In re D.S. ( 2022 )

FILED
March 9, 2022
EDYTHE NASH GAISER, CLERK
STATE OF WEST VIRGINIA SUPREME COURT OF APPEALS
OF WEST VIRGINIA
SUPREME COURT OF APPEALS
In re D.S.
No. 21-0798 (Wyoming County 19-JA-10)
MEMORANDUM DECISION
Petitioner Mother M.S., by counsel Karen S. Hatfield, appeals the Circuit Court of
Wyoming County’s September 13, 2021, order terminating her parental rights to D.S. 1 The West
Virginia Department of Health and Human Resources (“DHHR”), by counsel Patrick Morrisey
and Gary L. Michels, filed a response in support of the circuit court’s order. The guardian ad litem
(“guardian”), Lindsey Ashley Thompson, 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 finding that the
DHHR made reasonable efforts to reunify the child with petitioner and in terminating her parental
rights without considering a less-restrictive dispositional alternative.
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 and
the father. The DHHR indicated that Child Protective Services (“CPS”) had opened a case with
the parents in February of 2019, after a domestic violence incident occurred in the home wherein
petitioner pushed D.S., then fourteen years old, causing him to fall and hit his arm on a towel rack.
A CPS worker spoke with the child, who reported that petitioner abused drugs and stole from
people. The child also reported observing methamphetamine in the home and stated that his father
had admitted to him that he abused methamphetamine on occasion. The child further described
domestic violence incidents between his parents but characterized petitioner as the instigator most
of the time.
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
Following the domestic violence incident wherein petitioner pushed the child against the
towel rack, petitioner was arrested and charged with domestic battery, and the father obtained a
domestic violence protective order (“DVPO”) against petitioner on behalf of the child. Later that
month, the child underwent a forensic interview wherein he reported, again, that petitioner abused
drugs and stole from people and lied about it. The child further reported that petitioner threw a
chair at him after he discovered her methamphetamine in the home and that he had watched her
throw pans at his father.
The DHHR alleged that, only a few weeks later, in March of 2019, another domestic
violence incident occurred. According to the DHHR, petitioner came to the home in violation of
the DVPO and her bond conditions. A verbal altercation occurred between the parents, causing the
child to call the police for fear of the situation escalating. A CPS worker spoke to the child, and
the child stated that petitioner and the father were arguing and that petitioner “went into a rage”
and that he “didn’t want to be around this.” The worker also spoke to the father, who reported he
was going to dismiss the DVPO against petitioner. Given the foregoing, the DHHR alleged that
the child was abused and neglected and requested emergency custody of the child. The parents
waived their preliminary hearing.
The circuit court held an adjudicatory hearing in June of 2019. Petitioner was incarcerated
but was transported to the hearing and represented by counsel. 2 The DHHR advised the circuit
court that the father had passed away, and he was dismissed from the proceedings. Petitioner
stipulated to the allegations of abuse contained in the petition. Specifically, petitioner stipulated
that she abused nonprescribed medications that affected her ability to parent the child. The circuit
court accepted petitioner’s stipulation and adjudicated her as an abusing parent.
In April of 2021, the DHHR filed a motion to terminate petitioner’s parental rights, wherein
it noted that petitioner failed to maintain contact with the DHHR and participate in services. The
DHHR indicated that petitioner contacted her CPS worker twice to ask about services but
thereafter ceased contact. The DHHR stated that a CPS worker attempted to contact petitioner on
at least five occasions, but that petitioner did not respond to her attempts. However, petitioner
called her economic services worker at the DHHR to update her contact information and, on a
separate date, dropped off an application for economic services at the DHHR office but failed to
ask about her child on either occasion. The guardian filed a report with the circuit court, also
requesting termination of petitioner’s parental rights. The guardian indicated that petitioner had
not complied with services and detailed at least one instance of her poor behavior during the
proceedings. Specifically, the guardian related that she accompanied the child to petitioner’s home
so that he could retrieve some personal belongings of his late father. The guardian reported that
petitioner had instructed individuals who were clearly under the influence of drugs and/or alcohol
to drive by and make threats during this time. The guardian stated that the child consistently had
maintained that he wants no contact with petitioner and desired to be adopted by his foster family.
