In re L.G. and D.G.-1 ( 2018 )

STATE OF WEST VIRGINIA
SUPREME COURT OF APPEALS
FILED
In re L.G. and D.G.-1
February 23, 2018
EDYTHE NASH GAISER, CLERK
No. 17-0612 (Cabell County 16-JA-9 and 16-JA-10) SUPREME COURT OF APPEALS
OF WEST VIRGINIA
MEMORANDUM DECISION
Petitioner Mother D.G.-2, by counsel Kerry A. Nessel, appeals the Circuit Court of
Cabell County’s June 2, 2017, order terminating her parental rights to L.G. and D.G.-1.1 The
West Virginia Department of Health and Human Resources (“DHHR”), by counsel S.L. Evans,
filed a response in support of the circuit court’s order. The guardian ad litem (“guardian”), Sarah
E. Dixon, 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 improvement period and
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 January of 2016, the DHHR filed an abuse and neglect petition against the parents that
alleged they provided inappropriate medical care for the children. Specifically, the DHHR
received a referral that L.G. suffered from a seizure disorder that required medication be
administered twice per day. Upon taking the child to a doctor because of a seizure, blood work
revealed no trace of the seizure medication in the child’s system. According to the petition,
medical professionals instructed the parents that failure to administer the medication as
instructed would result in additional seizures and that the child could die should the seizures be
severe enough. Further, the DHHR alleged that D.G. had a severe rash covering his legs, which
appeared swollen. According to petitioner, the child had recently been hospitalized due to
chicken pox. The petition further alleged that the home was in deplorable condition and lacked
running water.
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 one of the children and petitioner
share the same initials, we will refer to them as D.G.-1 and D.G.-2, respectively, throughout the
memorandum decision.
1
The DHHR additionally alleged that petitioner lied about where the children resided.
According to the petition, she indicated that the children lived with their grandmother due to the
lack of running water in the parents’ home. However, relatives informed the DHHR that, upon
learning of Child Protective Service’s (“CPS”) intention to come to the home, petitioner
contacted family members and told them that if the children did not leave for a relative’s home
they would be removed. Finally, the DHHR alleged that the parents had previous CPS
involvement due to the conditions in the home. As such, the petition alleged that the parents
neglected the children by failing to provide them with safe and adequate living conditions and
medical neglect.
Thereafter, petitioner waived her preliminary hearing and then stipulated to neglect at
adjudication. The circuit court also granted petitioner a post-adjudicatory improvement period,
which included the following requirements: (1) consistently continue with individualized therapy
and take medications as prescribed; (2) find a new home that could accommodate the children;
(3) participate in and complete adult life skills and parenting education; (4) participate in
financial counseling; and (5) submit to a parental fitness/psychological evaluation and follow and
complete all the evaluator’s recommendations. In April of 2016, petitioner completed the
evaluation. The evaluation included the following recommendations for petitioner: (1) weekly
psychotherapy; (2) domestic violence education followed by couples counseling if the parents
remained together; and (3) psychiatric consultation for medication management.
In December of 2016, the circuit court held a review hearing during which a CPS worker
testified to petitioner’s manipulation and dishonesty during the proceedings. According to
testimony, petitioner represented to service providers that her attorney granted extra child visits
with the father’s relatives. This was in spite of the CPS worker having authorized only two visits
per month with supervision from the paternal grandparents. The worker also testified that
petitioner told a service provider that a CPS supervisor told her he would not permit the DHHR
to seek termination of petitioner’s parental rights. The CPS worker testified that these statements
were untrue. Finally, it was established that petitioner was released from her psychiatrist’s care.
Based on this evidence, the circuit court terminated petitioner’s improvement period.
In April of 2017, the circuit court held a dispositional hearing, during which petitioner
admitted that she was not ready for the children to return to her custody. Testimony from a
service provider established that petitioner needed to completely fix the home before the children
could be returned. The provider also testified that, in order to remedy the conditions of neglect,
petitioner needed weekly psychotherapy and domestic violence education, among other services.
