In re R.G.

In re R.G.

No. 20-0509

STATE OF WEST VIRGINIA SUPREME COURT OF APPEALS

June 9, 2021

(Harrison County 19-JA-15-3)

MEMORANDUM DECISION

This child abuse and neglect proceeding involves R.G.,¹ an eleven-year-old boy with special needs. The Department of Health and Human Resources (DHHR) and the child's guardian ad litem (guardian) appeal the June 15, 2020 order of the Circuit Court of Harrison County imposing what is commonly called a "section 5" disposition under West Virginia Code § 49-4-604(c)(5)² to Respondent I.W., the child's father. The DHHR and the guardian argue that the circuit court should have terminated the parental rights of the father when he refused to participate in services to correct the conditions of abuse and neglect, and where termination of his parental rights was necessary for the child's welfare. The father contends that the circuit court acted within its discretion by imposing a section 5 disposition because the child's mother was previously granted the same disposition years earlier.

This Court has considered the parties' briefs, oral argument, and the record on appeal.³ Because this case presents no substantial question of law, it satisfies the "limited circumstances" requirement of Rule 21(d) of the West Virginia Rules of Appellate Procedure and is appropriatefor a memorandum decision. As explained below, we agree with the DHHR and the guardian's contention that the circuit court abused its discretion when it failed to terminate the father's parental rights. So, we reverse the decision of the circuit court and remand this case for entry of an order consistent with this decision.

I. Factual and Procedural History

This appeal concerns the parental rights of the child's father. But we begin by discussing the proceedings against the child's mother and her disposition as that was the focus of the circuit court's ruling and the father's argument in this case.

Although the record is not before us, the parties state that in 2014 the DHHR filed a child abuse and neglect petition against the child's mother, T.G. After the circuit court adjudicated her as an abusing/neglectful parent in 2015, it imposed a section 5 disposition and placed the child with his father.⁴ The child then lived with his father and the paternal grandmother. The paternal grandmother passed away about three years later, and the child remained in the care of his father.

In February of 2019, the DHHR filed the child abuse and neglect petition that is the subject of this appeal against the father after obtaining emergency custody of the child. The DHHR alleged that the father failed to provide the child with a safe and stable home, subjected the child to unsanitary and unsafe conditions, and neglected the child's educational and medical needs.⁵ The circuit court held a preliminary hearing and granted the father a preadjudicatory improvement period. As part of the improvement period, the child was returned to the father's physical care.

The DHHR filed an amended petition in April of 2019, and alleged that five days after regaining physical placement of the child, the father contacted a CPS worker and stated that he could not care for the child because the owner of the home where they were staying, G.C., wanted the child to leave. The father and his girlfriend had the child and his belongings waiting for the CPS worker at a public location. The CPS worker retrieved the child⁶ and contacted G.C. to verify the father's statement; G.C. reported that he did not tell the father the child was no longer welcome in the home. The DHHR also alleged that the father was discharged from parenting and adult life skills classes for noncompliance, failure to attend his psychological evaluation, and leaving a Multidisciplinary Team (MDT) meeting early due to his frustration with the proceeding. It further alleged that the father submitted to only one drug screen, testing positive for marijuana use, and had missed six screens.

In a second amended petition filed in May of 2019, the DHHR alleged that school officials reported that the child came to school angry, aggressive, and unprepared when residing with the father. The DHHR also alleged that the child's uncle reported that he allowed the father, his girlfriend, and the child to reside with him for a period of time in 2018 after he learned they were living in a tent. The uncle informed the DHHR that the father did not contribute to household expenses, had angry outbursts, caused damage to the property, and did not take the child to the doctor for medication management of the child's Attention Deficit Hyperactive Disorder (ADHD).

The circuit court held an adjudicatory hearing in May of 2019. A CPS worker testified that the child lacked a stable living situation when he was in his father's care. A DHHR worker also testified to the circumstances leading to the petition's filing, including how the father attempted to surrender the child and blamed the child for the father's lack of housing and employment.

The father testified and admitted to missing a drug screen due to a lack of transportation. Then, because he was "marked positive for everything in the book" for missing a screen, the father stated that he "didn't want to go to any more of those drug screens because that was not even my fault for the reason I missed." The father acknowledged that changing residences so often was not good for the child but blamed his housing issues on his mother's passing and his brothers for kicking him out of their homes. The father denied neglecting the child and claimed that he had done nothing wrong.

The child's pediatrician testified that the child had struggled with ADHD and behavioral issues from a young age. And given the child's attention and behavioral issues, it was important that he maintain a stable, consistent environment.

The circuit court reconvened the adjudicatory hearing in August of 2019. A worker at the local Day Report Center testified that the father tested positive for marijuana on two occasions and failed to submit to any drug screens thereafter.

The principal at the child's school testified about the child's behavior. She stated that the child had a history of extreme behavioral issues and that, prior to the proceedings, he had to be removed from a traditional classroom and was provided a behavior intervention plan. Due to the father's inconsistent living situation, the child had been removed from the school for some time, but was re-enrolled by his uncle. The principal testified that the child's behavior improved while he was residing with his uncle.

One of the father's brothers, J.H., testified regarding the father's homelessness and volatile behavior in front of the child. According to J.H., the father and child lived with him for a period of time, and he observed that the father failed to adequately provide for the child's medical needs. On one occasion, the father quit his job and bought an expensive video gaming system. And on other occasions, the father would scream about harming or killing himself in front of the child. J.H. testified that he asked the father to move out of his home because he did not feel that the father was going to improve himself; this request had nothing to do with the child's behavior. D.H., the father's other brother who had placement of the child, also testified as to the father's poor behavior and how he threatened to commit suicide in front of the child. While the child's uncles testified about the father's extreme emotional outbursts, no one indicated that the father had a diagnosed mental health disorder or disability.

The DHHR's final witness was another CPS worker who testified that the father failed to participate in his preadjudicatory improvement period. The father failed to regularly submit to drug screens, failed to participate in parenting or adult life skills classes, did not seek to visit the child, and failed to maintain contact with the DHHR.⁷

The father testified again and denied the allegations against him. The father disputed his brothers' claims that he yelled or threatened to kill himself in front of the child. He blamed the DHHR and a lack of transportation for his failure to participate in services but conceded he never asked for transportation assistance. The father denied any wrongdoing and when asked whether he had any issues he needed to address responded, "No." The father tested positive for marijuana use immediately following the hearing.

The circuit court adjudicated the father as an abusing parent by order entered on September 18, 2019. It found that the father failed to provide a safe and stable home for the child when he moved the child from place to place and, on at least two occasions, resided in a tent or a car. The circuit court found that the father's outbursts and threats of self-harm in the child's presence were detrimental and emotionally damaging to the child. The circuit court further found that the father used his funds for drugs rather than providing for his child. It also noted that the father failed to complete the terms and conditions of his preadjudicatory improvement period.

The guardian submitted a report in September of 2019 recommending termination of parental rights. She highlighted the fact that the father returned the child to the DHHR after only one week of the child being returned to his care as part of the preadjudicatory improvement period. She also noted that the father was hostile to service providers and did not participate in visits withthe child. The guardian stated that there is no possibility for improvement due to the father's refusal to participate in services.

At a dispositional hearing held in September of 2019, a CPS worker testified that the father failed to participate in any services following the adjudicatory hearing. She further testified that the father ignored her attempts to contact him and failed to maintain any contact with the DHHR. The worker reported that the child...