's parental rights should be terminated.
Petitioner has now been sentenced to an incarceration term of 78 months based on his guilty plea to the "felon in possession of firearm" charge. Pursuant to Cecil T. , we must consider the nature of this offense and the length of incarceration. Because Petitioner has now been convicted of being a "felon" in possession of a firearm, we find that the underlying felonies are relevant to our consideration of the nature of his current offense. During the disposition hearing, Petitioner testified that his underlying felonies were for "arson and a manslaughter." The manslaughter charge that Petitioner pled guilty to is a crime that involved an act of violence. After serving his sentence for these crimes, Petitioner, as a convicted felon, was not permitted to possess a firearm. Despite this prohibition, Petitioner shot a deer with a firearm, was subsequently charged, and has now pled guilty to the federal offense of "felon in possession of a firearm." The length of Petitioner's confinement is 78 months.
It is clear that Petitioner knew he was not permitted to possess a firearm and that he nevertheless engaged in conduct that resulted in his current conviction. This conviction demonstrates that Petitioner failed to consider the impact his criminal conduct would have on his ability to act as a responsible parent for his child. His actions resulted in a lengthy term of incarceration, which will preclude him from fulfilling his parenting responsibilities for the next 78 months.
Additionally, Petitioner has been re-indicted on the felony escape charge involving tampering with his home confinement bracelet. If convicted, Petitioner faces a five-year incarceration term. West Virginia Code § 61-5-10 (2000), provides, in relevant part:
Whoever escapes or attempts to escape by any means from the custody of a county sheriff, the director of the regional jail authority, an authorized representative of said persons, a law-enforcement officer, probation officer, employee of the division of corrections, court bailiff, or from any institution, facility, or any alternative sentence confinement, by which he or she is lawfully confined, if the custody or confinement is by virtue of a charge or conviction for a felony, is guilty of a felony and, upon conviction thereof, shall be confined in a correctional facility for not more than five years[.]
If found guilty of this charge, this is another instance of Petitioner's failure to consider the impact his criminal activity would have on his ability to parent his child.
Next, we find that terminating Petitioner's parental rights based on his current incarceration is in the child's best interest and is necessary for the child to achieve permanency, security, stability, and continuity. As set forth in the Rule 11(j) updates, M.M.’s parental rights have now been terminated. During the disposition hearing, Petitioner's counsel conceded that if M.M. "failed to comply with her improvement period, if her rights were terminated, then frankly [Petitioner's] rights could be terminated right along with it." Because M.M.’s parental rights have now been terminated, the plan for permanency is adoption by the child's grandparents. It is clear that the paramount need for the child to achieve permanency will be accomplished by terminating Petitioner's parental rights. The child is two years old. This Court has recognized that achieving permanency is especially important for young children, such as the child at issue herein:
[C]ourts are not required to exhaust every speculative possibility of parental improvement ... where it appears that the welfare of the child will be seriously threatened, and this is particularly applicable to children under the age of three years who are more susceptible to illness, need consistent close interaction with fully committed
adults, and are likely to have their emotional and physical development [delayed] by numerous placements.
Syl. Pt. 1, in part, In re R.J.M. , 164 W. Va. 496, 266 S.E.2d 114 (1980) (emphasis added).
Similarly, this Court has observed that
the early, most formative years of a child's life are crucial to his or her development. There would be no adequate remedy at law for these children were they permitted to continue in this abyss of uncertainty. We have repeatedly emphasized that children have a right to resolution of their life situations, to a basic level of nurturance, protection, and security, and to a permanent placement.
State ex rel. Amy M. v. Kaufman , 196 W. Va. 251, 257, 470 S.E.2d 205, 211 (1996).
In sum, our Cecil T. analysis reveals that the termination of Petitioner's parental rights is in the best interest of the child and will allow this child the opportunity to achieve permanency through the planned adoption by her grandparents.
