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In re H.J.

Supreme Court of West Virginia

May 22, 2017

In re: H.J., D.J., and A.J.-1

         (Logan County 14-JA-37-O, 14-JA-38-O, & 14-JA-40-O)

          MEMORANDUM DECISION

         Petitioner Mother A.J.-3, by counsel Cynthia M. Ranson and G. Patrick Jacobs, appeals the Circuit Court of Logan County's June 28, 2016, order terminating her parental rights to H.J., D.J., and A.J.-1.[1] The West Virginia Department of Health and Human Resources ("DHHR"), by counsel John W. Bennett, filed a response in support of the circuit court's order. The guardian ad litem ("guardian"), L. Scott Briscoe, filed a response on behalf of the children in support of the circuit court's order. The unknown fathers, by counsel Steven S. Wolfe, filed a response in support of the circuit court's order. The guardian and unknown fathers filed a supplemental appendix. Petitioner filed a reply. On appeal, petitioner argues that the circuit court erred in terminating her parental rights upon insufficient evidence.[2]

         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 June of 2014, the DHHR received a referral regarding petitioner's use of cocaine while breastfeeding her infant child A.J.-1. Child Protective Services ("CPS") investigated, and child H.J. confirmed that petitioner breastfed A.J.-1. While petitioner denied breastfeeding the infant, petitioner's mother reported that petitioner did breastfeed the child. Petitioner's mother additionally expressed concern about petitioner caring for the children. H.J. also informed CPS that petitioner recently fell asleep while driving them from the Commonwealth of Kentucky.

         That same month, the DHHR filed an abuse and neglect petition that alleged petitioner's substance abuse impaired her ability to care for the children.[3] According to the petition, petitioner was prescribed methadone and was abusing cocaine while caring for the children, including breastfeeding A.J.-1. The petition further alleged that petitioner's recent drug screen was "presumptive positive" for cocaine and methadone. Moreover, the DHHR alleged that petitioner had a substantial history of CPS intervention, including two prior removals of children from the home. The circuit court held several preliminary hearings in June of 2014, September of 2014, and October of 2014, although petitioner did not appear in person despite being represented by counsel. At the September of 2014 preliminary hearing, the guardian requested that petitioner be required to submit to drug screens in order to visit her children. Thereafter, petitioner registered more "presumptive positive" screens and, in October of 2014, she screened positive for benzodiazepines, opiates, cannabinoids, cocaine, and methadone, and the circuit court suspended her visitation rights.

         In December of 2014, the DHHR filed an amended petition to include allegations that petitioner provided seven positive drug screens between June of 2014 and October of 2014 for multiple substances, including cocaine, methadone, cannabinoids, and opiates. The petition further alleged that petitioner's parental rights to an older child were involuntarily terminated in the State of Tennessee. In February of 2015, the circuit court ordered petitioner to undergo a psychological evaluation. Thereafter, petitioner requested a pre-adjudicatory improvement period and moved to reinstate her visitation rights.

         In May of 2015, the circuit court held a hearing on petitioner's request to reinstate her visitation with the children. During the hearing, a therapist testified in opposition to reinstating visitation because of issues concerning petitioner's inappropriate behavior during visits and the children's behavior following visits. Ultimately, the circuit court agreed to resume visits between petitioner and A.J.-1, but declined to allow petitioner visits with D.J. and H.J.

         In July of 2015, the circuit court held a hearing on petitioner's motion for an improvement period. The circuit court denied petitioner's motion, but did require the DHHR to pay for petitioner's treatment at a rehabilitation program. The circuit court also took up the issue of adjudication, at which point petitioner admitted that her untreated mental health issues and substance abuse resulted in the children's neglect. Accordingly, the circuit court adjudicated the children as neglected. Thereafter, petitioner filed a "Motion To Set Aside Waiver Of Adjudicatory Hearing" and argued that she did not understand that she was admitting to neglecting the children during the hearing.

         In November of 2015, the circuit court held a hearing on petitioner's "Motion To Set Aside Waiver Of Adjudicatory Hearing" during which it heard testimony from petitioner regarding her prior admission. Ultimately, the circuit court found that petitioner was familiar with abuse and neglect proceedings by virtue of her involvement in several such cases. The circuit court further found that at the July of 2015 hearing, petitioner "made admissions on the record at a time when she was not under the influence of medication, controlled substances, or alcohol." Moreover, the circuit court found that petitioner's later testimony concerning her admissions established that they were accurate. As such, the circuit court denied petitioner's motion. The circuit court then turned to petitioner's motion for a post-adjudicatory improvement period, which it denied. The circuit court further found that due to the aggravated circumstances of her prior involuntary termination of parental rights to an older child, the DHHR was not required to make reasonable efforts to reunify the family.

         In December of 2015, the DHHR filed an amended petition that set forth a number of recent criminal charges against petitioner, including DUI, driving on a revoked license, breaking and entering, public intoxication, disorderly conduct, and assault on government personnel. The circuit court initially scheduled a dispositional hearing for January of 2016, but the same was continued because of petitioner's positive drug screen taken that day. In fact, petitioner's counsel joined in requesting a continuance so that petitioner would be sober enough to participate in the dispositional hearing. A dispositional hearing in February of 2016 was also rescheduled due to petitioner's hospitalization.

         In March of 2016, the circuit court held a dispositional hearing, after which it issued an order terminating petitioner's parental rights. According to the circuit court, petitioner failed to submit to regularly scheduled drug screens; provided screens positive for cocaine, opiates, and oxycodone when she did attend screens; and was "terminated from the Shepherd's Program of Recovery and Transformation . . . due to abnormal and suspicious behavior, as well as for leaving without permission . . . ." The circuit court also found that petitioner was involuntarily hospitalized for mental health issues in February of 2016. Moreover, the circuit court noted that petitioner entered a guilty plea to one count of public intoxication in November of 2015 and had not visited the children since January of 2015. Based upon these findings, the circuit court found that petitioner "[was] addicted to illicit substances and [was] diagnosed with mental health issues, for both of which she [was] unwilling to acknowledge or accept treatment . . . ." Accordingly, the circuit court terminated her parental rights.[4] It is from the resulting order 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. On appeal, petitioner argues that the proceedings below were "procedurally mishandled resulting in an improper termination of [her] parental rights." In support of this argument, petitioner alleges that the DHHR failed to meet its burden of proof because the evidence established that she was incapable of breastfeeding and the DHHR never confirmed that A.J.-1 had drugs in her system. Essentially, petitioner argues that the DHHR never established abuse or neglect because it failed to prove that she breastfed the infant while abusing drugs. We find no merit to this argument, however, because petitioner fails to acknowledge that the DHHR filed two ...


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