In re: A.C. ( 2020 )

STATE OF WEST VIRGINIA
SUPREME COURT OF APPEALS
FILED
In re A.C. December 10, 2020
EDYTHE NASH GAISER, CLERK
No. 20-0441 (Barbour County 19-JA-47) SUPREME COURT OF APPEALS
OF WEST VIRGINIA
MEMORANDUM DECISION
Petitioner Mother K.J., by counsel Jeremy B. Cooper, appeals the Circuit Court of Barbour
County’s February 26, 2020, order terminating her parental rights to A.C. 1 The West Virginia
Department of Health and Human Resources (“DHHR”), by counsel Katherine A. Campbell, filed
a response in support of the circuit court’s order. The guardian ad litem (“guardian”), Allison C.
Iapalucci, filed a response on behalf of the child also in support of the circuit court’s order.
Petitioner filed a reply. On appeal, petitioner argues that the circuit court erred in terminating her
parental rights without first granting her an improvement period and in ruling that she could not
file a motion for post-termination visitation.
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 April of 2019, the DHHR filed a child abuse and neglect case against petitioner and her
boyfriend. The DHHR alleged that they abused drugs in the home while caring for the child and
exposed her to other drug addicts and drug dealers. Further, the home was without utilities such as
water and heat during very cold weather. Lastly, the DHHR alleged that petitioner and her
boyfriend failed to provide basic necessities for the child and educationally neglected her, as the
child reported a lack of food in the home and had missed at least sixty-five days of school.
Petitioner waived her preliminary hearing.
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
The circuit court held an initial adjudicatory hearing in August of 2019. Petitioner admitted
that she continued to abuse methamphetamine and had abused the substance as recently as a few
days prior to the hearing. Petitioner expressed a desire to stipulate to the allegations contained in
the petition but, upon questioning, was evasive and denied claims the child made during a Child
Advocacy Center (“CAC”) interview. Given petitioner’s dishonesty and the DHHR’s stated
intention of filing an amended petition, the circuit court continued the hearing without adjudicating
petitioner.
Later in August of 2019, the DHHR filed an amended petition against petitioner and her
boyfriend. The DHHR alleged that the two were evicted from their home earlier in August due to
their failure to pay rent for several months and that they had to be removed by law enforcement
officers. The DHHR also alleged that petitioner tested positive for methamphetamine,
amphetamines, and ecstasy following the previous adjudicatory hearing.
The circuit court reconvened the adjudicatory hearing in October of 2019. The circuit court
continued its questioning of petitioner, who continued to be evasive. Petitioner admitted that she
was addicted to drugs, specifically methamphetamine, and that it impaired her ability to parent the
child. Petitioner denied knowing where her methamphetamine came from, then claimed she found
methamphetamine in a toolbox in her home. Petitioner also denied the disclosures of domestic
violence from the child’s CAC interview. Ultimately, the circuit court found that petitioner’s “drug
seeking behavior led to the failure of [petitioner] to provide the basic necessities of life, and
exposed the child to dangerous situations, including the people and risks commiserate [sic] with
being a member of the drug culture.” The circuit court further found that petitioner’s neglect
“spilled over into the [child’s] education” as she had missed sixty-six days of school and was in
special education classes with an individualized education plan. The circuit court also found that
petitioner “continued to use methamphetamine from the beginning throughout the entirety of this
case” and that her extremely high levels on her drug screen results indicated that she was severely
addicted. Accordingly, the circuit court adjudicated petitioner as an abusing and neglecting parent
and held her motion for a post-adjudicatory improvement period in abeyance to allow her the
opportunity to demonstrate that she would fully participate in the same.
Following the adjudicatory hearing, the guardian authored a summary, which indicated that
petitioner refused “no fewer than three (3) available beds” at long-term rehabilitation programs.
