In re: G.D. ( 2015 )

STATE OF WEST VIRGINIA
SUPREME COURT OF APPEALS
In re: G.D.
FILED
November 23, 2015
RORY L. PERRY II, CLERK
No. 15-0556 (Mingo County 14-JA-66) SUPREME COURT OF APPEALS
OF WEST VIRGINIA
MEMORANDUM DECISION
Petitioner Mother B.W., by counsel Karen S. Hatfield, appeals the Circuit Court of
Mingo County’s May 14, 2015, order terminating her parental rights to G.D. The West Virginia
Department of Health and Human Resources (“DHHR”), by counsel S.L. Evans, filed its
response in support of the circuit court’s order. The guardian ad litem (“guardian”), Jane Moran,
filed a response on behalf of the child supporting the circuit court’s order. On appeal, petitioner
alleges that the circuit court erred in terminating her parental rights and in denying her post-
termination visitation.1
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.
In August of 2014, the DHHR filed an abuse and neglect petition alleging that the West
Virginia State police responded to a domestic violence disturbance at the home of G.D.’s
parents.2 The petition alleged that both petitioner and the father, B.D., were under the influence
of some substance, that there was no running water in the home, that the toilets in the home were
full of feces, and that the home was littered with clothes and trash. The petition alleged that the
father was passed out on the floor, naked from the waist down, incoherent, and unable to be
interviewed. The petition further alleged that petitioner and the father previously had their
paternal rights to two children terminated in the State of Kentucky. The prior terminations were
based upon conditions comparable to those alleged by the DHHR in the instant matter. On the
same day, the DHHR filed a petition for emergency custody which was granted by the circuit
court. The circuit court further scheduled a preliminary hearing and appointed counsel for
petitioner. In August of 2014, the circuit court held a preliminary hearing. At the close of the
1
We note that West Virginia Code §§ 49-1-1 through 49-11-10 were repealed and
recodified during the 2015 Regular Session of the West Virginia Legislature. The new
enactment, West Virginia Code §§ 49-1-101 through 49-7-304, has minor stylistic changes and
became effective ninety days after the February 19, 2015, approval date. In this memorandum
decision, we apply the statutes as they existed during the pendency of the proceedings below.
2
The father, B.D., died during the pendency of this matter.
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hearing, the circuit court found probable cause that G.D. was in imminent danger and that G.D.
was exposed to domestic violence and unsafe living conditions.
In September of 2014, the circuit court held an adjudicatory hearing. Ultimately, the
circuit court found by clear and convincing evidence that petitioner both failed to protect and
neglected G.D. The circuit court also found that petitioner engaged in at-risk behaviors that
endangered G.D. and that G.D. remaining in the home was contrary to his best interests.
In December of 2014, the circuit court granted petitioner’s motion for a post-adjudicatory
improvement period and granted petitioner a four-hour monthly supervised visit with G.D. The
circuit court also required petitioner to submit to random drug screens. The circuit court set that
matter for disposition.
In April of 2015, the circuit court held a dispositional hearing and found that petitioner
was unwilling or unable to correct the conditions of abuse and neglect that necessitated G.D.’s
removal from her home. Based on the evidence presented, the circuit court found that petitioner
had a long history of drug use, and that there were several unexplained discrepancies in
petitioner’s random drug screen results. The circuit court also noted that petitioner’s prior
terminations of parental rights occurred under similar circumstances. The circuit court terminated
petitioner’s parental rights by order entered May 14, 2015. The circuit court denied petitioner’s
motion for post-termination visitation by the same order. Petitioner now appeals from the
dispositional order.
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). Upon our review, the Court finds
no error in the circuit court’s termination of petitioner’s parental rights. While, petitioner argues
that she complied with the terms of her improvement period, we find that the circuit court
properly terminated petitioner’s parental rights upon a finding that she could not substantially
correct the conditions of abuse and neglect.
