In re C.E.-1, C.E.-2, M.E., K.E.-1, C.E.-3, K.E.-2, J.E.-1, and J.E.-2 ( 2022 )


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  •                                                                                       FILED
    May 12, 2022
    STATE OF WEST VIRGINIA                             EDYTHE NASH GAISER, CLERK
    SUPREME COURT OF APPEALS
    SUPREME COURT OF APPEALS                                 OF WEST VIRGINIA
    In re C.E.-1, C.E.-2, M.E., K.E.-1, C.E.-3, K.E.-2, J.E.-1, and J.E.-2
    No. 21-0634 (Mason County 19-JA-74, 19-JA-75, 19-JA-76, 19-JA-77, 19-JA-78, 19-JA-79, 19-
    JA-80, and 19-JA-81)
    MEMORANDUM DECISION
    Petitioner Mother A.E., by counsel Paul A. Knisley, appeals the Circuit Court of Mason
    County’s July 14, 2021, order terminating her parental rights to C.E.-1, C.E.-2, M.E., K.E.-1, C.E.-
    3, K.E.-2, J.E.-1, and J.E.-2. 1 The West Virginia Department of Health and Human Resources
    (“DHHR”), by counsel Patrick Morrisey and Mindy M. Parsley, filed a response in support of the
    circuit court’s order. The guardian ad litem, Michael N. Eachus, filed a response on behalf of the
    children in support of the circuit court’s order. On appeal, petitioner argues that the circuit court
    erred in terminating her parental rights without requiring the DHHR to provide services in
    compliance with the Americans with Disabilities Act (“ADA”), 
    42 U.S.C. §§ 12101
     to 12213.
    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.
    Prior to the proceedings giving rise to the current appeal, petitioner and the children’s father
    had an extensive history of Child Protective Services (“CPS”) involvement. According to the
    DHHR’s petition and amended petition in the current matter, the parents had two prior CPS cases:
    one that began in 2013 and continued through 2014 and another that began in 2016 and ran through
    2019. A third CPS case was opened and eventually gave rise to the current proceedings. Although
    not entirely clear from the record, it appears that these CPS cases also gave rise to prior abuse and
    1
    Consistent with our long-standing practice in cases with sensitive facts, we use initials
    where necessary to protect the identities of those involved in this case. See In re K.H., 
    235 W. Va. 254
    , 
    773 S.E.2d 20
     (2015); Melinda H. v. William R. II, 
    230 W. Va. 731
    , 
    742 S.E.2d 419
     (2013);
    State v. Brandon B., 
    218 W. Va. 324
    , 
    624 S.E.2d 761
     (2005); State v. Edward Charles L., 
    183 W. Va. 641
    , 
    398 S.E.2d 123
     (1990). Additionally, because several of the children share the same
    initials, numerals have been included with the children’s initials, where necessary, in order to
    differentiate them from one another.
    1
    neglect proceedings, as petitioner admits on appeal that she was a named respondent in two such
    cases. Additionally, the record includes references from the court to the instant proceedings being
    the third abuse and neglect case filed against the parents. Relevant to the issues on appeal is the
    undisputed fact that petitioner received services over a period of several years prior to the filing of
    the instant petition.
    In November of 2019, the DHHR filed the petition giving rise to the current proceedings.
    The petition alleged that the children suffered from various injuries, including the following: burns
    on K.E.-2’s face after she and C.E.-3 were left unsupervised and played with a campfire; bruising
    on J.E.-1’s back and scratches on her neck and face, which child C.E.-1 reported were caused when
    petitioner “hit her with a shoe”; and a “puss bleeding gash” on C.E.-1’s head. The DHHR also
    alleged that an inspection revealed that the home was unsafe, as clutter, food, and trash throughout
    the home could harm the children. Based on these circumstances, the DHHR alleged that petitioner
    was unable to properly care for the children or assure their safety in the home. The DHHR also
    asserted that the parents “have exhausted all of the Department’s in-home services over the course
    of four (4) years.”
    In January of 2020, the DHHR filed an amended petition alleging that when the children
    were removed, the parents provided them with dirty and moldy bottles that were not fit for the
    children to drink from. The DHHR also alleged medical neglect as J.E.-1 suffers from cerebral
    palsy, yet the parents failed to comply with Birth to Three services, resulting in the child being
    dropped from these critical services. J.E.-1 also likely required glasses and had several teeth that
    required caps. The DHHR further alleged that three of the children reported that petitioner would
    hold their heads underwater as punishment, and that then-ten-year-old M.E. disclosed to a teacher
    “that there has been child sex abuse by” petitioner. 2
    The court held adjudicatory hearings in July of 2020 and February of 2021, during which
    the DHHR presented evidence from DHHR workers and service providers. The guardian also
    presented evidence from various medical specialists and education personnel. Following the
    hearings, the court took adjudication under advisement and directed that the parties could submit
    proposed adjudicatory findings. Ultimately, the court found that the condition of the home was
    unsuitable for the children, a condition for which the children had been removed in a prior
    proceeding. The court also found that the parents failed to provide appropriate and necessary
    medical and dental care, which resulted in the children needing painful dental surgery to address
    the issues stemming from the lack of care. Of particular importance to the circuit court was the
    fact that J.E.-1 was discharged from Birth to Three, physical therapy, and other services simply
    because the parents missed multiple appointments. At the time the three-year-old child was
    removed from the home, she struggled to speak in complete sentences, could not walk without
    assistance, and could barely stand on her own. The parents also routinely sent the child to school
    without her walker or braces, which had been prescribed. The court also found that J.E.-1’s weight
    loss after being returned to the parents was a result of their failure to provide her with proper
    nutrition. In regard to other children, the court found that those who attended school were
    chronically and habitually absent and that when they did attend, “they were filthy and had a foul
    odor.” Personnel at their school permitted them to bathe on the premises, washed their clothes, and
    2
    The sexual abuse allegation was never substantiated.