Thereafter, petitioner entered a short-term detoxification program which, coincidentally, was the
same program her boyfriend entered as a part of his criminal proceeding. 2 Petitioner successfully
completed the program and was released sometime in November of 2019. The members of the
multidisciplinary team (“MDT”) continued to recommend that petitioner attend a long-term
program; however, petitioner “immediately took [long-term treatment] off the table as an option
for her treatment.” As such, the MDT recommended against granting petitioner an improvement
period.
In February of 2020, the circuit court held a dispositional hearing. The DHHR presented
the testimony of a service provider, who stated that she provided petitioner with adult life skills
and parenting classes. The service provider testified that petitioner would meet with her to
2
During the proceedings, petitioner was incarcerated on drug-related charges.
2
participate in the services but would not follow up with any recommendations. Further, petitioner
only attended six to eight classes out of twenty-four with the service provider because there was
constantly some sort of “crisis going on.” The service provider stated that petitioner blamed issues
with transportation, housing, her boyfriend’s incarceration, and her dog for her inability to meet
for the classes. The service provider also testified that petitioner continued to associate with her
boyfriend after she was discharged from her detoxification program.
A CPS worker testified that petitioner entered and completed a short-term detoxification
program. However, petitioner refused to attend a long-term program as recommended by the short-
term program’s psychologist and the MDT. The CPS worker also testified that petitioner was
prohibited from visiting with the child since the adjudicatory hearing due to her positive drug
screens. Further, petitioner had missed drug screens; failed to attend her psychological evaluation;
requested counseling services but then refused to attend; and remained in a relationship with her
boyfriend, who had been incarcerated as a result of his drug-related charges. The CPS worker
recommended against granting petitioner an improvement period because petitioner “showed us
that she’s not willing to work with the [DHHR].” The CPS worker opined, “[Because] we’ve
actively been in this case since April [of 2019] and there’s been a failure to participate in this case
and lack of insight, the [DHHR] has no other choice but to ask for termination.”
The director of the local community corrections program testified that petitioner submitted
to forty-seven tests, twenty-seven of which were positive for methamphetamine. The director
testified that five of petitioner’s positive tests exceeded 100,000 nanograms and one test exceeded
200,000 nanograms. The director explained that these levels were extremely high and that
“[a]nything over 300 is extremely high.”
A worker from Jobs and Hope West Virginia testified regarding the services provided to
petitioner. 3 The worker testified that she assisted petitioner in obtaining housing and identification,
such as her social security card, driver’s license, and birth certificate. The worker noted that she
would have assisted petitioner in obtaining a job, but the lack of identification created barriers to
employment that first had to be addressed and that petitioner ceased communication with her
before those barriers could be resolved.
Petitioner testified that she was “doing [her] best to get back on [her] feet” and loved the
child. However, when asked whether she would enter into long-term inpatient treatment, petitioner
stated through her counsel that she would prefer to participate in an intensive outpatient treatment
program in order to maintain her apartment and employment.
At the close of evidence, the circuit court found that petitioner had no insight into her
abusive and neglectful behavior and failed to follow through with services. The circuit court noted
that petitioner made excuses and denied treatment when it was offered. Petitioner’s drug screens
indicated that her substance abuse issues were not a “normal addiction,” and, rather, were
3
According to the worker, Jobs and Hope West Virginia is a program dedicated to “helping
people who are either in recovery or possibly coming out of incarceration to basically gain job
skills through education primarily, help them eliminate barriers that they have to career[s] and
employment, and ultimately be able to help them find a job.”
3
longstanding, severe, and life-threatening. The circuit court found that petitioner “didn’t get it”
despite having been offered several opportunities to improve her circumstances and that, as of the
dispositional hearing, petitioner continued to refuse long-term inpatient treatment. Accordingly,
the circuit court terminated her parental rights upon finding that there was no reasonable likelihood
that she could correct the conditions of abuse and neglect in the near future and that termination
was necessary for the child’s welfare. The circuit court also denied petitioner post-termination
visitation with the child. Petitioner appeals the February 26, 2020, dispositional order terminating
her parental rights to the child. 4
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).