Another CPS worker testified that petitioner failed to make significant progress, especially in
light of the fact that she waited too long to enroll in therapy. The CPS worker also testified that it
was not safe to return the children to the home.
Ultimately, the circuit court found that petitioner had not complied with the
recommendations from the psychological evaluation. Further, the circuit court found that
petitioner failed to complete the terms of her family case plan. Accordingly, the circuit court
found that there was no reasonable likelihood petitioner could substantially correct the conditions
of neglect and that termination of her parental rights was necessary for the children’s welfare. As
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such, the circuit court terminated petitioner’s parental rights.2 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,
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.
On appeal, petitioner argues that the circuit court erred in terminating her improvement
period and parental rights. We do not agree. While petitioner is correct that her
acknowledgement of the conditions of neglect rendered her amenable to services to correct these
conditions, there is simply no evidence in the record that petitioner took the appropriate steps to
achieve this goal. Contrary to petitioner’s argument that she was complying with services, the
circuit court was presented with evidence that petitioner did not substantially comply with the
services offered. In fact, the circuit court specifically found that it “extended the timelines for the
respondent parents and . . . tried to bend over backwards and give the respondent parents the
opportunity to comply with their [f]amily [c]ase [p]lan.” However, the circuit court ultimately
found that petitioner failed to complete the terms of her family case plan, despite explicit
instructions to work toward this goal prior to the dispositional hearing. Moreover, petitioner
admitted that she was not ready for the children to return to the home. The record shows that
petitioner was not prepared for the children’s return, in part, because she had not completed
portions of the family case plan that would have made the home habitable for the children.
Although petitioner argues that she should have been entitled to more time to participate
in an improvement period because she was already complying with the terms of the family case
plan, we do not agree. As set forth above, petitioner had multiple opportunities to comply with
the family case plan but failed to do so. Pursuant to West Virginia Code § 49-4-610(7), upon the
2
In addition to the termination of petitioner’s parental rights, the parental rights of the
father to the children were terminated below. According to respondents, the permanency plan for
the children is adoption in the current foster home.
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motion of any party, a circuit court “shall terminate any improvement period . . . when the court
finds that respondent has failed to fully participate in the terms of the improvement period . . . .”
There is simply no evidence in the record to establish that petitioner fully participated in the
terms of her improvement period. On the contrary, the record shows that petitioner failed to
complete the services provided. As such, the circuit court did not err in terminating petitioner’s
improvement period.
Moreover, petitioner’s failure to participate in services also supported the circuit court’s
termination of parental rights. In the dispositional order, the circuit court specifically found that
there was no reasonable likelihood petitioner could substantially correct the conditions of neglect
in the near future. Pursuant to West Virginia Code § 49-4-604-(c)(3), a situation in which there is
no reasonable likelihood the conditions of abuse and neglect can be substantially corrected
includes one in which “[t]he abusing parent . . . [has] not responded to or followed through with
a reasonable family case plan or other rehabilitative efforts . . . designed to reduce or prevent the
abuse or neglect of the child[.]” As set forth above, petitioner failed to follow through with the
family case plan. The circuit court further found that termination of petitioner’s parental rights
was necessary for the children’s welfare. Pursuant to West Virginia Code § 49-4-604(b)(6),
circuit courts are directed to terminate parental rights upon these findings. Accordingly, we find
no error in the termination of petitioner’s parental rights.
For the foregoing reasons, we find no error in the decision of the circuit court, and its
June 2, 2017, order is hereby affirmed.
Affirmed.
ISSUED: February 23, 2018
CONCURRED IN BY:
Chief Justice Margaret L. Workman
Justice Robin Jean Davis
Justice Menis E. Ketchum
Justice Allen H. Loughry II
Justice Elizabeth D. Walker
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