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STATE OF WEST VIRGINIA
THE SUPREME COURT OF APPEALS

In Re: Miranda W. No. 12-0383 (Mason County 10-JA-1)

FILED November 9, 2012
released at 3:00 p.m.
RORY L. PERRY II, CLERK SUPREME COURT OF APPEALS OF WEST VIRGINIA

MEMORANDUM DECISION The petitioner herein and respondent below, Teddy W.1 (hereinafter "father"), appeals from an order entered February 27, 2012, by the Circuit Court of Mason County. By that order, the circuit court terminated the father's parental rights to Miranda W. (hereinafter "Miranda"). The appeal was timely perfected by counsel, with the appendix record accompanying the petition. The West Virginia Department of Health and Human Resources (hereinafter "the DHHR") filed its response, and the guardian ad litem filed a response on behalf of the minor child. Based upon the parties' written submissions and oral arguments, the portions of the record designated for our consideration, and the pertinent authorities, we find that the circuit court's decision to terminate the father's parental rights to Miranda should be affirmed. This Court further finds that this case presents no new or significant questions of law. Therefore, this case will be disposed of through a memorandum decision as contemplated under Rule 21 of the Revised Rules of Appellate Procedure. The pertinent facts of this abuse and neglect case began on January 14, 2010, when Miranda was five months of age. She was removed from her father's custody while she was being treated in the hospital.2 The DHHR filed a petition for abuse and neglect against the father based upon the prior termination of his parental rights to his children living in Ohio,3 as well as against Miranda's mother due to the prior termination of her parental

"We follow our past practice in juvenile and domestic relations cases which involve sensitive facts and do not utilize the last names of the parties." State ex rel. West Virginia Dep't of Human Servs. v. Cheryl M., 177 W. Va. 688, 689 n.1, 356 S.E.2d 181, 182 n.1 (1987) (citations omitted). The lower court's order found that, at the time, five-month-old Miranda was placed in the home of her foster parents, she had not received any medical shots, she resisted being held, she did not cry, she laid listlessly, and she had severe cradle cap.
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The Court of Appeals Fourth Appellate District in Vinton County, Ohio, (continued...)

rights to a child in Wayne County, West Virginia. At the adjudication in the presentlypending case regarding Miranda, on April 26, 2010, the father stipulated to neglect based upon his prior involuntary termination of parental rights to his three older children. A multi-disciplinary team meeting (hereinafter "MDT") was held on May 19, 2010, wherein it was indicated that the father had been attending all visitations and had a good attachment to his daughter. The MDT had only two recommendations for the father's improvement period: (1) cooperate in and complete parenting services and (2) maintain weekly visits with his daughter. These recommendations were adopted by the circuit court in a subsequent order. Thereafter, on June 11, 2010, the mother's parental rights were terminated, and the father was granted a post-adjudicatory improvement period. However, following a week of overnight, unsupervised visitation with the father in late summer 2010, the foster family testified that the child displayed negative behaviors. The overnight visitations were canceled in favor of supervised visitation. At some point around this time, the father was convicted of DUI, and his service provider expressed concerns about alcohol abuse due to his slurred speech in the evenings. The father's exercise of his right to visitation and his participation in treatment services became sporadic in July or August, and in October he disappeared altogether for approximately three months. In December 2010, the DHHR filed a motion to revoke the father's improvement period, alleging that the father was not able to be reached and that he had missed numerous scheduled visitations. On December 6, 2010, a hearing was held on the DHHR's motion to revoke. It was recognized that the father was without counsel during this time period;4 thus, the circuit court thereafter appointed new counsel to represent the father, and the ruling on the motion to revoke his improvement period was delayed. During the January 21, 2011, hearing on the DHHR's motion, the circuit court granted an extension of the father's improvement period because of his prior counsel's withdrawal and disbarment, and because the court found that he was attempting to meet all aspects of his improvement period.

(...continued) upheld the termination of the father's parental rights to three children in 2003 in Case No. 02CA574. At the inception of the case, the father was appointed legal counsel; however, he decided to retain his own attorney. By order entered September 27, 2010, the father's counsel withdrew from the case; he was subsequently disbarred. 2

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In a report from the MDT meeting on March 9, 2011, the DHHR reversed its position and sought reunification of the father and Miranda based upon the father's full compliance with all requirements placed on him regarding services and visitation. Service providers noted that the father was very compliant, that the child had a bond with him, and that the father provided food and diapers for the visits. Subsequently, on March 21, 2011, the foster parents filed a motion to intervene,5 which was granted. On February 27, 2012, the circuit court issued an order terminating the father's parental rights. On appeal to this Court, the father argues that the circuit court erred when it terminated his parental rights to Miranda insofar as he has remedied the conditions that resulted in termination of his parental rights to his other children, that he successfully completed his improvement period, and that the intervenor role of the foster parents was improper. The DHHR agrees with reunification of the father and Miranda based on its assertion that the father successfully completed his improvement period. Conversely, the guardian ad litem and the intervenor foster parents contend that the circuit court was correct in its findings, asserting that the father did not successfully complete his improvement period and did not remedy the issues that resulted in the prior termination of his parental rights. Generally, "`[t]his Court reviews the circuit court's final order and ultimate disposition under an abuse of discretion standard. We review challenges to findings of fact under a clearly erroneous standard; conclusions of law are reviewed de novo.' Syl. Pt. 4, Burgess v. Porterfield, 196 W. Va. 178, 469 S.E.2d 114 (1996)." Syl. pt. 1, Napoleon S. v. Walker, 217 W. Va. 254, 617 S.E.2d 801 (2005). Specifically, in considering the proper placement for the child, we are reminded that "[q]uestions relating to . . . custody of the children are within the sound discretion of the court and its action with respect to such matters will not be disturbed on appeal unless it clearly appears that such discretion has been abused." Syl., in part, Nichols v. Nichols, 160 W. Va. 514, 236 S.E.2d 36 (1977). Further, "[i]n . . . custody matters, we have traditionally held paramount the best interests of the child." Syl. pt. 5, Carter v. Carter, 196 W. Va. 239, 470 S.E.2d 193 (1996). We first address the father's contention that he successfully corrected the conditions that resulted in the loss of his parental rights in Ohio. The applicable law states: (b) As used in this section, "no reasonable likelihood that conditions of neglect or abuse can be substantially corrected" shall mean that, based upon the evidence before the court, the

Initially, the foster parents promoted reunification of Miranda with her father. However, once the father disappeared, abandoning his daughter to their care and neglecting to visit her, they moved to intervene, which request was granted on April 4, 2011. 3


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abusing adult or adults have demonstrated an inadequate capacity to solve the problems of abuse or neglect on their own or with help. Such conditions shall be considered to exist in the following circumstances, which shall not be exclusive: . . . . (6) The abusing parent or parents have incurred emotional illness, mental illness or mental deficiency of such duration or nature as to render such parent or parents incapable of exercising proper parenting skills or sufficiently improving the adequacy of such skills[.] W. Va. Code

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