In re A.M., D.E.-A., D.A., C.A., and R.A. Jr. ( 2020 )

STATE OF WEST VIRGINIA
SUPREME COURT OF APPEALS FILED
February 7, 2020
EDYTHE NASH GAISER, CLERK
SUPREME COURT OF APPEALS
OF WEST VIRGINIA
In re A.M., D.E.-A., D.A., C.A., and R.A. Jr.
No. 19-0714 (Kanawha County 18-JA-330, 18-JA-331, 18-JA-332, 18-JA-333, and 18-JA-334)
MEMORANDUM DECISION
Petitioner Mother A.E., by counsel Peggy L. Collins, appeals the Circuit Court of Kanawha
County’s July 15, 2019, order terminating her parental rights to A.M., D.E.-A., D.A., C.A., and
R.A. Jr.1 The West Virginia Department of Health and Human Resources (“DHHR”), by counsel
Mindy M. Parsley, filed a response in support of the circuit court’s order. The guardian ad litem,
Rebecca Stollar Johnson, 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.
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.
After the DHHR filed an abuse and neglect petition in June of 2018 against her due to
substance abuse, among other issues, petitioner stipulated to having “a substance abuse problem
that . . . negatively affected her parenting abilities and caused her to neglect her children.”
Accordingly, in its April 10, 2019, adjudicatory order, the circuit court found petitioner to be an
abusing parent. Additionally, the circuit court granted petitioner a post-adjudicatory improvement
period that required her to participate in parenting and adult life skills education; submit to random
drug screens; participate in a substance abuse treatment program and follow all resulting
recommendations; participate in a parental fitness evaluation and follow all recommendations; and
participate in supervised visitation with the children. Following multiple review hearings, the last
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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of which was held in February of 2019, petitioner’s improvement period was permitted to continue.
In April of 2019, the circuit court found that petitioner’s improvement period had expired and set
the matter for disposition.
In a court summary filed prior to the dispositional hearing, the DHHR asserted that
petitioner failed to attend parenting and adult life skills classes or supervised visits or otherwise
respond to her service providers since May 15, 2019. The DHHR also alleged that some of
petitioner’s drug screens were positive for marijuana and methamphetamine, which precluded her
from visiting the children since November of 2018.
In June of 2019, the circuit court held a dispositional hearing. The DHHR presented
testimony from an employee that petitioner’s compliance with services throughout the case was
sporadic and that she would comply for a short period before ceasing her compliance. The DHHR
employee further indicated that petitioner had not “answered the providers at all” since May 15,
2019. According to the witness, petitioner’s compliance with drug screens was sporadic and she
provided “a few [results] with marijuana and/or methamphetamines.” The witness additionally
testified that the DHHR provided petitioner services for approximately one year and that during
that period she was never fully compliant and had not completed any of the services provided. As
a result, the witness testified that the DHHR sought termination of petitioner’s parental rights.
Based on this evidence, the circuit court found that there was no reasonable likelihood petitioner
could substantially correct the conditions of abuse and neglect, given that petitioner failed to follow
through with the family case plan and associated services. The circuit court further found that
termination of petitioner’s parental rights was in the children’s best interests. Accordingly, the
circuit court terminated petitioner’s parental rights to the children.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
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).
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According to the parties, A.M.’s father has agreed to permanent placement of the child
with the paternal grandmother following either the father’s voluntary relinquishment of parental
rights or his consent to a legal guardianship with the paternal grandmother. The father of the
remaining children is nonabusing and permanency has been achieved by placement in his care.
2
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 erred in terminating
her parental rights because she substantially complied with her improvement period and obtained
suitable housing and employment. This argument, however, not only misstates the record but also
ignores the main issue for which she was adjudicated. While petitioner is correct that the record
shows that she was, at times, compliant with the terms of her improvement period and that the
circuit court permitted the improvement period to continue after multiple review hearings, she
ignores the fact that testimony at the dispositional hearing indicated that her compliance was
sporadic. Specifically, a DHHR employee testified that petitioner would be compliant for a short
period before regressing into noncompliance. Even more importantly, in the month prior to the
dispositional hearing, petitioner not only failed to comply with any of her services but failed to
communicate with the DHHR at all. As such, the record is clear that despite several continuances
of her improvement period, petitioner failed to maintain her compliance throughout the
proceedings.
Further, while it may be true that petitioner obtained housing and employment, the main
issue for which petitioner was adjudicated was her substance abuse. Based upon petitioner’s
stipulation to neglect caused by her substance abuse, the circuit court specifically instructed that
she was required to participate in substance abuse treatment as part of her improvement period.
Although the DHHR’s various court summaries indicate that petitioner was participating in
treatment through a Suboxone clinic during the proceedings, the record also shows that petitioner
tested positive for marijuana and methamphetamine and failed to submit for drug screens on other
occasions. As this Court has held,
“[a]t the conclusion of the improvement period, the court shall review the
performance of the parents in attempting to attain the goals of the improvement
period and shall, in the court's discretion, determine whether the conditions of the
improvement period have been satisfied and whether sufficient improvement has
been made in the context of all the circumstances of the case to justify the return of
the child.” Syllabus point 6, In re Carlita B., 185 W.Va. 613, 408 S.E.2d 365
(1991).
Syl. Pt. 3, In re Kristin Y., 227 W. Va. 558, 712 S.E.2d 55 (2011). In short, petitioner’s assertion
that she substantially complied with the improvement period ignores the fact that her substance
abuse issues were not remedied sufficiently to justify the return of the children to her care.
Finally, based on the evidence of petitioner’s sporadic compliance and, especially, her
failure to participate in any services or even remain in contact with the DHHR in the month prior
to the dispositional hearing, the circuit court found that petitioner failed to follow through with the
DHHR’s rehabilitative services. Importantly, this constitutes a situation in which there is no
reasonable likelihood the conditions of abuse and neglect can be substantially corrected in the near
future under West Virginia Code § 49-4-604(c)(3). On appeal, petitioner asserts that the circuit
court’s findings in this regard were “largely vague and conclusive, unsupported by either the
testimony presented or the [c]ourt’s previous orders regarding the improvement period.” We
disagree and find that the circuit court’s order is specific as to the basis for the termination of
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petitioner’s parental rights. Moreover, the circuit court’s findings are based on substantial
evidence, including testimony from a DHHR employee that petitioner was never “fully compliant”
in her improvement period and failed to complete any of the services offered. Moreover, the circuit
court found that termination of petitioner’s parental rights was in the children’s best interests.
According to West Virginia Code § 49-4-604(b)(6), circuit courts may terminate parental rights
upon these findings. Further, 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.
For the foregoing reasons, we find no error in the decision of the circuit court, and its July
15, 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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