Opinion
No. 22-698
11-08-2023
IN RE: B.P.
Grant M. Sherman, Esq., Sherman Law Firm, Romney, West Virginia, Attorney for Petitioner G.F. Julie A. Frazer, Esq., Keaton, Frazer, Milleson, and Dante, PLLC, Romney, West Virginia, Guardian ad Litem Patrick Morrisey, Esq., Attorney General, Charleston, West Virginia, Lee Niezgoda, Esq., Assistant Attorney General, Fairmont, West Virginia, Attorneys for WV DHHR
Syllabus by the Court
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." Syl. Pt. 1, In Interest of Tiffany Marie S., 196 W. Va. 223, 470 S.E.2d 177 (1996).
2. "Where the issue on an appeal from the circuit court is clearly a question of law or involving an interpretation of a statute, we apply a de novo standard of review." Syl. Pt. 1, Chrystal R.M. v. Charlie A.L., 194 W. Va. 138, 459 S.E.2d 415 (1995).
3. A parent’s absence from a child’s life because of incarceration that results in the inability of the parent to provide necessary food, clothing, shelter, medical care, education, or supervision is a form of neglect under the definition of "neglected child" set forth in West Virginia Code § 49-1-201 (2018).
4. "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 ret. Acton v. Flowers, 154 W. Va. 209, 174 S.E.2d 742 (1970).
5. "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, In re Cecil T., 228 W. Va. 89, 717 S.E.2d 873 (2011).
6. """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 re Jonathan P., 182 W.Va. 302, 387 S.E.2d 537 (1989).’ Syl. Pt. 1, In re Jeffrey R.L, 190 W.Va. 24, 435 S.E.2d 162 (1993)." Syl. Pt. 6, In re Isaiah A, 228 W. Va. 176, 718 S.E.2d 775 (2010). 7. " '[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 retarded by numerous placements.’ Syl. Pt. 1, in part, In re R.J.M., 164 W.Va. 496, 266 S.E.2d 114 (1980)." Syl. Pt. 4, In re Cecil T., 228 W. Va. 89, 717 S.E.2d 873 (2011).
Appeal from the Circuit Court of Hampshire County, Honorable C. Carter Williams, Judge, Civil Action No. 21-JA-106
Grant M. Sherman, Esq., Sherman Law Firm, Romney, West Virginia, Attorney for Petitioner G.F.
Julie A. Frazer, Esq., Keaton, Frazer, Milleson, and Dante, PLLC, Romney, West Virginia, Guardian ad Litem
Patrick Morrisey, Esq., Attorney General, Charleston, West Virginia, Lee Niezgoda, Esq., Assistant Attorney General, Fairmont, West Virginia, Attorneys for WV DHHR
HUTCHISON, Justice:
The petitioner, G.F., appeals the July 13, 2022, order of the Circuit Court of Hampshire County terminating his parental rights to his daughter, B.P. In this appeal, the petitioner contends that the circuit court erred by adjudicating him as an abusive and/or neglectful parent based on drug use because he was incarcerated at the time the respondent, the West Virginia Department of Health and Human Resources ("DHHR"), filed the abuse and neglect petition against him. Upon review of the parties’ briefs and oral arguments, the submitted appendix record, and the pertinent authorities, we find that the circuit court did not base its adjudication of the petitioner on drug use, but instead, properly adjudicated the petitioner as a neglectful parent because of his failure to provide for B.P.’s basic needs due to his absence from her life as a result of his incarceration. Accordingly, we affirm the circuit court’s order.
In abuse and neglect cases, we use initials to identify the parties. See W. Va. R. App. Proc. 40(e); see also In re L.W., 245 W. Va. 703, 706 n.1, 865 S.E.2d 105, 108 n.1 (2021).
In fact, petitioner testified that after he discovered he was B. P.’s father, he discussed the child with T. P., who told him that she had lost her rights to B. P. Petitioner advised her that, as a result, "I am not sure if I can still, contact, keep in contact … because I don't want my chance for my rights to be taken away." As is all too familiar to this Court, respondent parents frequently fail or refuse to cut off contact with a co-parent whose rights have been involuntarily terminated. To demonstrate this level of insight— without the prompting or involvement of DHHR or the circuit court—unquestionably differentiates petitioner from a great many other parents whose rights have been terminated.
