In Re: P.F., C.F., L.F., and J.F.-1 ( 2017 )

STATE OF WEST VIRGINIA
SUPREME COURT OF APPEALS FILED
December 1, 2017
EDYTHE NASH GAISER, CLERK
SUPREME COURT OF APPEALS
In re: P.F., C.F., L.F., and J.F.-1
OF WEST VIRGINIA
No. 17-0651 (Randolph County 16-JA-051, 16-JA-052, 16-JA-053, & 16-JA-054)
MEMORANDUM DECISION
Petitioner Mother, J.F.-2, by counsel Jeremy B. Cooper, appeals the Circuit Court of
Randolph County’s April 10, 2017, order terminating her parental rights to P.F., C.F., L.F., and
J.F.-11 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”), Heather M. Weese, 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.
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 June of 2016, the DHHR filed an abuse and neglect petition against petitioner alleging
that her home had no working utilities, little food, and, due to non-payment of rent, the landlord
sought to evict petitioner. The DHHR also alleged that petitioner locked the refrigerator to
prevent the children from “wasting” food. Further, the DHHR alleged that the children reported
observing petitioner and their father snort pills and smoke methamphetamine. The DHHR
alleged that drug use affected petitioner’s ability to maintain employment and supervise and
parent her children. Petitioner waived her preliminary hearing and the circuit court ordered that
she attend supervised visits with the children.
In July of 2016, the DHHR filed an amended petition alleging petitioner’s failure to
follow through with medical treatment for C.F. at the WVU Eye Institute, and failure to ensure
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 one child and petitioner share the
same initials, we will refer to them as J.F.-1 and J.F.-2, respectively, throughout this
memorandum decision.
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that C.F. and P.F. wore their corrective lenses as directed. According to the DHHR, medical
records indicated that C.F. and P.F. were seen at the WVU Eye Institute in 2014 and were given
instructions to wear corrective lenses at all times when they were awake. The instructions also
directed the family to return for a follow up appointment for C.F. in six months, but that
appointment was not kept. Also in July of 2016, the circuit court held an adjudicatory hearing
wherein petitioner filed a motion for a post-adjudicatory improvement period. Petitioner
stipulated that she “took various controlled substances rendering her less able to care for the
children.” Petitioner was adjudicated as an abusing parent and the circuit court granted her
motion for a post-adjudicatory improvement period.
In September of 2016, the circuit court held a review hearing wherein the guardian
expressed concerns that petitioner and the father of the children had not secured stable housing
for the family. Nevertheless, the circuit court found that petitioner had been participating in her
improvement period and ordered the improvement period to continue. In November of 2016, the
circuit court held a review hearing to evaluate petitioner’s post-adjudicatory improvement
period. The DHHR expressed concerns involving petitioner’s lack of contact with the DHHR,
which had prevented it from directing petitioner to submit to random drug screens. However, the
circuit court found that petitioner had made “some progress” during the post-adjudicatory
improvement period and extended her improvement period for an additional ninety days.
In January of 2017, the circuit court held a review hearing. A Child Protective Services
(“CPS”) worker advised the circuit court that it had ceased supervised visits and parenting
classes due to petitioner’s non-compliance and that petitioner had a positive drug screen in
December of 2016. In February of 2017, the circuit court held a review hearing regarding
petitioner’s post-adjudicatory improvement period. The DHHR presented testimony that
petitioner complied with some terms and conditions of her improvement period, such as
obtaining housing, but did not comply with several other terms. The circuit court found that
petitioner failed to comply with visitation, parenting and adult life skills training, and abstaining
from drug use and, therefore, failed to successfully complete her post-adjudicatory improvement
period.
On March 27, 2017, the circuit court held a dispositional hearing at which petitioner
moved for a post-dispositional improvement period. Prior to the dispositional hearing, the DHHR
filed its motion to terminate petitioner’s parental rights. During the hearing, petitioner testified
that she would be willing to comply with the terms and conditions of an additional improvement
period, but also admitted to using drugs multiple times after the February 22, 2017, hearing and
as recently as seventeen days prior to disposition. The circuit court denied petitioner’s motion for
a post-dispositional improvement period and found no reasonable likelihood that petitioner could
substantially correct the conditions of abuse and neglect in the near future. The circuit court
found that termination of petitioner’s parental rights was consistent with the best interests of the
children. Ultimately, the circuit court terminated petitioner’s parental rights to the children in its
April 10, 2017, order.2 It is from the dispositional order that petitioner appeals.
2
In addition to termination of petitioner’s parental rights, the circuit court also terminated
the father’s parental rights to the children. According to the guardian and the DHHR, the
children are placed in the custody of the paternal uncle with a goal of adoption in that home.
2
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 proceedings below.
In her sole assignment of error, petitioner argues that the circuit court erred in terminating
her parental rights instead of granting her a post-dispositional improvement period. In support of
her argument, petitioner asserts that the circuit court was required to give preference to other,
less-restrictive dispositions prior to ordering involuntary termination. Petitioner also argues that
she and her husband, the children’s father, intended to end their marriage, which was a
significant change in circumstances to warrant a post-dispositional improvement period. We
disagree.
In order to obtain a post-dispositional improvement period when another improvement
period was previously granted, West Virginia Code § 49-4-610(3)(D) requires a parent to
“demonstrate[] that since the initial improvement period, the [parent] has experienced a
substantial change in circumstances.” Further, the statute requires that the parent “shall
demonstrate that due to that change in circumstances, the [parent] is likely to fully participate in
the improvement period[.]” Id.
Here, petitioner argues that she has had a substantial change in circumstances because she
intended to separate from her husband. Although petitioner asserts that “the parents’ struggles
were a result of negative patterns that had emerged during the relationship,” she presented no
evidence to show that she had taken any action to separate from her husband, or how any such
separation, would cause her to be likely to fully participate in a post-dispositional improvement
period. Petitioner’s post-adjudicatory improvement period was terminated for failure to comply
with its terms and conditions. During her post-adjudicatory improvement period, petitioner failed
to attend visits with the children, failed to attending parenting classes and adult skills training,
failed to comply with consistent drug screens, and failed drug screens multiple times throughout
the proceedings. Based on this evidence, petitioner did not demonstrate that due to a change in
circumstances, she would be likely to fully participate in a post-dispositional improvement
period; therefore, the circuit court did not err in denying petitioner’s motion.
3
Further, 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. 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[.]”
Here, it is clear that there was no reasonable likelihood that petitioner could have
substantially corrected the conditions of abuse or neglect in the near future. As discussed above,
petitioner failed to comply with services, including parenting classes and consistent drug screens.
Additionally, petitioner tested positive for drugs during the proceedings and did not seek any
drug treatment or counseling. Moreover, the circuit court also found that termination was
necessary for the child’s welfare. As previously stated, pursuant to West Virginia Code § 49-4­
604(b)(6), circuit courts are directed to terminate parental rights upon these findings.
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). 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
April 10, 2017, order is hereby affirmed.
Affirmed.
ISSUED: December 1, 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
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