In Re: I.G. ( 2017 )


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  •                              STATE OF WEST VIRGINIA
    SUPREME COURT OF APPEALS
    In re: I.G.
    FILED
    October 23, 2017
    No. 17-0378 (Webster County 16-JA-76)                                           RORY L. PERRY II, CLERK
    SUPREME COURT OF APPEALS
    OF WEST VIRGINIA
    MEMORANDUM DECISION
    Petitioner Mother K.P., by counsel Steven B. Nanners, appeals the Circuit Court of
    Webster County’s March 24, 2017, order terminating her parental rights to I.G.1 The West
    Virginia Department of Health and Human Resources (“DHHR”), by counsel S.L. Evans, filed a
    response in support of the circuit court’s order. The guardian ad litem (“guardian”), Mary
    Elizabeth Snead, 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 denying her an improvement period and
    terminating her 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.
    In October of 2016, the DHHR filed an abuse and neglect petition in Nicholas County
    against petitioner alleging that she posted on social media, “I need someone I can sign my
    custody over too. Like #100 right now who’s stable and has a job, a car, etc.” The DHHR also
    alleged that petitioner reported to a Child Protective Services (“CPS”) worker that she was
    physically and mentally unable to care for the child. Further, the DHHR alleged that the CPS
    worker found the child in the home of a registered sex offender, i.e. the home of the child’s
    grandmother and her husband. The case was transferred to Webster County because it is the
    county in which petitioner resided. 2
    The DHHR filed an amended petition that added the child’s father as a respondent. In the
    amended petition, the DHHR alleged that petitioner was involved in a previous 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).
    2
    The petition was originally filed in Nicholas County because it was the county in which
    the grandmother lived and where the child was removed.
    1
    neglect case that was filed in July of 2014 in Nicholas County. In that case, petitioner was
    adjudicated as an abusing parent based on her homelessness, refusal of placement in a homeless
    shelter, and failure to provide adequate food, clothing, and shelter for her child. She was granted
    a post-adjudicatory improvement period, which she completed. The case was dismissed in
    December of 2015. The DHHR also alleged that petitioner underwent a psychological evaluation
    in 2014 and was diagnosed with borderline personality disorder and unspecified depressive
    disorder. The DHHR further alleged that during the current proceedings, when the CPS worker
    went to inspect petitioner’s home, she found that the ceiling was collapsing in several areas; the
    roof was leaking; trash was overflowing in the kitchen; there was a hole in the floor near the
    front door; there were bags of trash, a mattress, old furniture, and clothing stacked outside the
    home; the aluminum underpinning was hanging loose and presented a dangerous situation for
    small children; and there were exposed wires and electrical socket boxes in the wall in the
    hallway. Furthermore, the DHHR alleged that petitioner told the CPS worker that her current
    boyfriend had recently shoved a bar of soap in the child’s mouth, causing her mouth to bleed.
    Petitioner also told the CPS worker that the child’s father was in prison in Maryland.
    In October of 2016, the circuit court held a preliminary hearing in which it took
    testimony from CPS workers and petitioner. The circuit court found that petitioner’s home was
    neither fit nor suitable for the child and noted its concern about petitioner’s physical and
    emotional wellbeing. The circuit court ordered petitioner to undergo a psychological
    examination. Petitioner was granted visitation with the child conditioned upon her remaining
    drug and alcohol free. Petitioner was also ordered to cease contact with her boyfriend and her
    mother’s husband.
    In November of 2016, the circuit court held an adjudicatory hearing in which it took
    judicial notice of all prior testimony in the case. Based on the fact that petitioner did not have a
    suitable home for the child and because she failed to protect the child from her boyfriend,
    petitioner was adjudicated as an abusing parent. The circuit court ordered the DHHR to arrange a
    psychological evaluation for petitioner. In January of 2017, petitioner filed a motion for a post­
    adjudicatory improvement period.
    In March of 2017, the circuit court held a dispositional hearing wherein petitioner’s
    evaluating psychiatrist testified by telephone. The psychiatrist testified that petitioner “is not a
    good candidate to parent and it is not recommended that she be allowed to regain custody of her
    child as it is highly likely that she will return to her previous behaviors . . . .” The psychiatrist
    further testified that petitioner resisted participating in treatment and had a poor attitude during
    evaluations. Petitioner testified that she did not have a job, that she received $195 in food stamps
    per month, that she earned money for utilities by making “primitive stuff” that she sold online,
    and that her mother and grandmother helped her pay for her car insurance. Petitioner denied a
    continued relationship with her boyfriend. However, her social media posts indicated that they
    were still involved. A service provider testified that petitioner cooperated with services
    sporadically and that she “complies when she wants to comply.” The service provider testified
    that she often experienced difficulty locating petitioner. A CPS worker testified that the DHHR
    recommended that petitioner’s parental rights to the child be terminated as the same would be in
    the child’s best interest. The circuit court found that petitioner continued a relationship with her
    boyfriend, had no appropriate home for the child, and was not employed. The circuit court
    2
    further found that there was no reasonable likelihood that petitioner could correct the conditions
    of abuse and neglect in the near future and that there was no less-restrictive alternative available
    than termination of petitioner’s parental rights. The circuit court ultimately terminated
    petitioner’s parental rights in its March 24, 2017, order.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). Upon our review, the Court finds
    no error in the circuit court’s findings below.
