In re W.K. ( 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 H.K., C.S., W.S., E.S., and W.K.
No. 21-0665 (Nicholas County 20-JA-144)
MEMORANDUM DECISION
Petitioner Mother C.K., by counsel Joe Mosko, appeals the Circuit Court of Nicholas
County’s July 20, 2021, order terminating her parental rights to W.K. 1 The West Virginia
Department of Health and Human Resources (“DHHR”), by counsel Patrick Morrisey and
Brittany N. Ryers-Hindbaugh, filed a response in support of the circuit court’s order. The
guardian ad litem, Susan Hill (“guardian”), 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 terminating
her parental rights to H.K., C.S., W.S., E.S., and W.K. rather than imposing a less-restrictive
dispositional alternative, such as a post-dispositional improvement period.
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 2020, the DHHR filed a child abuse and neglect petition alleging that
petitioner failed to maintain a safe and suitable home for her four older children, H.K., C.S.,
W.S., and E.S. The DHHR alleged that the Nicholas County Family Court ordered petitioner to
reside with the children’s grandfather until she could obtain an independent residence. Despite
this order, petitioner left the grandfather’s home with the children and “ha[d] been taking the
children from one house to another” for several days. The DHHR alleged that petitioner returned
to the grandfather’s home with the children and engaged in a violent altercation with him while
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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the children were present. Petitioner then left with the children and took up residence with an
individual with a Child Protective Services (“CPS”) history, which the DHHR alleged petitioner
knew or should have known. Petitioner waived her preliminary hearing.
The circuit court held an adjudicatory hearing in October of 2020, and petitioner
stipulated to the allegations in the petition. The circuit court accepted petitioner’s stipulation and
adjudicated her as an abusing parent. Thereafter, petitioner moved for a post-adjudicatory
improvement period, and the circuit court granted that motion. The court ordered that petitioner
participate in parenting and adult life skills classes, supervised visitation with the children, a
parental fitness evaluation, and random drug screening. The circuit court also ordered that
petitioner have no contact with W.B., the father of petitioner’s unborn child and a felon,
previously convicted of child abuse resulting in death. Petitioner agreed to all the terms and
conditions of her improvement period.
In November of 2020, the guardian filed a motion to revoke petitioner’s improvement
period. The guardian alleged that during their forensic interviews, the children stated that they
were around W.B. “often.” The children stated that petitioner directed them to refer to W.B. as
“Sam” in front of others, rather than his real name. The guardian also alleged that the visitation
provider discovered W.B. hiding in a bedroom during petitioner’s supervised visitation with the
children. The visitation provider immediately ended the visit and removed the children from the
home. The guardian asserted that petitioner failed her improvement period by allowing W.B. to
be around the children.
The circuit court held a hearing on the guardian’s motion to revoke petitioner’s
improvement period in December of 2020. The circuit court found that petitioner knowingly
associated with W.B., an individual convicted of killing a child, and permitted W.B. to have
contact with the children. The court also found that W.B. was in petitioner’s home during a
supervised visitation with the children and petitioner was “evasive” about his presence.
Additionally, the circuit court found that petitioner directed the children “to hide their contact
with” W.B. The circuit court found that W.B. was “currently charged criminally for violent acts
against” petitioner. The circuit court concluded that no amount of therapy or services would
remedy the poor judgment petitioner exercised by allowing a convicted murderer to be around
the children. Ultimately, the circuit court revoked petitioner’s improvement period.
In January of 2021, the DHHR amended the child abuse and neglect petition to include
newborn W.K. as an infant respondent and W.B. as an adult respondent. The DHHR alleged that
W.B. was convicted of child abuse resulting in death in 2006, after abusing his then one-month-
old daughter. The DHHR alleged that W.B.’s sentencing order set forth that the injuries to the
child “were horrible” and “occurred at the hands of [W.B.]” The DHHR also included allegations
regarding the revocation of petitioner’s improvement period, including that petitioner’s children
were aware that W.B. “was a murderer” and that the children were afraid of him.
