In re S.L. ( 2020 )

STATE OF WEST VIRGINIA
SUPREME COURT OF APPEALS
FILED
In re S.L. March 13, 2020
EDYTHE NASH GAISER, CLERK
SUPREME COURT OF APPEALS
No. 19-0789 (Mingo County 19-JA-16) OF WEST VIRGINIA
MEMORANDUM DECISION
Petitioner Father J.L., by counsel Susan J. Van Zant, appeals the Circuit Court of Mingo
County’s August 23, 2019, order terminating his parental rights to S.L.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 (“guardian”), Cullen
Younger, filed a response on behalf of the child also in support of the circuit court’s order. On
appeal, petitioner argues that the circuit court erred in denying his motion for an 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 March of 2019, the DHHR filed a child abuse and neglect petition against petitioner
alleging that he and the mother were homeless and abused drugs. Specifically, the parents and the
child had been living in their vehicle and a camper, and a family member reported concern for the
child after observing her in a filthy state. After initiating an investigation, a DHHR worker
observed petitioner’s vehicle swerving on the road and called the police, who attempted to stop
petitioner’s vehicle. Petitioner fled and crashed the vehicle. The parents, who were under the
influence, then attempted to flee the police on foot with the child. The child had not been in a car
seat or wearing a seatbelt when the vehicle crashed. Further, upon petitioner’s arrest, needles and
methamphetamine were found on his person. Petitioner was charged with driving while under the
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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influence (“DUI”) with a minor, felony child neglect, possession, and possession with intent to
deliver. When the DHHR took custody of the child, she was dirty, her vagina was red and irritated,
her stomach was distended from what was later determined to be a hernia, and her teeth were
rotting and chipped. Petitioner waived his preliminary hearing.
In April of 2019, the circuit court held the adjudicatory hearing. Petitioner failed to appear,
but was represented by counsel. A DHHR worker testified as to the allegations contained in the
petition, including petitioner’s unstable living situation, his failure to obtain medical treatment for
the child’s hernia, his DUI with the child in the vehicle and subsequent fleeing from police, and
his subsequent criminal charges. The circuit court adjudicated petitioner as an abusing parent based
upon findings that he neglected the child, failed to protect her, and placed her in danger.
The circuit court held an initial dispositional hearing in May of 2019. Petitioner requested
a post-adjudicatory improvement period and proffered that he would participate in services. The
DHHR opposed the motion, stating that petitioner failed to maintain contact with the caseworker,
refused to submit to drug screens, and “just will not participate.” The circuit court denied further
services and continued the hearing, which was reconvened in June of 2019. At that hearing, the
DHHR presented the testimony of a DHHR worker, who recommended termination of petitioner’s
parental rights. She testified that petitioner had been incarcerated at the beginning of the
proceedings, but was later released. Petitioner subsequently tested positive for methamphetamine
two times and, ultimately, was re-incarcerated for violating his probation. According to the DHHR
worker, petitioner refused to submit to drug screens, other than immediately prior to hearings, and
failed to comply with anything the DHHR asked of him. The worker did not believe petitioner was
going to change his circumstances such that he could provide proper care for the child. Following
testimony, the circuit court terminated petitioner’s parental rights upon finding that there was no
reasonable likelihood that petitioner could correct the conditions of abuse and/or neglect in the
near future. Petitioner appeals the August 23, 2019, dispositional order.2
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, 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).
2
The mother’s parental rights were also terminated below. The permanency plan for the
child is adoption in her current foster placement.
2
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 terminating his parental rights
without first granting him an improvement period. According to petitioner, there were no
allegations in the petition “that would lead to the termination of his parental rights” and the DHHR
should have provided services as the allegations in the petition “could be corrected with
assistance.” Further, petitioner contends that he was accepted into a drug treatment program and
provided proof of his compliance to the circuit court. Petitioner also avers that there was
insufficient evidence to support the circuit court’s finding that there was no reasonable likelihood
he could correct the conditions of abuse and neglect in the near future when the DHHR worker
testified that he could benefit from and was in need of drug treatment.3 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 . .
