In re A.W.-1, D.W., and T.T. ( 2020 )

STATE OF WEST VIRGINIA
SUPREME COURT OF APPEALS FILED
January 17, 2020
EDYTHE NASH GAISER, CLERK
SUPREME COURT OF APPEALS
In re A.W.-1, D.W., and T.T. OF WEST VIRGINIA
No. 19-0249 (Pleasants County 2017-JA-012, 2017-JA-013, and 2017-JA-014)
MEMORANDUM DECISION
Petitioner Mother A.W.-2, by counsel Keith White, appeals the Circuit Court of Pleasants
County’s February 2, 2019, order terminating her parental rights to A.W.-1, D.W., and T.T.1 The
West Virginia Department of Health and Human Resources (“DHHR”), by counsel James
Wegman, filed a response in support of the circuit court’s order. The guardian ad litem, Katrina
M. Christ, filed a response on behalf of the children also in support of the circuit court’s order.
Petitioner filed a reply. On appeal, petitioner argues that the circuit court erred in denying her a
post-dispositional improvement period and terminating her parental right without considering a
less-restrictive disposition.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
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 A.W.-1 and A.W.-2, respectively, throughout this
memorandum decision.
2
Petitioner also argues that the circuit court erred in denying her post-termination visitation
with the children. However, petitioner acknowledges that the issue of post-termination visitation
was not addressed at the dispositional hearing or in the circuit court’s final dispositional order.
Petitioner asserts that, subsequent to the final order on appeal, she filed a timely motion for post-
termination visitation that was pending before the circuit court at the time this appeal was filed.
“‘Our general rule is that nonjurisdictional questions . . . raised for the first time on appeal, will
not be considered.’ Shaffer v. Acme Limestone Co., Inc., 206 W.Va. 333, 349 n.20, 524 S.E.2d
688, 704 n.20 (1999).” Noble v. W. Va. Dep’t of Motor Vehicles, 223 W. Va. 818, 821, 679 S.E.2d
650, 653 (2009). Because the issue of post-termination visitation is not properly before this Court,
we decline to address it in this appeal.
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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 2017, the DHHR filed a child abuse and neglect petition against petitioner
alleging that she failed to keep a safe and sanitary home for her children, provide them with
adequate medical and necessary care, and protect them from domestic violence. Specifically, the
petition alleged that petitioner’s residence was extremely cluttered with piles of household items
in excess of three feet high with little to no footpath through the home. Petitioner’s children, A.W.-
1 and D.W., were taken to a local hospital for a wellness check where both children were treated
for worms and yeast infections. Furthermore, the attending physician observed that D.W.’s front
teeth were rotted to the gums due to malnutrition, and A.W.-1’s teeth were showing similar signs
of rot. The petition also alleged that petitioner disclosed to a Child Protective Services (“CPS”)
worker that her husband recently traveled to her residence where he threatened her and destroyed
her property. Petitioner further disclosed that she filed for multiple domestic violence protective
orders against her husband due to both mental and emotional violence that her children witnessed.
After the petition’s filing, petitioner waived her preliminary hearing.
In November of 2017, the circuit court held an adjudicatory hearing where petitioner
stipulated to the allegations of abuse and neglect in the petition. As such, the circuit court
adjudicated petitioner as an abusive and neglectful parent and granted her a post-adjudicatory
improvement period. The terms of petitioner’s improvement period required her to participate in
individualized parenting classes, life skills classes, and supervised visitation with the children,
among other things. In May of 2018, the circuit court held a hearing on the DHHR’s motion to
terminate petitioner’s improvement period due to her noncompliance with services. The circuit
court found that petitioner’s improvement period expired under its own time limit earlier in the
month; however, it concluded that the improvement period could continue until the dispositional
hearing.
In October of 2018, the circuit court held a dispositional hearing. The DHHR moved to
terminate petitioner’s parental rights. Petitioner moved to continue the disposition until her
psychiatric evaluation report was received.3 The circuit court granted the continuance but
permitted a service provider with Open Horizon Family Services to proceed with her testimony
regarding petitioner’s noncompliance with the terms and conditions of her post-adjudicatory
improvement period. The DHHR admitted into evidence the service provider’s monthly reports
spanning from September of 2017 to July of 2018, which detailed the weekly appointments
scheduled for petitioner, whether such appointments were completed, and if not, why such
appointments were cancelled. The service provider testified that she provided petitioner with
individualized parenting classes, life skills classes, and supervised visitation with the children until
these services were terminated due to petitioner’s frequent absences and overall lack of
communication and participation. Moreover, the service provider testified that, when supervised
3
The results of petitioner’s psychiatric evaluation report are never discussed in the record,
nor is the report contained in the record. The only other mention of the report was at the final
dispositional hearing held in November of 2018, when the DHHR’s counsel stated that the report
was received.