I. Facts and Procedural Background
On November 18, 2021, three days after B.P. was bom, the DHHR filed a petition alleging that her mother, T.P., had abused and/or neglected B.P. because both tested positive for methamphetamine at the time of the child’s birth. When the petition was filed, paternity had not yet been established. The man initially identified by T.P. as B.P.’s potential father was excluded by a paternity test. The petitioner was not determined to be the father of B.P. until January 27, 2022. At that time, the petitioner was incarcerated in the Potomac Highlands Regional Jail having been convicted of two counts of possession with the intent to deliver a controlled substance, specifically methamphetamine, in violation of West Virginia Code § 60A-4-401(a)(i) (2020). The petitioner had pled guilty to these two felonies and was serving two terms of one to fifteen years in prison concurrently. The petitioner had been incarcerated since September 2, 2021.
The petitioner also pled guilty to two misdemeanors, no proof of insurance and driving while license suspended, for which he received fines.
See W. Va. Code § 49-4-801(c) ("When a child is removed from his or her home pursuant to this chapter, the court shall issue a support order payable by the child's mother. If the child's legal father has been determined, the court shall issue a child support order payable by the legal father."); W. Va. R. Child Abuse and Neglect P. 16a ("Every order in a child abuse and neglect proceeding that alters the custodial and decision-making responsibility for a child and/or commits the child to the custody of the Department of Health and Human Resources must impose a support obligation upon one or both parents for the support, maintenance and education of the child, pursuant to W. Va. Code § 49-4-801, et seq.").
On March 1, 2022, the DHHR filed an amended petition alleging that the petitioner had abused and/or neglected B.P. The record reflects that the DHHR used the same petition it had filed against T.P., which included an allegation of abandonment with respect to the unknown father. The following allegations concerning the petitioner were added:
On January 27, 2022, [G.F.] was determined to be the biological father of [B.P.]
That [G.F.] was convicted of two counts of Possession with intent to Deliver a Controlled Substance: Methamphetamine December 1, 2021; and that [G.F.] was denied probation and sentenced to the penitentiary.
Since the infant child’s birth, [G.F.] has had no contact nor has he provided any financial support for the infant child.
The petitioner’s adjudicatory hearing was held on May 16, 2022. At that hearing, the petitioner testified that he and T.P. "just knew the same people" and were never in a relationship. He further testified that he did not know that T.P. was a drug addict and was unaware that she had possibly given birth to his child until he was ordered to undergo paternity testing. On June 29, 2022, the circuit court entered an adjudicatory order in which it took judicial notice of the fact that the petitioner had been identified as the boyfriend of T.P in the prior abuse and neglect proceeding that concerned her five older children. The circuit court then found "that [G.F.’s] incarceration is due to his involvement in drugs" and "that [G.F.] has failed to emotionally and financially support his child." Thus, the circuit court adjudicated the petitioner as an abusive and/or neglectful parent.
The petition filed against B.P.’s mother alleged "aggravated circumstances" pursuant to West Virginia Code § 49-4-605(a)(3) (2018) because her parental rights to her five older children had been terminated in a prior abuse and neglect proceeding. Consequently, by the time of the petitioner's adjudication, T.P.’s parental rights to B.P. had already been involuntarily terminated.
The circuit court held the petitioner’s disposition hearing on June 28, 2022. The DHHR presented evidence that the petitioner had declined to participate in services offered to him in prison. The petitioner testified that he refused the recommended services because it would require him to participate in a six-month program that could possibly delay his release. He testified that he hoped to be paroled in a couple of months, but acknowledged that if he was released, he had no home. He said he intended to seek admission into a halfway house program for twelve months. He further testified that he would need to obtain employment but admitted that transportation might be an issue because his driver’s license had been suspended. The DHHR also presented testimony that indicated that B.P. was thriving in her foster home and had a close bond with her foster parents and her half-siblings who were residing with her.
The circuit court entered its dispositional order terminating the petitioner’s parental rights on July 13, 2022. In that order, the circuit court found:
[A]s we sit here today, [G.F.] remains incarcerated; however, [G.F.] testified that he plans to seek parole in September of 2022. This Court has no way of knowing whether or not [G.F.] will be granted parole in September 2022 or whether he will be required to serve the remainder of his sentence of not less than one (1) nor more than fifteen (15) years in the penitentiary of this state, and to delay permanency for the minor child, [B.P.], would be detrimental to her health, safety, and welfare.
The court further found that the petitioner had no plans in place to take care of or provide for B.P. in the event he was released from prison, and thus, there was no reasonable likelihood that the conditions of abuse and neglect could be substantially corrected in the near future. The circuit court determined that there were no less restrictive alternatives and that it was in B.P.’s best interests to terminate the petitioner’s parental rights. Upon entry of the circuit court’s order, the petitioner filed his appeal with this Court.
