In Re: K.H.-1, K.H.-2, and K.H.-3 ( 2016 )

STATE OF WEST VIRGINIA
SUPREME COURT OF APPEALS
FILED
In re: K.H.-1, K.H.-2, and K.H.-3 September 6, 2016
RORY L. PERRY II, CLERK
SUPREME COURT OF APPEALS
No. 16-0195 (Wood County 14-JA-111, 14-JA-112, & 14-JA-113) OF WEST VIRGINIA
MEMORANDUM DECISION
Petitioner Mother S.H., by counsel Wells H. Dillon, appeals the Circuit Court of Wood
County’s January 26, 2016, order terminating her parental rights to K.H.-1, K.H.-2, and K.H.-3.1
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,
Rhonda L. Harsh, filed a response on behalf of the children also in support of the circuit court’s
order. On appeal, petitioner alleges that the circuit court erred in terminating her parental rights
because less-restrictive dispositional alternatives existed and in denying her post-termination
visitation.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 December of 2014, the DHHR filed an abuse and neglect petition and alleged that the
parents, by virtue of their drug use, abused the children. Specifically, the petition alleged that
petitioner abused heroin throughout her pregnancy with K.H.-3 and neglected prenatal care. In
fact, the petition alleged that petitioner admitted to using heroin just two hours prior to K.H.-3’s
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). Additionally, because the children in this matter share the
same initials, the Court will refer to them as K.H.-1, K.H.-2, and K.H.-3 throughout this
memorandum decision.
2
We note that West Virginia Code §§ 49-1-1 through 49-11-10 were repealed and
recodified during the 2015 Regular Session of the West Virginia Legislature. The new
enactment, West Virginia Code §§ 49-1-101 through 49-7-304, has minor stylistic changes and
became effective ninety days after the February 19, 2015, approval date. In this memorandum
decision, we apply the statutes as they existed during the pendency of the proceedings below.
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birth. Upon petitioner’s admission to the hospital for the birth, she tested positive for marijuana,
heroin, and benzodiazepines. Moreover, after his birth, K.H.-3 was placed on methadone to assist
in withdrawal symptoms caused by petitioner’s drug use. As to the other children, the petition
alleged that petitioner’s drug abuse prevented her from properly caring for them.
In January of 2015, petitioner waived her right to a preliminary hearing. At an
adjudicatory hearing later that month, petitioner stipulated to abusing heroin while acting as a
caregiver for K.H.-1 and K.H.-2 and also while pregnant with K.H.-3. The father also stipulated
to drug abuse affecting the children, and both parents were granted post-adjudicatory
improvement periods. Initially, both parents complied with the terms and conditions of their
improvement periods by producing negative drug screens, attending visits with the children, and
participating in outpatient substance abuse treatment and adult life skills and parenting training.
As such, in July of 2015, the children were returned to the parents’ home for a trial reunification.
However, in July of 2015, petitioner tested positive for cocaine. As a result, the parents
returned the children to the home of their paternal great-grandmother, where they had resided
after the initial removal. Shortly thereafter, the parents were evicted from their home for
nonpayment of rent, and it was discovered that the father quit his job in July of 2015. The parents
moved into a relative’s home, but the relative thereafter asked them to leave because of the
parents’ abuse of synthetic marijuana and prescription drugs. In mid-August of 2015, police
responded to a report that petitioner was extremely violent and thrashing on the ground in a
stores’s parking lot. As a result, petitioner was taken to a hospital and treated for substance abuse
issues. Although petitioner tested negative for several drugs, the DHHR noted that petitioner was
not tested for synthetic drugs.
Following her release from the hospital, petitioner attended some counseling sessions but,
thereafter, failed to participate in any services after August of 2015. Petitioner filed a motion for
an improvement period as disposition in September of 2015. Thereafter, the circuit court held
dispositional hearings in October of 2015 and December of 2015. During the hearings, petitioner
testified that she never abused cocaine and that a coworker must have caused her to test positive
for cocaine in July of 2015. Petitioner also denied having used synthetic marijuana prior to her
hospitalization and explained that her reaction was caused by someone else smoking synthetic
marijuana in her car. Ultimately, petitioner testified that she did not need substance abuse
treatment and that she complied with all the terms and conditions of her improvement period.
The circuit court, however, found that petitioner was not entitled to an additional improvement
period and terminated her parental rights. 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,
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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 proceedings below.