    2
    provided them deodorant on a regular basis. Additionally, the court found that the parents failed
    to properly supervise the children, as C.E.-2 once returned to school after the day concluded
    because he was afraid to go home.
    The court then discussed petitioner’s intellectual deficiencies, noting that it appointed her
    a guardian ad litem following her psychological evaluation and the determination that she
    “lack[ed] the minimal threshold for competency to independently participate in her court case.”
    Based on this report, the court found that petitioner had an inability to provide the children with
    necessary food, clothing, shelter, supervision, medical care, and education. As such, the court
    adjudicated petitioner of neglecting the children.
    In March of 2021, the DHHR filed a motion to terminate the parents’ parental rights and
    stated that it opposed an improvement period for petitioner. The following month, petitioner filed
    a motion for a post-adjudicatory improvement period in which she asserted that she has disabilities,
    as identified in her psychological evaluation, and cited West Virginia Code § 49-4-604(c)(5)(C)
    as requiring that the DHHR make reasonable accommodations in accordance with the ADA.
    On May 20, 2021, the court held a dispositional hearing, during which the DHHR presented
    testimony from several witnesses, and petitioner presented testimony from the psychologist who
    evaluated her. Relevant to the issues on appeal, Nikka Burchette, of Hand in Hand In Home
    Services, testified that she provided services to petitioner “on and off for about seven years.” Ms.
    Burchette testified that petitioner previously had parenting and adult life skills services in place in
    her home and that “there have been recurring themes” across petitioner’s cases, such as “[m]essy
    houses, etc.” Ms. Burchette was then asked if she was aware that petitioner had “mental
    shortcomings” at the time she provided services in earlier cases, and she acknowledged that she
    did. She was then asked if the services provided to petitioner “were . . . different from the normal
    services you provide for everybody.” Ms. Burchette responded that the services were special, in
    that “you had to do a more hands-on, more explaining, more visual. [Petitioner] had a hard time
    reading and understanding things, so it was more me speaking and going over things and just
    talking . . . at an age-appropriate level that she could understand.” Ms. Burchette confirmed that
    petitioner did not receive services in the current case, even though it concerned additional issues
    that were not present in prior cases, such as medical and educational neglect. When asked if she
    could have provided services that differed from the prior cases, Ms. Burchette replied, “No, they
    are all the same for each family. It’s all the same.”
    Additionally, a Court Appointed Special Advocate (CASA) representative was asked if
    any accommodations were made for petitioner’s disability. The witness responded affirmatively
    and went on to explain that “since 2013, all resources have been repeated and exhausted through
    the Department of Human Resources, and there really isn’t much left that could be implemented.”
    The court then took disposition under advisement and ordered the parties to submit
    proposed findings of fact and conclusions of law. In its ultimate order, the court found that the
    parents did not receive any services during the proceedings, other than supervised visitation, which
    the court described as “chaotic and at times unsafe for the children,” requiring supervision and
    intervention by providers. Further, at the most recent visit, the floor was covered with coats, toys,
    and food. J.E.-1 tripped on the clutter and fell backward into a trashcan, which neither parent
    3
    noticed. The court noted that petitioner’s psychological evaluation resulted in a “poor” prognosis
    for improved parenting, which was consistent with testimony at the dispositional hearing.
    Petitioner was found to lack understanding of the allegations against her, which precluded an
    accurate understanding of the necessary change to address these issues. Contrary to petitioner’s
    argument that the DHHR failed to accommodate her disability as required by the ADA, the court
    “dispute[d] that proffer and recognize[d] that [petitioner] can barely take care of herself, let alone
    eight (8) minor children who have significant special needs.” The court also noted evidence that
    C.E.-2 had problems with “feeling down” after visits and that K.E.-1 and M.E. expressed a desire
    not to live with their parents. The court then focused on the “drastic improvement” the children
    displayed after being placed in foster care. Their communication skills improved; they are happy,
    proud of their accomplishments, and healthy; and they improved in school. The court found that
    petitioner could not satisfy the burden for obtaining an improvement period, and that there was no
    reasonable likelihood the conditions of abuse and neglect could be substantially corrected in the
    near future. The court also found that termination of petitioner’s parental rights was necessary for
    the children’s welfare, especially considering their extensive special needs. As such, the court
    terminated petitioner’s parental rights. 3 It is from the dispositional order that petitioner appeals.