II. Standard of Review
[1-6] Our standard of review for abuse and neglect cases is well established:
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). We have further explained that "a circuit court’s substantive determinations in abuse and neglect cases on adjudicative and dispositional matters—such as whether neglect or abuse is proven, or whether termination is necessary—[are] entitled to substantial deference in the appellate context." In re Rebecca K.C., 213 W. Va. 230, 235, S79 S.E.2d 718, 723 (2003). However, "'[w]here the issue on an appeal from the circuit court is clearly a question of law or involving an interpretation of a statute, we apply a de. novo standard of review." Syl. Pt. 1, Chrystal R.M. v. Charlie A.L., 194 W. Va. 138, 459 S.E.2d 415 (1995).
III. Discussion
In this appeal, the petitioner challenges the termination of his parental rights based on what he contends was an improper adjudication by the circuit court for drug use. The petitioner’s argument is quite simple: he maintains there was no evidence to support the circuit court’s adjudication because he could not have been using drugs at the time the abuse and neglect petition was filed against him as he had been incarcerated since September 2, 2021, which was more than two months before B.P. was born. In support of his argument, the petitioner relies upon syllabus point eight of In re C.S. and B.S., 247 W. Va. 212, 875 S.E.2d 350 (2022), which provides:
For a circuit court to have jurisdiction over a child in an abuse and neglect case, the child must be an "abused child" or a "neglected child" as those terms are defined in West Virginia Code § 49-1-201 (2018). Pursuant to West Virginia Code § 49-4-601(i) (2019), a circuit court’s finding that a child is an "abused child" or a "neglected child" must be based upon the conditions existing at the time of the filing of the abuse and neglect petition.
[7, 8] Upon review, we agree with the petitioner that our law clearly provides that an adjudication for abuse and/or neglect of a child must be premised upon conditions existing at the time the abuse and neglect petition is filed. Id.: see also W. Va. Code § 49-4-601(i) (2019). Nonetheless, we find no merit to the petitioner's argument that he was improperly adjudicated based upon alleged drug use. Rather, as set forth above, the circuit court’s June 29, 2022, order indicates that the petitioner was adjudicated as a neglectful parent because he "ha[d] failed to emotionally and financially support his child." While the circuit court also made a finding in the order that the petitioner was incarcerated due to his involvement with drugs, it is clear he was adjudicated for neglecting B.P. because of his failure to provide for her most basic needs. While we have not directly addressed whether a parent’s inability to provide for a child’s basic needs due to incarceration can support a finding that the parent has been neglectful, we indicated as much in In re A.P.-1, A.P.-2, A.P.-3, 241 W. Va. 688, 827 S.E.2d 830 (2019).
In In re A.P.-1, the petitioner father argued that the circuit court had erred in terminating his parental rights to his three children without first adjudicating him as an abusive and/or neglectful parent. The abuse and neglect petition filed by the DHHR in that case alleged that the petitioner had abused, neglected, and abandoned his children because he was imprisoned and serving a life with mercy sentence for first-degree murder with no parole eligibility until 2029. Id. at 690-91, 827 S.E.2d at 832-33. At the adjudicatory stage of the proceeding, the circuit court refused to find that the petitioner had abandoned his children because evidence at the adjudicatory hearing showed that the petitioner "remained involved in the children’s lives through telephone conversations and cards, post-incarceration" and that he was providing for the children financially to the best of his ability despite being imprisoned. Id. at 691, 827 S.E.2d at 833. Even though the circuit court refused to make a finding of abuse and/or neglect, it proceeded to terminate the petitioner’s parental rights at a subsequent hearing after determining that the children’s best interests "control at disposition." Id. at 692, 827 S.E.2d at 834. We reversed the circuit court’s termination of the petitioner father’s parental rights in In re A.P.-1 because a circuit court lacks jurisdiction to proceed to the disposition phase in an abuse and neglect case absent a finding at the adjudicatory stage that the child(ren) have been abused and/or neglected. Id. at 693, 827 S.E.2d at 835; see also Syl. Pt. 1, State v. T.C., 172 W. Va. 47, 303 S.E.2d 685 (1983) ("In a child abuse and neglect hearing, before a court can begin to make any of the dispositional alternatives under W.Va. Code, 49-6-5, it must hold a hearing under W.Va. Code, 49-6-2, and determine ‘whether such child is abused or neglected.’ Such a finding is a prerequisite to further continuation of the case."). We also noted in In re A.P. that an abuse and neglect petition that included appropriate allegations could support "a finding at the adjudicatory stage that a parent’s absence due to incarceration that harms or threatens the physical or mental health of the child is neglect." Id. at 695 n.29, 827 S.E.2d at 837 n.29. And, indeed we find that to be the case here.
