In re F.A. and D.A. ( 2022 )

FILED
February 1, 2022
EDYTHE NASH GAISER, CLERK
STATE OF WEST VIRGINIA SUPREME COURT OF APPEALS
SUPREME COURT OF APPEALS OF WEST VIRGINIA
In re R.A. and D.A.
No. 21-0633 (Hampshire County 20-JA-85 and 20-JA-86)
MEMORANDUM DECISION
Petitioner Mother A.B., by counsel Lauren M. Wilson, appeals the Circuit Court of
Hampshire County’s April 9, 2021, order terminating her parental rights to R.A. and D.A. 1 The
West Virginia Department of Health and Human Resources (“DHHR”), by counsel Patrick
Morrisey and Lee Niezgoda, filed a response in support of the circuit court’s order. The guardian
ad litem, Joyce E. Stewart, filed a response on behalf of the children also in support of the circuit
court’s order. On appeal, petitioner argues that the circuit court erred in terminating her
improvement period and her parental rights instead of employing a less-restrictive alternative
disposition.
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 September of 2020, the DHHR filed a child abuse and neglect petition against petitioner
and the father alleging that, at the time of D.A.’s birth, petitioner tested positive for fentanyl,
amphetamines, and benzodiazepines, and the hospital reported concerns that petitioner was
actively using drugs during her hospital stay. The DHHR alleged that the child tested positive for
fentanyl, amphetamines, and benzodiazepines and was given morphine and clonidine to help with
opiate withdrawal. The DHHR further alleged that a Child Protective Services (“CPS”) worker
conducted a home visit and that petitioner and the father reported attending a medically-assisted
treatment program but denied abusing drugs.
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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Later that month, the circuit court held a preliminary hearing wherein petitioner waived
her right to contest the evidence. Petitioner admitted that if she were to submit to a drug screen,
she would test positive for methamphetamine, fentanyl, and prescribed buprenorphine. The circuit
court granted petitioner and the father visits with the children contingent upon clean drug screens.
In October of 2020, the circuit court held an adjudicatory hearing wherein petitioner
stipulated to the allegations of abuse contained in the petition. Specifically, petitioner stipulated to
pervasive drug use which “had a negative impact on the children.” The circuit court accepted
petitioner’s stipulation, adjudicated her as an abusing parent, and granted her a post-adjudicatory
improvement period.
The circuit court held a status hearing in January of 2021. A CPS worker testified that
petitioner relapsed on methamphetamine and fentanyl in December of 2020 and that visits with
the children were suspended as a result. The circuit court admonished petitioner and ordered that
visits could resume if petitioner submitted negative drug screens for two consecutive weeks.
Subsequently, the DHHR filed a motion to terminate petitioner’s improvement period due to her
continued drug use, and the circuit court held a hearing on the motion in February of 2021. A
service provider testified that petitioner tested positive for methamphetamine and fentanyl in
December of 2020. Further, petitioner tested positive for drugs at least one time in January of 2021
and failed to submit to screens on other occasions. A CPS worker testified that petitioner failed to
maintain employment throughout the proceedings, continued to test positive for drugs, and
concealed her drug dealer’s identity.
Following the presentation of evidence, the circuit court found that petitioner failed to fully
participate in her improvement period and was “absolutely unmotivated to do anything in this
case.” The circuit court found that petitioner failed to avail herself of the services offered by the
DHHR and continued to test positive for drugs. The circuit court terminated petitioner’s
improvement period and set the matter for disposition; however, the circuit court ordered that all
services and drug testing remain in place through the dispositional hearing.
On March 29, 2021, the circuit court held a dispositional hearing and took judicial notice
of the testimony presented at prior hearings. Petitioner failed to appear at the hearing but was
represented by counsel. A service provider testified that, since the last hearing, petitioner continued
to test positive for drugs, including fentanyl, methamphetamine, and a cocaine metabolite at
screens in February of 2021. Additionally, earlier in March of 2021, petitioner’s drug screen was
positive for morphine, fentanyl, and a cocaine metabolite. However, petitioner ceased submitting
to screens after March 9, 2021.
A CPS worker testified that the DHHR recommended termination of petitioner’s parental
rights. The CPS worker expressed that there were significant safety concerns with the amount and
type of drugs petitioner continued to use and noted that she failed to avail herself of services. The
CPS worker admitted that petitioner had attended a detoxification program but stated that she
continued to test positive for drugs following her completion of the program. The CPS worker
further stated that, due to petitioner’s continued drug use, her visits with the children were
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suspended. Although petitioner attended some parenting and adult life skills classes, she was not
receptive to the content being taught and did not finish the program.
