In re T.L. ( 2021 )

FILED
STATE OF WEST VIRGINIA
SUPREME COURT OF APPEALS April 20, 2021
EDYTHE NASH GAISER, CLERK
SUPREME COURT OF APPEALS
OF WEST VIRGINIA
In re T.L.
No. 20-0911 (Monongalia County 19-JA-141)
MEMORANDUM DECISION
Petitioner Mother K.L., by counsel Kristen D. Antolini, appeals the Circuit Court of
Monongalia County’s October 15, 2020, order terminating her parental rights to T.L. 1 The West
Virginia Department of Health and Human Resources (“DHHR”), by counsel Lee A. Niezgoda,
filed a response in support of the circuit court’s order. The guardian ad litem, Stephanie Nethken,
filed a response on the child’s behalf in support of the circuit court’s order. On appeal, petitioner
argues that the circuit court erred in failing to hold an evidentiary hearing prior to the termination
of her parental rights and in finding that there was no reasonable likelihood that she could correct
the conditions of abuse and neglect in the near future.
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 2019, the DHHR filed a child abuse and neglect petition alleging that
petitioner’s substance abuse negatively affected her ability to parent three-month-old T.L. The
DHHR alleged that it received a child abuse and neglect referral after T.L.’s birth in May of 2019
and confirmed that petitioner had limited prenatal care while pregnant with T.L. and had tested
positive for heroin, morphine, and tetrahydrocannabinol (“THC”) during her pregnancy. The
DHHR alleged that petitioner was prescribed Suboxone, and, upon delivery of T.L., she tested
positive only for her prescribed Suboxone. T.L.’s meconium was tested and was only positive for
THC. The DHHR alleged that petitioner agreed to an in-home safety plan to help her maintain
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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sobriety, which included random drug screening and services provided by the DHHR. The DHHR
removed T.L. from petitioner’s care in August of 2019, after she missed several drug screening
appointments, tested positive for fentanyl in late July of 2019, and, during an in-person contact
with a DHHR worker, admitted to relapsing on heroin. Petitioner waived her preliminary hearing.
A DHHR court summary, which was prepared for the preliminary hearing date, stated that
petitioner had been referred to parenting and adult life skills classes and supervised visitation with
the child.
The circuit court held an adjudicatory hearing in October of 2019. Petitioner did not appear
but was represented by counsel. Upon counsel’s representation that petitioner was absent because
she was participating in a detoxification program, the circuit court continued the hearing.
In November of 2019, the circuit court reconvened for the adjudicatory hearing. A DHHR
summary prepared and filed for this hearing stated that “[i]t [was] not believed that [petitioner]
was in treatment [at the time of the October of 2019 hearing] as she [sent text messages to the
child’s caretaker] and attended a visit [with the child] on [T]hursday the week of the hearing.” The
DHHR also reported that petitioner’s parenting and adult life skills classes were “closed” in
October of 2019 due to petitioner’s noncompliance. Likewise, petitioner’s supervised visitation
provider “closed” services for petitioner due to several cancelled visits, and petitioner’s random
drug screening referral was also ceased due to petitioner’s inactivity. The report noted that
petitioner had not complied with drug screening since September of 2019, at which time she tested
positive for fentanyl, buprenorphine, cocaine, codeine, and morphine. Petitioner did not appear for
the adjudicatory hearing but was represented by counsel. During the hearing, petitioner’s counsel
proffered that petitioner was absent due to a substance abuse treatment appointment. Thereafter,
the circuit court heard testimony regarding petitioner’s substance abuse and, ultimately,
adjudicated her as an abusing parent. Petitioner made an oral motion for a post-adjudicatory
improvement period, which the circuit court held in abeyance “to allow [petitioner] more time to
get into treatment for substance abuse.”
The circuit court held an initial dispositional hearing in December of 2019. Petitioner did
not appear but was represented by counsel. Upon counsel’s representation that petitioner had
entered into substance abuse treatment, the circuit court granted petitioner’s motion for a post-
adjudicatory improvement period. The circuit court set forth the following terms: petitioner must
attend and fully participate in all multidisciplinary team (“MDT’) meetings and follow the
recommendations set forth therein; she must participate in random drug screenings; and she must
participate in parenting and adult life skills classes, as well as any other recommended services.
In July of 2020, the circuit court held a review hearing, which had been originally
scheduled and continued in March of 2020. 2 Petitioner did not appear for the review hearing but
was represented by counsel. Petitioner’s counsel proffered that petitioner was aware of the hearing.
Further, counsel proffered that petitioner completed a twenty-eight-day substance abuse program
in April of 2020 “but failed to follow up with long-term treatment.” Per a DHHR court report,
petitioner participated in a MDT meeting in May of 2020, wherein she requested an additional
2
This case suffered a substantial procedural delay directly related to the COVID-19
pandemic and resulting judicial emergency.