[9] West Virginia Code § 49-1-201 (2018) sets forth the definitions of words and terms related to abuse and neglect. Under that statute, "neglected child" is defined as a child:
(A) Whose physical or mental health is harmed or threatened by a present refusal, failure or inability of the child’s parent, guardian, or custodian to supply the child with necessary food, clothing, shelter, supervision, medical care, or education, when that refusal, failure, or inability is not due primarily to a lack of financial means on the part of the parent, guardian, or custodian;
(B) Who is presently without necessary food, clothing, shelter, medical care, education, or supervision because of the disappearance or absence of the child’s parent or custodian[.]
W.Va. Code § 49-1-201. We find the definition of "neglected child" in subsection (B) to be particularly applicable when parents are absent from their children’s lives as a result of incarceration. As Justice Workman elaborated in her separate opinion in In re A.P.,
The[ ] statutory definitions of abandonment and neglect are part of a body of legislation that was enacted to protect the welfare of children. To that end, it is essential to remember that "effect must be given to each part of the statute and to the statute as a whole so as to accomplish the general purpose of the legislation." Syl. Pt. 2, in part, Smith v. State Workmen’s Comp. Comm’r, 159 W.Va. 108, 219 S.E.2d 361 (1975).
In giving each of these statutory definitions effect so as to accomplish the critically important legislative purpose of protecting the welfare of children, one is led to the inescapable conclusion that 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]. Moreover, it is clear that the statutory definition of neglect encompasses not only abandonment, as defined by statute, but also incarceration, so long as the factors surrounding that incarceration demonstrate that the parent is unable to provide the basic needs of his child[ren] as described in the neglect definition.
'' 'Abandonment' means any conduct that demonstrates the settled purpose to forego the duties and parental responsibility to the child[ ]" W. Va. Code § 49-1-201.
241 W. Va. at 696-97, 827 S.E.2d at 838-39 (Workman, J., concurring, in part, dissenting, in part) (emphasis and footnote added). Accordingly, we now hold that a parent’s absence from a child’s life because of incarceration that results in the inability of the parent to provide necessary food, clothing, shelter, medical care, education, or supervision is a form of neglect under the definition of "neglected child" set forth in West Virginia Code § 49-1-201.
[10, 11] While we have concluded that parents may be adjudicated as neglectful as a result of incarceration that prevents them from providing for their children’s basic needs, we remain mindful 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 con- victed 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 recognition of a parent’s natural right to custody of his or her child(ren), we have 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, In re Cecil T., 228 W. Va. 89, 717 S.E.2d 873 (2011). In so holding, we explained:
Because incarceration does not automatically result in termination of a person’s parental rights does not mean it may not affect the decision regarding permanent placement of a child. The reasons underlying the incarceration as well as the terms and conditions of incarceration can vary greatly. 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. Thus while the mere fact that someone is incarcerated will not result in automatic termination of parental rights, the parental rights of an incarcerated person may be terminated.
Id. at 97, 717 S.E.2d at 881.
[12, 13] In In re Cecil T., the father of the subject child was incarcerated after he "was arrested in his home for selling firearms to undercover agents in violation of federal law barring possession of firearms by a convicted felon." Id. at 93, 717 S.E.2d at 877. He was adjudicated as neglectful because his child was in the home at the time of his arrest and "[his] choices placed the child in a very risky situation." Id., (additional quotations omitted). Accordingly, the father’s incarceration in In re Cecil T. became an issue at disposition. Although Cecil T. was decided in the context of disposition, we find our holding in syllabus three of that case to be applicable in the context of adjudication as well. In that regard, there may be instances where an incarcerated parent is still able to provide for his or her child’s minimum basic needs even though he or she is not physically present in the child’s life. In such circumstances, a finding of neglect based on the parent’s absence due to incarceration would not be warranted. Accordingly, "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, as required by West Virginia Code § 49-4-601[.]" In re A.P.-1, 241 W. Va. at 697, 827 S.E.2d at 839 (Workman, J., concurring, in part, dissenting, in part). In other words, a circuit court should consider the factors set forth in syllabus point of three Cecil T. along with the definition of "neglected child" in West Virginia Code § 49-1-201 in determining whether an incarcerated parent has been neglectful of his or her child(ren).
