In re C.J., and J.K. ( 2018 )

STATE OF WEST VIRGINIA
SUPREME COURT OF APPEALS
FILED
In re C.J. and J.K. June 11, 2018
EDYTHE NASH GAISER, CLERK
SUPREME COURT OF APPEALS
No. 18-0154 (Ohio County 16-CJA-146 and 147) OF WEST VIRGINIA
MEMORANDUM DECISION
Petitioner Mother M.K., by counsel Gerasimos Sklavounakis, appeals the Circuit Court
of Ohio County’s January 18, 2018, order terminating her parental rights to C.J and J.K.1 The
West Virginia Department of Health and Human Resources (“DHHR”), by counsel Lee
Niezgoda, filed a response in support of the circuit court’s order. The guardian ad litem
(“guardian”), Joseph J. Moses, filed a response on behalf of the children in support of the circuit
court’s order. On appeal, petitioner argues that the circuit court abused its discretion by denying
her motion to extend her post-adjudicatory improvement period, denying her motion for a post-
dispositional 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 October of 2016, the DHHR filed a petition alleging that petitioner consistently abused
controlled substances, used family resources to purchase drugs, left the children in the care of her
boyfriend who was previously adjudicated as an abusing parent, and failed to provide adequate
food and shelter for the children. Further, the DHHR alleged that petitioner told her boyfriend
she was going to a substance abuse treatment facility, but never actually reported to that facility.
The DHHR alleged that petitioner was missing for some time. Later, it was discovered that
petitioner had an allergic reaction to a medication and was induced into a medical coma. The
circuit court held a preliminary hearing and found sufficient evidence of imminent danger to the
children.
Petitioner stipulated to the allegations of drug abuse in December of 2016 and was
adjudicated as an abusing parent. Petitioner moved for a post-adjudicatory improvement period
and the circuit court granted her motion. The terms of petitioner’s post-adjudicatory
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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improvement period included random drug screens, a long-term drug treatment program,
individualized therapy, parenting and adult life skills classes, mental health treatment, and
weekly contact with her case worker.
The circuit court held a review hearing in April of 2017, where the DHHR alleged that
petitioner was noncompliant with the terms of her improvement period. Petitioner tested positive
for marijuana on multiple drug screens and, as a result, her visitations with the children were
suspended. Further, a provider cancelled petitioner’s services due to petitioner’s nonparticipation
in those services. Petitioner reported recent health issues that required hospitalization. A second
review hearing in May of 2017 revealed the same issues, including positive drug screens and
failure to treat her mental health issues. Petitioner ultimately moved to extend her post-
adjudicatory improvement period. However, the hearing for that motion was continued because
petitioner was involuntarily committed to a mental hospital.2
The circuit court held two dispositional hearings in October and November of 2017.
Petitioner moved for a post-dispositional improvement period and the DHHR moved for
termination of her parental rights. In support of her motion, petitioner presented the testimony of
a clinical psychologist from Northwood Health Systems. The psychologist testified that
petitioner suffered from long-standing bipolar disorders. Given those disorders, the psychologist
testified that it was difficult to reach a prognosis and he could not predict when petitioner’s
recovery would progress.
Ultimately, the circuit court found that petitioner did not successfully complete her post-
adjudicatory improvement period. Petitioner did not attend all drug screens as required and tested
positive when she did attend; her supervised visitations were suspended as a result. Petitioner
also did not fully participate in the services provided to her. Finally, the circuit court found that
petitioner did not successfully treat her substance abuse issues or her mental health conditions to
the point of reaching stability. As a result, the circuit court found that there was no reasonable
likelihood that petitioner would substantially correct the conditions that led to the abuse and
neglect of her children and that it was in the best interest of the children to terminate her parental
rights. Accordingly, the circuit court terminated petitioner’s parental rights by its January 18,
2018, order. Petitioner now appeals that order.3
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
2
The dispositional order notes that petitioner was incarcerated on allegations that she
“threatened a woman.” Petitioner was committed to William R. Sharpe Jr. Hospital while she
was incarcerated.
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The respective fathers of C.J. and J.K. both participated in pre-adjudicatory
improvement periods and were ultimately dismissed from the case. According to the parties, the
permanency plan of the children is continuation in their fathers’ custody with ongoing sibling
visitation.
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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).