In July of 2021, the circuit court held a dispositional hearing. Petitioner failed to attend but
was represented by counsel. A CPS worker testified in support of the DHHR’s motion to terminate
2
It is not apparent from the record why petitioner was reincarcerated following her prior
release on bond.
2
petitioner’s parental rights. According to the worker, petitioner failed to do anything to improve
the conditions of abuse and neglect and essentially abandoned the case. The worker testified that
services such as parenting and adult life skills classes and drug screens were set up with petitioner
but that she failed to comply, despite a different CPS worker’s many attempts to contact her. She
further indicated that the child, sixteen years old at the time of the dispositional hearing, did not
want a relationship with petitioner. As such, the CPS worker testified that there was no reasonable
likelihood that petitioner would change in the near future.
Following testimony, the circuit court found that petitioner “made no effort to make the
changes needed to correct the deficiencies that led to [her] involvement with child protective
services” and that that she failed to cooperate with the DHHR’s reunification efforts. The circuit
court further found that petitioner had little or no contact with the child, failed to participate in
multidisciplinary team (“MDT”) meetings, failed to attend hearings, failed to participate in the
case plan, and, ultimately, abandoned the child. Accordingly, the circuit court found that there was
no reasonable likelihood that petitioner could correct the conditions of abuse and neglect in the
near future and that termination of her parental rights was necessary for the child’s welfare.
Petitioner appeals the circuit court’s September 13, 2021, dispositional order. 3
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 finding that the DHHR made
reasonable efforts to reunify the child with petitioner. Petitioner contends that as she was never
offered an improvement period, “there is an issue with the [circuit c]ourt’s findings” regarding
alleged reasonable efforts. Although an improvement period was referenced several times in the
record, petitioner claims that the circuit court never granted her one. She also denies the CPS
worker’s testimony at disposition that services were set up for her and claims that she requested,
and was denied, services numerous times. Petitioner points out that the family case plan provided
in the appendix record on appeal was not created until May of 2021, well over two years into the
proceedings, and that it provided no goals for her to meet. Based on the foregoing, petitioner asserts
3
The father is deceased. The permanency plan for the child is adoption by his foster family.
3
that the circuit court made an erroneous finding that the DHHR made reasonable efforts to reunify
the family.
At the outset, we remind petitioner that the denial of an improvement period does not
equate to a lack of reasonable efforts. Petitioner is correct that, unless certain conditions not
applicable to this appeal exist, the DHHR is required to make “reasonable efforts to preserve and
reunify the family.” W. Va. Code § 49-4-604(c)(6)(C)(iv). Further, “[i]n determining whether or
not parental rights should be terminated, the court shall consider the efforts made by the department
to provide remedial and reunification services to the parent.” Id. at (c)(6)(C). Here, petitioner’s
allegation that the DHHR failed to make reasonable efforts to preserve the family because she was
not granted an improvement period confuses the statutory role of the DHHR in abuse and neglect
cases generally. While the DHHR has a duty to make reasonable efforts, “a parent charged with
abuse and/or neglect is not unconditionally entitled to an improvement period.” In re Emily, 208
W. Va. 325, 336, 540 S.E.2d 542, 553 (2000). Rather, a parent bears the burden of demonstrating
that she is likely to fully participate in an improvement period. See In re Charity H., 215 W. Va.
208, 215, 599 S.E.2d 631, 638 (2004). Accordingly, there is no error in finding that reasonable
efforts were made despite the fact that no improvement period was granted. To the extent petitioner
argues that she should have been granted an improvement period, she cites to no portion of the
record demonstrating that she filed a written motion requesting the same or demonstrated that she
was fully likely to participate in an improvement period. 4 We, therefore, find that she is entitled to
no relief in this regard.