[14, 15] In this case, we find that circuit court appropriately considered all the factors surrounding the petitioner’s incarceration in adjudicating the petitioner as a neglectful parent. At the time the petitioner was adjudicated, he was serving two concurrent sentences with a maximum term of fifteen years imprisonment for selling an illegal drug, notably the same drug for which his child tested positive at birth. During the adjudicatory hearing, the petitioner testified that he had no permanent home and that before he was incarcerated, he "just bounced around." He also indicated that he had no family in the area. Critically, the petitioner had made no attempt have any contact with his child or provide for her financially. The DHHR’s child protective services worker testified that the petitioner had never reached out to see how B.P. "was getting along" or "to check on her welfare." Accordingly, we find that there was no clear error in the circuit court’s adjudication of the petitioner as neglectful because of his failure to support his child emotionally and financially.
While we have determined that the circuit court made the necessary findings to support its adjudication of the petitioner as neglectful, we feel compelled to address another finding the circuit court made in the adjudicatory order. The circuit court found that "the ultimate form of neglect is not even knowing that your child exists." Such a finding is not supported by the definition of "neglected child" set forth in West Virginia Code § 49-1-201 and it is also patently false.
[16-20] We further find that the circuit court did not clearly err in terminating the petitioner’s parental rights. "As with all abuse and neglect proceedings, ‘the best interests of the child is the polar star by which decisions must be made which affect children.’ Michael K.T. v. Tina L.T., 182 W.Va. 399, 400, 387 S.E.2d 866, 872 (1989) (citation omitted)." In re N.A., 227 W. Va. 458, 469, 711 S.E.2d 280, 291 (2011). When the petitioner’s disposition hearing was held, he remained incarcerated serving a sentence with a maximum term of fifteen years. Although the petitioner testified that he thought he might be released in a couple of months, he had no plans in place to take care of B.P. as he intended to reside in a halfway house for twelve months. The petitioner’s inability to provide for B.P.’s basic needs remained, and he had no prospects for correcting that situation in the event his release from prison was, in fact, imminent. Thus, the circuit court’s finding that there was no reasonable likelihood that the conditions of abuse and neglect could be corrected in the near future was not error. We have held:
" ‘ "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 re Jonathan P., 182 W.Va. 302, 387 S.E.2d 537 (1989)." Syl. Pt. 1, In re Jeffrey R.L., 190 W.Va. 24, 435 S.E.2d 162 (1993).
Syl. Pt. 6, In re Isaiah A., 228 W. Va. 176, 718 S.E.2d 775 (2010). In addition,
"courts 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 retarded by numerous placements." Syl. Pt. 1, in part, In re R.J.M., 164 W.Va. 496, 266 S.E.2d 114 (1980).
Cecil T., 228 W. Va. at 91, 717 S.E.2d at 875, syl. pt. 4. B.P. was less than a year old and needed permanency, security, stability, and continuity. She was thriving in her current placement with her half-siblings. Thus, it was clearly in her best interests to terminate the petitioner's parental rights.
IV. Conclusion
Accordingly, the July 13, 2022, order of the Circuit Court of Hampshire County terminating the petitioner’s parental rights is affirmed.
Affirmed.
JUSTICE WOOTON dissents and reserves the right to file a dissenting opinion.
WOOTON, J., dissenting:
I dissent to the majority’s affirmance of the circuit court’s adjudication and termination of petitioner’s parental rights based solely on his incarceration, in contravention of our decades-long precedent that mere incarceration is not grounds for termination of parental rights. The most salient facts of the instant case alone—which the majority tellingly omits—demonstrate the error of the circuit court’s adjudication and disposition. However, the majority not only ignores these facts and affirms, but extrapolates this scenario into a far-reaching syllabus point that will continue to yield inequitable results wholly at odds with the purpose of our abuse and neglect system. Therefore, I respectfully dissent.
I. Adjudication and Disposition of Petitioner’s Parental Rights
In a mere four and a half months, petitioner went from learning he had a daughter to having his parental rights to her terminated because he "abandoned" her by being incarcerated when he learned of her existence. Only three months after the termination of his parental rights, petitioner was paroled and has since discharged his parole supervision, has independent housing, and is employed.
At the time of his incarceration on September 2, 2021, petitioner was wholly unaware that biological mother T. P. was pregnant with his child. In fact, at the time the petition against T. P. was filed, the father was listed as "unknown," and T. P. later advised that she believed another man was the father. Only after that individual was ruled out as the father was petitioner identified for genetic testing. It was not until January 27, 2022, that petitioner became aware that he was the father of B. P.—over two months after her birth, the filing of the petition against T. P., and nearly five months after his incarceration began.
