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In re C.S.

Supreme Court of West Virginia

May 22, 2017

In re: C.S.

         (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 ...


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