In Re: J.M. III, M.C., and S.R. ( 2017 )

STATE OF WEST VIRGINIA
SUPREME COURT OF APPEALS
FILED
In re: J.M. III, M.C., and S.R. May 22, 2017
RORY L. PERRY II, CLERK
No. 16-1231 (Calhoun County 16-JA-9, 16-JA-11, & 16-JA-12) SUPREME COURT OF APPEALS
OF WEST VIRGINIA
MEMORANDUM DECISION
Petitioner Mother D.H., by counsel Rebecca Stollar Johnson, appeals the Circuit Court of
Calhoun County’s October 20, 2016, order terminating her parental rights to sixteen-year-old
J.M. III, six-year-old M.C., and four-year-old S.R.1 The West Virginia Department of Health and
Human Resources (“DHHR”), by counsel Lee Niezgoda, filed its response in support of the
circuit court’s order. The guardian ad litem (“guardian”), Tony Morgan, 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 denying her motion for an improvement period and terminating her
parental rights.
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 March of 2016, the DHHR filed an abuse and neglect petition against petitioner
alleging that she used illegal drugs which affected her ability to properly care for her children
and that she left unsecured guns throughout the house in the reach of the children. Additionally,
petitioner was the subject of a mental hygiene proceeding in which she was found to be addicted
to illegal drugs. The DHHR also alleged that petitioner refused to take her prescription mental
health medications and that she tested positive for methamphetamine and marijuana while she
was the children’s caretaker. Finally, the DHHR alleged that the children were excessively
absent from school.
Thereafter, the circuit court held a series of adjudicatory hearings during which it heard
testimony from petitioner and her Child Protective Services (“CPS”) worker. Petitioner admitted
that she used marijuana for “medical” purposes and refused to take her prescription medication
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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for depression. Petitioner also disclosed that she was not going to send her children back to
school because she thought that the school was teaching her children how to make
methamphetamine. According to the CPS worker, petitioner tested positive for marijuana and
methamphetamine. The worker also testified that petitioner suffered from hallucinations and left
guns throughout her residence that were easily accessible to the children. Based upon the
testimony, the circuit court adjudicated petitioner as an abusing parent based upon her drug use.
The circuit court held a dispositional hearing during which it heard testimony that,
petitioner started parenting classes, but still does not believe that she abused or neglected her
children. Petitioner also admitted that she missed a drug screen and did not submit to a required
psychological evaluation. The CPS worker also testified that petitioner denied using
methamphetamine despite testing positive for that drug during the underlying proceedings.
According to the worker, petitioner also admitted that she altered her drug screens by “drinking
vinegar and detox stuff.” Based upon these findings, the circuit court found that there was no
reasonable likelihood that the conditions of abuse or neglect could be substantially corrected and
that termination was in the children’s best interests. As such, the circuit court terminated
petitioner’s parental rights by order entered on October 20, 2016.2 This appeal followed.
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).
2
Petitioner’s parental rights to all three children were terminated below. The biological
fathers of S.R. and J.M. II’s parental rights were terminated below, respectively. This Court
affirmed the termination of S.R.’s parental rights on April 5, 2017. In re: J.R. and S.R., No. 16­
1100, 2017 WL - - (W.Va. Apr. 10, 2017)(memorandum decision). J.M. II has not appealed the
termination of his parental rights. J.M. III was in the custody of the Department of Juvenile
Services on charges of grand larceny and burglary. J.M. III’s who is currently on probation until
his twenty-first birthday with a special condition of home incarceration. J.M. III is in the physical
custody of his grandmother, while his father has legal custody. C.G.’s parental rights to M.C.
remain intact as he was found to be a non-offending father. M.C. was placed with C.G. with a
permanency plan to remain in his care. S.R. was placed in an adoptive home with a permanency
plan to be adopted by this family.
2
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 denying her motion for a post­
adjudicatory improvement period. Pursuant to West Virginia Code § 49-4-610, “[a] court may
grant a respondent an improvement period . . . when the respondent files a written motion . . .
[and] demonstrates, by clear and convincing evidence, that the respondent is likely to fully
participate in the improvement period[.]” Further, we have 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
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)). The decision to grant or deny a parent’s motion
for an improvement period in an abuse and neglect proceeding is a discretionary decision left to
the sound judgment of the circuit court. See Syl. Pt. 2, in part, In re Lacey P., 189 W.Va. 580,
433 S.E.2d 518 (1993) (stating that “[i]t is within the court’s discretion to grant an improvement
period within the applicable statutory requirements”).
In support of her argument, petitioner states that she demonstrated her likelihood to
comply with the terms of an improvement period through her testimony that she passed multiple
drug screens and participated in parenting classes. However, petitioner fails to discuss her
unwillingness to acknowledge the abuse and neglect problems that required improvement.
Indeed, petitioner’s argument wholly ignores her continued denial that she does not believe that
she did anything to abuse or neglect her children and her continued denial that she tested positive
for methamphetamine. Based upon the evidence presented to the circuit court, particularly
petitioner’s failure to acknowledge the abuse and neglect problems at issue, we find no error in
the circuit court’s denial of petitioner’s motion for an improvement period in this case.
Petitioner also argues that the circuit court erred in terminating her parental rights without
employing a less-restrictive alternative, pursuant to West Virginia Code § 49-4-604 and our
holding in syllabus point one of In re R.J.M., 164 W.Va. 496, 266 S.E.2d 114 (1980). While
petitioner correctly notes that courts must generally employ the least-restrictive dispositional
alternative in these proceedings, the circuit court in this matter found that the evidence of
petitioner’s conduct during the underlying proceedings proved that there was no reasonable
likelihood that she could substantially correct the conditions of abuse and neglect in the near
future because she failed to prove that her circumstances had changed since the filing of the
petition. This Court has explained 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 (1997) may be employed without the use of intervening less restrictive
alternatives when it is found that there is no reasonable likelihood under W.Va.
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Code [§] 49-6-5(b) (1977) that conditions of neglect or abuse can be substantially
corrected.” Syl. pt. 2, In Re: R.J.M., 164 W.Va. 496, 266 S.E.2d 114 (1980).
Syl. Pt. 2, In re Dejah P., 216 W.Va. 514, 607 S.E.2d 843 (2004). West Virginia Code § 49-4­
604(c)(3) provides that no reasonable likelihood that the conditions of abuse or neglect 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[.]”
In the case sub judice, it is clear that there was no reasonable likelihood that petitioner
could have substantially corrected the conditions of abuse or neglect in the near future. Petitioner
continued to deny that her conduct amounted to abuse and neglect. Further, during the
dispositional hearing, the circuit court heard testimony petitioner admitted to altering her drug
screens by “drinking vinegar and detox stuff” and failed to participate in a psychological
evaluation. Because petitioner failed to acknowledge that her conduct amounted to abuse or
neglect, it is clear that the circuit court correctly found that there was no reasonable likelihood
the conditions of abuse could be substantially corrected. Moreover, the circuit court also found
that termination was necessary for the children’s welfare. Pursuant to West Virginia Code § 49­
4-604(a)(6), circuit courts are directed to terminate parental rights upon these findings.
For the foregoing reasons, we hereby affirm the circuit court’s October 20, 2016, order.
Affirmed.
ISSUED: May 22, 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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