To begin, we find no error in the circuit court’s termination of petitioner’s parental rights.
On appeal, petitioner argues that she complied with the terms of her post-adjudicatory
improvement period and that visits with the children went well. The Court, however, does not
agree. While it is true that petitioner complied with some services below, the record is clear that
petitioner’s substance abuse persisted throughout the proceedings. Petitioner’s argument on
appeal totally ignores the fact that, shortly after her children were returned to her on a trial basis,
petitioner relapsed into substance abuse and was evicted from her home. Moreover, petitioner
failed to comply with any services after August of 2015, despite the fact that the circuit court
specifically continued the dispositional hearing for one month to allow petitioner additional time
to establish compliance.
Importantly, the record shows that petitioner also failed to acknowledge the underlying
conditions that gave rise to the abuse and neglect petition. At disposition, petitioner testified that
she did not abuse cocaine, despite her prior drug screen testing positive for the drug. Petitioner
further testified that she did not need substance abuse treatment and that she “complied with
everything” that was asked of her during her post-adjudicatory improvement period. This
testimony is contrary to the overwhelming evidence that petitioner continued to abuse drugs and
failed to comply with the terms and conditions of her post-adjudicatory improvement period such
that the DHHR had to again remove her children from the home.
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
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)). As such, it is clear that the underlying issues of
abuse and neglect in this matter were untreatable because of petitioner’s failure to acknowledge
the same. Moreover, the circuit court specifically found that there was no reasonable likelihood
that petitioner could substantially correct the conditions of abuse and neglect and that
termination of her parental rights was necessary for the children’s welfare.
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Pursuant to West Virginia Code § 49-4-604(c)(3), there is no reasonable likelihood
conditions of abuse and neglect can be substantially corrected when
[t]he abusing parent . . . [has] not responded to 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, as evidenced by the continuation or insubstantial
diminution of conditions which threatened the health, welfare or life of the
child[.]
As set forth above, petitioner not only failed to comply with services during her post­
adjudicatory improvement period, but continued to abuse drugs to the extent that the children
had to be removed from the home a second time. Further, she stopped complying with services
entirely after August of 2015. As such, the circuit court correctly found that there was no
reasonable likelihood she could substantially correct the conditions of abuse and neglect and that
termination was necessary for the children’s welfare. Contrary to petitioner’s argument that less-
restrictive dispositional alternatives existed, the Court finds that the circuit court was required to
terminate her parental rights upon these findings pursuant to West Virginia Code § 49-4­
604(a)(6).
Finally, petitioner argues that the circuit court erred in denying her post-termination
visitation with the children. The Court, however, finds no error in this regard. We have
previously held as follows:
“When parental rights are terminated due to neglect or abuse, the circuit
court may nevertheless in appropriate cases consider whether continued visitation
or other contact with the abusing parent is in the best interest of the child. Among
other things, the circuit court should consider whether a close emotional bond has
been established between parent and child and the child’s wishes, if he or she is of
appropriate maturity to make such request. The evidence must indicate that such
visitation or continued contact would not be detrimental to the child’s well being
and would be in the child’s best interest.” Syl. Pt. 5, In re Christina L., 194 W.Va.
446, 460 S.E.2d 692 (1995).
Syl. Pt. 11, In re Daniel D., 211 W.Va. 79, 562 S.E.2d 147 (2002). According to petitioner, the
circuit court should have granted her post-termination visitation because of the close bond
between her and the children. Further, petitioner argues that her visits with the children during
the proceedings went well and that they should continue so that she can foster her relationship
with the children. The Court, however, does not agree. Simply put, petitioner fails to set forth
any evidence that continued visitation would be in the children’s best interests. To the contrary,
petitioner’s continued substance abuse and failure to acknowledge the conditions of abuse and
neglect below establish that continued contact would be detrimental to the children. For these
reasons, we find no error in the circuit court’s denial of post-termination visitation with
petitioner.
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For the foregoing reasons, we find no error in the decision of the circuit court, and its
January 26, 2016, order is hereby affirmed.
Affirmed.
ISSUED: September 6, 2016
CONCURRED IN BY:
Chief Justice Menis E. Ketchum
Justice Robin Jean Davis
Justice Brent D. Benjamin
Justice Margaret L. Workman
Justice Allen H. Loughry II
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