After a series of continuances, the circuit court held an adjudicatory hearing on the
amended petition and a dispositional hearing for H.K., C.S., W.S., and E.S. A CPS worker
testified as to petitioner’s improvement period and its revocation due to her violation of its terms.
The CPS worker also testified that petitioner continued to have contact with W.B. since the
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termination of her improvement period. The CPS worker testified that W.B. attended W.K.’s
pediatric appointment with petitioner and acted “belligerent” toward the CPS worker. The CPS
worker also testified that one month prior to the dispositional hearing, petitioner and W.B. were
involved in a domestic altercation that was witnessed by a service provider. The CPS worker
further testified that petitioner tested positive for methamphetamine a total of thirteen times in
March, April, and May of 2021.
A law enforcement officer testified that he responded to a domestic violence situation in
May of 2021, involving petitioner and W.B. The officer stated that a service provider reported
the domestic violence and described petitioner being drug by the hair and bloodied. The witness
identified the perpetrator of the violence as W.B. The officer charged W.B. with domestic
battery. The officer later interviewed petitioner, who stated that she was tired of “being beat on
[and] tired of the drugs.”
At the time of the dispositional hearing, petitioner was participating in a twenty-eight-day
inpatient substance abuse treatment program. A counselor for that program testified that
petitioner had been involved in the program and was amenable to treatment for her substance
abuse and other issues “intrinsically tied to substance abuse.” The counselor testified that
petitioner had “expressed interest” in the ninety-day residential program after she completed the
twenty-eight-day program. One of petitioner’s service providers testified that she had been
working with petitioner since January of 2021, and petitioner had participated in nine sessions in
that five-month period. She testified that she believed petitioner could be successful in services
but that it was necessary for petitioner to treat her substance abuse issues. The provider
confirmed that petitioner had tested positive for controlled substances multiple times since
January of 2021.
Finally, petitioner testified that she met W.B. in 2018 and that their relationship was
violent. Petitioner admitted that she recanted past statements to law enforcement out of fear of
W.B. Petitioner also admitted that she had contact with W.B. during her improvement period and
after it had been terminated. She testified that she acquired controlled substances from W.B. and
had previously participated in a sober living program in 2018. Petitioner explained that her ex-
husband had custody of her children during that time. Petitioner testified that she was involved in
a family court proceeding prior to the abuse and neglect proceedings and did not have custody of
her children due to her substance abuse. Petitioner testified that she last used methamphetamine
and “MDMA” in May of 2021 and last used heroin in 2019. She testified that she was under the
influence of methamphetamine during her parental fitness evaluation. Petitioner agreed that her
controlled substance use negatively affected her ability to parent the children and that she did not
have a home for the children.
Ultimately, the circuit court found that petitioner had a serious drug addiction that
affected her ability to parent and that she was only recently addressing. The circuit court further
found that petitioner had a pattern of associating with individuals that put both her and her
children’s lives and wellbeing in jeopardy and a history of domestic violence that affected her
ability to parent the children. The circuit court found that petitioner failed to fully participate in a
reasonable family case plan, which had been designed to address these issues. The circuit court
also referenced petitioner’s parental fitness evaluation, which included an “extremely poor”
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prognosis for petitioner’s parental improvement and indicated that there were no services or
interventions available to correct petitioner’s parenting. The court concluded that there was no
reasonable likelihood that petitioner could substantially correct the conditions of abuse and
neglect in the near future and that termination of petitioner’s rights to H.K., C.S., W.S., and E.S.
was necessary for the children’s welfare. The circuit court also found clear and convincing
evidence that W.K. was an abused child and petitioner was an abusing parent. The circuit court
terminated petitioner’s rights to H.K., C.S., W.S., and E.S. and set a dispositional hearing for
W.K. in its June 10, 2021, order.