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visitation did occur, petitioner continued to provide the children with sugary drinks despite her
awareness that the children were not permitted to have sugar due to the condition of their teeth.
While the service provider testified that petitioner gained some understanding in regard to why the
children were removed, she also testified that petitioner persistently reverted back to asserting that
the children “never should have been removed to begin with” and that “people [were] picking on
[her].” After this testimony was presented, the circuit court continued the dispositional hearing.
Thereafter, petitioner filed a motion for a post-dispositional improvement period.
In November of 2018, the circuit court held a final dispositional hearing and addressed
petitioner’s motion for a post-dispositional improvement period. Petitioner testified that her lack
of participation in services was mainly due to two medical procedures she underwent after her
improvement period was granted. Although petitioner testified that these surgeries resulted in some
complications and made her nauseous, she admitted that she was never put on bed rest and was
permitted to drive. Petitioner further testified that she suffered from depression during her
improvement period that caused her to be aggravated and forgetful. Overall, petitioner testified
that she was now in a better place because she was employed and no longer taking medication for
her depression, all of which she believed warranted a post-dispositional improvement period. On
cross-examination, however, petitioner failed to articulate what she had done to remedy the
allegations of abuse and neglect in the petition aside from being employed and having a vehicle.
Petitioner admitted that since her services were terminated she had not sought any counseling on
her own and did not have suitable housing for her children. Furthermore, when petitioner was
asked to explain why her children were removed from her care, she was unable to articulate any
basis other than domestic violence between herself and her husband and a cluttered home. At the
conclusion of petitioner’s testimony, the circuit court took the matter under advisement.
In February of 2019, the circuit court entered a dispositional order denying petitioner’s
motion for a post-dispositional improvement period and terminating her parental rights. The circuit
court found that petitioner failed to comply with the basic terms of her improvement period, offered
no credible excuse for her failures, showed no ability or desire to meet the basic needs of her
children, and failed to recognize or remedy the circumstances that led to the filing of the petition.
Based on these findings and the evidence presented, the circuit court concluded that there was no
reasonable likelihood that the conditions of abuse and neglect could be substantially corrected in
the near future. As such, the circuit court terminated petitioner’s parental rights to the children. It
is from the February 2, 2019, dispositional order that petitioner appeals.4
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
4
The parental rights of W.W., the father of A.W.-1 and D.W., were also terminated below.
According to respondents, the permanency plan for A.W.-1 and D.W. is adoption in their current
relative placement. The nonabusing father of T.T. retains his parental rights. The permanency plan
for T.T. is to remain in the custody of her nonabusing father.
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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 first argues that the circuit court erred in denying her motion for a
post-dispositional improvement period because she made “great strides” in improving herself and
the conditions that led to the filing of the petition, without the help of the DHHR. Specifically,
petitioner argues that while there was “some evidence in the record” to support the circuit court’s
findings that she failed to complete any of the services provided to her, the circuit court did not
address the evidence that refuted these findings. Petitioner asserts that her noncompliance with the
terms of her improvement period was due to her surgeries and inconsistent mental health treatment
provided by the DHHR. Moreover, petitioner argues that once the DHHR stopped providing her
services, she improved dramatically because she became employed and made “great efforts” to
obtain adequate housing for her children. Upon our review, we find petitioner’s arguments to be
without merit.
The decision to grant or deny an improvement period rests in the sound 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.”); Syl. Pt. 6, in part, In re Katie S., 198 W. Va. 79, 479 S.E.2d 589 (1996) (“It is within the
court’s discretion to grant an improvement period within the applicable statutory requirements . .
