In Re: A.A. and A.E. ( 2017 )

STATE OF WEST VIRGINIA
SUPREME COURT OF APPEALS
In re: A.A. and A.E. FILED
May 22, 2017
No. 16-0853 (Wood County 15-JA-133 & 15-JA-134) RORY L. PERRY II, CLERK
SUPREME COURT OF APPEALS
OF WEST VIRGINIA
MEMORANDUM DECISION
Petitioner Mother J.A., by counsel Krista L. Fleegle, appeals the Circuit Court of Wood
County’s August 10, 2016, order terminating her parental rights to then two-year old A.A. and
six-year-old A.E.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, Thomas B. Karr, 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 terminating her parental
rights to the children when a less-restrictive alternative existed.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 August of 2015, the DHHR filed an abuse and neglect petition against petitioner
alleging that she drove the young children unrestrained in a vehicle while under the influence of
marijuana and while in the possession of eighteen packets of heroin. The DHHR further alleged
that petitioner attempted to conceal her children from the DHHR and flee.
In November of 2015, at the adjudicatory hearing, petitioner stipulated to the allegations
in the petition. Thereafter, the circuit court granted petitioner’s motion for a post-adjudicatory
improvement period. In her improvement period, petitioner was directed to complete
psychological, parental-fitness, and substance abuse evaluations and to comply with any
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
While petitioner argues that the circuit court terminated her “parental rights,” the circuit
court’s July 12, 2016, order expressly terminated her “parental, custodial, and guardianship”
rights.
1
recommendations provided therein; to complete parenting and adult life skills classes; to visit her
children as permitted; and to attend all hearings and meetings.
In August of 2016, the circuit court held a dispositional hearing. Petitioner was
incarcerated at the time of this hearing on a false-pretenses charge, allegedly committed during
her improvement period. According to the DHHR, petitioner failed to complete a substance
abuse assessment; attended only two out of four of her parenting classes; attended only six out of
eighteen of her adult life skills classes; failed to attend multiple hearings and multidisciplinary
meetings; tested positive for controlled substances; and missed multiple drug screens during her
improvement period. At the hearing, petitioner admitted her continued drug abuse, including
heroin use, during her improvement period. Based on petitioner’s incarceration, drug use, and
failure to comply with the terms of her improvement period, the circuit court terminated her
parental rights to the children. In so doing, the circuit court found that petitioner could not
substantially correct the conditions of abuse and neglect in the near future.3 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).
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 terminating her parental rights
to the children when the least-restrictive alternative was to terminate her custodial rights.
Petitioner contends that her custodial rights could have been terminated until such time as she
was released from incarceration and followed through with drug treatment. We disagree. West
Virginia Code § 49-4-604(a)(6) provides that a circuit court is directed to terminate parental
rights upon a 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
children’s welfare. West Virginia Code § 49-4-604(c)(3) provides that “no reasonable likelihood
3
The parental rights of the children’s biological fathers were also terminated below. The
children currently reside in foster care, and their permanency plan is adoption into that foster
home.
2
that 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 this case, petitioner acknowledges “that she has a serious addiction to narcotics” and
that she was “unable to provide adequately for the children’s needs at the time of her
dispositional hearing[.]” Moreover, it is undisputed that petitioner failed to provide any evidence
of substance abuse treatment; failed to comply with the terms of her improvement period,
including her failure to attend visits with her children on time; tested positive for controlled
substances; and was incarcerated at the time of the dispositional hearing based on a crime
allegedly committed during her improvement period. Given petitioner’s acknowledgments and
her complete lack of improvement during these lengthy proceedings, we find no error in the
circuit court’s termination order. The circuit court properly found that petitioner was not
reasonably likely to substantially correct the conditions of abuse and neglect in the near future,
and it is clear from the record on appeal that the children’s welfare necessitate termination of
petitioner’s parental rights.
For the foregoing reasons, we hereby affirm the circuit court’s August 10, 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
3