The circuit court held the final dispositional hearing regarding W.K. in July of 2021.
Petitioner testified that she completed the twenty-eight-day substance abuse treatment program.
Afterward, she started a new program, the “Anchor Project,” which, she explained, was a six-
week to two-year program. Petitioner testified that the current program included counseling and
treatment for battered women’s syndrome and post-traumatic stress disorder. Petitioner testified
that her plan included having a residence and employment at the end of the two-year program.
Petitioner admitted that while she maintained an independent apartment during her residential
treatment, the apartment did not have utilities and was not suitable for a child.
Petitioner’s parental fitness evaluator testified that petitioner was very hostile and
defensive during the evaluation, especially when discussing her relationship with W.B. The
evaluator testified that petitioner was “very upset” with her when the evaluator “criticized the
fact that [W.B.] had been found to have murdered a child.” Petitioner reportedly replied that she
had forgiven W.B. for the crime. The evaluator rendered an “extremely poor” diagnosis for
parental improvement based upon petitioner’s failure to accept responsibility for her actions, her
prior CPS history, her significant mental health issues, and her significant substance abuse
issues. The evaluator explained that this was “the worst” prognosis that could be issued.
Petitioner’s visitation supervisor testified regarding an incident when W.B. was found in
the home during a supervised visitation in November of 2020. She explained that she transported
petitioner to Wal-Mart to purchase items prior to the visit and that petitioner was nervous
regarding the scheduled visitation. Petitioner did not inform the visitation supervisor of W.B.’s
presence until the supervisor insisted on inspecting each room of petitioner’s then-newly-
acquired two-bedroom apartment. Petitioner stopped the supervisor from entering her bedroom
and informed her that “he” was in her room and he would not leave. The supervisor testified that
she asked petitioner to confirm that “he” was still in the room, and she did. The supervisor ended
the visit. Although the supervisor did not personally see W.B., she inferred that the “he”
petitioner referred to was W.B.
Finally, a CPS worker testified that petitioner provided him a different story regarding
W.B.’s presence during the supervised visitation. He testified that petitioner originally told him
that she did not know how W.B. entered her home prior to the visit. When the CPS worker
suggested that surveillance cameras in the area may show W.B. entering her apartment,
petitioner changed her statement. The CPS worker emphasized that petitioner had just moved
into the apartment and inferred that petitioner informed W.B. where she was living. The CPS
worker confirmed that petitioner was aware that W.B. was to have no contact with the children
as a term of her improvement period. The CPS worker also testified that W.B. was present for
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W.K.’s well child medical visit, which was a violation of the terms of petitioner’s improvement
period.
The circuit court ultimately found that there was no reasonable likelihood that petitioner
could substantially correct the conditions of neglect or abuse in the near future. It considered that
petitioner failed to comply with a reasonable family case plan and had not remedied the
conditions of neglect or abuse on her own. The circuit court noted that petitioner did not have
stable housing, had only recently begun addressing her substance abuse problem, and had a
history of domestic violence, which had not been remedied. The circuit court further found that it
was necessary for W.K.’s welfare to terminate petitioner’s parental rights. Accordingly, the
circuit court entered its July 20, 2021, order, terminating her parental, legal, physical, and
custodial rights to W.K. Petitioner now appeals that order. 2
The Court has previously held:
“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).
Before addressing the appropriateness of the circuit court’s termination of petitioner’s
parental rights to W.K., we must first address petitioner’s challenge to the circuit court’s
termination of her rights to four older children who are not at issue in this appeal because of
petitioner’s failure to timely appeal the June 10, 2021, order terminating her parental rights to
those children. Pursuant to Rule 11 of the West Virginia Rules of Appellate Procedure and Rule
49 of the West Virginia Rules of Procedure for Child Abuse and Neglect Proceedings, an appeal
of a final dispositional order of a child abuse and neglect proceeding must be perfected within
sixty days of the entry of that order. See In re S.L., 243 W. Va. 559, 848 S.E.2d 634 (2020)
(emphasizing the timeline set forth in Rule 11 and Rule 49 as a deadline that “serves to resolve
abuse and neglect matters in a timely fashion and provide permanency for the children at issue”).
