In Re: L.H., 17-0769

Background

DHHR filed abuse-and-neglect petition after L.H. was born drug‑addicted and petitioner (father) admitted prenatal drug use and ongoing addiction. Petitioner had a 2014 felony drug conviction and entered Wood County Drug Court in Jan. 2015.
Petitioner was adjudicated an abusing parent, received post‑adjudicatory and later dispositional improvement periods, but repeatedly missed services and visits, tested positive for synthetic marijuana, and was discharged from drug court.
Petitioner’s noncompliance and drug‑court violations led to incarceration (one‑to‑five year sentence invoked); he could not participate in some services while incarcerated but also failed to comply when not incarcerated.
The child spent nearly his entire life (about 27 continuous months) in foster care; DHHR moved to terminate parental rights under WV Code § 49‑6‑5b(a)(1) and § 49‑6‑5(a)(6).
The circuit court found petitioner failed to complete improvement periods, continued drug use, missed services, was not the biological or psychological father of another child (H.A.), and that there was no reasonable likelihood of correction; it terminated parental rights on July 10, 2017.
Petitioner appealed, arguing the court should have used a less‑restrictive alternative, improperly relied on foster‑care duration and incarceration, and erred in rejecting psychological‑parent status for H.A.; the Supreme Court of Appeals affirmed.

Issues

Issue	Petitioner’s Argument	DHHR / Respondent’s Argument	Held
Whether termination was improper without a less‑restrictive alternative	Petitioner: was "fairly/somewhat compliant," attended some services; parental rights are fundamental so lesser alternatives should be used	DHHR: petitioner failed to follow plan, continued using drugs, missed services and visits, so no reasonable likelihood of correction	Affirmed — termination proper under WV Code § 49‑6‑5(a)(6); no less‑restrictive alternative given noncompliance
Whether court relied improperly on foster‑care duration and incarceration	Petitioner: court relied on § 49‑6‑5b(a)(1) and incarceration instead of totality; delays from obtaining records not considered	DHHR: court considered totality (drug use, missed services, incarceration as consequence), did not base decision solely on duration/incarceration	Affirmed — court considered totality; duration and incarceration were factors but not sole basis
Whether petitioner is a psychological parent of H.A.	Petitioner: had supervised visits and believed H.A. was his, asserting psychological‑parent status	DHHR: visits were limited/supervised, short duration, no substantial parent‑child relationship	Affirmed — petitioner not psychological parent (only ~13 supervised hours; no substantial, ongoing relationship)
Whether there was clear error in circuit court’s factual findings	Petitioner: challenges factual findings of noncompliance and likelihood of correction	DHHR: record supports findings (positive drug screen, missed visits, discharge from drug court, incarceration)	Affirmed — findings not clearly erroneous under deferential standard

Key Cases Cited

In Interest of Tiffany Marie S., 196 W.Va. 223, 470 S.E.2d 177 (1996) (standard of review for circuit court findings in abuse/neglect cases)
In re Cecil T., 228 W.Va. 89, 717 S.E.2d 873 (2011) (appellate review rule reaffirming deference to circuit court findings)
In re R.J.M., 164 W.Va. 496, 266 S.E.2d 114 (1980) (termination may be used without intervening less‑restrictive alternatives when no reasonable likelihood of correction)
In re Kristin Y., 227 W.Va. 558, 712 S.E.2d 55 (2011) (discussing termination standards under WV Code § 49‑6‑5)
In re Clifford K., 217 W.Va. 625, 619 S.E.2d 138 (2005) (definition and requirements for psychological parent status)