Petitioner was not made a respondent to the instant case until March 1, 2022. His first adjudicatory hearing was set for March 7, 2022—six days after he was served with the petition. Upon his motion the adjudicatory hearing was moved to April 11, 2022. At adjudication testimony revealed that in the interim petitioner had "gotten back to some of his family," resulting in his sister and another relative reaching out to DHHR to inquire about visitation. Further, a mutual friend of petitioner and T. P. came forward and expressed interest in a home study for placement. At the first adjudicatory hearing on April 11, petitioner requested a continuance "for the purpose of having a family friend be considered as a potential placement option for the child." These developments— precipitated solely by petitioner upon discovery that he was B. P.’s father—demonstrate his interest in creating a familial connection with B. P. and seeing to her care.
At adjudication, petitioner testified that B. P. was his first child and that he "wanted a kid all my life. I have never had the opportunity. I didn't think I could have kids. I found out when I was incarcerated." He expressed his fervent desire to have the opportunity to parent, stating "I just need a chance, like I just need a chance. That's all I need, one chance. Give me enough rope to hang myself, and if I do it, then fine, bury me, but just let me have one chance." He expressed that upon parole he wanted to put his life "on the right track" and would "work two jobs, whatever it takes[ ]" to provide for B. P. In this context, ‘"[a]bandonment’ means any conduct. that demonstrates the settled purpose to forego the duties and parental responsibilities to the child[.]" W. Va. Code § 49-1-201 (2018); see also In re C.M.-1, 247 W. Va. 744, 755, 885 S.E.2d 875, 886 (2023) (Wooton, J., dissenting) (rejecting majority’s finding of abandonment where father paid court-ordered child support and "wanted - and sought -- to have a relationship with the child."). Petitioner’s testimony clearly demonstrates that he had no intention of abandoning his only child.
In addition to his request for a chance to demonstrate his desire and ability to parent, it was abundantly clear to the circuit court that petitioner may very well have that chance in the immediate future. At the dispositional hearing on June 28, 2022, petitioner requested a brief continuance until after his parole eligibility date of September 3— scarcely two months away—which the circuit court summarily denied. The circuit court further denied a dispositional improvement period, finding that petitioner had not "taken any real action to attempt to remedy the [c]ourt’s findings of abuse and/or neglect[ ]" and had not "acknowledged any real wrongdoing giving rise to the [c]ourt’s findings of abuse and/or neglect in this matter[.]" To the contrary, petitioner expressed, repeatedly, that he "didn’t make the right decisions[,]" admitting that "I messed up and I acknowledge my mess up" relative to his incarceration.1a The only acknowledgement he refused to make during the proceedings was that of being a drug user—an allegation for which there currently stands no record evidence. More to the point, because the majority concludes that the "wrongdoing" for which petitioner was adjudicated was abandonment due to incarceration, that specific "wrongdoing" cures itself upon his release.
In support of the circuit court’s termination, the majority highlights its finding that petitioner had "no plans in place to take care of or provide for B.P. in the event he was released from prison[.]" The majority further notes the circuit court’s conclusion that petitioner "refused [] recommended services because it would require him to participate in a six-month program that could possibly delay his release." Both of these accusations, however, are manifestly unfair to petitioner. Given that he had no knowledge of B. P.'s impending birth when he began his incarceration, and the obvious limitations on making such arrangements while incarcerated, it is unclear what the circuit court believed he should have in place by the time of disposition. More importantly, there is no evidence that any assistance or services were offered by the Department of Health and Human Resources ("DHHR") to help establish those arrangements if he were paroled, as are offered to so many parents lacking the same support.
In fact, the Child Protective Services ("CPS") supervisor who testified at adjudication addressed petitioner’s possible parole, stating that "[g]iven that he would be on parole and eligible to do services, yes, we could, but it’s just we can’t do anything while incarcerated"; he further confirmed there was "no reason" petitioner could not participate in an improvement period if paroled. Regardless, the circuit court repeatedly advised petitioner that he should investigate the availability of services himself because "I don’t expect the [DHHR] to do it for you[.]" This attitude stands in direct contradiction to the stated goal of these proceedings and the obligation of DHHR to provide services aimed at correcting the conditions of abuse or neglect: "[T]he over-arching purpose of our abuse and neglect statutory construct continues to be the correction of conditions of abuse and neglect and the return, if reasonably possible, of the children to their homes." State ex rel. C. H. v. Faircloth, 240 W. Va. 729, 741, 815 S.E.2d 540, 552 (2018); W. Va. Code § 49-4-604(c)(6)(C)(iv) (2020) (requiring, before termination, a finding as to "[w]hether or not the department made reasonable efforts to preserve and reunify the family, or some portion thereof" (emphasis added)).
