In re A.C., R.C., D.K., and R.K. ( 2018 )

STATE OF WEST VIRGINIA
SUPREME COURT OF APPEALS
FILED
In re A.C., R.C., D.K., and R.K. June 11, 2018
EDYTHE NASH GAISER, CLERK
SUPREME COURT OF APPEALS
No. 18-0029 (Raleigh County 2017-JA-195, 196, 197, and 198) OF WEST VIRGINIA
MEMORANDUM DECISION
Petitioner Mother A.M., by counsel G. Todd Houck, appeals the Circuit Court of Raleigh
County’s December 21, 2017, order terminating her parental rights to A.C., R.C., D.K., and
R.K.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”), Amber R. Hinkle, 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 parental
rights without first granting her a post-dispositional improvement period.
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.
On August 15, 2017, the DHHR filed an abuse and neglect petition against petitioner
alleging that her residence was infested with mice and bugs, covered in trash, and that the
children were observed walking barefoot on broken glass from the windows. According to a
referral, A.C. and R.C. were frequently left home alone and neighbors fed them because there
was limited food in the home. A Child Protective Services (“CPS”) worker visited the home and
observed that the porch was covered in trash bags, loose trash, and broken glass. Petitioner
would not allow the CPS worker inside the home and reported that the children did not live there.
Petitioner also advised the CPS worker that the children were living with another family, but
could not provide the worker with an address. The CPS worker ultimately located the children at
two different residences. Upon investigation, the CPS worker discovered that petitioner was
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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arrested on August 7, 2017, for driving on a suspended license and possession of
methamphetamine.
On August 25, 2017, the circuit court held a preliminary hearing, which petitioner
waived. The circuit court ordered petitioner to undergo a psychological evaluation and
participate in drug screens. On October 6, 2017, the circuit court held an adjudicatory hearing.
Petitioner did not attend, but was represented by counsel. The DHHR presented evidence of the
conditions of the home. Based on the evidence presented, petitioner was adjudicated as an
abusing parent. On November 3, 2017, the circuit court held a dispositional hearing. Petitioner
tested positive for methamphetamine and buprenorphine prior to the hearing, which was
ultimately continued. According to the guardian, following the hearing, petitioner missed drug
screens, failed to produce samples at drug screens, and tested positive for controlled substances.
Petitioner was arrested on November 20, 2017, for shoplifting.
On December 15, 2017, the circuit court held a final dispositional hearing. A CPS worker
testified that the DHHR offered to agree to a post-dispositional improvement period if petitioner
participated in a psychological evaluation and drug screens. However, petitioner missed several
drug screens and tested positive for methamphetamine on November 13, 2017. Petitioner also
failed to appear for her psychological evaluation. Testimony further established that A.C. and
R.C. exhibited behavioral problems at school. Ultimately, the CPS worker testified that petitioner
repeatedly refused to take responsibility for her actions. In regard to the deplorable condition of
her home, petitioner told the CPS worker that she did not live there. She also failed to take
responsibility for her arrests and positive drug screens and attempted to place blame on other
people. The DHHR recommended termination of petitioner’s parental rights due to her failure to
comply with the circuit court’s orders. The guardian also advised that petitioner failed to
cooperate with the DHHR and recommended that petitioner’s parental rights be terminated.
Petitioner testified that she called Saar Psychological to advise them that she was unable
to appear for her psychological evaluation, but only after she missed the appointment. Petitioner
argued that she did not attend her psychological evaluation because school in Raleigh County
was canceled due to snow and she could not find a ride to Charleston. Petitioner denied having a
substance abuse problem and stated that she did not think she needed treatment, but that she
would go to drug rehabilitation only if she had to in order to keep her children. When asked what
caused her to test positive for methamphetamine, petitioner replied that she did not know.
Petitioner requested a post-dispositional improvement period and argued that an additional forty-
five to ninety days for an improvement period would not “have any impact on the children.” The
circuit court found that petitioner had a serious substance abuse problem that she had not
acknowledged or worked to remediate and failed to cooperate with the DHHR. The circuit court
also found that petitioner failed to establish by clear and convincing evidence that she could fully
participate in an improvement period, denied her motion for a post-dispositional improvement
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period, and, ultimately, terminated her parental rights to the children in its December 21, 2017,
order.2 It is from this 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, this Court
finds no error in the proceedings below.
First, petitioner argues that the circuit court erred in terminating her parental rights
without first granting her a post-dispositional improvement period. In support of this argument,
petitioner claims that she was fully prepared to enter an inpatient substance abuse program and
that she would have attended the psychological evaluation, if not for inclement weather the day
of the appointment.
We do not find this argument persuasive. West Virginia Code § 49-4-610(3)(B) provides
that a parent may receive a post-dispositional improvement period when the “[parent]
demonstrates, by clear and convincing evidence, that the [parent] 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.
2
According to the DHHR and the guardian,  D.K. and R.K. are in the full custody of their
non-abusing father. The father of A.C. and R.C. is deceased. According to the parties, the
permanency plan for A.C. is adoption by the current foster family. R.C. is currently placed in a
level three residential behavioral facility.
3
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)).
