In re L.M., M.M., A.M., and I.M. ( 2022 )

FILED
April 14, 2022
EDYTHE NASH GAISER, CLERK
STATE OF WEST VIRGINIA SUPREME COURT OF APPEALS
OF WEST VIRGINIA
SUPREME COURT OF APPEALS
In re L.M., M.M., A.M., and I.M.
No. 21-0932 (Kanawha County 20-JA-380, 20-JA-381, 20-JA-382, and 20-JA-383)
MEMORANDUM DECISION
Petitioner Mother J.M., by counsel Edward L. Bullman, appeals the Circuit Court of
Kanawha County’s October 18, 2021, order terminating her parental rights to L.M., M.M., A.M.,
and I.M. 1 The West Virginia Department of Health and Human Resources (“DHHR”), by
counsel Patrick Morrisey and Brittany Ryers-Hindbaugh, filed a response in support of the
circuit court’s order. The guardian ad litem (“guardian”), Matthew Smith, filed a response on the
children’s behalf in support of the circuit court’s order. On appeal, petitioner argues that the
circuit court erred in terminating her parental rights because she substantially complied with the
terms of her improvement period.
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 August of 2020, the DHHR filed a child abuse and neglect petition alleging that the
children, ages eleven through fifteen, were living with the father when he disappeared for
twenty-four hours and the individual left to care for the children was arrested on outstanding
warrants, leaving the children without any adult supervision. The DHHR alleged that the family
had a lengthy history of Child Protective Services (“CPS”) intervention. The petition referred to
an incident one year prior when then-eleven-year-old A.M. was struck by a vehicle while playing
with friends while unsupervised. Petitioner was incarcerated at the time of the event and was
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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furloughed to see A.M. while he was in the hospital. However, while on furlough, petitioner
stabbed the father with a screwdriver and struck I.M. She was arrested for domestic battery and
felony child abuse. In the petition, the DHHR alleged further incidents of domestic violence,
including an incident in 2011 when petitioner threw cinder blocks and rocks at the children’s
home while the children and the father were inside. The DHHR also alleged that petitioner and
the father failed to provide the children with necessary food, clothing, supervision, and housing,
which placed the children at risk of harm.
At a preliminary hearing in August of 2020, the DHHR presented evidence consistent
with the petition, which was not challenged by either parent. The circuit court ratified the
removal of the children from the parents’ custody. The circuit court ordered the DHHR to
provide reunification services to petitioner.
The circuit court held an adjudicatory hearing in October of 2020, during which the
DHHR presented evidence as to petitioner’s neglect of the children. The court also heard
testimony that petitioner was compliant in reunification services thus far and produced four
consecutive negative drug screen results. Petitioner presented no evidence and did not contest the
allegations. The circuit court found that the parents engaged in ongoing domestic violence that
impacted their ability to parent the children. The circuit court adjudicated the children as
neglected children and petitioner as an abusing parent. Thereafter, petitioner orally moved for a
post-adjudicatory improvement period, which the circuit court held in abeyance, awaiting a
written motion.
Petitioner filed a motion for an improvement period, which the circuit court addressed in
November of 2020, when the court heard evidence that petitioner continued to be compliant with
all court ordered services, including testing negative for controlled substances. The DHHR
recommended that petitioner’s motion be granted. Following petitioner’s testimony in support of
her motion, no party objected. The circuit court granted her motion for an improvement period
and ordered that she participate in the following terms of her improvement period: individualized
parenting and adult life skills classes; random drug screening; supervised visitation with the
children; and mental health treatment.
In February of 2021, the circuit court heard testimony that petitioner continued to
substantially comply with the terms of her improvement period, and the court ordered that her
improvement period continue. Again, in May of 2021, the court heard testimony that petitioner
was generally compliant with services. However, the DHHR presented testimony that petitioner
was in a physical altercation with M.M., during which she struck the child in the head. Petitioner
also tested positive methamphetamine once in February, after her improvement period was
continued. Following that positive result, petitioner’s drug screen results were all negative. The
DHHR initially requested that the court set the case for disposition but agreed to an extension of
petitioner’s improvement period if she agreed to participate in family therapy. Hearing no
objection, the circuit court granted petitioner a three-month extension to her improvement period
upon her request.
The circuit court convened for a final review of petitioner’s improvement period in
August of 2021. The DHHR recommended that continued services be ordered and that the case
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be set for disposition. It reported that petitioner threatened to fight one of the children’s foster
parents, which necessitated investigation. The DHHR also reported that petitioner may have lost
her employment and had not been in contact with services providers “for multiple weeks.”
Additionally, the court heard testimony from fifteen-year-old M.M., who stated that she believed
it was in the children’s best interest to be returned to petitioner’s custody. She further testified
that if petitioner’s parental rights were terminated, the children would want post-termination
visitation with her.
