In Re: D.P., B.P.-1, S.C. and M.C. ( 2017 )

STATE OF WEST VIRGINIA
SUPREME COURT OF APPEALS FILED
September 5, 2017
RORY L. PERRY II, CLERK
In re: D.P., B.P.-1, S.C., and M.C. SUPREME COURT OF APPEALS
OF WEST VIRGINIA
No. 17-0145 (Cabell County 15-JA-236, 15-JA-237, 15-JA-238, & 15-JA-252)
MEMORANDUM DECISION
Petitioner Mother M.T., by counsel Michael A. Meadows, appeals the Circuit Court of
Cabell County’s January 17, 2017, order terminating her parental, custodial, and guardianship
rights to D.P., B.P.-1, S.C., and M.C.1 The West Virginia Department of Health and Human
Resources (“DHHR”), by counsel S.L. Evans, filed a response in support of the circuit court’s
order. The guardian ad litem (“guardian”), Steven M. Kresch, 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 finding no reasonable likelihood that she could correct the conditions of abuse and
neglect in the near future, in terminating her parental, custodial, and guardianship rights based on
its finding that she failed to substantially comply with the terms and conditions of the
improvement period, and in terminating her parental, custodial, and guardianship rights based on
its finding that she did not correct the conditions of abuse and neglect that led to the filing of the
petition.
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 April of 2015, Child Protective Services (“CPS”) received a referral which alleged that
petitioner overdosed in nine-year-old M.C.’s presence. CPS investigated and directed petitioner
to submit to drug screens and participate in services to remedy the issue. For several months,
beginning in April of 2015, petitioner received services from the DHHR.
In August of 2015, petitioner advised a provider that she was having substance abuse
issues with cocaine and heroin and wanted help. In response, CPS took emergency custody of the
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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children, and the DHHR filed an abuse and neglect petition in September of 2015. Petitioner
waived her preliminary hearing.
The circuit court held an adjudicatory hearing in November of 2015 at which petitioner
stipulated that she had a substance abuse problem which impaired her ability to properly care for
the children. Petitioner was adjudicated as an abusing parent and received a six-month post­
adjudicatory improvement period. In December of 2015, petitioner entered the Genesis Program
for Women (“Genesis”), a long-term drug rehabilitation program in Parkersburg, West Virginia.
In February of 2016, the circuit court held a review hearing and found that petitioner was
making adequate progress with classes and visitation with the children at the Genesis program
during her improvement period.
In May of 2016, the circuit court granted petitioner a three-month extension to her post­
adjudicatory improvement period. In June of 2016, the circuit court granted petitioner
unsupervised weekend visitation pursuant to the guardian’s motion for such. However, the
unsupervised weekend visitation was stopped after July 2, 2016, due to restrictions on
petitioner’s ability to have all four children at Genesis, and due to the allegations that petitioner
struck M.C. in the face and spanked B.P-1 during visits.
In August of 2016, the guardian moved to terminate the petitioner’s parental rights based
on her failure to adhere to and complete the requirements of her improvement period, namely
that petitioner left Genesis against medical advice. The guardian further alleged petitioner
committed violent acts upon the children during visits, failed to complete a formal domestic
violence intervention program, lacked stable and adequate housing, and failed to learn
appropriate and safe parenting methods.
In September and October of 2016, the circuit court held dispositional hearings upon the
guardian’s motion to terminate petitioner’s parental rights. At disposition, petitioner moved for a
post-dispositional improvement period. The circuit court found that petitioner failed to complete
her inpatient substance abuse treatment program at Genesis and left the program against medical
advice. Further, the circuit court found that petitioner failed to learn appropriate and safe
parenting and failed to follow a reasonable family case plan. The circuit court also found that
petitioner failed to comply with the requirements of her improvement period and that there was
no reasonable likelihood that the conditions which led to the removal of the children could
adequately and substantially be corrected in the near future without causing further psychological
harm to the subject children and delaying permanency. Ultimately, the circuit court denied
petitioner’s motion for a post-dispositional improvement period and terminated her parental,
custodial, and guardianship rights in its January 17, 2017, order.2 It is from the dispositional
order that petitioner appeals.
2
Petitioner’s parental, custodial, and guardianship rights to all four children were
terminated below. According to the guardian, an unknown putative father’s parental rights to
M.C. were terminated below, and the status of the putative father A.D.’s paternity and parental
rights to M.C. is unknown. S.C. and M.C. remain in the home of their maternal grandparents
(continued . . .)
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 findings below.
