In re C.H. and G.H. ( 2018 )


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  •                                                       STATE OF WEST VIRGINIA
    SUPREME COURT OF APPEALS
    In re C.H. and G.H.
    FILED
    May 14, 2018
    No. 17-1137 (Monongalia County 15-JA-51 and 52)                                  EDYTHE NASH GAISER, CLERK
    SUPREME COURT OF APPEALS
    OF WEST VIRGINIA
    MEMORANDUM DECISION
    Petitioner Mother A.H., by counsel Scott A. Shough, appeals the Circuit Court of
    Monongalia County’s December 4, 2017, order terminating her parental rights to C.H. and G.H.1
    The West Virginia Department of Health and Human Resources (“DHHR”), by counsel Lee
    Niezgoda, filed a response in support of the circuit court’s order. The guardian ad litem
    (“guardian”), Ashley V. Williams Hunt, 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 denying her a
    less-restrictive dispositional alternative to termination of 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.
    On August 27, 2015, the DHHR filed a petition alleging abuse and neglect by petitioner
    toward her two children. Specifically, the petition alleged that petitioner’s severe substance
    abuse rendered her unable to properly parent. On September 22, 2015, petitioner stipulated to the
    allegations set forth in the petition and was adjudicated as an abusing parent. On November 10,
    2015, the circuit court held a dispositional hearing. The hearing was continued and petitioner was
    granted a six-month post-adjudicatory improvement period.
    According to the guardian, petitioner was incarcerated in March of 2016 following a
    “string of criminal acts.” However, prior to her arrest, petitioner was not participating in drug
    screens, visitation, or any other services offered by the DHHR. The guardian further explained
    that, upon her release from incarceration, petitioner attended a treatment facility for inpatient
    substance abuse treatment for sixty-seven days, but was discharged for fighting. Petitioner was
    incarcerated again following a positive drug screen. After two more failed attempts to enter 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).
    1
    complete an inpatient treatment program, petitioner overdosed on heroin and was arrested for
    violating the terms and conditions of her probation. However, on May 2, 2016, the circuit court
    granted petitioner’s motion for a post-dispositional improvement period. In June of 2017,
    petitioner was arrested following an incident wherein she overdosed at her mother’s residence
    and hid from the police in a closet with the children. The children were removed from their
    maternal grandmother’s home and placed with their maternal grandfather.
    After multiple extensions to her post-dispositional improvement period and nearly two
    years of substance abuse treatment attempts by petitioner, on August 1, 2017, the circuit court
    held a dispositional hearing. The DHHR presented testimony that petitioner had a history of
    substance abuse and that she was asked to leave a rehabilitation facility for fighting. The DHHR
    also presented testimony that petitioner’s mother allowed her to have unsupervised contact with
    the children. Further, the DHHR presented testimony regarding the incident wherein petitioner
    was found by police at her mother’s home, with the children, with drug paraphernalia on her
    person, and was subsequently arrested. The DHHR recommended termination of petitioner’s
    parental rights. Based on the evidence, the circuit court found 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 in the children’s best interests.
    On November 9, 2017, the circuit court held a hearing on the father’s motion for
    reconsideration of the dispositional order. The circuit court again heard testimony and proffer
    from all counsel regarding the appropriate disposition in the matter. Although an employee of a
    rehabilitation program testified that petitioner completed a twenty-eight day inpatient substance
    abuse treatment and began a step-down program, the DHHR presented evidence demonstrating
    that petitioner failed to maintain sobriety for any significant amount of time since the initiation
    of the proceedings. The DHHR and guardian recommended termination of petitioner’s parental
    rights in order for the children to achieve permanency. The circuit court affirmed the findings in
    the dispositional order after being thoroughly advised of the repercussions each dispositional
    alternative would have on the permanency of the children. The circuit court noted that petitioner
    should be allowed visitation with the children, pending her sobriety. The circuit court ultimately
    terminated petitioner’s parental rights in its December 4, 2017, order.2 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
    2
    The father’s parental rights were terminated below. According to the guardian and the
    DHHR, the permanency plan for the children is adoption by the maternal grandfather.
    2
    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 proceedings below.
    On appeal, petitioner argues that the circuit court erred in terminating her parental rights
    instead of employing a less-restrictive dispositional alternative. Petitioner specifically argues that
    she has made “significant progress” towards achieving sobriety and that she “should have been
    given a reasonable amount of time to see if she could complete treatment and maintain her
    sobriety.” We disagree. West Virginia Code § 49-4-604(b)(6) provides that circuit courts are 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. Further, West Virginia Code § 49-4-604(c)(1) provides that
    there is no reasonable likelihood that the conditions of neglect or abuse can be substantially
    corrected when “the abusing parent . . . [has] habitually abused or [is] addicted to . . . controlled
    substances or drugs, to the extent that proper parenting skills have been seriously impaired and
    the person . . . [has] not responded to or followed through the recommended and appropriate
    treatment.”
    Here, it is clear that there was no reasonable likelihood that petitioner could correct the
    conditions of abuse and neglect in the near future due to her continued substance abuse. While
    petitioner argues on appeal that she should have been given more time to complete treatment and
    maintain sobriety, in nearly two years since the initiation of the proceedings, petitioner failed to
    demonstrate her ability to remain sober or complete treatment. During the proceedings, petitioner
    failed to participate in services, was repeatedly incarcerated due to her drug use, overdosed on
    drugs, was expelled from a treatment facility for fighting, and had unsupervised contact with the
    children.
    Moreover, the circuit court noted at the dispositional hearing that the children were young
    and that it was in their best interests for permanency to be established, as the proceedings had
    been ongoing for nearly two years. We have held that
    “[c]ourts are not required to exhaust every speculative possibility of
    parental improvement . . . where it appears that the welfare of the child will be
    seriously threatened, and this is particularly applicable to children under the age
    of three years who are more susceptible to illness, need consistent close
    interaction with fully committed adults, and are likely to have their emotional and
    physical development retarded by numerous placements.” Syl. Pt. 1, in part, In re
    R.J.M., 164 W.Va. 496, 
    266 S.E.2d 114
    (1980).
    Cecil T., 228 W.Va. at 
    91, 717 S.E.2d at 875
    , Syl. Pt. 4.
    Finally, it was not error for the circuit court to employ a less-restrictive dispositional
    alternative because
    3
    “[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). As set forth above, there was
    no reasonable likelihood that petitioner could substantially correct the conditions of abuse and
    neglect in the near future. 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
    December 4, 2017, dispositional order is hereby affirmed.
    Affirmed.
    ISSUED: May 14, 2018
    CONCURRED IN BY:
    Chief Justice Margaret L. Workman
    Justice Robin Jean Davis
    Justice Menis E. Ketchum
    Justice Allen H. Loughry II
    Justice Elizabeth D. Walker
    4