In re A.B.-1

1

In re A.B.-1

No. 21-1029

Supreme Court of Appeals of West Virginia

May 12, 2022

Marion County 19-JA-82

MEMORANDUM DECISION

Petitioner Father A.B.-2, by counsel Ryan C. Shreve, appeals the Circuit Court of Marion County's November 23, 2021, order terminating his parental rights to A.B.-1.^[1] The West Virginia Department of Health and Human Resources ("DHHR") by counsel Patrick Morrisey and Lee Niezgoda, filed a response in support of the circuit court's order. The guardian ad litem, John R. Funkhouser, filed a response on behalf of the child in support of the circuit court's order. On appeal, petitioner argues that the circuit court erred in adjudicating him as an abusing parent, denying his motion for an extension of his post-adjudicatory improvement period or a post-dispositional improvement period, and in terminating his parental rights.

This Court has considered the parties' briefs and the record on appeal. The facts and legal arguments are adequately presented, and the decisional process would not be significantly aided by oral argument. Upon consideration of the standard of review, the briefs, and the record presented the Court finds no substantial question of law and no prejudicial error. For these reasons, a memorandum decision affirming the circuit court's order is appropriate under Rule 21 of the Rules of Appellate Procedure.

The proceedings below began in July of 2019, when the DHHR filed its initial petition and obtained legal and physical custody of the child. We note, however, that the DHHR's initial petition was not included in the appendix record on appeal.

In December of 2019, the DHHR filed an amended petition alleging that the child's mother tested positive for cocaine and marijuana upon admission to the hospital to give birth to the child in July of 2019. The mother admitted to daily marijuana use while pregnant and also to snorting cocaine "every few days," including the day prior to giving birth. The mother also admitted to "a lot of opioid use during her pregnancy." There were issues identifying the child's father, but Child Protective Services ("CPS") was eventually able to determine that petitioner signed a paternity affidavit on August 12, 2019, and a new birth certificate was issued on September 3, 2019. According to the amended petition, since August of 2019, petitioner had not contacted the DHHR to inquire about the child or attempt to obtain custody of him. In fact, the DHHR alleged that petitioner actively avoided CPS workers who left notice at his home that he needed to contact the DHHR by October 25, 2019, or legal action would be taken against him. Although petitioner left a voicemail for the DHHR on that date, attempts to respond to petitioner were unsuccessful. When the DHHR was eventually able to speak with petitioner, he stated that he did not know if he was the child's father and that he was not willing to take responsibility for the child until paternity testing confirmed as much. Petitioner advised that he was not associating with the child's mother and would not let the mother be around the couple's older child, A.B.-3, since she was ordered to not have contact with the child.^[2] According to the record, the DHHR received notification from the Bureau for Child Support Enforcement indicating that petitioner was A.B.-1's biological father on December 11, 2019. Ultimately, the DHHR alleged that petitioner abandoned the child.

According to the DHHR, when petitioner was informed in December of 2019 that he was the child's father, he told the CPS worker that he would call back but never did. He also failed to answer calls to appear for a multidisciplinary team ("MDT") meeting. When CPS eventually spoke to petitioner again, he indicated that he was "processing" the news that he was the child's father and failed to inquire about the child's well-being or the possibility of visitation.

In January of 2020, petitioner was granted a preadjudicatory improvement period. The following month, CPS contacted petitioner about doing a check on his home so that he could begin overnight visits with the child. However, petitioner did not respond for approximately twenty days. At an MDT meeting on February 19, 2020, the parties agreed that petitioner would have weekend visits with partial supervision beginning as soon as possible. However, a home check needed to be completed before those visits could begin. A CPS worker arranged for an inspection of petitioner's home, but when the worker appeared for the inspection, no one was present. Later that day, petitioner informed CPS that they went to the wrong address, although petitioner never advised CPS that he moved. CPS eventually inspected the home and found it to be generally appropriate, other than the fact that it belonged to petitioner's sister, against whom the DHHR had a pending referral. According to CPS, until the referral was cleared, visits could not be started in the home.

Around this time, petitioner canceled several scheduled visits with the child and did not appear for others he had confirmed. After missing approximately eight visits in March of 2020, CPS attempted to arrange virtual visits because of restrictions necessitated by the COVID-19 pandemic. According to the worker, she was unable to get in touch with petitioner. Ultimately, petitioner's visitation provider advised that they were closing petitioner's services due to his noncompliance. After visits were cancelled, the DHHR alleged that petitioner never contacted the DHHR to inquire about the child's well-being or to request that visits resume. When the DHHR eventually got in touch with petitioner again in May of 2020, he explained that he had not wanted to do video visits, although he failed to explain why. Petitioner also blamed his phone and health issues for missed visits and explained that he forgot that he had the CPS worker's phone number.

During an MDT meeting in June of 2020, the parties agreed to again refer petitioner for supervised visitation, and petitioner was advised that he needed to attend all visits. At an MDT meeting the following month, the parties discussed overnight visits with petitioner, provided that he confirmed where he was living and attended all his scheduled supervised visits. Petitioner then advised the DHHR via text message that he would be unable to have overnight visitation in his sister's home because she did not want to risk exposing other children in the home to COVID-19. When the worker called petitioner to discuss this issue, petitioner did not answer and never responded to a voicemail. The worker followed up again in August of 2020, but petitioner again failed to respond.

During an MDT meeting on August 19, 2020, the parties were informed that petitioner was living with the child's mother. In September of 2020, CPS became aware that petitioner's "address listed through economic services was not the same address" he provided to the CPS worker. CPS went to the address given to economic services, but petitioner no longer lived there, and a neighbor indicated that petitioner was living with the child's mother and their older child, A.B.-3, with whom the mother was ordered to have no contact. Over the next month, CPS obtained additional information that petitioner was living with the mother, including confirmation from the building manager where the apartment was located. Despite this evidence, petitioner continued to deny living with the mother and told CPS that "he was supposed to 'do the blood test and get the baby, not all this.'" During an MDT meeting in November of 2020, a service provider advised that petitioner was temporarily staying with a different sister and was in the process of obtaining his own apartment. However, when petitioner eventually provided an address for his residence, it did not match any residence he had previously identified. Because the DHHR was unable to confirm petitioner's address, it could not begin visits in his home.

In November of 2020, the DHHR moved to continue the adjudicatory hearing in order to verify petitioner's address, which the circuit court granted. In the order granting the continuance, the court directed petitioner to "allow announced and/or unannounced visits to the home and cooperate with all other reasonable requests" made by the DHHR. Following the hearing, the MDT determined that until overnight visitation could be established, petitioner's visitation with the child would be increased to eight hours per week. However, petitioner advised his service provider that he did not have the time to have two four-hour visits with the child, so the visits were reduced to five hours per week despite petitioner being informed that eight hours was required for the case.

On November 30, 2020, CPS went to an address petitioner provided them to inspect his home. The worker noted that the address provided by petitioner did not exist. On December 2, 2020, an emergency MDT meeting was held, during which CPS explained to petitioner the situation regarding trying to locate his residence. After petitioner attempted to describe how to get to the home, CPS decided to meet petitioner the following day so he could show them where the home was located. When asked why he was not willing to increase his visitation with the child, petitioner became "agitated and erratic," indicating that "he wasn't going to increase to eight hours because he wanted overnights." The parties explained to petitioner that he had to increase his visits in order to demonstrate that he could begin a trial reunification and maintain custody of the child. However, petitioner "would not calm down to have a productive conversation with the MDT."

The following day, CPS workers met petitioner to inspect the home he shared with his...