2
The circuit court found that, prior to these proceedings, petitioner exposed G.D. to
domestic violence, drug use, and unsanitary living conditions. Pursuant to West Virginia Code §
49-6-5(b), there is “no reasonable likelihood that conditions of neglect and abuse can be
corrected” when “based upon the evidence before the court, the abusing adult . . . [has]
demonstrated an inadequate capacity to solve the problems of abuse and neglect on their own or
with help.” Further, where a parent has “habitually abused or are addicted to alcohol, controlled
substances or drugs to the extent that proper parenting skills have been seriously impaired . . .
and [has] not responded to or followed through the recommended and appropriate treatment
which could have improved the capacity for adequate parental functioning . . .” then there is no
reasonable likelihood that the conditions underlying the abuse can be substantially corrected in
the near future. W.Va. Code § 49-6-5(b)(1). The evidence in the record on appeal established
that there were numerous, unexplained discrepancies in petitioner’s drug screen results. The
DHHR worker testified that petitioner received prescriptions for codeine cough syrup, Xanax,
and an opiate. The DHHR worker further testified that when petitioner was drug screened, the
results revealed a positive result for benzodiazepines, but not for the codeine or opiates she was
prescribed. Petitioner offered no explanation as to her abnormal drug screen results. As such, the
circuit court correctly found that petitioner was unwilling or unable to correct the conditions of
abuse and neglect and also it found that there was no reasonable likelihood that petitioner could
substantially correct the conditions in the near future. The circuit court also noted that
petitioner’s prior terminations in the State of Kentucky were also based upon her drug abuse. The
circuit court found that petitioner’s continued drug abuse problems led to the abuse and neglect
of G.D. The circuit court based its finding upon the evidence of petitioner’s long history of drug
use and drug screen results.
We have held that “in some instances, the only remedy is termination of parental rights
when there is no reasonable likelihood that the parenting deficiencies or abuse can be
substantially corrected.” In re Kristin Y., 227 W.Va. 558, 712 S.E.2d 55 (2011). There is no
evidence on the record that petitioner is capable of remedying the conditions of abuse and
neglect substantially or in the near future. “When it is determined that the conditions that gave
rise to the removal of the child from the home cannot be remedied, W. Va. Code § 49-6-5(a)(6)
(2009) states that termination of the parental, custodial and guardianship rights of the abusing
parent is the remedy.” Id. at 569, 712 S.E. 20 at 67. Therefore, we find that the circuit court
properly terminated petitioner’s parental rights upon a finding that she could not substantially
correct the conditions of abuse and neglect.
Finally, this Court finds no error in the circuit court’s grant of petitioner’s post-
termination visitation between petitioner and the child until the child is adopted. We have held
that
“[w]hen parental rights are terminated due to neglect or abuse, the circuit
court may nevertheless in appropriate cases consider whether continued visitation
or other contact with the abusing parent is in the best interest of the child. Among
other things, the circuit court should consider whether a close emotional bond has
been established between parent and child and the child’s wishes, if he or she is of
appropriate maturity to make such request. The evidence must indicate that such
visitation or continued contact would not be detrimental to the child’s well being
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and would be in the child’s best interest.” Syl. Pt. 5, In re Christina L., 194 W.Va.
446, 460 S.E.2d 692 (1995).
Syl. Pt. 11, In re Daniel D., 211 W.Va. 79, 562 S.E.2d 147 (2002).3 In the instant case, petitioner
argues that the record on appeal demonstrates that she has a strong bond with G.D. The circuit
court agreed with petitioner that the child’s best interests were served by granting post-
termination visitation with petitioner, despite petitioner making little improvement. At the close
of the dispositional hearing, the circuit court noted that petitioner and G.D. had a strong bond
and granted petitioner visitation for four hours every three months until a final adoption, making
a transition easier for G.D. based upon the bond with petitioner. Following a thorough review of
the record on appeal, we find no error in the circuit court’s conclusion.
For the foregoing reasons, we find no error in the decision of the circuit court and its May
14, 2015, order is hereby affirmed.
Affirmed.
ISSUED: November 23, 2015
CONCURRED IN BY:
Chief Justice Margaret L. Workman
Justice Robin Jean Davis
Justice Brent D. Benjamin
Justice Menis E. Ketchum
Justice Allen H. Loughry II
3
We have also held that the word “may” is permissive and connotes discretion. See Gebr.
Eickhoff Maschinenfabrik Und Eisengieberei mbH v. Starcher, 174 W.Va. 618, 626 n. 12, 328
S.E.2d 492, 500 n. 12 (1985) (providing that “[a]n elementary principle of statutory construction
is that the word ‘may’ is inherently permissive in nature and connotes discretion.”) (citations
omitted).
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