As for petitioner’s refusal to enter a six-month institutional program available through the jail (presumably designed to provide adult life skills and/or parenting services), the CPS supervisor testified that, despite having no "firsthand knowledge" of what the program entailed, he was "really concerned" about petitioner’s refusal to enter the program and that it "raise[d] a lot of question marks." In response, petitioner explained that had he enrolled, "it would have put me another six months back ... when I have an option to get out [on parole] in September which is two months, and then I could have been in the child’s life sooner. Why would I prolong?" (Emphasis added). To suggest that petitioner should have entered a program that delayed his potential release with certainty is absurd; any services necessary should have been made available to him by DHHR upon his release. For that matter, to voluntarily request enrollment in a program that would serve to delay his release from incarceration only exacerbates the alleged basis of his adjudication—abandon- ment—as petitioner himself noted: "[T]hat would make more time that would make me look even worse."
West Virginia Code § 49-4-604(e) permits the circuit court "as an alternative disposition, [to] allow the parents or custodians an improvement period not to exceed six months. During this period the court shall require the parent to rectify the conditions upon which the determination was based." (Emphasis added); see. also W. Va. Code § 49-4-610(3) (2015) (outlining showing necessary to grant six-month post-dispositional improvement period). These improvement periods—or similar six-month post-adjudicatory improvement periods under § 49-4-610(2)— are regularly awarded by circuit courts prior to or in lieu of termination of adjudicated neglectful parents. West Virginia Code § 494-610(6) even permits an additional three months’ extension to the improvement period under certain conditions. Here, petitioner was adjudicated and terminated in significantly less time than it takes to complete a single, commonly awarded improvement period. When compared to the treatment regularly afforded non-incarcerated parents who inflict severe neglect or abuse upon their children or actively subject them to inadequate supervision, exposure to inappropriate people and environments, and domestic violence, the treatment afforded petitioner is patently disparate.
The circuit court could plainly have justified the award of a six-month improvement period which would have encompassed petitioner’s parole eligibility date and allowed him time to establish the infrastructure and support needed to demonstrate his ability to maintain some role in B. P.’s life. During that time, petitioner was in fact paroled and clearly followed through on rectifying all the deficiencies identified by DHHR: incarceration, lack of permanent housing, and lack of employment. And while recognizing the circuit court did not have the benefit of hindsight and did not know for certain that petitioner would be paroled, it is important to note that West Virginia Code § 49-4-610(7) permits any party to move for termination of the improvement period for failure to "fully participate." Had petitioner been declined parole, the improvement period could have been terminated upon motion of any party.
In short, the circuit court’s refusal of an improvement period and termination of petitioner’s rights due to abandonment lacks both factual and legal basis. The lack of support for these rulings is because, contrary to the majority’s declaration that petitioner was adjudicated for abandonment, the circuit court actually adjudicated petitioner due to its belief that he was a drug user and dealer. Counsel for DHHR argued: "He suffers from a bad substance abuse issue. He needs the Phoenix House or he needs drug court. He is a user." During the adjudicatory hearing, the circuit court focused primarily on petitioner being "in the drug culture" and—without evidence—that he was "no doubt using drugs with [T. P.]" The order mirrors this conclusion, stating that petitioner "is involved in the drug culture; that he uses and deals drugs; and that his incarceration is due to his involvement with drugs." Petitioner adamantly denied that he was a drug user; whether that was the case or not, there simply is no evidence of drug use in the record—only the suggestion of drug use due to petitioner’s conviction as a drug dealer. Of course, at the time of the filing of the petition and adjudication, petitioner was neither a drug dealer nor user because he was incarcerated. The majority pivots from these allegations because they cannot substantiate the circuit court’s rulings.
However, other findings of the circuit court are equally unsubstantiated. To affirm the circuit court, the majority finds that it actually adjudicated petitioner for abandonment. The majority cites to the court’s conclusion that petitioner "failed to emotionally or financially support his child"; however, the circuit court stated during the adjudicatory hearing that "I realize he may not have been financially able to support [B. P.]" There was no evidence 1) that petitioner was ordered and failed to pay support upon establishing paternity, as required by W. Va. Code § 49-4801 (2015)2a; or 2) that petitioner would other- wise have the means or ability to determine to whom support should be paid given B. P.’s custody with DHHR.