. .”). Pursuant to West Virginia Code § 49-4-610(3)(D) (2015), a circuit court may grant a post-
dispositional improvement period when,
[s]ince the initiation of the proceeding, the [parent] has not previously been granted
any improvement period or the [parent] demonstrates that since the initial
improvement period, the [parent] has experienced a substantial change in
circumstances. Further, the [parent] shall demonstrate that due to that change in
circumstances, the [parent] is likely to fully participate in the improvement period.
Here, petitioner did not meet the statutory requirements to be granted a post-dispositional
improvement period. While it is true that petitioner found employment, the record demonstrates
that this does not constitute a substantial change in circumstances, especially given petitioner’s
minimal compliance with the terms and conditions of her post-adjudicatory improvement period.
Although petitioner asserts that the circuit court failed to address that her noncompliance was
mainly due to complications that arose from her medical procedures, such assertion ignores the
circuit court’s finding that “such justification was arguable at best and applied to a relatively
limited number of [her] absences.” To the extent that petitioner argues she made dramatic
improvements in her situation by making efforts to obtain adequate housing, this does not change
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the fact that these efforts did not result in a suitable home for her children. Gainful employment
and adequate housing were only two of several terms and conditions imposed as part of petitioner’s
post-adjudicatory improvement period, and the record reflects that petitioner failed to comply with
most, if not all, of those terms and conditions. As noted above, petitioner failed to complete the
individualized parenting and life skills classes that were offered to her, which resulted in the
provider terminating such services. Additionally, when petitioner did show up to the scheduled
visits with her children, she continued to provide them with sugary drinks despite being aware that
they were not permitted to have sugar due to the condition of their teeth. Moreover, the circuit
court concluded that, despite the services that were provided, petitioner failed to understand why
her children were removed or what role she played in their removal. Given petitioner’s overall
failure to comply with the terms and conditions of her post-adjudicatory improvement period, it is
clear that her employment and efforts to obtain housing were insufficient to establish that she was
likely to fully participate in a post-dispositional improvement period.
Finally, petitioner argues that the circuit court erred in terminating her parental rights
without considering a less-restrictive disposition. Specifically, petitioner asserts that her “heroic
efforts” to improve her life and the lives of her children warranted the termination of her custodial
rights as opposed to her parental rights. Petitioner further argues that a less-restrictive disposition
was appropriate given that her two younger children were placed with their aunt, and their
permanent placement would not be delayed or disrupted. We disagree.
Many of the same facts the circuit court relied upon in denying petitioner’s motion for a
post-dispositional improvement period also support the termination of petitioner’s parental rights.
Most notably, petitioner’s failure to comply with the terms and conditions of her post-adjudicatory
improvement period demonstrate that there was no reasonable likelihood that she could
substantially correct the conditions of neglect and abuse. Pursuant to West Virginia Code § 49-4-
604(c)(3) (2019), 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 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 in detail above, petitioner failed to comply with the terms and conditions of
her post-adjudicatory improvement period such that services were terminated. Aside from finding
employment after services were terminated, petitioner’s deficiencies remained unchanged. Simply
put, petitioner failed to follow through with the rehabilitative efforts designed to remedy the abuse
and neglect issues that necessitated the petition’s filing. Although petitioner asserts that
termination of her parental rights was unnecessary because the children achieved permanency with
a family member, the termination of petitioner’s parental rights was necessary for the children’s
welfare given that petitioner failed to correct the conditions of abuse and neglect. According to
West Virginia Code § 49-4-604(b)(6), circuit courts may terminate parental rights upon these
findings. Moreover, this Court has previously held that
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“[t]ermination of parental rights, the most drastic remedy under the
statutory provision covering the disposition of neglected children, [West Virginia
Code § 49-4-604] . . . may be employed without the use of intervening less
restrictive alternatives when it is found that there is no reasonable likelihood under
[West Virginia Code § 49-4-604(c)] . . . that conditions of neglect or abuse can be
substantially corrected.” Syllabus point 2, In re R.J.M., 164 W.Va. 496, 266 S.E.2d
114 (1980).
Syl. Pt. 5, In re Kristin Y., 227 W. Va. 558, 712 S.E.2d 55 (2011). 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
February 2, 2019, order is hereby affirmed.
Affirmed.
ISSUED: January 17, 2020
CONCURRED IN BY:
Chief Justice Tim Armstead
Justice Margaret L. Workman
Justice Elizabeth D. Walker
Justice Evan H. Jenkins
Justice John A. Hutchison
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