First, petitioner argues that the circuit court abused its discretion in denying her motion to
extend her post-adjudicatory improvement period where petitioner was unable to substantially
comply with the terms of that improvement period due to unexpected delays. Petitioner asserts
that she informed the circuit court of her recent health issues in April of 2017, that required
hospitalization and which rendered her incapable of participating for some time. Further,
petitioner asserts that she was incarcerated in June of 2017, which again led to her inability to
participate. Upon our review of the record, we disagree.
Pursuant to West Virginia Code §49-4-610(6), “a court may extend any improvement
period granted pursuant to subdivision (2) . . . when the court finds the respondent has
substantially complied with the terms of the improvement period[.]” Although petitioner argues
that unexpected delays caused her noncompliance, petitioner was noncompliant for three months
prior to April of 2017. The record clearly indicates that certain services were cancelled due to
petitioner’s noncompliance before her hospitalization in April of 2017. Similarly, the record does
not reflect that petitioner began participating between her hospitalization and her incarceration.
Also, petitioner continued to test positive for controlled substances throughout that time. Finally,
petitioner does not take issue with the circuit court finding that she did not substantially comply
with the terms of her improvement period. Accordingly, we find petitioner is entitled to no relief.
Second, petitioner argues that the circuit court abused its discretion by denying her
motion for a post-dispositional improvement period because she experienced a substantial
change in circumstances. Petitioner asserts that she was participating in inpatient therapy, which
was a substantial change from earlier in her post-adjudicatory improvement period. We disagree.
The statute governing post-dispositional improvement periods, West Virginia Code § 49-
4-610(3), provides that “the court may grant an improvement period . . . when: [a] respondent
demonstrates, by clear and convincing evidence, that the respondent is likely to fully participate
in the improvement period.” Additionally, West Virginia Code § 49-4-610(3)(D) states that when
a respondent has previously been granted an improvement period the respondent must
demonstrate “that since the initial improvement period, the respondent has experienced a
substantial change in circumstances. Further, the respondent shall demonstrate that due to that
change in circumstances, the respondent is likely to fully participate in the improvement
period[.]” Moreover, the decision to grant or deny an improvement period rests in the sound
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discretion of the circuit court. See In re M.M., 236 W.Va. 108, 115, 778 S.E.2d 338, 345 (2015)
(“West Virginia law allows the circuit court discretion in deciding whether to grant a parent an
improvement period”).
The circuit court did not abuse its discretion in denying petitioner’s request for a second
improvement period because petitioner did not demonstrate that she would substantially comply
with the terms of such an improvement period. The circuit court found that petitioner was
noncompliant with the terms of her prior improvement period. Petitioner’s alleged substantial
change of circumstances is simply compliance with one of the multiple terms that she previously
ignored. Further, petitioner’s treating psychologist could not provide an opinion as to when her
mental health status could improve. Thus, we find that the circuit court did not abuse its
discretion by denying petitioner’s motion for a post-dispositional improvement period.
The evidence above also supports the circuit court’s termination of petitioner’s parental
rights. Although petitioner argues that the circuit court abused its discretion in terminating her
parental rights, the circuit court properly found that there was no reasonable likelihood that the
conditions of abuse or neglect could be substantially corrected. Pursuant to West Virginia Code §
49-4-604(b)(6), the circuit court may terminate a respondents parental rights “[u]pon a finding
that 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 and abuse can be substantially corrected when “the abusing parent . . . [has] not
responded to or followed through with a reasonable family case plan or other rehabilitative
efforts. . . .” The circuit court found that petitioner was offered an opportunity to improve her
parenting and that she had not successfully treated her substance abuse issues or her mental
health conditions to the point of reaching stability. Petitioner’s instability, which was
exemplified by leaving her children without notice in the custody of an inappropriate person, was
the condition that led to the filing of the petition. Further, petitioner’s substance abuse continued
to put the children at risk. Accordingly, the circuit court did not abuse its discretion in
terminating petitioner’s parental rights.
For the foregoing reasons, we find no error in the decision of the circuit court, and its
January 18, 2018, order is hereby affirmed.
Affirmed.
ISSUED: June 11, 2018
CONCURRED IN BY:
Chief Justice Margaret L. Workman
Justice Robin Jean Davis
Justice Menis E. Ketchum
Justice Elizabeth D. Walker
Justice Loughry, Allen H., II suspended and therefore not participating.
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