2
W.K.’s father (W.B.) voluntarily relinquished his parental rights to the child. According
to the parties, the permanency plan for the child is adoption in his current relative placement.
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Therefore, the deadline to perfect an appeal of the circuit court’s June 10, 2021, order was
August 9, 2021. Petitioner did not meet this deadline, nor did she move for an extension of the
same. Accordingly, she has failed to timely appeal that order, and we will not consider her
arguments regarding those older children.
Having resolved this preliminary matter, we now turn to petitioner’s argument that the
circuit court erred in terminating her parental rights to W.K. rather than imposing a less-
restrictive dispositional alternative, such as a post-dispositional improvement period. According
to petitioner, termination was in error because she was participating in a substance abuse
treatment program, which also addressed domestic violence. She concedes that she had contact
with W.B. in violation of her improvement period and misled the DHHR in regard to that
contact. However, petitioner argues that she fully acknowledged the conditions of abuse and
neglect and was taking measurable steps to remedy them. Upon our review, 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 can be substantially corrected in the near future” and that termination is necessary for
the welfare of the children. West Virginia Code § 49-4-604(d)(3) provides that “there is no
reasonable likelihood that the conditions of neglect or abuse can be substantially corrected”
means that
[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, petitioner readily admits that she failed to follow through with a reasonable family
case plan. It is abundantly clear from the record that petitioner continued to associate with W.B.
and allowed her children to have contact with W.B., despite her knowledge that he was
previously convicted of a violent crime against his child. Petitioner’s continued contact with
W.B. violated the agreed upon terms of her improvement period. Further, even after petitioner’s
improvement period was revoked, the evidence shows that she continued to have contact with
W.B. Petitioner admitted during her dispositional testimony that she continued to abuse
methamphetamine until May of 2021 and that she acquired controlled substances from W.B.
While it is notable that petitioner sought substance abuse treatment after the revocation of
her post-adjudicatory improvement period, we share the circuit court’s concern that she had only
recently begun treatment. Petitioner testified that she had an extensive substance abuse history,
for which she had previously sought treatment in 2018. In June of 2021, petitioner testified that
she had not yet completed a twenty-eight-day treatment program, and the evidence showed that
she had expressed interest in additional treatment. In July of 2021, however, petitioner explained
that she had just begun a two-year program and was in the “lockdown” phase of the program,
revealing that she was under close supervision by the program’s staff. Petitioner testified that in
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two years, she expected to have employment and stable housing, but admitted she had neither at
the time of the dispositional hearing. 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. Considering W.K.’s young age and
petitioner’s history of failing to fully participate in remedial measures designed to reunify the
family during the proceedings, we agree with the circuit court that petitioner’s recent substance
abuse treatment was insufficient to support reunification. As such, her potential to remedy the
conditions of neglect and abuse was highly speculative. Therefore, we find no error in the circuit
court’s finding that there was no reasonable likelihood that petitioner could remedy the
conditions of neglect or abuse in the near future and that termination of petitioner’s parental
rights was necessary for the welfare of W.K.
To the extent that petitioner argues that a less-restrictive dispositional alternative than
termination of her parental rights was appropriate, 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). The circuit court’s finding that
there was no reasonable likelihood that the conditions of neglect or abuse could be substantially
corrected is fully supported by the record on appeal. Therefore, the circuit court acted within its
discretion in terminating petitioner’s parental rights, rather than imposing a less-restrictive
dispositional alternative, and we find no abuse of discretion in the circuit court’s ultimate
decision.
For the foregoing reasons, we find no error in the decision of the circuit court, and its
July 20, 2021, order is hereby affirmed.
Affirmed.
ISSUED: February 1, 2022
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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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