(Roane
County 16-JA-18)
MEMORANDUM DECISION
Petitioner
Mother S.K., by counsel Ryan M. Ruth, appeals the Circuit
Court of Roane County's August 18, 2016, order
adjudicating her as an abusing parent and the November 14,
2016, order denying her motion for an improvement
period.[1] The West Virginia Department of Health and
Human Resources ("DHHR"), by counsel Lee Niezgoda,
filed a response in support of the circuit court's
orders. The guardian ad litem, Leslie L. Maze, filed a
response on behalf of the child in support of the circuit
court's orders. On appeal, petitioner argues that the
circuit court erred in adjudicating her an abusing parent and
denying her motion for an 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
2015, prior to the birth of C.S., the DHHR filed an abuse and
neglect petition against petitioner alleging that her drug
abuse affected her ability to appropriately care for her two
other children. While petitioner was granted an improvement
period, she missed multiple drug screens and tested positive
for methamphetamine, amphetamine, and opiates. Ultimately,
the circuit court terminated her parental rights to these
children due to her "significant drug addiction."
On May
13, 2016, petitioner gave birth to C.S. The DHHR filed a
petition for abuse and neglect based upon the prior
involuntary termination of her parental rights. The DHHR also
alleged that petitioner continued to abuse illegal drugs
which impaired her ability to properly care for C.S.
Specifically, petitioner tested positive for amphetamine
after she gave birth to C.S. and C.S. experienced symptoms of
drug withdrawal.
During
a preliminary hearing, multiple witnesses testified.
C.S.'s pediatrician testified that C.S. experienced signs
of withdrawal after her birth and that petitioner tested
positive for amphetamine prior to giving birth to C.S.
According to the DHHR worker, petitioner had failed to
participate in a drug treatment program since the prior
termination and that she planned to take C.S. to the
Commonwealth of Kentucky. Petitioner admitted that her
parental rights were previously terminated due to her
substance abuse, but denied using drugs in the underlying
proceedings.
Thereafter,
the circuit court held two adjudicatory hearings.
Petitioner's case manager testified that she missed three
outpatient services, two drug screens, and five service
classes in June of 2016. According to the manager, petitioner
also had no contact with service providers since June 14,
2016. Additionally, the circuit court heard testimony that
petitioner tested positive for methamphetamines and
amphetamines after giving birth to C.S. and that C.S.'s
umbilical cord tested positive for methamphetamines and
amphetamines. Based upon this evidence, the circuit court
found that C.S. was born with drugs in her system and
petitioner's substance abuse affected her ability to
parent C.S. As such, by order entered on August 18, 2016, the
circuit court adjudicated petitioner as an abusing parent.
In
September of 2016, the circuit court held a dispositional
hearing during which it heard testimony from petitioner and a
DHHR worker. According to the DHHR worker, petitioner failed
to comply with services, had only visited with the child one
time since her birth, had stopped submitting to drug screens,
and had failed to participate in services in her prior
involuntary termination. Despite this evidence, petitioner
continued to deny that C.S. was born with drugs in her system
and blamed her service providers for her failure to comply
with services. By order entered on November 14, 2016, the
circuit court found that there was no reasonable likelihood
that petitioner could substantially correct the issues of
abuse and neglect in the near future and terminated her
parental rights.[2] This appeal followed.[3]
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 in the
proceedings below.
First,
the Court finds no error in the circuit court's finding
that petitioner abused the child through her substance abuse.
On appeal, petitioner argues that the DHHR failed to meet its
burden of proof at adjudication. We have previously held as
follows:
"W.Va.Code [§] 49-6-2(c) [now West Virginia Code
§ 49-4-601], requires the [DHHR], in a child abuse or
neglect case, to prove 'conditions existing at the time
of the filing of the petition . . . by clear and convincing
[evidence].' The statute, however, does not specify any
particular manner or mode of testimony or evidence by which
the [DHHR] is obligated to meet this burden." Syllabus
Point 1, In Interest of S.C., 168 W.Va. 366, 284
S.E.2d 867 (1981).
Syl. Pt. 1, In re Joseph A., 199 W.Va. 438, 485
S.E.2d 176 (1997) (internal citations omitted). Here, the
DHHR clearly established, that petitioner continued to abuse
illegal drugs and that C.S. was born with drugs in her
system. During the proceedings below, the circuit court heard
testimony that petitioner's parental rights were
previously terminated due to her "significant drug
addiction." The DHHR presented medical evidence that C.S
experienced symptoms of withdrawal after she was born and
that petitioner tested positive for amphetamine after she
gave birth to C.S. The DHHR also presented unrebutted medical
evidence that C.S.'s umbilical cord ...