Finally, in light of our Cecil T. analysis, we find no support for Petitioner's argument that the circuit court erred by failing to grant him an improvement period. This Court has held that "a parent charged with abuse and/or neglect is not unconditionally entitled to an improvement period." In re Emily , 208 W. Va. 325, 336, 540 S.E.2d 542, 553 (2000). West Virginia Code § 49-4-610(3)(B) provides that the circuit court may grant a parent an improvement period when the parent "demonstrates, by clear and convincing evidence, that the [parent] is likely to fully participate in the improvement period." Further, we have stated that a circuit court has discretion to deny an improvement period when no improvement is likely. See In re Tonjia M. , 212 W. Va. 443, 448, 573 S.E.2d 354, 359 (2002). We have also discussed the ability of incarcerated parents to correct the conditions of abuse and neglect:
In some cases, a parent who is incarcerated may under the circumstances still be able to correct conditions of abuse and neglect "in the near future" through participation in an improvement period or otherwise. In other cases, incarceration may unreasonably delay the permanent placement of the child deemed abused or neglected, and the best interests of the child would be served by terminating the incarcerated person's parental rights.
Cecil T. , 228 W. Va. at 97, 717 S.E.2d at 881.
Because Petitioner's incarceration term will last for at least 78 months, it is clear that granting him an improvement period would be a futile act. Petitioner will not be able to correct the conditions of abuse and neglect in the near future through participation in an improvement period. Further, granting an improvement period would delay permanency for the child and would clearly not be in the child's best interest.
IV. CONCLUSION
We affirm the circuit court's November 20, 2020, order.
Affirmed.
JUSTICE WOOTON concurs in part and dissents in part and reserves the right to file a separate Opinion.
WOOTON, J., concurring, in part, and dissenting, in part:
I concur with the majority's conclusion that the circuit court erred by failing to apply the Cecil T . factors regarding incarceration. See Syl. Pt. 3, In re Cecil T. , 228 W. Va. 89, 717 S.E.2d 873 (2011). However, the proper remedy for that error is vacation of the order and remand for adequate fact-finding and analysis by the circuit court. It is not the place of this Court to step into the adjudicatory role of the circuit court and preemptively resolve the case after finding error—particularly where additional, critical facts have been developed pending appeal. This Court has long held that "[w]hen the requisite procedure is not followed in an abuse and neglect case[ ] ... the order resulting from such deviation will be vacated and the case will be remanded for entry of an order that satisfies the procedural requirements[.]" In re Emily G., 224 W. Va. 390, 396, 686 S.E.2d 41, 47 (2009). Accordingly, I respectfully dissent to the majority's affirmation of the circuit court's termination of petitioner's parental rights. It is critical to recognize that the Rules of Procedure for Child Abuse and Neglect Proceedings as well as our extensive body of caselaw do not exist merely as a vehicle to reach a predetermined outcome. Rather, they serve an important due process function for parents whose fundamental rights are at stake: "The Rules of Procedure for Child Abuse and Neglect Proceedings and the related statutes ... vest carefully described and circumscribed discretion in our courts, intended to protect the due process rights of the parents as well as the rights of the innocent children." In re Edward B. , 210 W. Va. 621, 632, 558 S.E.2d 620, 631 (2001). These procedures and our precedent "also provide the necessary framework for appellate review of a circuit court's action." Id.
The majority has determined that, despite the circuit court's failure to properly consider and apply the balancing test set forth in Cecil T ., the late-developed record is adequate to post-hoc affirm the petitioner's termination. Importantly, it was only after the lower court terminated petitioner's parental rights and while this case was pending appeal—and after briefing had been completed—that any semblance of clarity about petitioner's criminal charges and duration of his incarceration developed. These are vitally relevant inquiries under the Cecil T . holding—petitioner is entitled to respond to these inquiries and stake out a position as to what that newly-acquired information means in terms of his parental rights.
More specifically, given the now relatively certain duration of petitioner's incarceration, he should be permitted to argue on remand which of the dispositional alternatives contained in West Virginia Code § 49-4-604 (2020) best corresponds with A. F.’s welfare and need for permanency. Cecil T . instructs that incarceration must be considered "in light of the abused or neglected child's best interests and paramount need for permanency, security, stability and continuity." 228 W. Va. at 91, 717 S.E.2d at 875, Syl. Pt. 3. Termination of parental rights contains a similar statutory prerequisite that termination must be "necessary for the welfare of the child." See In re A. P. , 245 W. Va. 248, ––––, 858 S.E.2d 873, 880 (2021) (underscoring the "distinct requirement[ ]" that termination be "necessary for the welfare of the child" in terms of the child's "physical and emotional well-being."). Petitioner may well wish to argue that a disposition under West Virginia Code § 49-4-604(c)(5) is the least restrictive disposition which properly venerates the best interests of A. F. and provides adequate permanency—particularly where his only current parenting deficit is his incarceration. West Virginia Code § 49-4-604(c)(5) provides:
Upon a finding that the abusing parent or battered parent or parents are presently unwilling or unable to provide adequately for the child's needs , commit the child temporarily to the care, custody, and control of the department, a licensed private child welfare agency, or a suitable person who may be appointed guardian by the court.