The circuit court further claimed that "there is certainly law indicating that he has the duty to know if he has a child[.]" In its order, the circuit court declared this the "ultimate" form of neglect, further concluding, as a matter of law, that petitioner had a duty to know of T. P.’s "history with CPS" and "addiction to drugs." Of course, these broad conclusions are neither factually nor legally supportable and the majority similarly distances itself from them, focusing instead on abandonment.
II. The Majority’s New Syllabus Point
This Court has long held that "[a] biological 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 that vein, we elaborated further that "incarceration, per se, does not warrant the termination of an incarcerated parent’s parental rights." In re Brian James D., 209 W. Va. 537, 540, 550 S.E.2d 73, 76 (2001); see also In re Cecil T., 228 W. Va. 89, 97, 717 S.E.2d 873, 881 (2011) ("[T]he mere fact that someone is incarcerated will not result in automatic termination of parental rights[.]").
Notwithstanding these holdings and the facts of this case, the majority issues a new syllabus point which broadly holds that "absence" due to incarceration that results in "the inability of the parent to provide" for the basic care and needs of his or her child is neglect. The breadth of this holding and its lack of temporal boundaries provides a basis for instituting abuse and neglect proceedings against virtually any incarcerated person, effectively overruling our decades-long precedent to the contrary. Plainly, an incarcerated person, i.e., "the parent" referenced in the syllabus point, is in no position to directly "provide" any of those basic needs. When a parent is incarcerated, obviously another parent, guardian, or caretaker is providing those needs.
However, as is well known to the majority, abuse and neglect proceedings are frequently initiated against both parents contemporaneously. This results in a parent having automatically "abandoned" his or her child if he is or becomes incarcerated during the proceedings because the incarcerated parent is then failing to provide for the child’s basic needs by default. That is precisely what happened in the instant case: under the majority’s new syllabus point, because B. P. had been removed from T. P. and her rights were subsequently terminated, petitioner’s incarceration—regardless of the surrounding circumstances—automatically rendered him a neglectful parent.
More importantly, the syllabus point’s reference to mere "absence"—without requisite duration of absence—makes the syllabus point subject to misapplication. Under this holding, any temporary absence due to incarceration, irrespective of how long the incarceration has or will last and any attempts to indirectly provide care, must result in an adjudication as a neglectful parent.
To be clear, my dissent should not be construed as turning a blind eye to the serious nature of the convictions for which petitioner was incarcerated and the healthy concern over his ability to become a parent to such a young child. However, incarceration itself is designed to remedy that behavior; failing to provide petitioner an opportunity to demonstrate that the behavior had been remedied runs entirely contrary to the remedial goals of our abuse and neglect system. Our abuse and neglect system is designed to provide the support and services necessary to enable parents to rectify any shortcomings in their parenting abilities. While I recognize that there are obviously situations in which long-term incarceration must result in termi- nation of parental rights to ensure permanency for a child, this case simply is not one of those situations. In contrast to the cases relied upon by the majority, petitioner was not, with certainty, facing a lengthy sentence. See In re A. P.-1, 241 W.Va. 688, 827 S.E.2d 830 (2019) (incarcerated father facing life sentence and ineligible for parole for ten years). He also did not engage in additional conduct constituting abuse and/or neglect. See Cecil T., 228 W. Va. at 93, 717 S.E.2d at 877 (terminating parental rights of incarcerated father where father possessed and sold firearms in presence of child and left him with inappropriate caregiver); see also In re M.M., No. 12-0491, 2012 WL 4069593, at *3 (W. Va. Sept. 7, 2012) (memorandum decision) (affirming abandonment due to incarceration where "even when [father] was not incarcerated, he failed to be a caregiver for the child, and had little to no contact with the child."). In fact, petitioner’s parenting abilities were nothing more than an abstract proposition—both critiqued and terminated on the basis of a temporary condition which DHHR contended absolved them of any duty to provide services or support to petitioner.
One need only scan a handful of this Court’s abuse and neglect cases to see the shocking abuse and neglect to which children are regularly subjected and the extensive services, resources, and remedial efforts regularly expended on the respondent parents to preserve the family unit—often with a complete lack of interest and effort on the part of those parents. Those cases stand in stark contrast to the treatment afforded petitioner in this case. More to the point, petitioner himself stands in substantial contrast to so many parents with whom this Court unfortunately contends. To exacerbate that treatment with a new rule of law—a rule that invites courts to do the same to other respondent parents—is ill-advised. Accordingly, I respectfully dissent.