In re A.S. ( 2018 )

STATE OF WEST VIRGINIA
SUPREME COURT OF APPEALS
In re A.S. FILED
February 23, 2018
No. 17-0811 (Kanawha County 17-JA-99) EDYTHE NASH GAISER, CLERK
SUPREME COURT OF APPEALS
OF WEST VIRGINIA
MEMORANDUM DECISION
Petitioner Mother K.S., by counsel Herbert L. Hively, II, appeals the Circuit Court of
Kanawha County’s August 2, 2017, order terminating her parental rights to A.S.1 The West
Virginia Department of Health and Human Resources (“DHHR”), by counsel Michael L.
Jackson, filed a response in support of the circuit court’s order. The guardian ad litem
(“guardian”), Jennifer R. Victor, filed a response on behalf of the child in support of the circuit
court’s order and a supplemental appendix. On appeal, petitioner argues that the circuit court
erred in adjudicating her as an abusing parent and denying her a post-adjudicatory improvement
period.2
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 February of 2016, the DHHR filed an abuse and neglect petition that alleged the
parents neglected the child. According to the petition, the parents were arrested earlier that
month and charged criminally with child neglect creating risk of injury when law enforcement
found the parents and the child in a residence described as “dangerous and unfit for human
habitation.” The petition alleged that the home was filled with mold, mildew, unprotected
electrical connections and an exposed oven face. Additionally, there were roaches and roach
droppings on every surface in the kitchen, and the dishwasher was filled with mold, mildew,
insects, and insect droppings. Officers also discovered drug paraphernalia, including used
needles, within the child’s reach. Additionally, the petition alleged a history of domestic violence
between the parents and drug use. Specifically, the DHHR indicated that the prior month, 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).
2
On appeal, petitioner does not raise a specific assignment of error regarding the
termination of her parental rights.
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father tested positive for benzodiazepines and opiates, which required the administration of
Narcan. Further, petitioner tested positive for a number of drugs during her pregnancy with the
child, who also tested positive for drugs at birth. Finally, the petition alleged that petitioner’s
rights to an older child were previously involuntarily terminated, which petitioner later
confirmed. During a later preliminary hearing, the circuit court heard testimony from a law
enforcement officer concerning the conditions in the home and also admitted into evidence the
criminal complaints filed against the parents.
In March of 2017, the circuit court held an adjudicatory hearing, during which it heard
testimony from the father and the child’s paternal grandmother. The circuit court admitted a
DHHR court summary into evidence and also considered all previously-introduced evidence.
Based upon the evidence, the circuit court found that the home from which the child was
removed “was unsafe and not suitable for human habitation.” According to the evidence, the
home “was contaminated with rodent and insect feces and mold[,]” in addition to being
“structurally dangerous, with missing flooring, nonfunctioning plumbing, and rotting cabinetry.”
Moreover, the circuit court found that the home “was covered with spoiled food and open
garbage” and also “contained drug paraphernalia such as straws, razor blades and matches.”
Based upon this evidence, the circuit court found that the parents “knowingly exposed the child
to a filthy, dangerous environment.” As such, the circuit court adjudicated petitioner as an
abusing parent.
In May of 2017, the circuit court held a dispositional hearing. Petitioner moved for a
post-adjudicatory improvement period, but the circuit court ultimately denied that motion. The
circuit court based this ruling, in part, upon evidence that petitioner was not “willing to
acknowledge any parenting deficiencies amenable to correction.” Based upon this evidence, the
circuit court found that petitioner “failed to demonstrate that [she was] likely to comply with the
terms and conditions of a post-adjudicatory improvement period.” Thereafter, the circuit court
terminated petitioner’s parental rights to the child.3 It is from the dispositional order that
petitioner appeals.
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
3
In addition to the termination of petitioner’s parental rights, the parental rights of the
father to the child were terminated below. According to respondents, the permanency plan for the
child is adoption in the current relative placement.
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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 proceedings below.
On appeal, petitioner argues that the circuit court erred in adjudicating her as an abusing
parent. In support of this assignment of error, petitioner argues that the DHHR failed to present
any evidence of drug use or domestic violence. She further argues that the home in question
belonged to the paternal grandmother and, accordingly, “the . . . DHHR did [not] show that [she]
lived in that home with the child and exposed her to those conditions . . . .” Moreover, petitioner
argues that law enforcement responded to the home several days prior to removal, but permitted
the child to remain in the home, thus establishing that it was appropriate for the child. We do not
find these arguments compelling.
In regard to the burden of proof at adjudication, we have held as follows:
“W.Va.Code [§] 49-6-2(c) [now West Virginia Code § 49-4-601(i)],
requires the [DHHR], in a child abuse or neglect case, to prove ‘conditions
existing at the time of the filing of the petition . . . by clear and convincing
[evidence].’ The statute, however, does not specify any particular manner or mode
of testimony or evidence by which the [DHHR] is obligated to meet this burden.”
Syllabus Point 1, In Interest of S.C., 168 W.Va. 366, 284 S.E.2d 867 (1981).
