In Re: J.H. and L.M. ( 2017 )

STATE OF WEST VIRGINIA
SUPREME COURT OF APPEALS
FILED
In re: J.H. and L.M. September 5, 2017
RORY L. PERRY II, CLERK
No. 17-0196 (Kanawha County 16-JA-507 & 16-JA-508) SUPREME COURT OF APPEALS
OF WEST VIRGINIA
MEMORANDUM DECISION
Petitioner Mother K.M., by counsel Jason S. Lord, appeals the Circuit Court of Kanawha
County’s January 23, 2017, order terminating her parental rights to J.H. and L.M.1 The West
Virginia Department of Health and Human Resources (“DHHR”), by counsel S.L. Evans, filed a
response in support of the circuit court’s order. The guardian ad litem (“guardian”), Jennifer N.
Taylor, filed a response on behalf of the children supporting the circuit court’s order. On appeal,
petitioner argues that the circuit court erred in denying an extension of her preadjudicatory
improvement period and in finding that the DHHR provided her adequate services below.
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 September of 2016, the DHHR filed an abuse and neglect petition against petitioner
after receiving a referral that the infant J.H. tested positive for opiates, methamphetamines,
hydrocodone, roxicodone, oxycodone, and THC at birth. The DHHR also alleged a history of
domestic violence between petitioner and the father. As such, the DHHR removed the children
from the home and placed them with their maternal grandmother.
Also, in September of 2016, petitioner waived her preliminary hearing. Thereafter, the
circuit court ordered petitioner to be drug screened. Further, the circuit court ordered the DHHR
to provide services to petitioner, including inpatient and outpatient rehabilitation services,
parenting and adult life skills classes, domestic violence counseling classes, and bus passes. The
circuit court also granted petitioner a preadjudicatory improvement period and ordered her to
participate in the services offered by the DHHR and to submit to random drug screens.
At a November of 2016 adjudicatory hearing, petitioner’s drug screens were admitted
into evidence. The screens revealed that petitioner tested positive for methamphetamine,
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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oxycodone, and benzoates. A Child Protective Services (“CPS”) worker testified that petitioner
failed to complete a series of safety plans instituted before the abuse and neglect petition was
filed. CPS implemented these plans to resolve issues concerning the cleanliness of the home and
lack of utilities. Petitioner testified she was taking drugs that were not prescribed to her and that
she obtained the drugs illegally. The circuit court found that petitioner abused and neglected the
children based on her drug use and history of violence with the father.
At the dispositional hearing in January of 2017, a CPS worker testified that both parents
had participated in their services “to a certain point . . . oftentimes where they participated just
enough to get by and then other times that they wouldn’t . . . keep their appointments.”
Moreover, it was established that petitioner failed to enter or attempt to enter into a drug
rehabilitation program. Petitioner missed several drug screens and tested positive for multiple
substances on drug screens throughout the proceedings. In fact, at the time of the dispositional
hearing, she was four and a half months pregnant, but continued to use illicit drugs. Based on this
evidence, the circuit court found petitioner to be unwilling or unable to provide adequately for
her children’s needs, based largely on her drug use. Further, the circuit court found that petitioner
failed to show any substantial improvement and that there was no likelihood that she would ever
improve. As such, the circuit court terminated petitioner’s parental rights to the children. 2 It is
from the dispositional hearing 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).
Syl. Pt. 1, In re Cecil T., 228 W.Va. 89, 717 S.E.2d 873 (2011). Upon our review, the Court finds
no error in the proceedings below.
According to petitioner, the circuit court erred in denying an extension to her
preadjudicatory improvement period because she was not given adequate time to improve. In
support of her argument, petitioner asserts that the DHHR stopped offering services in December
2
According to the DHHR and the guardian, J.H. has been placed with his maternal
grandmother with a goal of adoption in that home. According to the DHHR and the guardian,
L.M. resides with his non-abusing father.
2
of 2016, and that two months was not enough time to show compliance with the improvement
period. However, the record is clear that petitioner failed to substantially comply with the terms
of her preadjudicatory improvement period and, therefore, did not meet the burden to be granted
an extension of the same. Pursuant to West Virginia Code § 49-4-610(6), a circuit court may
extend an improvement period when, among other factors, “the court finds that the [parent] has
substantially complied with the terms of the improvement period . . . .” Based upon the record,
petitioner did not comply with the terms of her preadjudicatory improvement period. Moreover,
petitioner failed to substantially comply with adult life skills classes, parenting classes, and
domestic violence classes. Further, she failed to enter or attempt to enter into a drug
rehabilitation program as suggested by the circuit court. She continued to use illegal drugs,
despite being pregnant. Her failures to comply with the terms of the improvement period clearly
show that she was not likely to correct the conditions of abuse and neglect. As such, it is clear
that the circuit court did not err in denying petitioner an extension to her preadjudicatory
improvement period.
In her second assignment of error, petitioner argues that the circuit court erred in finding
that the DHHR adequately attempted to provide services during the pendency of the proceeding.
We disagree. West Virginia Code § 49-4-604(b)(7) sets forth the situations in which the DHHR
is absolved of its statutory duty to make reasonable efforts to preserve the family, none of which
apply to the current matter. As such, petitioner accurately claims that the DHHR had a duty to
make such efforts below. However, as stated above, the circuit court ordered the DHHR to
provide services to petitioner, including inpatient and outpatient rehabilitation services, parenting
and adult life skills classes, domestic violence counseling classes, and bus passes. In support of
her argument, petitioner claims that she was not offered classes or drug screens in December of
2016. However, West Virginia Code § 49-4-610(4)(A) requires a parent that has been granted an
improvement period be responsible for the initiation and completion of all terms of the
improvement period. Here, the DHHR offered services, but petitioner either failed to take
advantage of them or only participated sporadically. Regardless of when services ceased,
petitioner clearly did not comply during the period that such services were offered. Therefore, we
find no error by the circuit court to order the DHHR to provide adequate services below.
For the foregoing reasons, we find no error in the decision of the circuit court, and its
January 23, 2017, order is hereby affirmed.
Affirmed.
ISSUED: September 5, 2017
CONCURRED IN BY:
Chief Justice Allen H. Loughry II
Justice Robin Jean Davis
Justice Margaret L. Workman
Justice Menis E. Ketchum
Justice Elizabeth D. Walker
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