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In re A.M.

Supreme Court of West Virginia

June 9, 2017

In re: A.M.

         (Wood County 15-JA-28)

          MEMORANDUM DECISION

         Petitioner Mother D.M., by counsel Debra L. Steed, appeals the Circuit Court of Wood County's September 16, 2016, order terminating her parental rights to A.M.[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 order. The guardian ad litem ("guardian"), Courtney L. Ahlborn, filed a response on behalf of the child in support of the circuit court's order. On appeal, petitioner argues that the circuit court erred in accepting her stipulation at adjudication without complying with Rule 26(b) of the Rules of Procedure for Child Abuse and Neglect Proceedings. Petitioner further argues that the circuit court erred in terminating her parental rights (1) without requiring the DHHR to provide an adequate assessment of her ability to parent the child with long-term services; (2) when she was largely compliant with the terms and conditions of her improvement period; and (3) when the DHHR failed to address the allegations of abuse and neglect contained in petitioner's stipulation.[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 February of 2015, the DHHR filed an abuse and neglect petition that alleged that petitioner was of limited intellectual capacity and was unable to provide safe, proper care for the child. The petition further alleged that petitioner and her live-in boyfriend exposed the child to domestic violence.[3] In March of 2015, the circuit court held a preliminary hearing.[4]

         In April of 2015, petitioner submitted a written stipulation during the adjudicatory hearing. Specifically, petitioner admitted to failure to follow through with proposed parenting direction and exposure of the child to domestic violence. Petitioner's appointed counsel, John Oshoway, was not present during the hearing. However, a different attorney represented petitioner in counsel's absence, and Mr. Oshoway signed the written stipulation that petitioner submitted to the circuit court.[5] The circuit court additionally granted petitioner a post-adjudicatory improvement period.

         During a review hearing in November of 2015, the DHHR reported that petitioner failed to make significant progress in her improvement period, despite her compliance with the terms thereof. In fact, providers raised concerns that petitioner was not able to process and implement the skills necessary to parent the child, regardless of the services offered. Despite these concerns, the circuit court granted petitioner an extension to her improvement period. The circuit court also appointed a guardian ad litem to represent petitioner. During a hearing in February of 2016, the DHHR again reported that petitioner failed to make significant progress, despite her compliance with services. The circuit court granted petitioner's request for additional visits with the child but further set the matter for disposition.

         The circuit court continued the dispositional hearing scheduled for April of 2016 on petitioner's motion so that she could complete a parental fitness evaluation. Also in April of 2016, the child's guardian filed a report that noted petitioner's minimal participation in her improvement period. The same month, the DHHR filed a report that noted petitioner ceased regular attendance at services during February of 2016 and that she lacked progress in meeting the goals of her improvement period.

         In June of 2016, the circuit court held a dispositional hearing. By this point, the results of petitioner's parental fitness evaluation revealed that petitioner was unable to appropriately care for the child. Specifically, the evaluator indicated that petitioner was volatile and argumentative during the evaluation and refused to answer many questions. Petitioner also expressed that she had "no idea" why her child was removed from her care. Ultimately, the evaluator indicated a "very poor" prognosis for petitioner's parenting skills to improve, based on her lack of insight into her situation and failure to take responsibility for the child's removal from her home.

         Moreover, a DHHR employee testified that she provided parenting and adult life skills education to petitioner for approximately eight months. According to this provider, petitioner's attendance became sporadic beginning in February of 2016, and she made little progress as a result. This provider also testified that petitioner did not complete the programs and continued to struggle with inappropriate relationships. According to her visitation supervisor, petitioners' attendance became inconsistent beginning in January of 2016. The visitation supervisor further testified that she was not comfortable leaving petitioner alone with the child. Another DHHR caseworker testified to petitioner's difficulties with stability, including the fact that she lived in five different residences and had relationships with five different men during the course of the abuse and neglect proceedings. The caseworker further testified to petitioner's continued issues with basic parenting and life skills, which were exacerbated by her inconsistent attendance.

         The circuit court then continued the dispositional hearing to September of 2016. During the continued hearing, petitioner admitted that she continued to miss visits and that her most-recent boyfriend went to jail on unrelated criminal charges. Ultimately, by order entered on November 3, 2016, the circuit court terminated petitioner's parental rights to the child. According to the order, petitioner made little progress during her improvement period and was simply unable to properly parent the child.[6] It is from the dispositional 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 in the proceedings below.

         First, petitioner argues that the circuit court erred in accepting her stipulation because it failed to properly question her as to the content and consequences of the stipulation. According to petitioner, the circuit court failed to (1) engage her in further questioning regarding the content of the stipulation; (2) to inform her that she was entitled to a hearing and did not have to admit to the allegations against her; and (3) to ensure that she understood the consequences of the stipulation. The Court, however, finds no error in regard to the circuit court's acceptance of ...


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