On appeal, petitioner argues that the circuit court erred in terminating her parental,
custodial, and guardianship rights upon erroneous findings. First, petitioner argues that the
circuit court erred in finding there was no reasonable likelihood that she could correct the
conditions of abuse and neglect in the near future. We do not agree. West Virginia Code § 49-4­
604(c)(3) provides that “no reasonable likelihood that conditions of neglect or abuse 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 . . . .”
Petitioner asserts that by substantially completing her drug rehabilitation program at
Genesis, she demonstrated significant progress during her improvement period and, therefore,
could correct the conditions of abuse and neglect in the near future. Conversely, the record on
appeal shows that petitioner actually failed to progress in the program, which caused her to fail
to complete the program by June or July of 2016 as expected. In fact, she ultimately failed to
complete her inpatient substance abuse program at Genesis and left the program against medical
advice. Petitioner told the personnel at the program that she had permission from her DHHR
worker to leave, which the DHHR worker denied. Petitioner also failed to complete a formal
domestic violence intervention program, which was a requirement of her improvement period.
Also, although petitioner was employed at the time of the dispositional hearing, she was unable
to demonstrate the ability to keep a job for a period of six months as recommended by her
parental fitness evaluation psychologist. Further, petitioner could not verify that she had obtained
who previously obtained guardianship of S.C. The permanency plan for M.C. is for those same
grandparents to obtain subsidized legal guardianship. Further, J.C., father of S.C., was dismissed
from the proceedings and retained his parental rights. J.C. is on active duty in the United States
Military. According to the guardian and the DHHR, D.P. and B.P.-1 are in separate foster homes.
The permanency plan for D.P. and B.P.-1 is adoption in their respective foster homes.
Additionally, B.P., father of D.P. and B.P.-1, voluntarily relinquished his rights to those children.
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appropriate, clean, suitable and stable housing for herself and her children as required by the end
of the extension to her post-adjudicatory improvement period. Moreover, petitioner clearly failed
to learn appropriate and safe parenting, as demonstrated by the fact that she struck M.C. in the
face during a supervised visit and spanked B.P.-1 six or seven times during an unsupervised visit.
Based on this evidence, petitioner was unable to demonstrate that she could correct the
conditions of abuse and neglect.
For these reasons, we find no error in the circuit court’s finding that there was no
reasonable likelihood that petitioner could correct the conditions of abuse and neglect in the near
future. Based on the evidence outlined above, it is clear that petitioner failed to follow through
with the reasonable family case plan.
Next, petitioner argues that the circuit court erred in finding that she failed to
substantially comply with the terms and conditions of her improvement period. According to
petitioner, she substantially complied with the terms of the improvement period in that she had
obtained housing and employment and documented successful drug rehabilitation. However, the
record shows that petitioner did not, in fact, substantially comply with the requirements of her
improvement period, as discussed above. “At 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. 3, In re
Kristin Y., 227 W. Va. 558, 712 S.E.2d 55 (2011). Simply put, petitioner’s argument is entirely
without merit, given the ample evidence in the record on appeal of her noncompliance.
Accordingly, we find she is not entitled to relief in this regard.
Petitioner also argues that the circuit court erred in terminating her parental, custodial,
and guardianship rights because she corrected the conditions of abuse and neglect by
substantially completing inpatient drug rehabilitation and by making progress with parenting
classes and visitation with her children. We disagree. The record clearly shows that petitioner did
not correct the conditions of abuse and neglect. As discussed above, petitioner did not
successfully complete her inpatient rehabilitation program or a formal domestic violence
intervention program. She clearly failed to learn appropriate and safe parenting, which was
demonstrated when she struck M.C. on the face and spanked B.P.-1 during visits. Moreover, 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 finding that petitioner did not substantially correct the conditions of
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abuse and neglect during her improvement period or in its termination of her parental, custodial,
and guardianship rights.
Finally, this Court reminds the circuit court of its duty pursuant to Rule 43 of the Rules of
Procedure for Child Abuse and Neglect Proceedings to find permanent placement for the
children within twelve months of the date of the disposition order. As this Court has stated,
[t]he [twelve]-month period provided in Rule 43 of the West Virginia
Rules of Procedures for Child Abuse and Neglect Proceedings for permanent
placement of an abused and neglected child following the final dispositional order
must be strictly followed except in the most extraordinary circumstances which
are fully substantiated in the record.
Cecil T., 228 W.Va. at 91, 717 S.E.2d at 875, Syl. Pt. 6.
For the foregoing reasons, we find no error in the decision of the circuit court, and its
January 17, 2017, order is hereby affirmed.
Affirmed.
ISSUED: September 5, 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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