2
referral to restart parenting and adult life skills classes. Petitioner represented to the MDT that she
had participated in a twenty-eight-day substance abuse program and had been searching for a sober
living home. 3 The DHHR reported that petitioner did not appear for a MDT meeting in June of
2020. Further, the DHHR stated that it contacted petitioner in July of 2020 to provide her an
appointment to obtain a “drug screen patch.” Although petitioner agreed to attend the appointment,
the DHHR reported that she “sounded under the influence” and “slurred her words” during the
phone conversation. It was later discovered that petitioner did not attend this appointment.
Ultimately, the circuit court set the matter for final disposition. Afterwards, petitioner filed a
motion for a post-dispositional improvement period.
The circuit court held the final dispositional hearing in September of 2020. Petitioner did
not appear but was represented by counsel. Petitioner’s counsel proffered that petitioner was aware
of the hearing and had planned to attend. However, minutes before the hearing began, counsel
received a message from petitioner indicating that she had entered into a substance abuse treatment
program and would not be present for the hearing. The DHHR submitted a report, which was
admitted, that stated that petitioner’s services had been closed for noncompliance. Petitioner had
not submitted to a drug screen since September of 2019, at which time she was positive for multiple
substances. The DHHR noted petitioner’s assertion that she completed a twenty-eight-day
substance abuse program in April of 2020, but reported that petitioner had not provided any
confirmation that she had finished the program. The DHHR also reported that petitioner failed to
participate in any outpatient programs or other addiction management services since her alleged
completion of treatment. Petitioner’s counsel confirmed that the DHHR had discussed the drug
screening “patch several times [with petitioner,] and she has not gotten the patch.” The DHHR
recommended termination of petitioner’s parental rights due to her nonparticipation in services
and continued substance abuse. During the hearing, the DHHR moved the circuit court to take
judicial notice of the prior evidence presented in the case. It argued that due to petitioner’s failure
to participate in random drug screening, the DHHR assumed that she continued to abuse controlled
substances.
Ultimately, the circuit court denied petitioner’s motion for a post-dispositional
improvement period. Further, the circuit court found that petitioner had failed to remedy the
conditions that gave rise to the child abuse and neglect petition and that there was no reasonable
likelihood that she could substantially correct the conditions of abuse and neglect in the near future.
The circuit court found that it was in T.L.’s best interests to terminate petitioner’s parental rights
and so ordered by its October 15, 2020, order. Petitioner now appeals this order. 4
This Court has previously held:
3
We note that petitioner disclosed two exhibits to the parties, which she has included in the
appendix. However, there is no indication that these exhibits were admitted into evidence before
the lower court and, therefore, they are not appropriate for consideration on appeal.
4
The father’s parental rights were also terminated below. According to the parties, the
permanency plan for T.L. is adoption by a relative.
3
“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 clearly erred in failing to hold an
evidentiary hearing prior to terminating her parental rights. She states that, at the final dispositional
hearing, the DHHR did not present any witness testimony. Rather, it asked the circuit court to take
judicial notice of all prior evidence and proffered a summary of that evidence. Petitioner
emphasizes that the circuit court had taken no testimony since the November of 2019 adjudicatory
hearing. In petitioner’s view, the lack of testimony at the final dispositional hearing equates to the
circuit court’s failure to conduct an evidentiary hearing and a ruling based simply upon the proffer
of the adjudicatory hearing testimony alone. Petitioner further argues that the proffer alone could
not support the termination of petitioner’s parental rights by clear and convincing evidence.
Petitioner believes that, in order to meet its burden of proof, the DHHR was required, at a
minimum, to present the testimony of a department worker. We find no merit to this argument.
Rule 35 of the West Virginia Rules of Procedure for Child Abuse and Neglect Proceedings
requires that “[w]hen termination of parental rights is sought and resisted, the court shall hold an
evidentiary hearing on the issues thus made, including the issues specified by statute and make
such findings with respect thereto as the evidence shall justify.” We reiterated this requirement in
syllabus point two of In re Beth Ann B. 204 W. Va. 424, 513 S.E.2d 472 (1998). 5 In that case, we
noted that the “‘party or parties having custodial or other parental rights or responsibilities to the
child’ are entitled, pursuant to [West Virginia Code § 49-4-601(h)] to ‘a meaningful opportunity
to be heard, including the opportunity to testify and to present and cross-examine witnesses.’” Id.
at 428, 513 S.E.2d at 476. That requirement is echoed in West Virginia Code § 49-4-604(a)(2),
which provides that “[t]he court shall forthwith proceed to disposition giving both petitioner and
respondents an opportunity to be heard.” (emphasis added).