The circuit court held the final dispositional hearing in October of 2021. Petitioner did
not appear, but counsel represented her. A DHHR worker testified that petitioner was
“nonresponsive” to the DHHR’s attempts to contact her, as well as attempts by her service
providers. She explained that she attempted to verify petitioner’s current address but was unable
to do so. The evidence showed that petitioner had failed to participate in random drug screening
since mid-August of 2020 and had not attended a supervised visitation with the children since
July of 2020. The worker further testified that petitioner made threats to individuals involved in
the proceedings and threats to the children. According to the DHHR worker, M.M. received a
picture of petitioner that depicted her in “poor physical health.” M.M. sent the picture to
petitioner and accused her of caring more about abusing substances than her children and stated
that she “gave up” on her children. Petitioner replied that she would “beat [M.M.’s] a**” and
called her vulgar names. Petitioner presented no evidence and suggested no alternative to the
DHHR’s recommendation to terminate her parental rights.
Ultimately, the circuit court found that petitioner failed to remedy the conditions that
gave rise to the petition. Further, the court found that petitioner failed to meaningfully avail
herself of court ordered services and that there was no reasonable likelihood that the conditions
of neglect or abuse could be substantially corrected in the near future. Finally, the court found
that termination of petitioner’s parental rights was the least restrictive dispositional alternative
and in the best interest of the children. Accordingly, the circuit court terminated petitioner’s
parental rights to the children by its October 18, 2021, order. Petitioner now appeals that order. 2
The Court has previously held:
“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
2
The father’s parental rights were also terminated. According to the parties, the
permanency plan for the children is legal guardianship in their respective placements.
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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
because she substantially complied with the terms of her improvement period and “reached a
level of functioning sufficient to care for her children.” Petitioner asserts that she participated in
services for nearly one year and received good reports from her service providers. However, she
candidly admits that “she had ceased participating” at the end of her improvement period but
argues that she had complied for a sufficient time “to justify attempting to return to compliance.”
We find petitioner’s argument unpersuasive.
Pursuant to West Virginia Code § 49-4-604(c)(6), a circuit court may terminate a parent’s
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 welfare of the children. West Virginia Code § 49-4-604(d)(3) provides that there is no
reasonable likelihood that the conditions of neglect or abuse can be substantially corrected when
[t]he abusing parent or parents have not responded to or followed through with a
reasonable family case plan or other rehabilitative efforts of social, medical,
mental health, or other rehabilitative agencies designed to reduce or prevent the
abuse or neglect of the child, as evidenced by the continuation or insubstantial
diminution of conditions which threatened the health, welfare, or life of the child.
Finally, this Court has held that “[i]n making the final disposition in a child abuse and neglect
proceeding, the level of a parent’s compliance with the terms and conditions of an improvement
period is just one factor to be considered. The controlling standard that governs any dispositional
decision remains the best interests of the child[ren].” Syl. Pt. 4, In re B.H., 233 W. Va. 57, 754
S.E.2d 743 (2014).
Here, we agree with the circuit court’s determination that there was no reasonable
likelihood that the conditions of neglect or abuse could be substantially corrected in the near
future. While we acknowledge petitioner’s substantial participation in her family case plan, her
actions in the final months of the proceedings are akin to casting off her parental responsibilities
and deserting her children. It is unclear what drove petitioner to cease any and all cooperation
with the DHHR, but the cause need not be identified. It is axiomatic that a parent must be
involved in the proceedings to be reunified with their children. Petitioner was well aware of her
responsibility to participate in and complete her family case plan, but she made a choice to
ignore that responsibility. Simply put, the best interests of the children would not be served in the
placement of a parent who has demonstrated that she would desert them without even an
explanation. Even if the facts supported an attempt at reunification, the DHHR could not even
verify petitioner’s address and would have no way of beginning reunification. Upon our review,
it is clear that the circuit court did not err in finding that there was no reasonable likelihood that
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the conditions of neglect or abuse could be substantially corrected in the near future or that
termination of petitioner’s parental rights was in the children’s best interests.
It is worth noting that petitioner did not request additional time to “return to compliance”
below. In fact, petitioner did not argue any position at the dispositional hearing; nor did she
present any evidence or question any witnesses. She did not offer an excuse for her sudden
nonparticipation in the proceedings, remind the court of her once substantial compliance with her
improvement period, or appeal to its good graces by requesting a continuance so that she might
begin to comply. Nevertheless, she now argues that the circuit court should have terminated only
her custodial rights to the children because the children had been placed with family and
termination of her custodial rights only would allow petitioner “to come back to court and
demonstrate that she was again on the right track to be a parent.”
Petitioner’s argument focuses on her own best interest and ignores that of her children.
This Court has previously considered that “[e]nsuring finality for these children is vital to
safeguarding their best interests so that they may have permanency and not be continually
shuttled from placement to placement.” In re Cesar L., 221 W. Va. 249, 258, 654 S.E.2d 373,
382 (2007). Moreover, we have 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). As stated above, the circuit
court properly found that there was no reasonable likelihood that the conditions of neglect and
abuse could be substantially corrected in the near future. Thus, the circuit court was well within
its discretion to terminate petitioner’s parental rights. The circuit court’s termination of
petitioner’s parental rights provided the children finality and permanency, and we find no error
in its ultimate determination.
For the foregoing reasons, we find no error in the decision of the circuit court, and its
October 18, 2021, order is hereby affirmed.
Affirmed.
ISSUED: April 14, 2022
CONCURRED IN BY:
Chief Justice John A. Hutchison
Justice Elizabeth D. Walker
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Justice Tim Armstead
Justice William R. Wooton
Justice Alan D. Moats sitting by temporary assignment
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