In re B.M.-1 ( 2020 )

STATE OF WEST VIRGINIA
SUPREME COURT OF APPEALS
In re B.M.-1 FILED
February 7, 2020
No. 19-0217 (Wirt County 17-JA-22) EDYTHE NASH GAISER, CLERK
SUPREME COURT OF APPEALS
OF WEST VIRGINIA
MEMORANDUM DECISION
Petitioner Mother B.M.-2, by counsel Joseph Munoz, appeals the Circuit Court of Wirt
County’s December 6, 2018, dispositional order terminating her parental rights to B.M.-1.1 The
West Virginia Department of Health and Human Resources (“DHHR”), by counsel Steven R.
Compton, filed a response in support of the circuit court’s order. The guardian ad litem, Michael
D. Farnsworth Jr., 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
her motion for a post-dispositional improvement period and terminating her 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 November of 2017, the DHHR filed a child abuse and neglect petition alleging that
petitioner exposed the child to illegal drug use and drug paraphernalia and failed to provide a safe
and clean home for the child. Following the filing of the petition, petitioner waived her preliminary
hearing. Thereafter, the circuit court held an adjudicatory hearing in February of 2018. Petitioner
did not appear in person, but was represented by counsel. Based on the testimony presented, the
circuit court found that dangerous conditions existed in petitioner’s home, including dirty needles
that were in reach of the child. The circuit court further found that petitioner’s home 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). Additionally, because the child and petitioner share the same
initials, we will refer to them as B.M.-1 and B.M.-2, respectively, throughout this memorandum
decision.
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frequented by drug users who used drugs in the child’s presence. As such, the circuit court
concluded that petitioner abused and neglected the child and adjudicated petitioner as an abusing
parent.
The circuit court held a dispositional hearing in April of 2018. The DHHR submitted a
report detailing petitioner’s noncompliance with services and supervised visits with the child.
Additionally, the report showed that petitioner submitted to only two drug screens, both of which
were positive for illegal substances such as amphetamines, methamphetamines, and marijuana.
Despite this report, petitioner moved for a post-adjudicatory improvement period, to which the
DHHR objected. Although the circuit court found that petitioner had not sufficiently participated
in services or supervised visits with the child, the court granted petitioner’s motion for a post-
adjudicatory improvement period due to her “youthful age.”
The circuit court held several review hearings on the matter to determine petitioner’s
progress in her improvement period. At the first review hearing in July of 2018, the DHHR’s report
stated that petitioner failed to submit to a substance abuse evaluation and therapy sessions.
However, the report also indicated that petitioner’s cooperation with services had improved. At
the second review hearing in September of 2018, the DHHR’s report provided that petitioner
missed four separate intake appointments to begin her individualized therapy sessions.
Additionally, petitioner failed to consistently comply with drug screens, refused to enter a
substance abuse treatment program, and struggled to obtain stable housing. Despite this evidence,
the circuit court ordered that petitioner’s improvement period continue. Finally, in October of
2018, a final review hearing was held. The DHHR reported that petitioner consistently failed drug
screens, refused assistance with admission into an inpatient treatment program, and continued to
make no progress under her improvement period. Accordingly, the circuit court terminated
petitioner’s improvement period.
In November of 2018, the circuit court held a final dispositional hearing. The DHHR again
submitted a report evidencing petitioner’s continued refusal to enter a drug rehabilitation facility.
Petitioner moved for a post-dispositional improvement period, which the circuit court denied. The
circuit court found that petitioner failed to participate in her post-adjudicatory improvement period,
continued to test positive for methamphetamines, and failed to remedy the conditions of abuse and
neglect that led to the filing of the petition. As such, the circuit court concluded that there was no
reasonable likelihood that the conditions of abuse or neglect could be substantially corrected and
terminated petitioner’s parental rights to the child. It is from the December 6, 2018, dispositional
order that petitioner appeals.2
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
The child’s father’s parental rights were also terminated. B.M.-1 currently resides in a
foster home with the permanency plan of adoption therein.
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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 testified at the dispositional hearing that she
attempted to get into treatment and attended AA meetings. We find petitioner’s argument 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), 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 petitioner asserts that she should have been granted a post-
dispositional improvement period because she “attempted to get into treatment and attended AA
meetings,” the record demonstrates that this does not constitute a substantial change in
circumstances, especially given that petitioner’s post-adjudicatory improvement period was
terminated due to her lack of progress. Additionally, petitioner’s argument that she attempted to
get into treatment is contradicted by the evidence below, which established that petitioner failed
to comply with the basic steps necessary to submit to inpatient treatment arranged by the DHHR.
Furthermore, the record is void of any evidence that demonstrates petitioner’s likeliness to fully
participate in a post-dispositional improvement period. To the contrary, the record reflects that
petitioner failed to participate in nearly every aspect of the post-adjudicatory improvement period
that was granted to her. Specifically, petitioner failed to complete parenting and life skills classes,
failed to participate in supervised visits with her child, and continued to test positive for illegal
substances throughout the proceedings. As such, we find no error in the circuit court’s denial of
petitioner’s motion for a post-dispositional improvement period.
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Petitioner also argues that the circuit court erred in terminating her parental rights.
Specifically, petitioner argues that she took “limited steps toward corrective action” as
demonstrated by her testimony that she attained employment, sought out treatment options, and
desired to finish school. Petitioner further asserts that her limited education, resources, and young
age warranted a less-restrictive disposition, as opposed to the termination of her parental rights.
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 participate in her post-adjudicatory improvement period and
her continued drug use demonstrate that there was no reasonable likelihood that petitioner could
substantially 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.
Pursuant to West Virginia Code § 49-4-604(c)(3), a situation in which there is no
reasonable likelihood that 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.
Additionally, West Virginia Code § 49-4-604(c)(1) provides that 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] habitually abused or [is] addicted to alcohol,
controlled substances or drugs, to the extent that proper parenting skills have been
seriously impaired and the person or persons have not responded to or followed
through the recommended and appropriate treatment which could have improved
the capacity for adequate parental functioning.
Petitioner’s assertion that her “limited steps toward corrective action” demonstrated that
the termination of her parental rights was in error is unfounded given her consistent noncompliance
with the services provided to her by the DHHR. As set forth in detail above, petitioner failed to
participate in her post-adjudicatory improvement period such that services were terminated due to
her lack of progress. Furthermore, petitioner continued to abuse illegal substances throughout the
proceedings. Simply put, petitioner failed to follow through with the rehabilitative efforts designed
to remedy the abuse and neglect issues that caused the petition to be filed. As such, the circuit
court correctly concluded that there was no reasonable likelihood that petitioner could substantially
correct the conditions of abuse and neglect and that termination of her parental rights was
necessary for the child’s welfare. 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
December 6, 2018, 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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