In re L.G. ( 2020 )

STATE OF WEST VIRGINIA
SUPREME COURT OF APPEALS
In re L.G. FILED
February 7, 2020
No. 19-0497 (Kanawha County 18-JA-307) EDYTHE NASH GAISER, CLERK
SUPREME COURT OF APPEALS
OF WEST VIRGINIA
MEMORANDUM DECISION
Petitioner Father G.G., by counsel Elizabeth G. Kavitz, appeals the Circuit Court of
Kanawha County’s April 24, 2019, order terminating his parental rights to L.G.1 The West
Virginia Department of Health and Human Resources (“DHHR”), by counsel Brandolyn N.
Felton-Ernest, filed a response in support of the circuit court’s order. The guardian ad litem,
Sharon K. Childers, filed a response on behalf of the child also in support of the circuit court’s
order and a supplemental appendix. On appeal, petitioner argues that the circuit court erred in
denying his request for a post-dispositional improvement period and terminating his 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 May of 2018, the DHHR filed a child abuse and neglect petition against petitioner
alleging that his substance abuse issues prevented him from properly caring for the children in
the home and that he failed to protect A.A.-R. from the physical and emotional abuse of the
mother.2 Specifically, the DHHR alleged that A.A.-R. reported that the mother called him names
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).
2
In 2014, an abuse and neglect petition was filed against the mother of L.G. and A.A.-R.
alleging conditions of abuse and neglect similar to the instant matter. In the previous case, the
mother stipulated to inappropriately disciplining A.A.-R. and was adjudicated as an abusing
(continued . . .)
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such as “stupid, retard, dumb, moron” and told him that he was “never going to amount to
anything.” The DHHR alleged that A.A.-R. had also come to school with fresh scratch marks on
his head, which he reported were caused by the mother. A.A.-R. was reported to be very hungry
at school and attempted to steal food. During an interview with a Child Protective Services
(“CPS”) worker, A.A.-R. appeared frightened and fearful and claimed that his mother’s anger
towards him was his fault. The CPS worker interviewed petitioner, who claimed that “most of
the problems with [A.A.-R. are A.A.-R.’s] fault because he does not listen.” Petitioner admitted
that the mother has “some anger issues” and claimed that he told the mother she should not call
A.A.-R. names, but stated in the mother’s defense that A.A.-R. “does dumb things.” Lastly,
petitioner admitted to using marijuana, but petitioner claimed that he used the drug in a room
outside the presence of the children.
Petitioner waived his preliminary hearing and was granted a preadjudicatory
improvement period. Services provided to petitioner included supervised visitation with L.G.
contingent upon negative drug screens, random drug screens, parenting and adult life skills
classes, a parental assessment and psychological evaluation, and bus passes to aid with
transportation. In August of 2018, petitioner underwent the psychological evaluation. The
evaluating psychologist found that petitioner lacked insight and only minimally accepted
responsibility for his actions, which was highly predictive of his motivation to change. The
psychologist noted there was little reason to believe petitioner would be motivated to change his
attitudes, decisions, and behaviors and further opined that, should the same situation arise,
petitioner would likely fail to take action to protect the children again. As such, the psychologist
concluded that petitioner’s progress for improved parenting was poor.
After two continuances, the circuit court held an adjudicatory hearing in October of 2018.
Petitioner stipulated that his previous drug use interfered with his ability to parent the child. The
circuit court accepted petitioner’s stipulation, adjudicated him as an abusing parent, and granted
him a post-adjudicatory improvement period, which included the same services from the
preadjudicatory improvement period. Following the adjudicatory hearing, petitioner continued to
test positive for marijuana and his supervised visits with L.G. were suspended. Additionally,
petitioner and the mother engaged in domestic violence on two separate occasions, which
resulted in law enforcement intervention. In December of 2018, the circuit court held a review
hearing, and the DHHR advised that petitioner was not complying with his post-adjudicatory
improvement period. As such, petitioner’s post-adjudicatory improvement period was
terminated.
A dispositional hearing scheduled for February of 2019 was continued at the DHHR’s
request. Petitioner filed a motion for a post-dispositional improvement period in April of 2019.
Later in April, the circuit court held the final dispositional hearing. Petitioner testified on his own
parent. However, the mother successfully completed her post-adjudicatory improvement period
and the matter was dismissed. Petitioner is not the father of A.A.-R., but was noted to be a
caretaker and/or custodian given that he lived in the home with the mother and his child L.G.,
who is the only child at issue on appeal.
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behalf and presented the testimony of a service provider in support of his motion for a post-
dispositional improvement period. Petitioner admitted that he tested positive for marijuana
throughout the proceedings and continued to consume alcohol against the circuit court’s order.3
In fact, petitioner testified that he consumed alcohol only two days prior to the dispositional
hearing. Petitioner also admitted that his positive drug screens kept him from visiting the child.
Despite the fact that the mother’s parental rights had been terminated earlier in the proceedings,
petitioner testified that “she was never, ever a danger to, at least, our daughter” and that “[s]he
never treated our daughter any differently than I would have treated her.” Following this
testimony, the circuit court denied petitioner’s motion for a post-dispositional improvement
period, finding that “there has not been enough improvement on behalf of [petitioner] to warrant
another improvement period.”
