In Re: C.L., 16-0728

Background

DHHR filed abuse and neglect petition in June 2015; petitioner (father J.V.) was adjudicated for neglect based on being incarcerated for the child’s entire life and not providing for the child.
Petitioner was released from prison in late September 2015; the case proceeded and a post-adjudicatory improvement period was granted.
Between release and April 2016, petitioner had 22 scheduled visits, missed or cancelled 12, and later missed additional visits; he gave no proof of employment to justify missed visits.
DHHR and court raised concerns about petitioner’s post-release illegal drug use, failed/ refused drug screens, and domestic violence; petitioner admitted a relapse and inconsistent participation in services.
In April 2016 the court ordered in-patient substance-abuse treatment; petitioner did not complete treatment and declined/failed intake despite an offered bed.
At the July 2016 dispositional hearing the circuit court found no reasonable likelihood the conditions of neglect could be corrected and terminated petitioner’s parental rights; petitioner appealed claiming termination relied on unpleaded substance-abuse allegations.

Issues

Issue	Plaintiff's Argument (J.V.)	Defendant's Argument (DHHR/court)	Held
Whether termination rested on substance abuse not alleged in petition	Termination relied on drug use that was not part of the adjudication; court erred by using unpleaded grounds	Termination was based on a combination of factors—continued missed visits, minimal parenting, and failure to engage in ordered treatment—supporting termination	Affirmed: termination proper because it rested on ongoing neglect (missed visits, lack of parenting) and failure to correct conditions
Whether petitioner corrected the condition of neglect after release	Petitioner contends release resolved incarceration-based neglect and he corrected the neglect by obtaining employment and visiting	DHHR and court say petitioner failed to show sustained correction: frequent missed visits, no proof of employment, refusal/noncompliance with treatment	Affirmed: petitioner failed to correct conditions; neglect continued after release
Whether circuit court needed to amend petition to rely on post-adjudication drug use	Petitioner argues new allegations required amendment before termination	DHHR/court argue post-adjudication conduct and failure to comply with services are proper dispositional considerations without amendment	Affirmed: court may consider post-adjudication conduct and service noncompliance in disposition; amendment not required
Whether termination was in child’s best interest	Petitioner sought additional treatment opportunity and visits	DHHR/guardian argued lengthy pendency, sporadic visitation, lack of sustained parenting, and nonparticipation in treatment made termination appropriate	Affirmed: termination served child’s best interests under §49-4-604(b)(6) due to no reasonable likelihood of correction

Key Cases Cited

In Interest of Tiffany Marie S., 196 W.Va. 223, 470 S.E.2d 177 (1996) (standard for reviewing circuit court findings in abuse and neglect cases)
In re Cecil T., 228 W.Va. 89, 717 S.E.2d 873 (2011) (restating standard of review)
In re Emily, 208 W.Va. 325, 540 S.E.2d 542 (2000) (trial court as factfinder and credibility determinations)
Michael D.C. v. Wanda L.C., 201 W.Va. 381, 497 S.E.2d 531 (1997) (appellate deference to factfinder on credibility)
In re Katie S., 198 W.Va. 79, 479 S.E.2d 589 (1996) (importance of visitation as indicator of parental potential)
In Interest of Carlita B., 185 W.Va. 613, 408 S.E.2d 365 (1991) (consistent desire to be with child predicts parenting potential)
In re Brandon Lee B., 211 W.Va. 587, 567 S.E.2d 597 (2001) (termination appropriate where parent not motivated/organized to meet child’s needs)
State v. Boggess, 204 W.Va. 267, 512 S.E.2d 189 (1998) (appellate court may affirm on any correct legal ground disclosed by record)
In re Jamie Nicole H., 205 W.Va. 176, 517 S.E.2d 41 (1999) (transcript may supply required findings when order lacks them)
In re Lilith H., 231 W.Va. 170, 744 S.E.2d 280 (2013) (caution against disposing on unadjudicated grounds)