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 her parental rights
without first granting her an improvement period. According to petitioner, the circuit court “gave
inadequate weight” to certain evidence presented at the dispositional hearing. Petitioner points out
that she completed several parenting classes and that “logistical issues” were what kept her from
completing the course. Petitioner also avers that she attended a rehabilitation program, obtained
housing, and “avoided incarceration.” Further, petitioner produced several negative drug screens
following her discharge from the rehabilitation program and indicated her desire for intensive
outpatient treatment. Petitioner contends that this evidence shows she made “significant strides in
her life[] and would be likely to participate in an improvement period to address the conditions of
abuse and neglect.”
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[.]”).
4
The biological father’s parental rights were terminated during prior proceedings.
Petitioner’s boyfriend’s custodial rights were terminated during the proceedings below. The
permanency plan for the child is adoption by her foster family.
4
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) (quoting W. Va. Code § 49-6-12(b)(2) (1996)).
Having reviewed the record, we find that the circuit court did not err in denying petitioner’s
request for a post-adjudicatory improvement period. The record clearly demonstrates that
petitioner failed to adequately address her addiction to methamphetamine. While petitioner points
out that she obtained housing, avoided incarceration, and attended a handful of parenting classes,
she continuously tested positive for methamphetamine throughout the proceedings. Indeed, her
levels were extremely high and life-threatening on several occasions. Further, contrary to her
assertions, petitioner attended only a fourth of her parenting classes and entered a month-long
detoxification program instead of entering a long-term program as recommended by the MDT.
According to the guardian, petitioner refused no fewer than three available beds in long-term
facilities and, as of the dispositional hearing, indicated her reluctance to attend a long-term
program. 5 While petitioner produced some negative screens following her completion of the short-
term program, she eventually ceased submitting to tests. Finally, petitioner evaded the circuit
court’s questioning, denied the extent of drug abuse in the home, and minimized the effect of the
abuse and neglect on the child. 6 We have previously held that failure to acknowledge the issues of
abuse and neglect renders an improvement period an “exercise in futility.” In re Timber M., 231
W. Va. 44, 55, 743 S.E.2d 352, 363 (2013) (quoting Charity H., 215 W. Va. at 217, 599 S.E.2d at
640). Based on petitioner’s failure to demonstrate her likelihood of fully participating in an
5
In her reply brief, petitioner contends that her refusal to attend a long-term treatment
program should not have been held against her as attending such a program “makes it exceedingly
difficult to meet the other requirements of a case plan, or of an improvement period if one is
granted, and also makes it very hard to comply with the timelines required under Chapter 49.”
Petitioner argues that this creates a situation where a parent’s parental rights are either in jeopardy
for noncompliance or for their failure to achieve all the other necessary preconditions for
reunification. However, we find that petitioner is entitled to no relief in this regard. Petitioner
attended a short-term program but was in need of more treatment. Indeed, the short-term program’s
psychologist recommended that petitioner attend long-term treatment in order to attain sobriety.
Moreover, petitioner ceased submitting to drug screens following her release from the short-term
program. As such, it is clear that petitioner failed to remedy her drug addiction through short-term
treatment and, thus, long-term treatment was not a meaningless requirement of her case plan. To
the extent petitioner claims that attending long-term treatment would have pushed her case beyond
the time limits set forth in West Virginia Code § 49, we note that § 49-4-610(6) allows for an
extension when the parent is substantially complying with the terms of an improvement period and
the extension is in the best interest of the child.
6
As part of her argument, petitioner also contends that it was error for the circuit court to
find she was dishonest when she refused to disclose her drug dealer as it would have placed her in
danger. However, petitioner’s argument entirely ignores the fact that the circuit court found she
was evasive and dishonest on multiple occasions regarding her drug use and the effect it had on
the child. Accordingly, we find no error in the circuit court’s characterization of petitioner as
dishonest.