    The Court has previously established the following standard of review:
    “Although conclusions of law reached by a circuit court are subject to de
    novo review, when an action, such as an abuse and neglect case, is tried upon the
    facts without a jury, the circuit court shall make a determination based upon the
    evidence and shall make findings of fact and conclusions of law as to whether such
    child is abused or neglected. These findings shall not be set aside by a reviewing
    court unless clearly erroneous. A finding is clearly erroneous when, although there
    is evidence to support the finding, the reviewing court on the entire evidence is left
    with the definite and firm conviction that a mistake has been committed. However,
    a reviewing court may not overturn a finding simply because it would have decided
    the case differently, and it must affirm a finding if the circuit court’s account of the
    evidence is plausible in light of the record viewed in its entirety.” Syl. Pt. 1, In
    Interest of Tiffany Marie S., 
    196 W.Va. 223
    , 
    470 S.E.2d 177
     (1996).
    Syl. Pt. 1, In re Cecil T., 
    228 W. Va. 89
    , 
    717 S.E.2d 873
     (2011).
    On appeal, petitioner raises only one assignment of error in which she alleges that the
    circuit court erred in terminating her parental rights “without requiring the DHHR to provide ADA
    compliant services as required by [the] West Virginia Code.” Confusingly, petitioner relies on
    West Virginia Code § 49-4-604(c)(5)(C), which provides as follows:
    (5) Upon a finding that the abusing parent or battered parent or parents are presently
    unwilling or unable to provide adequately for the child’s needs, commit the child
    temporarily to the care, custody, and control of the department, a licensed private
    3
    The father’s parental rights were also terminated below. The permanency plan for the
    children is adoption in their current foster homes.
    4
    child welfare agency, or a suitable person who may be appointed guardian by the
    court. The court order shall state:
    ....
    (C) Whether the department has made reasonable accommodations in accordance
    with the Americans with Disabilities Act of 1990, 
    42 U. S. C. § 12101
     et seq., to
    parents with disabilities in order to allow them meaningful access to reunification
    and family preservation services[.]
    The record shows, however, that the circuit court did not impose disposition under West Virginia
    Code § 49-4-604(c)(5). Instead, the court imposed disposition under West Virginia Code § 49-4-
    604(c)(6). Because petitioner fails to address the applicable statute under which the circuit court
    terminated her parental rights, she cannot be entitled to relief on appeal.
    We find that termination of petitioner’s parental rights was appropriate, given the chronic
    nature of petitioner’s abuse and neglect of the children. As set forth above, the parents began
    receiving service in 2013 and, at one point, had a case that proceeded for three years. Despite the
    DHHR’s extended efforts, the petition in this matter was filed a matter of months after the prior
    case was closed. While petitioner was able to comply with services such that the children were
    previously returned to her on more than one occasion, the record shows that petitioner was unable
    to make lasting change.
    On appeal, petitioner argues that the circuit court erred in finding that she “was found to
    lack understanding of the allegations in her case, which precludes accurate understanding of the
    necessary changes she must make.” It is unclear, however, why petitioner believes this finding was
    in error, as it was based on the opinion of the psychologist that evaluated petitioner and concluded
    that her prognosis for improved parenting was “poor.” In that evaluation, the psychologist
    specifically concluded that petitioner’s “reported lack of understanding of the allegations in her
    case precludes accurate understand of the necessary changes she must make.” Given that the circuit
    court’s finding was based on an explicit conclusion from an expert witness, petitioner cannot
    establish that the finding was in error.
    Because the court found that there was no reasonable likelihood that petitioner could
    substantially correct the conditions of abuse and neglect in the near future and that termination of
    her parental rights was necessary for the child’s welfare, termination was appropriate under West
    Virginia Code § 49-4-604(c)(6). On appeal, petitioner does not challenge these findings, other than
    to attack the sufficiency of services that she received for approximately seven years across three
    abuse and neglect proceedings. However, we have explained that
    “[t]ermination of parental rights, the most drastic remedy under the
    statutory provision covering the disposition of neglected children, [West Virginia
    Code § 49-4-604] . . . may be employed without the use of intervening less
    restrictive alternatives when it is found that there is no reasonable likelihood under
    [West Virginia Code § 49-4-604(d)] . . . that conditions of neglect or abuse can be
    5
    substantially corrected.” Syllabus point 2, In re R.J.M., 
    164 W.Va. 496
    , 
    266 S.E.2d 114
     (1980).
    Syl. Pt. 5, In re Kristin Y., 
    227 W. Va. 558
    , 
    712 S.E.2d 55
     (2011). As such, we find no error in the
    court’s termination of petitioner’s parental rights.
    For the foregoing reasons, we find no error in the decision of the circuit court, and its July
    14, 2021, order is hereby affirmed.
    Affirmed.
    ISSUED: May 12, 2022
    CONCURRED IN BY:
    Chief Justice John A. Hutchison
    Justice Elizabeth D. Walker
    Justice Tim Armstead
    Justice William R. Wooton
    Justice C. Haley Bunn
    6