. .”). We have also held that a parent’s “entitlement to an improvement period is conditioned upon
the ability of the [parent] to demonstrate ‘by clear and convincing evidence that the respondent is
likely to fully participate in the improvement period.’” In re Charity H., 215 W. Va. 208, 215, 599
S.E.2d 631, 638 (2004).
Having reviewed the record, we find that the circuit court did not abuse its discretion in
denying petitioner’s request for an improvement period. Petitioner was adjudicated largely based
upon his drug abuse and criminal actions. Indeed, testimony established that petitioner was driving
under the influence and swerving all over the road with the child in the car, unrestrained by either
a car seat or seat belt. Petitioner crashed the car and then attempted to flee the police on foot with
the child while needles containing methamphetamine were on his person. Petitioner was arrested
and then released from incarceration, but tested positive for methamphetamine on two separate
occasions and was re-incarcerated for violating his probation. In fact, petitioner remained
3
Petitioner makes various other unsupported claims in his brief on appeal, including that
the family case plan was inadequate, that his due process rights were violated by the circuit court’s
failure to grant him an improvement period or schedule a multidisciplinary team meeting, and that
he should have been granted visitation with the child. However, petitioner fails to cite to any
authority to support these claims. Rule 10(c)(7) of the West Virginia Rules of Appellate Procedure
requires that
[t]he brief must contain an argument exhibiting clearly the points of fact and law
presented, the standard of review applicable, and citing the authorities relied on . .
. [and] must contain appropriate and specific citations to the record on appeal. . . .
The Court may disregard errors that are not adequately supported by specific
references to the record on appeal.
As such, we decline to address these assertions on appeal.
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incarcerated at the time of the dispositional hearing. Although petitioner asserts he was admitted
to a treatment program the day after the dispositional hearing and provided the circuit court with
documentation of his compliance, he cites to no portion of the record demonstrating that the court
considered these apparently late filings. Rather, the DHHR worker testified that petitioner refused
to comply with any directives, including drug screenings, during the proceedings. While petitioner
claims the DHHR “failed to prove that [he] would not have benefitted from” an improvement
period, it was petitioner’s responsibility to demonstrate by clear and convincing evidence that he
was likely to fully participate in the improvement period. Given petitioner’s lack of compliance
during the proceedings, we find no error in the circuit court’s decision to deny petitioner an
improvement period.
We likewise find no error in the circuit court’s termination of petitioner’s parental rights.
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 children’s
welfare. According to West Virginia Code § 49-4-604(c), “[n]o reasonable likelihood that the
conditions of neglect or abuse can be substantially corrected” means that “the abusing adult or
adults have demonstrated an inadequate capacity to solve the problems of abuse or neglect on their
own or with help.”
The evidence set forth above also establishes that petitioner demonstrated an inadequate
capacity to solve the problems of abuse and/or neglect on his own or with help. Following his
incarceration and subsequent release, petitioner refused to comply with any DHHR directives,
including submitting to drug screens. Petitioner complied with drug screening only two times
throughout the proceedings, and both times he tested positive for methamphetamine. Petitioner’s
probation was revoked and he was re-incarcerated for the remainder of the proceedings. Testimony
established that petitioner failed to maintain contact with the DHHR and failed to demonstrate that
he had adequately addressed the conditions of abuse and neglect.
To the extent that petitioner claims he should have been granted an improvement period
prior to the termination of his parental rights, this Court has previously 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). Given that the circuit court
properly found that there was no reasonable likelihood that petitioner could correct the conditions
of abuse and/or neglect in the near future and the evidence is clear that the child’s best interests
necessitated termination, we find no error in the circuit court’s decision to terminate petitioner’s
parental rights.
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For the foregoing reasons, we find no error in the decision of the circuit court, and its
August 23, 2019, order is hereby affirmed.
Affirmed.
ISSUED: March 13, 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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