In re V.B. and J.B. ( 2018 )

STATE OF WEST VIRGINIA
SUPREME COURT OF APPEALS
FILED
In re V.B. and J.B. June 15, 2018
EDYTHE NASH GAISER, CLERK
No. 18-0098 (Webster County 17-JA-57 and 58) SUPREME COURT OF APPEALS
OF WEST VIRGINIA
MEMORANDUM DECISION
Petitioner Mother D.B., by counsel Christopher Moffatt, appeals the Circuit Court of
Webster County’s January 11, 2018, order terminating her parental rights to V.B. and J.B.1 The
West Virginia Department of Health and Human Resources (“DHHR”), by counsel Brandolyn N.
Felton-Ernest, filed a response in support of the circuit court’s order and a supplemental
appendix. The guardian ad litem (“guardian”), Mary E. Sneed, 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 terminating her parental rights without the imposition of a less-restrictive dispositional
alternative.
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.
Petitioner was a respondent in a prior abuse and neglect case filed in May of 2016.2
Petitioner completed an improvement period in January of 2017; however, the circuit court
expressed concerns regarding the ongoing educational needs of the children and ordered the
DHHR to monitor the children through the remainder of the school year.
In June of 2017, the DHHR filed a petition alleging that both children were absent
multiple days without excuse, that J.B. was failing several classes and missing assignments, and
that V.B. was not returning documentation regarding home reading assignments. The children
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
G.B., petitioner’s partner and the father of the children, was also named as a respondent
in that case.
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were found in the custody of the father, who recently fled an encounter with the police and later
admitted to using controlled substances.3 The DHHR determined that the children needed to be
removed from his custody. The DHHR alleged that, when petitioner was questioned on whether
the children could be placed with her, she refused to drug screen. The circuit court held a
preliminary hearing and found that the children would be in imminent danger if were returned to
their parents’ custody.
The circuit court held an adjudicatory hearing in August of 2017 and took judicial notice
of petitioner’s prior abuse and neglect proceeding. From the evidence presented, the circuit court
found that petitioner refused to drug screen in order to take custody of the children and failed to
provide a fit and suitable home for them. Accordingly, the circuit court adjudicated petitioner as
an abusing parent. Petitioner moved for a post-adjudicatory improvement period and the circuit
court granted that motion in October of 2017. The terms of the improvement period required
petitioner to remain drug free, participate in random drug screens, complete a long-term drug
rehabilitation treatment program, complete an anger management class, and participate in
outpatient drug treatment while waiting for admission to inpatient treatment.
In November of 2017, the circuit court held a review hearing, suspended petitioner’s
supervised visitation, and indicated that the DHHR should file a motion to terminate petitioner’s
parental rights within seven days if it intended to do so. Accordingly, the DHHR filed a motion
alleging that petitioner tested positive for controlled substances in October of 2017. Additionally,
the DHHR alleged that petitioner agreed to enter into the LEAD academy, a long term substance
abuse program, but left only a few hours after arriving. According to the DHHR, shortly
thereafter petitioner was arrested for petit larceny and two syringes were found on her person;
petitioner indicated she last used methamphetamine four days prior to her arrest.
The circuit court held an evidentiary hearing on the DHHR’s motion to terminate
petitioner’s improvement period and parental rights in December of 2017. Following the hearing,
the circuit court found that petitioner admitted to abusing controlled substances and that she
would test positive for drugs if tested on the day of the evidentiary hearing. Further, the circuit
court found that petitioner agreed to attend inpatient substance abuse treatment, but left the
facility shortly after she arrived. Ultimately, the circuit court found that there was no reasonable
likelihood that the conditions of abuse and neglect could be substantially corrected and that it
was necessary for the welfare of the children to terminate petitioner’s parental rights.
Accordingly, the circuit court terminated petitioner’s parental rights by its January 11, 2018,
order.4 Petitioner now appeals that order.
3
The specifics of the parents’ custody arrangement is unclear from the record. However,
the father had custody of V.B. when he fled from the police and as a result V.B. was immediately
removed from his custody.
4
The father’s parental rights were also terminated by that order. According to the parties,
the permanency plan for V.B. is adoption in her current foster placement. J.B. will be placed in
the same foster home as his sister with a permanency plan of adoption or legal guardianship in
that home.
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, this Court
finds no error in the proceedings below.
On appeal, petitioner argues that the circuit court erred in terminating her parental rights
without the imposition of a less-restrictive alternative. Specifically, petitioner asserts that the
DHHR did not provide her with the support necessary to remedy the conditions of neglect or
abuse. She further argues that the DHHR did not present sufficient evidence to support the
termination of her parental rights. We disagree.
West Virginia Code § 49-4-604(b)(6) provides that the circuit court may terminate
parental rights when “there is no reasonable likelihood that the conditions of neglect or abuse can
be substantially corrected in the near future and, when necessary for the welfare of the child.”
Further, West Virginia Code § 49-4-604(c)(3) provides that there is no reasonable likelihood that
the conditions of neglect or abuse can be substantially corrected when the parent has “not
responded 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[.]”
The circuit court correctly found that there was no reasonable likelihood that the
conditions of neglect or abuse could be substantially corrected because petitioner was not
following through with a reasonable family case plan. The record is devoid of any mention that
petitioner participated in anger management or parenting classes, as required by the terms of her
improvement period. Most importantly, petitioner refused to participate in inpatient drug
treatment as required. On appeal, petitioner argues that the DHHR did not provide the support
and services she needed to remedy the conditions of neglect and abuse nor did the DHHR contact
her during the improvement period. However, West Virginia Code § 49-4-610(4) provides that
the parent “shall be responsible for the initiation and completion of all terms of the improvement
period.” Nevertheless, the DHHR did provide a recommendation and transportation to an
inpatient substance abuse treatment facility to petitioner, which petitioner left after less than
twenty-four hours. Moreover, petitioner admitted that she did not attempt to contact the DHHR
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during the improvement period. Additionally, petitioner participated in a prior abuse and neglect
case and completed an improvement period just months before the initiation of these
proceedings. In the time between these two cases, the children’s education suffered and
petitioner began using controlled substances. It is unclear from the record what services
petitioner was provided previously. However, it is clear that, even after her previous
improvement period and those services that were provided, the circuit court found that petitioner
continued to abuse the children in May of 2017. Accordingly, the circuit court did not err in
finding there was no reasonable likelihood that the conditions of neglect or abuse would be
substantially corrected.
Moreover, the circuit court did not err in finding that termination of petitioner’s parental
rights was necessary for the welfare of the children. While in petitioner’s custody, the children
were exposed to drug use and educational neglect and petitioner was unwilling to participate in
services that would improve the conditions for the children. We have also held as follows:
“Termination 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). The circuit court correctly
found that there was no reasonable likelihood that the conditions of neglect or abuse could be
substantially corrected and that it was necessary for the welfare of the children to terminate
petitioner’s parental rights. Accordingly, we find no error in the circuit court’s order terminating
petitioner’s parental rights without the use of less-restrictive alternatives.
For the foregoing reasons, we find no error in the decision of the circuit court, and its
January 11, 2018, order is hereby affirmed.
Affirmed.
ISSUED: June 15, 2018
CONCURRED IN BY:
Chief Justice Margaret L. Workman
Justice Robin Jean Davis
Justice Menis E. Ketchum
Justice Elizabeth D. Walker
Justice Allen H. Loughry II, suspended and therefore not participating
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