(emphasis added). Just this term, this Court unanimously endorsed just such an arrangement. See In re S. C. , No. 20-0816, ––– W.Va. ––––, 865 S.E.2d 79, 90 (W. Va. October 29, 2021) (slip op.) (holding that parent who has "remedied the conditions that led to his adjudication" should be granted "less restrictive disposition 5" in lieu of termination and rejecting "presum[ption]" that termination is necessary for child's welfare "[s]imply because the record is clear the child should remain" in placement outside of the home).
However, it is the prerogative of the circuit court, upon receiving these arguments under a better understanding of the applicable standard, to make findings of fact and conclusions of law in the first instance regarding the proper disposition. See Edward B. , 210 W. Va. at 632, 558 S.E.2d at 631 (quoting Nicpon v. Nicpon , 9 Mich.App. 373, 157 N.W.2d 464, 467 (1968) ) (" ‘Clear and complete findings by the trial judge are essential to enable us properly to exercise and not exceed our powers of review.’ "). This Court has repeatedly made clear that this is the role of the circuit court where error permeates the order on review and/or important information was not considered:
[T]he circuit court's order, as well as the appendix record, show that the circuit court was lacking important evidence necessary
for determining the petitioner's parental fitness to parent C. N. Similar to our decision to reverse and remand in In re Timber M., we are left "with the firm conviction" that no one adequately considered the petitioner's parental fitness to have custody of C. N.
In re A. N. , 241 W. Va. 275, 289, 823 S.E.2d 713, 727 (2019) (citations omitted); see also In re Emily , 208 W. Va. 325, 339, 540 S.E.2d 542, 556 (2000) ("[W]e are left with the firm conviction that the final disposition of this abuse and neglect case is more appropriately decided, in the first instance, by the circuit court.... [I]n 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.").
Not only has petitioner been deprived of the ability to argue what the newly adduced information necessitates under our statutory scheme, but the majority's affirmation of termination improperly suggests that his now-certain incarceration alone demands it. In absence of any other properly adjudicated parenting deficits, the majority finds that petitioner's six-year federal sentence is sufficient basis upon which to terminate, implicitly creating a bright line rule as to the length of incarceration which presumptively satisfies Cecil T . However, Cecil T. portends no such bright line and counsels to the contrary: "[T]he mere fact that someone is incarcerated will not result in automatic termination of parental rights[.]" 228 W. Va. at 97, 717 S.E.2d at 881. In fact, this Court long ago made clear that "[a] natural parent of an infant child does not forfeit his or her parental right to the custody of the child merely by reason of having been convicted of one or more charges of criminal offenses." Syl. Pt. 2, State ex rel. Acton v. Flowers , 154 W.Va. 209, 174 S.E.2d 742 (1970).
In contrast to the absence of any other adjudicated allegations other than failure to protect lodged against petitioner, in Cecil T . the incarcerated respondent was arrested almost immediately following an improvement period, which prompted him to leave Cecil with an inappropriate caregiver. See id. , 228 W. Va. at 93, 717 S.E.2d at 877. Cecil was present during the crime for which respondent was arrested and respondent left him with his mother, who had previously been found an inappropriate caregiver. Id. As such, his incarceration alone was not the sole issue underlying his adjudication as abusive and/or neglectful.
Instead, the Court has explained that "while an individual's incarceration may be a criterion in determining whether his/her parental rights should be terminated, other factors and circumstances impacting his/her ability to remedy the conditions of abuse and neglect should also be considered when making such a disposition." In re Emily , 208 W. Va. at 342, 540 S.E.2d at 559 (footnote omitted) (some emphasis added). Consideration of petitioner's "ability to remedy the conditions of abuse and neglect" necessarily commands revisiting the specific allegations of abuse and neglect lodged against petitioner and upon which he was properly adjudicated in the first instance.