Petitioner testified at the dispositional hearing that she would go to inpatient substance
abuse treatment, but only if she had to in order to keep her children. However, petitioner testified
that she did not have a substance abuse problem and that she did not need treatment, despite
several missed drug screens and a positive screen for methamphetamine. When asked why she
tested positive for methamphetamine, petitioner responded that she did not know. Because
petitioner failed to acknowledge that she had a substance abuse problem and failed to take
responsibility for her actions, the conditions of abuse and neglect were untreatable, making an
improvement period futile at the children’s expense. Based on this evidence, petitioner failed to
demonstrate that she would substantially comply with the terms and conditions of a post-
dispositional improvement period. We find no error in the circuit court’s denial of petitioner’s
motion for a post-dispositional improvement period.
Next, petitioner argues that the circuit court erred in denying her a post-dispositional
improvement period when the best interests of the children would not be affected by granting her
additional time to participate in an improvement period. We disagree. “‘In a contest involving
the custody of an infant the welfare of the child is the polar star by which the discretion of the
court will be guided.’ Syl. Pt. 2, State ex rel. Lipscomb v. Joplin, 131 W.Va. 302, 47 S.E.2d 221
(1948).” Syl. Pt. 3, In re S.W., 233 W.Va. 91, 755 S.E.2d 8 (2014). Although petitioner argues
that receiving a post-dispositional improvement period may only delay the proceedings for forty-
five or ninety days and would not affect the children, petitioner fails to acknowledge that this
would cause a delay in establishing permanency for the children. As discussed above, petitioner
failed to prove by clear and convincing evidence that she would comply with a post-dispositional
improvement period. She also failed to acknowledge her substance abuse issues and the
conditions of abuse and neglect, making an improvement period futile. The CPS worker’s
testimony regarding A.C.’s and R.C.’s behavioral problems and difficulties in school
demonstrates the importance of establishing a stable home environment for these children.
Therefore, termination of petitioner’s parental rights was in the children’s best interests.
Finally, we find no error in the circuit court’s termination of petitioner’s parental rights.
West Virginia Code § 49-4-604(b)(6) provides that circuit courts are to terminate parental rights
upon findings 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 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[.]”
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Petitioner argues that she was not provided with a family case plan or any “good faith
assistance . . . to ameliorate the neglectful or abusive conditions or circumstances.” 3 However,
petitioner does not acknowledge that she failed to comply with orders from the circuit court
directing her to participate in drug screens and a psychological evaluation. Based on this
evidence, it is clear that there was no reasonable likelihood that petitioner could correct the
conditions of abuse and neglect in the near future and that termination of her parental rights was
in the children’s best interests. Therefore, we find no error in the circuit court’s termination of
petitioner’s parental rights.
Lastly, due to the lack of a permanency plan for R.C. following his release from a
behavioral facility or transfer to a step-down facility, this Court reminds the circuit court of its
duty to establish permanency for the children. Rule 39(b) of the Rules of Procedure for Child
Abuse and Neglect Proceedings requires:
At least once every three months until permanent placement is achieved as
defined in Rule 6, the Court shall conduct a permanent placement review
conference, requiring the multidisciplinary treatment team to attend and report as
to progress and development in the case, for the purpose of reviewing the progress
in the permanent placement of the child.
Further this Court reminds the circuit court of its duty pursuant to Rule 43 of the Rules of
Procedure for Child Abuse and Neglect Proceedings to find permanent placement for child
within twelve months of the date of the dispositional order. As this Court has stated,
[t]he [twelve]-month period provided in Rule 43 of the West Virginia
Rules of Procedures for Child Abuse and Neglect Proceedings for permanent
placement of an abused and neglected child following the final dispositional order
3
We have held that
[t]he purpose of the family case plan as set out in W.Va. Code [§] 49-6D-3(a)
[now W.Va. Code § 49–4–408(a) ] ... is to clearly set forth an organized, realistic
method of identifying family problems and the logical steps to be used in
resolving or lessening these problems.
Syl. Pt. 5, State ex rel. Dep’t of Human Services v. Cheryl M., 177 W. Va. 688, 356 S.E.2d 181
(1987). While petitioner argues that the DHHR failed to file a family case plan, she admits that
the parties “informally agreed to the terms of a . . . family case plan.” Further, the record is clear
that petitioner was well aware of what was required of her in order to remedy the conditions of
abuse and neglect in the home as evidenced by the circuit court’s orders to participate in drug
screens and psychological testing. As such, under the limited circumstance of this case, the
DHHR’s failure to timely file a family case plan had no prejudicial impact on petitioner’s failure
to remedy the conditions of abuse and neglect in the home.
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must be strictly followed except in the most extraordinary circumstances which
are fully substantiated in the record.
Cecil T., 228 W.Va. at 91, 717 S.E.2d at 875, Syl. Pt. 6. Moreover, this Court has stated that
[i]n determining the appropriate permanent out-of-home placement of a
child under W.Va.Code § 49-6-5(a)(6) [1996] [now West Virginia Code § 49-4-
604(b)(6)], the circuit court shall give priority to securing a suitable adoptive
home for the child and shall consider other placement alternatives, including
permanent foster care, only where the court finds that adoption would not provide
custody, care, commitment, nurturing and discipline consistent with the child’s
best interests or where a suitable adoptive home can not be found.
Syl. Pt. 3, State v. Michael M., 202 W.Va. 350, 504 S.E.2d 177 (1998). Finally, “[t]he guardian
ad litem’s role in abuse and neglect proceedings does not actually cease until such time as the
child is placed in a permanent home.” Syl. Pt. 5, James M. v. Maynard, 185 W.Va. 648, 408
S.E.2d 400 (1991).
For the foregoing reasons, we find no error in the decision of the circuit court, and its
December 21, 2017, dispositional 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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