In re B.P. ( 2023 )

FILED
June 13, 2023
EDYTHE NASH GAISER, CLERK
STATE OF WEST VIRGINIA SUPREME COURT OF APPEALS
SUPREME COURT OF APPEALS OF WEST VIRGINIA
In re B.P.
No. 22-0368 (Hardy County 20-JA-40)
MEMORANDUM DECISION
Petitioner Father J.P.1 appeals the Circuit Court of Hardy County’s April 13, 2022, order
terminating his parental rights to B.P.2 Upon our review, we determine that oral argument is
unnecessary and that a memorandum decision affirming the circuit court’s order is appropriate.
See W. Va. R. App. P. 21.
In March 2020, the DHHR received a referral that petitioner and the mother abused
controlled substances and lacked appropriate living conditions and employment. During the
DHHR’s initial investigation, the parents admitted to substance abuse and leaving then-three-year-
old B.P. home alone. That same month, the maternal grandparents obtained temporary
guardianship of B.P. in family court. The family court guardianship matter was removed to circuit
court in August 2022 to address the allegations of abuse and neglect. The DHHR filed the
underlying petition in September 2020 containing the above information and alleging that
petitioner tested positive for fentanyl and methamphetamine on September 18, 2020. The DHHR
substantiated the allegations of the parents’ substance abuse and alleged that the parents’ abilities
to parent B.P. were impaired.
The parents stipulated to the allegations in the petition in January 2021, and the circuit
court adjudicated them as abusing parents. The circuit court granted them post-adjudicatory
improvement periods. The family case plan was formally approved in February 2021, which
addressed three primary deficiencies in each parent’s treatment plan: (1) the parent’s drug and/or
alcohol use is pervasive and threatens the child’s safety; (2) the parent lacks parenting knowledge,
skills, or motivation that affects the child’s safety; and (3) the parent lacks appropriate housing
and stable employment to financially support the child. The case plan required random drug
1
Petitioner appears by counsel Jeremy B. Cooper. The West Virginia Department of Health
and Human Resources (“DHHR”) appears by counsel Attorney General Patrick Morrisey and
Assistant Attorney General Lee Niezgoda. Counsel Marla Zelene Harman appears as the child’s
guardian ad litem.
2
We use initials where necessary to protect the identities of those involved in this case. See
W. Va. R. App. P. 40(e).
1
testing, substance abuse treatment, supervised visitations, parenting classes, adult life skills
classes, and psychological evaluations.
The circuit court held a status hearing in May 2021, during which the DHHR reported that
the parents had been discharged from the Day Report Center for noncompliance with drug
screening and had failed to appear for their scheduled psychological evaluations. However, by July
2021, the parents had completed their psychological evaluations, obtained employment, and were
participating in parenting education classes. At that time, the court also learned that the mother
was pregnant with a second child and that the parents had not paid court-ordered child support for
B.P.
In September 2021, the court granted the parents extensions to their improvement periods.
Petitioner tested positive for tetrahydrocannabinol (“THC”) in October 2021, and his visits with
B.P. were briefly suspended as a result. However, immediately thereafter, the parents came back
into compliance with the terms of their improvement periods. In December 2021, the court granted
them overnight visits and, again, extended their post-adjudicatory improvement periods. In
February 2022, the circuit court noted its concerns that the child exhibited negative behaviors after
visits with the parents. At a status hearing, B.P.’s therapist testified that due to the child’s negative
behaviors, it would be best if B.P. resided with the grandparents during school weeks and stayed
with the parents only on weekends. In mid-February 2022, petitioner was arrested for third-offense
driving while his license was suspended and tested positive for THC.
At the dispositional hearing in April 2022, the DHHR and guardian moved to terminate the
parents’ parental rights based on the discovery that the parents were secretly abusing kratom, a
substance that mimics opiates but is not yet a controlled substance. The DHHR presented evidence
that petitioner’s second child, born in March 2022, experienced withdrawal symptoms due to the
mother’s use of kratom. The evidence showed that the mother’s drug screens at the hospital
initially showed a false positive for fentanyl and buprenorphine due to the chemical composition
of kratom. The parents testified that they had been using kratom daily for many years. Petitioner
additionally testified that he had been using delta-8, a derivative of THC that he legally purchased
at gas stations.3 Upon cross-examination, it was determined that standard drug screens do not
detect delta-8 or kratom, and both parents testified that they did not disclose their drug use until
after the second child’s birth. Petitioner stated that kratom can cause opiate-like and euphoric
effects but that he never experienced such effects. The circuit court found that the parents had been
inconsistent in following the court’s directives and noted their initial failures to drug screen,
participate in their psychological evaluations, or provide financial information for child support
purposes. Ultimately, the court found that the parents were unable to care for B.P. or provide him
a safe home based on their failure to address their overall substance abuse, including their recent
admissions of using “mind-altering substances” and their minimizations thereof. The court found
that there was no reasonable likelihood that the conditions of abuse and neglect could be corrected
3
Effective June 8, 2023, delta-8 is now a controlled substance in the Uniform Controlled
Substances Act. See S.B. 546, 2023 Leg. 86th Sess. (W. Va. 2023), amending West Virginia Code
§ 60A-2-204 to include all derivatives of delta tetrahydrocannabinols as Schedule I drugs.
2
in the near future and that termination was necessary for B.P.’s welfare.4 Petitioner appeals the
court’s April 13, 2022, dispositional order terminating his parental rights.
On appeal from a final order in an abuse and neglect proceeding, this Court reviews the
circuit court’s findings of fact for clear error and its conclusions of law de novo. Syl. Pt. 1, In re
Cecil T., 228 W. Va. 89, 717 S.E.2d 873 (2011). Petitioner argues that the circuit court erred in
terminating his parental rights based on his use of the legal substances. Petitioner contends that his
case plan prohibited only illicit substance abuse and not legal substance use, such as using kratom
and delta-8. Upon our review, we find no merit to petitioner’s argument.
