In re A.T.-S and A.T.-A ( 2022 )

FILED
February 1, 2022
STATE OF WEST VIRGINIA EDYTHE NASH GAISER, CLERK
SUPREME COURT OF APPEALS
SUPREME COURT OF APPEALS OF WEST VIRGINIA
In re A.T.-S. and A.T.-A.
No. 21-0544 (Boone County 20-JA-28 and 20-JA-29)
MEMORANDUM DECISION
Petitioner Mother A.T., by counsel Elliott E. Workman, appeals the Circuit Court of Boone
County’s June 8, 2021, order terminating her parental rights to A.T.-S. and A.T.-A. 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, L. Scott Briscoe, filed a response on behalf of the children also in support of the circuit
court’s order. Petitioner filed a reply. On appeal, petitioner argues that the circuit court erred in
terminating her parental rights when she substantially complied with her improvement period and
without imposing a less-restrictive dispositional alternative.
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 February of 2020, the DHHR filed a child abuse and neglect petition against petitioner
and C.A., the father of A.T.-A., alleging unsanitary and unsafe living conditions and that the
parents neglected the children’s hygienic needs. Specifically, the DHHR workers observed the
home to be in a filthy and deplorable state with animals’ feces and urine on the floors, bags of
trash sitting around, dirty dishes covered with rotten food, and a massive cockroach infestation.
The parents failed to properly refrigerate their food, resulting in foods within the pantry containing
cockroaches. The bottom of the refrigerator was black with various insects and filth. Workers
found ant infestations in the children’s rooms and dog feces on the children’s beds. One worker
observed a dog urinate on the children’s clothing. The workers also noted safety issues with general
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).
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junk piles on the home’s porch and that a portion of the floor inside the home had caved in. The
DHHR implemented a safety plan for several months, which included services such as adult life
skills and parenting classes, but the parents failed to clean the home and remove the unsafe and
unsanitary conditions. Petitioner waived her preliminary hearing.
The circuit court held an adjudicatory hearing in May of 2020 and adjudicated petitioner
as an abusing parent. The court granted petitioner a post-adjudicatory improvement period, the
terms of which required petitioner to leave her relationship with C.A., complete parenting and
adult life skills classes, learn to budget and manage limited income, complete a parental fitness
and psychological evaluation, and obtain independent and appropriate housing for the children. At
a review hearing in July of 2020, the guardian moved to revoke petitioner’s improvement period
citing petitioner’s continued relationship with C.A., but the circuit court continued petitioner’s
improvement period.
In September of 2020, the circuit court held a dispositional hearing, during which the
DHHR worker testified that C.A.’s parental rights to other children had been previously terminated
due to severe medical neglect and deplorable living conditions in the home, and, as such, the
DHHR recommended the termination of his parental rights to A.T.-A. Further, the worker
explained that due to these circumstances, petitioner was required to cease her relationship with
C.A. and move out of his home. The worker stated that petitioner had not “stayed away from
[C.A.]” as several witnesses had reported seeing petitioner and C.A. presented as a couple in the
community and that the couple celebrated their anniversary on social media. Yet, petitioner had
told the multidisciplinary team members that she had left her relationship with C.A. Further, the
DHHR proffered that petitioner recently completed her parental fitness and psychological
evaluation and that the results were pending. In light of this, the court continued petitioner’s
improvement period.
At a review hearing in December of 2020, the DHHR argued that although petitioner had
completed some portions of her improvement period, she had not obtained independent housing
and relied upon relatives to provide for her basic needs. The court then set the matter for
disposition. In March of 2021, the circuit court held a dispositional hearing, wherein the DHHR
proffered that petitioner was seen with C.A. the week prior and that petitioner skipped her
supervised visitation with the children on March 18, 2021. The parties agreed to subpoena the
psychologist to testify as an expert regarding the results of petitioner’s parental fitness and
psychological evaluation, and the court continued the dispositional hearing.
In April of 2021, the circuit court held a final dispositional hearing. The DHHR worker
testified that petitioner continued her relationship with C.A. despite the recent termination of his
parental rights to A.T.-A. and the previous termination of his parental rights to other children. The
worker stated that in March of 2021, petitioner was seen in the same vehicle as C.A. along with
petitioner’s grandmother and father, indicating that the couple remained together and continued to
act as a family. Pictures of petitioner with C.A. were admitted into evidence. The worker also
testified that petitioner failed to obtain appropriate housing, had not exhibited the independent
living skills required of her case plan, and needed help with daily caregiving tasks for the children.
The worker explained that she visited petitioner’s relatives’ homes and found that petitioner’s
mother’s home was also too filthy to be safe for reunification and that petitioner’s grandmother’s
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home was inappropriate because the grandmother was also seen in the car with petitioner and C.A.
as recently as one month prior to the final dispositional hearing.
