In re D.S. and N.Z. ( 2020 )

STATE OF WEST VIRGINIA
SUPREME COURT OF APPEALS
FILED
February 7, 2020
EDYTHE NASH GAISER, CLERK
SUPREME COURT OF APPEALS
In re D.S. and N.Z. OF WEST VIRGINIA
No. 19-0343 (Mercer County 17-JA-055-WS and 17-JA-056-WS)
MEMORANDUM DECISION
Petitioner Mother L.S., by counsel Gerald R. Linkous, appeals the Circuit Court of Mercer
County’s March 6, 2019, order terminating her parental, custodial, and guardianship rights to D.S.
and N.Z.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 and a
supplemental appendix. The guardian ad litem, Thomas M. Janutolo Jr., 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, custodial, and guardianship rights instead of imposing a
less-restrictive dispositional alternative.
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 February of 2017, the DHHR filed a petition alleging that petitioner neglected the
children by failing to ensure their proper hygiene, which resulted in “severe diaper rash” on one
child and a rash on the other. Petitioner also admitted to a “severe cockroach problem” in the home,
which a Child Protective Services worker observed. The petition further alleged concerns over
petitioner’s inability to provide proper care for her youngest child, who was observed with certain
medical conditions, such as cradle cap. The DHHR also alleged that petitioner failed to implement
the parenting skills she was taught through services.
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).
1
Following the petition’s filing, petitioner stipulated to neglecting the children due to her
“poor housing” and failure to provide for their basic needs. The circuit court granted petitioner a
post-adjudicatory improvement period and, later, a post-dispositional improvement period. The
terms and conditions of these improvement periods required, in part, that petitioner obtain stable
housing and employment. The DHHR also provided petitioner with parenting education and visits
with the children, among other services.
In August of 2018, the circuit court held a dispositional hearing during which the DHHR
presented testimony concerning petitioner’s noncompliance with services. Specifically, a DHHR
employee testified that petitioner’s participation in services was “very on and off” throughout the
proceedings and that the employee’s “biggest concern” was petitioner’s “inability to consistently
make progress” in remedying the conditions of neglect. The witness further testified that petitioner
would be unlikely to successfully complete her improvement period within three months, given
that the DHHR had “given a lot of resources to try to help [her] with establishing appropriate
housing and helping her with jobs . . . that she did not follow through with.” Ultimately, the circuit
court continued the matter so that the DHHR could “continue to provide services” to petitioner
and specifically ordered her “to cooperate consistently” with the DHHR.
In February of 2019, the circuit court held a final dispositional hearing. The DHHR
presented evidence that petitioner still lacked stable living conditions and employment.
Specifically, after obtaining a home shortly before this hearing, the DHHR indicated that petitioner
“lost that home within a few days.” Based on the evidence, the circuit court found that the case
concerned simply “a lack of ability to care for these children” and that petitioner was unable to
properly care for them because “she doesn’t prioritize her children.” The circuit court further noted
that petitioner was “close [to correcting the conditions of neglect] for two years,” but that she was
ultimately unable to correct the conditions because of her failure to follow through with the
services offered. As such, the circuit court found that there was no reasonable likelihood petitioner
could substantially correct the conditions of neglect in the near future. The circuit court further
found that termination of petitioner’s parental, custodial, and guardianship rights was in the
children’s best interests because they needed permanency, especially considering the length of
time they remained in foster care during the proceedings. Accordingly, the circuit court terminated
petitioner’s parental, custodial, and guardianship 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
2
N.Z.’s father’s parental rights were also terminated below. According to the DHHR, the
child’s permanency plan is adoption in his current foster placement. D.S.’s father voluntarily
relinquished his parental, custodial, and guardianship rights. According to the DHHR, the
permanency plan for D.S. is to be adopted in the same home as N.Z.
2
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).
Petitioner’s sole assignment of error on appeal is that the circuit court should have imposed
a less-restrictive dispositional alternative instead of terminating her parental, custodial, and
guardianship rights to the children. However, it is important to note that petitioner does not
challenge the circuit court’s findings that there was no reasonable likelihood she could
substantially correct the conditions of abuse and neglect in the near future or that such termination
was in the children’s best interests. Indeed, petitioner acknowledges that West Virginia Code § 49-
4-604(b)(6) permits termination of these rights upon these findings. We have long held that
“[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). The record shows that the circuit
court had ample evidence upon which to base these findings, and we decline to disturb them on
appeal, especially in light of petitioner’s failure to allege that such findings were in error.
Instead of challenging these findings, petitioner argues that the circuit court noted she was
“close to completing all the requirements of her improvement period” at the August of 2018
hearing. While it is true that the circuit court expressed its belief that petitioner was “close” to
remedying the conditions of neglect, petitioner’s argument ignores two important facts. The first
is that at the final dispositional hearing in February of 2019, the circuit court explained that
petitioner had actually been “close [to correcting the conditions of neglect] for two years,” yet the
conditions persisted due to her inability to prioritize the children’s proper care. More important,
however, is the fact that the evidence showed that petitioner regressed in her limited progress by
the time of the final hearing, given that she lacked both stable housing and employment. This is in
spite of the fact that the circuit court granted petitioner a continuance of the original dispositional
hearing in August of 2018 so that she could fully comply with the DHHR’s services. Despite being
offered additional time to improve, the record shows that the conditions actually worsened.
Further, petitioner asserts that the children’s placement with a relative supported the imposition of
a less-restrictive dispositional alternative, but fails to acknowledge that the nature of the children’s
placement has no bearing on the appropriateness of the circuit court’s findings upon which
3
termination was based. For these reasons, petitioner’s argument on appeal lacks a basis in the
record or relevant authority, and we find that she is entitled to no relief.
For the foregoing reasons, we find no error in the decision of the circuit court, and its March
6, 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
4