At the conclusion of the improvement period, the court shall review the
performance of the parents in attempting to attain the goals of the improvement
period and shall, in the court’s discretion, determine whether the conditions of the
improvement period have been satisfied and whether sufficient improvement has
been made in the context of all the circumstances of the case to justify the return of
the child.
Syl. Pt. 6, In re Carlita B., 185 W. Va. 613, 408 S.E.2d 365 (1991). The Court recently stated that
[t]his determination can only be made on the basis of properly admitted, sworn
evidence which reveals information such as a respondent parent’s current
functional status, his or her progress and/or set-backs during improvement periods,
his or her parenting and lifestyle plans and prognosis, the children’s current needs,
developmental status, and the adequacy of their placement and/or placement plan.
In re K.S., 246 W. Va. 517, 526, 874 S.E.2d 319, 328 (2022).
To begin, it is disingenuous for petitioner to argue that he was allowed to use legal
substances when he hid his use of kratom and delta-8 from the DHHR workers and providers
throughout the proceedings. Indeed, he did not divulge this use until after the birth of the second
child, who exhibited symptoms of substance withdrawal. Petitioner testified that he used kratom
daily for nearly four years and refused to acknowledge that his use of kratom or delta-8 was in any
way problematic or related to his longstanding drug addiction problem. The record shows that the
circuit court found that delta-8 and kratom were mind-altering substances. Petitioner’s testimony
that these substances were harmless and that he did not get high was not credible. This is a
credibility determination that we refuse to disturb on appeal. Michael D.C. v. Wanda L.C., 201 W.
Va. 381, 388, 497 S.E.2d 531, 538 (1997) (“A reviewing court cannot assess witness credibility
through a record. The trier of fact is uniquely situated to make such determinations and this Court
is not in a position to, and will not, second guess such determinations.”).
Contrary to petitioner’s assertion that the case plan did not prohibit his use of kratom and
delta-8, the goals set forth in the case plan make clear that his continued use of these substances
4
The mother’s parental rights were terminated below. The maternal grandparents were
named as nonasbusing guardians in the petition, and the permanency plan for B.P. is adoption by
the maternal grandparents.
3
was contrary to the requirement that he produce negative drug screens and gain knowledge of the
effects of his drug use on his family. The goal of the family case plan “should be the development
of a program designed to assist the parent(s) in dealing with any problems which interfere with his
ability to be an effective parent and to foster an improved relationship between parent and child
with an eventual restoration of full parental rights a hoped-for result.” Carlita B., 185 W. Va. at
625, 408 S.E.2d at 377. Also of note, alcohol is a legal substance but is also mind-altering and can
be abused. Petitioner’s use of these substances shows a lack of insight into his substance addiction
and a failure to address the goal of sobriety in his case plan. Furthermore, petitioner ignores the
evidence that he tested positive for THC (standard drug screens could not detect delta-8) several
times during the proceedings and missed a drug screen shortly before the dispositional hearing.
Despite the goals petitioner did achieve, he failed to change his approach to parenting by staying
dependent on mind-alerting substances. See W.Va. Dep’t of Hum. Servs. v. Peggy F., 184 W. Va.
60, 64, 399 S.E.2d 460, 464 (1990) (finding that the respondent parent “failed to improve her
overall attitude and approach to parenting”). Thus, petitioner failed to make sufficient
improvement in the context of all the circumstances of the case to justify the return of B.P.5 Carlita
B. at 613, 408 S.E.2d at 356, Syl. Pt. 6, in part.
For these reasons, we find no error in the circuit court’s termination of petitioner’s parental
rights. The DHHR presented persuasive evidence of petitioner’s inability to correct the conditions
of abuse and neglect in the near future, which overwhelmingly supported the circuit court’s
findings regarding termination. West Virginia Code § 49-4-604(d)(3) defines “no reasonable
likelihood that the conditions of abuse and neglect can be substantially corrected” to exist when
the abusing parent has “not responded to or followed through with a reasonable family case plan
or other rehabilitative efforts . . . designed to reduce or prevent the abuse or neglect of a child.”
See also Syl. Pt. 5, In re Kristin Y., 227 W. Va. 558, 712 S.E.2d 55 (2011) (permitting termination
of parental rights “without the use of intervening less restrictive alternatives when it is found that
there is no reasonable likelihood . . . that [the] conditions of neglect or abuse can be substantially
corrected”). Further, evidence was presented from the child’s therapist that B.P. exhibited negative
behaviors after visits with the parents and that the matter had been pending for two years, delaying
B.P.’s permanency. As such, we find no error in the court’s finding that termination was necessary
for B.P.’s welfare. Accordingly, the circuit court did not err in terminating petitioner’s parental
rights to B.P.
For the foregoing reasons, we find no error in the decision of the circuit court, and its April
13, 2022, order is hereby affirmed.
Affirmed.
ISSUED: June 13, 2023
5
The Court further notes that petitioner was apparently awarded several extensions to his
post-adjudicatory improvement period, which is in contravention to Syl. Pt. 5, State ex rel. P.G.-1
v. Wilson, 247 W. Va. 235, 878 S.E.2d 730, 733 (2021) (“West Virginia Code § 49-4-610(6) (eff.
2015) authorizes only one extension of a post-adjudicatory improvement period.”).
4
CONCURRED IN BY:
Chief Justice Elizabeth D. Walker
Justice Tim Armstead
Justice John A. Hutchison
Justice William R. Wooton
Justice C. Haley Bunn
5