Next, Barbara Nelson, a clinical psychologist, testified that petitioner denied all
wrongdoing, minimized the severity of the deplorable conditions of the home, and stated that the
DHHR wrongfully removed her children. Petitioner told Mrs. Nelson that she did not believe
children should be removed unless they had been beaten or starved. Mrs. Nelson further stated that
petitioner has never lived on her own and is entirely reliant upon others. She stated that petitioner
makes poor decisions, acts upon impulse, and has intellectual deficits. As such, Mrs. Nelson gave
petitioner an extremely poor prognosis for obtaining minimally adequate parenting abilities.
Petitioner did not testify but moved for a less-restrictive alternative disposition such as permanent
legal guardianship of the children with relatives. However, the court denied the motion finding
that petitioner continued to put her relationship with C.A. above the needs of the children and that
guardianship was not warranted. The court noted that it would not terminate “someone’s parental
rights based solely on a parental fitness exam with a low IQ and an inability to read,” but this
information coupled with petitioner’s failure to do “one simple thing”—stay away from C.A.—
led the court to believe that termination was in the children’s best interests. Ultimately, the circuit
court terminated petitioner’s parental rights by order entered on June 8, 2021. Petitioner appeals
this dispositional order terminating her parental rights. 2
The Court has previously established the following standard of review in cases such as this:
“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 argues that the circuit court erred in terminating her parental rights
when she substantially complied with the terms and conditions of her improvement period.
Specifically, petitioner contends that she completed parenting and adult life skills classes and
exercised supervised visitations with the children. Petitioner argues that the circuit court
terminated her parental rights based upon intellectual limitations combined with evidence
suggesting that she continued to have a relationship with C.A. According to petitioner, the “most
2
The fathers of A.T.-A. and A.T.-S. had their parental rights terminated. The permanency
plan for the children is adoption by their relative foster family.
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damaging evidence against” her was Mrs. Nelson’s testimony that she was “unable to learn and
adapt to situations.”
This Court has held that
[a]t the conclusion of the improvement period, the court shall review the
performance of the parents in attempting to attain the goals of the improvement
period and shall, in the court’s discretion, determine whether the conditions of the
improvement period have been satisfied and whether sufficient improvement has
been made in the context of all the circumstances of the case to justify the return of
the child.
Syl. Pt. 6, In Interest of Carlita B., 185 W. Va. 613, 408 S.E.2d 365 (1991).
Contrary to petitioner’s argument, the “most damaging evidence” against her included that
she continued her relationship with C.A. throughout the proceedings, attempted to hide that fact
from the parties and the court, and chose to stay in a relationship with C.A. while knowing that the
children could not be reunified with her if she remained in a relationship with him. The evidence
presented below showed that C.A. was a serious threat to A.T.-A. and A.T.-S. given the prior
termination of his parental rights to other children for the same conditions of abuse and neglect.
Additionally, petitioner was required to obtain appropriate and independent housing, but she failed
to do so by the final dispositional hearing. As testified to by the DHHR worker, because petitioner
was unable to live on her own, the worker examined petitioner’s relatives’ homes and found that
they were also filthy or otherwise inappropriate for reunification with the children. As such,
petitioner had failed to obtain appropriate housing for herself or appropriate housing with a
relative. Finally, although the circuit court considered Mrs. Nelson’s testimony at the final
dispositional hearing, the court specifically stated that it relied heavily upon petitioner’s failure to
stay away from C.A. and noted that petitioner chose her relationship with C.A. over the needs of
the children. Accordingly, the evidence supports a finding that petitioner did not successfully
complete the terms of her improvement period.
For the same reasons, we find no error in the circuit court’s termination of petitioner’s
parental rights. Pursuant to West Virginia Code § 49-4-604(c)(6), a circuit court may terminate a
parent’s parental rights upon finding that “there is no reasonable likelihood that the conditions of
neglect or abuse could be substantially corrected in the near future” and that termination is
necessary for the children’s welfare. West Virginia Code § 49-4-604(d)(3) provides that there is
no reasonable likelihood that the conditions of neglect or abuse could be substantially corrected
when
[t]he abusing parent or parents have not responded to or followed through with a
reasonable family case plan or other rehabilitative efforts of social, medical, mental
health, or other rehabilitative agencies designed to reduce or prevent the abuse or
neglect of the child, as evidenced by the continuation or insubstantial diminution
of conditions which threatened the health, welfare, or life of the child.
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As previously discussed, the record clearly establishes that petitioner failed to respond to
or follow through with the most important aspects of her improvement period and family case
plan—cease contact with C.A. and obtain independent and appropriate housing for the children.
Therefore, this evidence supports a finding that there was no reasonable likelihood that petitioner
could correct the conditions of abuse and neglect in the near future. We further find that
termination was necessary for the children’s welfare, given petitioner’s refusal to leave her
relationship with C.A., a person who was a threat to the children’s health and welfare.
Finally, insomuch as petitioner argues that she was entitled to a less-restrictive
dispositional alternative such as permanent guardianship with relatives, we have held 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
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). Based on the evidence set forth
above, 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 June
8, 2021, order is hereby affirmed.
Affirmed.
ISSUED: February 1, 2022
CONCURRED IN BY:
Chief Justice John A. Hutchison
Justice Elizabeth D. Walker
Justice Tim Armstead
Justice Evan H. Jenkins
Justice William R. Wooton
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