5
improvement period and her failure to acknowledge the issues of abuse, we find no error in the
circuit court’s denial of her motion for a post-adjudicatory improvement period.
The evidence as set forth above also supports the termination of petitioner’s parental rights.
West Virginia Code § 49-4-604(c)(6) provides that circuit courts are to terminate parental rights
upon finding 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 child’s welfare.
West Virginia Code § 49-4-604(d)(3) provides that a situation in which there is “[n]o reasonable
likelihood that [the] conditions of neglect or abuse can be substantially corrected” includes when
the 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.”
Here, there was no reasonable likelihood that petitioner could correct the conditions of
abuse and neglect in the near future. As shown above, petitioner’s drug use continued throughout
the entirety of the proceedings. Indeed, the record establishes that petitioner submitted to forty-
seven drug screens and twenty-seven of those screens were positive for methamphetamine. Six of
those screens indicated extremely high, life-threatening levels of methamphetamine. Further,
petitioner refused long-term treatment as recommended by the MDT despite the availability of
beds in three different facilities. While petitioner claims that she had issues with transportation and
housing, testimony at the dispositional hearing indicated that assistance with these things was
offered to, but not taken advantage of by, petitioner. Finally, as demonstrated above, petitioner
failed to grasp the gravity of the situation or acknowledge the extent of her abuse. Based on the
foregoing, it is clear that there was no reasonable likelihood that petitioner could correct the
conditions of abuse and neglect in the near future and that termination was necessary for the child’s
welfare. To the extent petitioner claims that the circuit court should have imposed a less-restrictive
alternative to the termination of her parental rights, we have 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). In sum, the circuit court’s
findings are fully supported by the record below, and we find no error in the termination of
petitioner’s parental rights.
Petitioner also argues that the circuit court erred in ruling that petitioner had no right to file
a motion for post-termination visitation. Petitioner claims that the circuit court made an oral ruling
that she was precluded from filing a motion for post-termination visitation and that only an MDT
member or the child’s therapist could seek post-termination visitation if it were in the child’s best
6
interests. The circuit court made the following finding regarding post-termination visitation in its
dispositional order:
There is to be no contact of either a direct or indirect nature with [petitioner] or
[petitioner’s boyfriend], but if a therapist would agree to contact, it may be revisited
by this [c]ourt, as contact is not in the child’s best interest at this time, and the
parents have no right of contact, it is the child’s right of contact that would be
entertained by the [c]ourt.
Petitioner avers it “was an error of law to entirely foreclose [her] from being the one to initiate
such a motion [for post-termination visitation].”
The circuit court’s order does not support petitioner’s assertion that she is prohibited from
filing a motion for post-termination visitation. This Court has previously held “it is clear that where
a circuit court’s written order conflicts with its oral statement, the written order controls.” Tennant
v. Marion Health Care Foundation, Inc., 194 W. Va. 97, 107 n.5, 459 S.E.2d 374, 384 n.5 (1995).
See also State v. White, 188 W. Va. 534, 536 n.2, 425 S.E.2d 210, 212 n.2 (1992) (“[H]aving held
that a court speaks through its orders, we are left to decide this case within the parameters of the
circuit court’s order.” (citations omitted)); State ex rel. Erlewine v. Thompson, 156 W. Va. 714,
718, 207 S.E.2d 105, 107 (1973) (“A court of record speaks only through its orders[.]” (citations
omitted)). Accordingly, the circuit court’s order controls over its oral statement, and it simply
denies petitioner post-termination visitation and states that the issue may be revisited if a therapist
were to recommend that visitation is in the child’s best interests. Therefore, we find no merit in
this argument.
For the foregoing reasons, we find no error in the decision of the circuit court, and its
February 26, 2020, order is hereby affirmed.
Affirmed.
ISSUED: December 10, 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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