Syl. Pt. 1, In re Joseph A., 199 W.Va. 438, 485 S.E.2d 176 (1997) (citations omitted). Based
upon this holding, it is clear that petitioner’s arguments are without merit. First, the fact that the
DHHR did not establish petitioner’s drug abuse or the presence of domestic violence in the home
is immaterial, given that the circuit court ultimately adjudicated petitioner of exposing the child
to the uninhabitable environment. Similarly, the issue of whether or not the home in question
was petitioner’s primary residence is also immaterial, given that the evidence established that
petitioner often spent the night in the home with the child and that the child was found in the
home. In fact, testimony at the preliminary hearing established that petitioner “had been residing
there for some time” after having been removed from a different residence.
Finally, the fact that law enforcement permitted the child to remain in the home prior to
the ultimate removal has no bearing on whether or not the DHHR satisfied its legal burden of
establishing that petitioner was an abusing parent. Importantly, testimony at the preliminary
hearing indicated that the home’s condition deteriorated between the initial contact with law
enforcement and the child’s removal. Further, testimony established that the child was permitted
to remain in the home upon the grandmother’s assurance that she could keep the child away from
the dangerous conditions in the part of the home in which the parents were staying, while the
parents were removed. Ultimately, because petitioner continued to expose the child to the
specific conditions that law enforcement identified as inappropriate, the child was removed from
the home.
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Contrary to petitioner’s arguments, the DHHR clearly satisfied its burden of proof
regarding adjudication. While petitioner argues that the DHHR presented only one witness in
support of its burden, she fails to acknowledge that testimony from the father and the paternal
grandmother, the only witnesses presented to rebut the DHHR’s allegations, was found entirely
incredible. Specifically, the circuit court found that the grandmother’s “testimony was not
credible” because she was not candid. As a result, the circuit court held that it would “disregard
her testimony entirely.” Moreover, the circuit court found the father’s testimony during the entire
proceedings lacked credibility because of his “mental and emotional instability and bizarre
behavior.” The DHHR, however, presented extensive testimony concerning the deplorable
condition of the home, which lead the circuit court to find that petitioner “knowingly exposed the
child to a filthy, dangerous environment” because the home from which the child was removed
“was unsafe and not suitable for human habitation.”
West Virginia Code § 49-1-201 defines “neglected child” as, in part, one “[w]hose
physical or mental health is harmed or threatened by a present refusal, failure or inability of the
child’s parent . . . to supply the child with necessary shelter [or] supervision[.]” The evidence
below clearly established that petitioner failed to provide the child with necessary shelter or
supervision, as the home in question was not only uninhabitable, but also contained many
dangerous conditions and items that were within the child’s reach. Accordingly, we find no error
in the circuit court’s adjudication.
Finally, petitioner argues that the circuit court erred in denying her motion for a post-
adjudicatory improvement period. We do not agree. While petitioner argues that the evidence at
disposition established that she would be willing to fully comply with the terms of an
improvement period, the record is clear that petitioner simply failed to acknowledge her
parenting deficiencies such that an improvement period would have been inappropriate. On
appeal, petitioner alleges that a DHHR employee testified that she would be a good candidate for
an improvement period. She further argues that she testified to her willingness to comply with
the terms of an improvement period. However, petitioner ignores the fact that she failed to accept
responsibility for her abuse and neglect of not only this child, but the older child to which her
parental rights were previously involuntarily terminated.
Specifically, at disposition, petitioner testified that her parental rights to the older child
were involuntarily terminated because of the child’s father’s conduct, not her own. Her
testimony caused the circuit court to conclude that “she accepted no responsibility for the child
abuse and neglect that resulted in the prior termination, and blamed everything on the father’s
substance abuse.” Although petitioner testified that she recognized issues with the home from
which the child was removed, the circuit court ultimately found that petitioner was not “willing
to acknowledge any parenting deficiencies amenable to correction.” This evidences petitioner’s
failure to acknowledge the conditions of abuse and neglect that necessitated the child’s removal.
We have previously held that
[i]n order to remedy the abuse and/or neglect problem, the problem must first be
acknowledged. Failure to acknowledge the existence of the problem, i.e., the truth
of the basic allegation pertaining to the alleged abuse and neglect or the
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perpetrator of said abuse and neglect, results in making the problem untreatable
and in making an improvement period an exercise in futility at the child’s
expense.
In re Timber M., 231 W.Va. 44, 55, 743 S.E.2d 352, 363 (2013) (quoting In re: Charity H., 215
W.Va. 208, 217, 599 S.E.2d 631, 640 (2004)).
We have also noted that the decision to grant or deny an improvement period rests in the
sound discretion of the circuit court. See In re: M.M., 236 W.Va. 108, 115, 778 S.E.2d 338, 345
(2015) (holding that “West Virginia law allows the circuit court discretion in deciding whether to
grant a parent an improvement period”); Syl. Pt. 6, in part, In re Katie S., 198 W.Va. 79, 479
S.E.2d 589 (1996) (holding that “[i]t is within the court’s discretion to grant an improvement
period within the applicable statutory requirements”). Because petitioner failed to acknowledge
the conditions of abuse and neglect that necessitated the petition’s filing, we find no abuse of
discretion in the circuit court’s denial of her motion for a post-adjudicatory improvement period.
For the foregoing reasons, we find no error in the decision of the circuit court, and its
August 2, 2017, order is hereby affirmed.
Affirmed.
ISSUED: February 23, 2018
CONCURRED IN BY:
Chief Justice Margaret L. Workman
Justice Robin Jean Davis
Justice Menis E. Ketchum
Justice Allen H. Loughry II
Justice Elizabeth D. Walker
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