In petitioner’s case, we find the circuit court did not clearly err in its procedure. Critically,
the court convened for a dispositional hearing, petitioner was represented by counsel, and she had
5
“In a child abuse and/or neglect proceeding . . . a circuit court must hold a disposition
hearing, in which the specific inquiries enumerated in Rules 33 and 35 of the Rules of Procedure
for Child Abuse and Neglect Proceedings are made, prior to terminating an individual’s parental
rights.” Syl. Pt. 2, In re Beth Ann B. 204 W. Va. 424, 513 S.E.2d 472 (1998).
4
an opportunity to be heard. On appeal, petitioner is not arguing that she was denied her opportunity
to present evidence or cross-examine witnesses, and the record would not bear out such an
assertion. Rather, petitioner asserts that the circuit court was required to take testimony at this
hearing, notably without any authority to support such a requirement. Petitioner has seemingly
ignored the substantial evidence that the DHHR submitted through its court summaries. As noted,
a summary was prepared in advance of every hearing, and the circuit court’s orders note that these
summaries were admitted into the record without objection. As more fully explained below, that
evidence, combined with the evidence taken at the adjudicatory hearing that established petitioner
was an abusing parent, proved, clearly and convincingly, that there was no reasonable likelihood
that petitioner could correct the conditions of neglect or abuse in the near future. Petitioner had an
opportunity to rebut this evidence or present any evidence that she remedied the conditions of
abuse and neglect or otherwise complied with services, but she failed to do so. Accordingly, we
find the lack of testimonial evidence presented at the dispositional hearing inconsequential given
the substantial evidence admitted through the DHHR court summaries. The circuit court held a
properly noticed dispositional hearing, and petitioner had a full opportunity to be heard. Therefore,
we find no error.
Petitioner’s argument that the circuit court erred in terminating her parental rights relies
heavily on her alleged error that the circuit court failed to conduct a dispositional hearing. She
argues that, had an evidentiary hearing been held, the circuit court would have learned of the steps
that she had undertaken to rectify the conditions of abuse and neglect. We find no merit to this
argument.
West Virginia Code § 49-4-604(c)(6) provides that 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 can be substantially corrected in the near future” and that termination of parental rights is
necessary for the welfare of the child. Pursuant to West Virginia Code § 49-4-604(d)(3), a circuit
court may determine that there is no reasonable likelihood that the conditions of neglect or abuse
can 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.
Here, the circuit court’s finding that there was no reasonable likelihood that petitioner
could substantially correct the conditions of abuse and neglect is supported by the record. A
multitude of DHHR court summaries, which were admitted as evidence without objection, detailed
petitioner’s decline in compliance with services throughout the improvement period and thereafter.
Notably, prior to the petition’s filing and the circuit court granting petitioner an improvement
period, she had been afforded services that were later incorporated as terms of her improvement
period. However, for each term, petitioner failed to comply, and those services were discontinued.
This was true for petitioner’s parenting and adult life skills classes, random drug screenings, and
supervised visitation services. To petitioner’s credit, and as she emphasizes on appeal, the DHHR
recognized and reported that she completed a twenty-eight-day substance abuse treatment in April
5
of 2020. Yet, petitioner “failed to follow up with long-term treatment” and also failed to resume
random drug screenings. Per the reports and petitioner’s own counsel, petitioner was offered the
drug screening “patch” “several times,” but she did not follow through. Just as concerning, the
DHHR reported that petitioner appeared “under the influence” and “slurred her words” in June of
2020, after her substance abuse treatment. Contrary to petitioner’s argument on appeal, the circuit
court was well informed as to petitioner’s progress by the DHHR’s consistent court summaries.
The circuit court’s finding that there was no reasonable likelihood that petitioner could remedy the
conditions of abuse and neglect is based upon petitioner’s lack of progress and her failure to follow
through with a reasonable family case plan. Upon our review, we find no error in that finding.
To the extent that petitioner argues that the circuit court should have granted her additional
time to improve, such as a post-dispositional improvement period, we have held that the
“[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 upon the foregoing
finding, the circuit court was within its discretion to terminate petitioner’s parental rights rather
than imposing a less-restrictive dispositional alternative, such as the post-dispositional
improvement period that she suggests on appeal. We find no error in the circuit court’s exercise of
that discretion.
For the foregoing reasons, we find no error in the decision of the circuit court, and its
October 15, 2020, order is hereby affirmed.
Affirmed.
ISSUED: April 20, 2021
CONCURRED IN BY:
Chief Justice Evan H. Jenkins
Justice Elizabeth D. Walker
Justice Tim Armstead
Justice John A. Hutchison
Justice William R. Wooton
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