The majority insinuates that incarceration is tantamount to abandonment and therefore deserving of termination, citing a concurring opinion by Justice Workman. See In re A. P.-1 , 241 W. Va. 688, 827 S.E.2d 830 (2019) (Workman, J., concurring) (stating that by reading the statutory provisions in pari materia, "an incarcerated parent can be adjudicated as having abandoned his or her child[ren] through evidence of the parent's inability to meet even the most minimal parental duties and responsibilities to the child[ren]."). Critically, however, petitioner was not alleged to have abandoned A. F. in the subject petition, whereas in A. P.-1 , abandonment was specifically alleged against the respondent parent. See id. at 698, 827 S.E.2d at 840 ("[T]he petition here alleged both abandonment and abuse/neglect."). The DHHR did not seek amendment of the petition herein to allege abandonment at any time. See discussion infra.
The petition filed against petitioner in this matter exclusively alleges that he failed to protect A. F. from her mother's substance abuse—an issue which is no longer relevant as the mother's rights have been terminated. It is logically inescapable that the condition of abuse or neglect of which petitioner was adjudicated was by its very nature corrected if A. F.’s mother resolved her drug abuse or was otherwise removed as a threat to A. F.’s welfare. That has now occurred by virtue of the termination of her parental rights; A. F. remains in the custody of her grandparents, where petitioner's mere incarceration poses no apparent, immediate threat to her safety or welfare. Further, with respect to the extraneous issues upon which the circuit court based its termination (and to which the majority alludes), none of those issues cure the circuit court's error or justify termination, as presented. Irrespective of the majority's highlighting of petitioner's criminal history, it is undisputed that 1) his convictions occurred prior to A. F.’s birth; and 2) his criminal history was not made part of the petition upon which he was adjudicated. Similarly, the circuit court's focus on petitioner's rights as pertained to other children not named in the petition had no adequate basis in the record; the evidence on this is, at best, vague and primarily consists of illusory statements by the prosecutor and petitioner's attorneys. More importantly, the prosecutor explicitly recognized that if the Department of Health and Human Resources ("DHHR") intended to rely on prior involuntary termination as a basis to terminate in the instant case, amendment of the petition was necessary. During the dispositional hearing below, the prosecutor twice referenced amending the complaint to include allegations of prior termination, but never sought to do so due to the circuit court's erroneous termination. See W. Va. Code § 49-4-604(c)(7)(C) (stating that prior involuntary termination may constitute "aggravated circumstances," obviating the need for efforts at reunification).
This Court has definitively rejected attempts to base disposition on allegations that are invoked during disposition, but which were not alleged in the petition or any amendment and which did not form the basis of adjudication. See In re Lilith H. , 231 W. Va. 170, 181, 744 S.E.2d 280, 291 (2013) ("The circuit court then terminated their parental rights on the basis of their continued acrimony, which was never even alleged to constitute abuse and/or neglect in the petition or at any time during the proceedings. This action served to " ‘back door’ " adjudication."). Neither our Rules of Procedure, our precedent, nor due process permit termination of parental rights on a basis against which a respondent parent was not given an opportunity to defend.
Further demonstrating the prematurity of termination at this juncture, petitioner was implicitly denied an improvement period despite his undisputed willingness to participate because the circuit court had improperly concluded that termination was proper. Having found the circuit court's analysis which gave rise to termination to be erroneous, it is necessary to remand to permit the circuit court to give full and proper consideration to whether an improvement period is in order.
DHHR and the guardian ad litem take the position petitioner did not qualify for an improvement period because he failed in his burden to demonstrate the availability of remote or online services. However, the statutory language upon which they rely makes it petitioner's burden to demonstrate he "is likely to fully participate in the improvement period[.]" W. Va. Code § 49-4-610 (2015) (emphasis added). Nothing in the statutory language makes it incumbent upon a petitioner to establish the availability of particular services or means of providing such services. DHHR's willful ignorance about the availability of services is wholly insufficient to establish that petitioner is not likely to fully participate in an improvement period.
Accordingly, while I concur in the majority's determination that the circuit court erred in failing to consider the Cecil T . factors, I respectfully dissent to its affirmation of termination of petitioner's parental rights on the basis of evidence which was not of record below, thereby preventing petitioner from arguing the impact of such evidence to the circuit court. There is simply nothing in the record before this Court which adequately salvages the circuit court's otherwise erroneous dispositional order terminating petitioner's parental rights. I do not suggest, however, that upon consideration of the fully developed record and the Cecil T . factors that the circuit court may not properly determine that termination of petitioner's rights is in A. F.’s best interests. Quite to the contrary, my position is that this determination remains within the exclusive province of the circuit court in the first instance upon assessment of the facts and arguments of the parties, properly guided by applicable law, rather than a majority of this Court.