Proceeding to disposition, the circuit court took judicial notice of all prior evidence
submitted. The DHHR presented the testimony of a CPS worker, who testified that there were no
other services available to petitioner that had not already been offered. Due to petitioner’s failure
to comply with services and the denial of his motion for a post-dispositional improvement
period, the CPS worker recommended termination of petitioner’s parental rights. Ultimately, the
circuit court found that petitioner had an ongoing substance abuse issue which prevented him
from being an appropriate parent and prevented him from visiting with the child during the
proceedings. The circuit court further found that, despite evidence of his testing positive for
drugs throughout the proceedings, petitioner testified that he did not have substance abuse issues.
As such, the circuit court terminated petitioner’s parental rights, finding that the best interests of
the child required termination and that there was no reasonable likelihood that he could
substantially correct the conditions of abuse and neglect in the near future given that he did not
make sufficient effort to rectify the circumstances which led to the abuse and did not follow
through with services. It is from the April 24, 2019, dispositional order that petitioner appeals.4
The Court has previously established the following standard of review in cases such as
this:
“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,
Petitioner claimed that he tested positive for a substance that was “perceived” to be
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marijuana. Petitioner claimed that he was using “cannabidiol,” or CBD oil, which allegedly
caused him to test positive for marijuana.
4
The mother’s parental rights were terminated below. The children were placed in the
care of the maternal grandmother with a permanency plan of adoption.
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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).
On appeal, petitioner argues that the circuit court erred in denying his motion for a post-
dispositional improvement period. According to petitioner, the evidence demonstrated that he
was likely to participate in a post-dispositional improvement period. Petitioner testified that he
maintained employment, participated in services, and complied with the “vast majority” of
random drug screens. As such, petitioner contends that the circuit court abused its discretion in
denying his motion. We disagree.
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), 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 was granted a preadjudicatory improvement period and a post-
adjudicatory improvement period. Therefore, he was required to demonstrate a substantial
change in circumstances in addition to his likelihood of fully participating in an improvement
period in order to be granted a post-dispositional improvement period. However, petitioner failed
to demonstrate either of these requirements. While it is true that petitioner maintained
employment and attended services, petitioner tested positive for marijuana and alcohol
throughout the proceedings, preventing him from visiting with L.G. “We have previously
pointed out that the level of interest demonstrated by a parent in visiting his or her children while
they are out of the parent’s custody is a significant factor in determining the parent’s potential to
improve sufficiently and achieve minimum standards to parent the child.” Katie S., 198 W. Va. at
90 n.14, 479 S.E.2d at 600 n.14 (citing Tiffany Marie S., 196 W. Va. at 228 and 237, 470 S.E.2d
at 182 and 191; State ex rel. Amy M. v. Kaufman, 196 W. Va. 251, 259, 470 S.E.2d 205, 213
(1996)). Moreover, petitioner failed to fully acknowledge the extent of his actions, testifying that
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he did not have a substance abuse problem and that he believed the mother could properly parent
L.G. despite her parental rights having been terminated. 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)). Given petitioner’s failure to meaningfully address
his substance abuse, consistently visit with his child, or acknowledge the extent of his
responsibility, we find no error in the circuit court’s decision to deny petitioner’s motion for a
post-dispositional improvement period, as it would have been an exercise in futility at L.G.’s
expense.
Petitioner also argues that the circuit court erred in terminating his parental rights when
other less-restrictive dispositions were appropriate. Petitioner asserts that he produced negative
drug screens in the two months leading up to disposition and, given additional time, could have
substantially corrected the conditions of abuse. We find no merit in petitioner’s arguments.
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 child’s
welfare. West Virginia Code § 49-4-604(c)(3) provides that a situation in which there is “[n]o
reasonable likelihood that [the] conditions of neglect or abuse can be substantially corrected”
includes when
[t]he abusing parent . . . ha[s] 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.
The record establishes that petitioner failed to respond to or follow through with
rehabilitative efforts designed to reduce or prevent the abuse and neglect of the child. During the
underlying proceedings, petitioner tested positive for marijuana and alcohol on numerous
occasions, despite knowing that producing positive screens would prevent him from visiting the
child. Further, petitioner testified at the dispositional hearing that he did not have a substance
abuse issue, despite acknowledging that he consumed alcohol only two days before the
dispositional hearing, against court order. Petitioner also failed to acknowledge the extent of the
mother’s abuse against the children and only minimally accepted responsibility for his failure to
protect the children from the mother’s abuse. Moreover, petitioner’s psychological evaluation
report indicated that petitioner’s motivation for change was low and that the likelihood that he
would behave in the same manner should the same circumstances arise was high. As such, his
prognosis for improved parenting was deemed to be poor. While petitioner argues that he should
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have been granted a less-restrictive alternative to termination of his parental rights, we have
previously held that “[c]ourts are not required to exhaust every speculative possibility of parental
improvement . . . where it appears that the welfare of the child will be seriously threatened.”
Cecil T., 228 W. Va. at 91, 717 S.E.2d at 875, syl. pt. 4 (citing syl. pt. 1, in part, In re R.J.M.,
164 W. Va. 496, 266 S.E.2d 114 (1980)). Moreover,
“[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). Given petitioner’s failure to
adequately acknowledge or address his issues with substance abuse, we agree with the circuit
court’s decision that there was no reasonable likelihood that petitioner could correct the
conditions of abuse and neglect in the near future and that termination was necessary for the
welfare of the child. Therefore, we find no error in the circuit court’s termination of petitioner’s
parental rights.
For these reasons, we find no error in the decision of the circuit court, and its April 24,
2019, order is hereby affirmed.
Affirmed.
ISSUED: February 7, 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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