    First, petitioner argues that she should have been granted a post-adjudicatory
    improvement period. To support her argument, petitioner asserts that she provided clear and
    convincing proof that she would fully comply with the terms and conditions of an improvement
    period. We disagree. In order to obtain a post-adjudicatory improvement period, West Virginia
    Code § 49-4-610(2)(B) requires that the parent “demonstrates, by clear and convincing evidence,
    that [the parent] is likely to fully participate in an improvement period . . . .” Further, we have
    often noted that the decision to grant or deny an improvement period rests in the sound discretion
    of the circuit court. See In re: M.M., 236 W.Va. 108, 115, 
    778 S.E.2d 338
    , 345 (2015) (holding
    that “West Virginia law allows the circuit court discretion in deciding whether to grant a parent
    an improvement period”); Syl. Pt. 6, in part, In re Katie S., 198 W.Va. 79, 
    479 S.E.2d 589
    (1996)
    (holding that “[i]t is within the court’s discretion to grant an improvement period within the
    applicable statutory requirements”).
    Here, petitioner failed to prove by clear and convincing evidence that she was likely to
    substantially comply with the terms and conditions of a post-adjudicatory improvement period
    because she participated in services sporadically and failed to remain in contact with providers.
    3
    Petitioner’s parental rights to the child were terminated below. The father is currently
    incarcerated and according to the DHHR and the guardian, his parental rights were terminated.
    According to the guardian and the DHHR, the child is placed in a foster home with a
    permanency plan of adoption in that home.
    3
    Also, CPS’s inspection of petitioner’s home indicated that it was unsafe and unfit for the child.
    The psychiatrist that conducted petitioner’s psychological evaluation concluded that petitioner
    resisted participating in treatment and had a poor attitude during evaluations. Further, petitioner
    did not have a job and continued to have a relationship with her boyfriend, despite an order from
    the circuit court to not associate with him because of his maltreatment of the child. Based on this
    evidence, petitioner did not prove by clear and convincing evidence that she was likely to
    substantially comply with the terms and conditions of a post-adjudicatory improvement period
    and, therefore, the circuit court did not err in denying petitioner’s motion for a post-adjudicatory
    improvement period.
    Next, petitioner argues that the circuit court erred in terminating her parental rights.
    Petitioner argues that the circuit court should have considered a less-restrictive alternative. We
    disagree. West Virginia Code § 49-4-604(b)(6) provides that circuit courts are directed to
    terminate parental rights upon findings that there is “no reasonable likelihood that the conditions
    of neglect or abuse can be substantially corrected in the near future” and that termination is
    necessary for the children’s welfare. West Virginia Code § 49-4-604(c)(3) provides that no
    reasonable likelihood that the conditions of abuse or neglect can be substantially corrected exists
    when “[t]he abusing parent . . . ha[s] not responded to or followed through with a reasonable
    family case plan or other rehabilitative efforts[.]”
    Further, we have previously held that
    “[t]ermination of parental rights, the most drastic remedy under the
    statutory provision covering the disposition of neglected children, W. Va.Code [§]
    49-6-5 [now 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 W. Va.Code [§] 49-6-5(b) [now West Virginia Code
    § 49-4-604(c)] . . . that conditions of neglect or abuse can be 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). Here, it is clear that there was
    no reasonable likelihood that petitioner could substantially corrected the conditions of abuse or
    neglect in the near future. Petitioner was involved in a prior abuse and neglect case in Nicholas
    County because she could not provide proper shelter for her child. During the current
    proceedings, CPS found petitioner’s home remained unfit. Petitioner therefore did not remedy
    the conditions of abuse and neglect from the prior case. Further, as discussed above, petitioner
    inconsistently participated in services and had a poor attitude during evaluations Additionally,
    she was unemployed and continued a relationship with her boyfriend, despite the circuit court’s
    order directing her to cease contact with him. For these reasons, we find no error in the circuit
    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
    March 24, 2017, order is hereby affirmed.
    Affirmed.
    4
    ISSUED: October 23, 2017
    CONCURRED IN BY:
    Chief Justice Allen H. Loughry II
    Justice Robin Jean Davis
    Justice Margaret L. Workman
    Justice Menis E. Ketchum
    Justice Elizabeth D. Walker
    5