We further find that the circuit court did not err in finding that the DHHR made reasonable
efforts to preserve the family below. Petitioner’s argument is largely an attack on the CPS worker’s
testimony at the dispositional hearing, as well as the guardian’s report. While petitioner argues that
no services were implemented below, she fails to offer any evidence in support of her claims.
Indeed, the CPS worker testified that services such as parenting and adult life skills classes and
drug screens were initiated for petitioner but that petitioner refused to respond to her CPS worker’s
attempts of contact and failed to attend MDT meetings. Petitioner did not appear at her
dispositional hearing and failed to object or provide any evidence or testimony to rebut the CPS
worker’s testimony, nor did she object to the guardian’s report. The record is clear that while
petitioner seems to have contacted the DHHR on two occasions to request services, she ignored
any follow-up contact to set up services. Based upon our review of the record, the circuit court’s
finding that the DHHR made reasonable efforts to preserve the family is not clearly erroneous, and
petitioner’s self-serving statements to the contrary are simply unsupported.
Petitioner next argues that the circuit court erred in terminating her parental rights rather
than employing a less-restrictive dispositional alternative. Essentially, petitioner argues that no
4
There are several references to an improvement period in the appendix record on appeal.
However, no orders granting petitioner an improvement period were included in the appendix
record, and petitioner contends that no improvement period was offered. The docket sheet was not
provided by petitioner in the appendix, despite the requirements of Rule 7(d)(7) of the Rules of
Appellate Procedure, thus we are unable to ascertain whether an order was entered granting
petitioner an improvement period. If, as petitioner suggests, there was no improvement period
granted, we find no error for the reasons set forth above.
4
services were offered during the proceedings below. As such, petitioner claims this Court “should
review this case and consider that a substantial portion of parents whose rights are terminated can
be and should be given a more generous opportunity to correct the issues that led to the filing of
the [p]etition and ultimately resulted in the termination of 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) provides that a circuit court may find that there is no
reasonable likelihood that the conditions of abuse and neglect can be substantially corrected when
the abusing parent has “demonstrated an inadequate capacity to solve the problems of abuse or
neglect on their own or with help.”
As set forth above, the unrebutted evidence in the record on appeal is that services such as
parenting and adult life skills classes and drug screens were offered to petitioner but that she failed
to respond to a CPS worker’s attempts at contact and failed to appear at both MDT meetings and
the dispositional hearing. Specifically, the record reflects that a CPS worker attempted to contact
petitioner on no less than five different dates in an attempt to set up services, but petitioner failed
to answer or return her calls. Further, petitioner exhibited questionable behavior during the
proceedings such as intentionally having persons under the influence of drugs and/or alcohol
harass the child when he was trying to retrieve some of his deceased father’s belongings. Petitioner
also contacted the DHHR on two different occasions regarding economic services without asking
about the child. Moreover, petitioner had little to no contact with the child during the proceedings,
and D.S. maintained that he no longer wanted a relationship with petitioner and desired to be
adopted by his foster parents. Based on petitioner’s inaction during the proceedings, the circuit
court found that petitioner essentially abandoned the child. While petitioner argues that she should
have been given more time to comply with services to regain custody of the child, this Court has
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(d)] 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 evidence set forth above
supports the circuit court’s finding that there was no reasonable likelihood that petitioner could
correct the conditions of abuse and neglect in the near future and that termination of her parental
rights was in the child’s best interests. Thus, termination of her parental rights was not error.
For the foregoing reasons, we find no error in the decision of the circuit court, and its
September 13, 2021, order is hereby affirmed.
5
Affirmed.
ISSUED: March 9, 2022
CONCURRED IN BY:
Chief Justice John A. Hutchison
Justice Elizabeth D. Walker
Justice Tim Armstead
Justice William R. Wooton
Justice Alan D. Moats sitting by temporary assignment
6