At the close of the hearing, the circuit court found that “really the only consistency in this
case by the parents has been that they continue to test positive through basically to date [for] such
substances as fentanyl, cocaine, heroin, and meth[amphetamine], among other things.” The circuit
court found that petitioner was playing a “deadly game” and had abandoned the case, given her
failure to appear at the hearing or maintain contact with her counsel. The circuit court found that
petitioner’s drug use was so severe that it precluded her from participating in the proceedings or
availing herself of services. The circuit court noted that, while petitioner attended parenting and
adult life skills classes, it had “absolutely no positive effect” on her. Ultimately, the circuit court
terminated petitioner’s parental rights upon finding that there was no reasonable likelihood that
petitioner could correct the conditions of abuse and neglect in the near future and that termination
was necessary for the children’s welfare. Petitioner appeals the circuit court’s April 9, 2021,
dispositional order. 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 improvement
period and in terminating her parental rights without considering a less-restrictive alternative
disposition. According to petitioner, she was fully participating in services, obtained employment,
attended visits with the children, and submitted negative drug screens for a significant portion of
the proceedings. She admits that she relapsed on drugs in December of 2020 and that she briefly
complied with services thereafter, but that subsequently “the wheels seemed to fall off.” Petitioner
contends that drug addiction recovery is not simply “an arrow pointed straight up” and that by
prematurely terminating her improvement period the court deprived her of services that would
have assisted her in attaining sobriety. Petitioner argues that she demonstrated the ability to refrain
from abusing drugs and that, instead of terminating her parental rights, the circuit court could have
2
The father’s parental rights to the children were also terminated below. The permanency
plan for those children is adoption by a family member.
3
referred the children and the family to a community agency for needed assistance and dismissed
the petition under West Virginia Code § 49-4-604(c)(2) or could have returned the children to her
home under supervision pursuant to West Virginia Code § 49-4-604(c)(3). Alternatively, petitioner
contends that a guardianship would have been an appropriate alternative given that the children
were placed with a relative.
Pursuant to West Virginia Code § 49-4-610(7), “[u]pon the motion by any party, the court
shall terminate any improvement period granted pursuant to this section when the court finds that
[the parent] has failed to fully participate in the terms of the improvement period.” Additionally,
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).
Here, the record overwhelmingly supports the circuit court’s findings related to petitioner’s
failure to fully participate in her improvement period and her ultimate failure to successfully
complete the same. Petitioner failed to fully comply with any aspect of her improvement period.
She continued to test positive for drugs even after the circuit court warned her that her continued
drug use would result in the termination of her improvement period. Importantly, petitioner’s drug
use resulted in her inability to visit with the children. This Court has “previously pointed out that
the level of interest demonstrated by a parent in visiting his or her children while they are out of
the parent’s custody is a significant factor in determining the parent’s potential to improve
sufficiently and achieve minimum standards to parent the child.” In re Katie S., 198 W. Va. 79, 90
n.14, 479 S.E.2d 589, 600 n.14 (1996) (citations omitted). Further, petitioner failed to maintain
consistent employment and failed to meaningfully participate in parenting and adult life skills
classes. Accordingly, we find no error in the circuit court’s termination of petitioner’s
improvement period as it is clear that she failed to fully comply with the terms and conditions of
the same.
The evidence, as set forth above, likewise supports the circuit court’s decision to terminate
petitioner’s parental rights. West Virginia Code § 49-4-604(c)(6) provides that circuit courts are
to terminate 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 is
necessary for the children’s welfare. West Virginia Code § 49-4-604(d) provides that a circuit
court may find that there is no reasonable likelihood that the conditions of abuse and neglect can
be substantially corrected when the abusing parent has “demonstrated an inadequate capacity to
solve the problems of abuse or neglect on [his or her] own or with help.”
The record establishes that petitioner demonstrated an inadequate capacity to solve the
problems of abuse or neglect on her own or with help. As noted above, petitioner was provided an
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improvement period with services, including parenting and adult life skills classes and a drug
rehabilitation program. However, petitioner failed to meaningfully comply with services, she
continued to test positive for a variety of extremely dangerous drugs, she failed to appear at her
dispositional hearing, and she failed to maintain contact with her counsel. Contrary to petitioner’s
argument that a less-restrictive alternative to the termination of her parental rights should have
been considered, the facts are sufficient to support the circuit court’s determination that there was
no reasonable likelihood that petitioner could correct the conditions of abuse and neglect in the
near future.
To the extent petitioner argues that she should have been given more time to comply with
services, we have previously 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.” Cecil T., 228 W. Va. at 91, 717 S.E.2d at 875, Syl. Pt. 4, in part (citation
omitted). Further, 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 foregoing, it is
clear that petitioner was unable to resolve the problems of abuse or neglect on her own or with the
assistance of the DHHR and its service providers. Accordingly, we find no error in the termination
of petitioner’s parental rights.
For the foregoing reasons, we find no error in the decision of the circuit court, and its April
9, 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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