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In re B.L.-1

Supreme Court of West Virginia

June 16, 2017

In re: B.L.-1, E.L., J.L., and B.L.-2

         Mercer County 15-JA-77-DS, 15-JA-78-DS, 15-JA-79-DS, & 15-JA-80-DS

          MEMORANDUM DECISION

         Petitioner Mother A.L., by counsel Paul R. Cassell, appeals the Circuit Court of Mercer County's August 4, 2016, order terminating her parental, custodial, and guardianship rights to then thirteen-year-old B.L.-1, ten-year-old E.L., nine-year-old J.L., and one-year-old B.L.-2.[1]The West Virginia Department of Health and Human Resources ("DHHR"), by counsel S.L. Evans, filed a response in support of the circuit court's order. The guardian ad litem ("guardian"), Catherine Bond Wallace, filed a response on behalf of the children in support of the circuit court's order. Petitioner filed a reply to the DHHR's response and an amended reply following the filing of the guardian's response. On appeal, petitioner argues that the circuit court erred in terminating her parental, custodial, and guardianship rights to the children because its findings were insufficient and because incarceration alone did not support termination of those rights.

         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 2015, the DHHR filed an abuse and neglect petition against the children's parents. In the petition, the DHHR claimed that petitioner was arrested after "continually testing positive for substances" while in Mercer County's Drug Court program. The petition noted that J.L. (the father of three of petitioner's children) was also incarcerated.[2]

         In July of 2015, the circuit court held an adjudicatory hearing. Petitioner stipulated to the allegations against her as set forth in the petition. The circuit court accepted petitioner's stipulations and granted her a six-month, post-adjudicatory improvement period, which included a requirement for long-term drug treatment. Thereafter, petitioner entered the Residential Substance Abuse Treatment ("RSAT") program to correct her drug abuse issues.

         Thereafter, the DHHR filed a motion to terminate petitioner's parental rights to the children. In its motion, the DHHR asserted that petitioner was discharged from RSAT; continued to abuse drugs; and "engaged in further criminal activity."

         In March of 2016, the circuit court held a dispositional hearing. At that hearing, a Mercer County Drug Court coordinator testified that petitioner was discharged from the drug court program in November of 2015 following four positive drug screens for controlled substances (including hydromorphone), violations of home incarceration, and a misdemeanor conviction. A DHHR worker testified that petitioner was also discharged from RSAT in September of 2015, which petitioner was to complete in order to comply with the requirements of her improvement period. Petitioner testified that she was incarcerated on charges of child neglect creating the risk of injury and attempt to commit a felony. In her testimony, petitioner asked for additional time to be released from prison, to obtain work, to comply with drug treatment, and to find suitable housing. At the conclusion of the hearing, the circuit court stated that the evidence was sufficient to terminate petitioner's parental rights. However, the circuit court held the matter in abeyance for three months, during which time petitioner was directed to, at a minimum, (1) re-enter and comply with RSAT or a comparable treatment program; (2) decide whether she would remain in a relationship with J.L.; and (3) address issues regarding her mental health.

         In July of 2016, the circuit court held a final dispositional hearing. Petitioner testified that she was able to modify her medications to correct the issues regarding her mental health, but she stated that she was denied re-entry into the RSAT program due to her discharge from the drug court program. She claimed to have sought drug treatment in prison but was placed on lengthy waiting lists. Further, petitioner testified that she was unable to receive accelerated parole, but she had a pending motion for reduction of sentence. The circuit court noted that petitioner's efforts might have been more favorable to her "if this was a year ago." By order entered on August 4, 2016, the circuit court terminated petitioner's parental rights to the children.[3] This appeal followed.

         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).

         On appeal, petitioner first argues that the circuit court's findings were insufficient to support the termination of her parental, custodial, and guardianship rights to the children. Petitioner correctly notes that

"[w]here a trial court order terminating parental rights merely declares that there is no reasonable likelihood that a parent can eliminate the conditions of neglect, without explicitly stating factual findings in the order or on the record supporting such conclusion, and fails to state statutory findings required by West Virginia Code § 49-6-5(a)(6) (1998) (Repl.Vol.2001) [now West Virginia Code § 49-4-604] on the record or in the order, the order is inadequate." Syl. Pt. 4, in part, In re Edward B., 210 W.Va. 621, 558 S.E.2d 620 (2001).

Syl. Pt. 9, In re Lilith H., 231 W.Va. 170, 744 S.E.2d 280 (2013). Petitioner argues that the circuit court failed to make adequate findings, as required by Lilith H., in both its written termination order and on the record at the dispositional hearings.[4] The DHHR, however, asserts that the record was clearly sufficient to support termination. According to the DHHR, the written order contains statements that petitioner remained incarcerated "hop[ing]" to be released on a motion for reduction of sentence and that her motion for an improvement period was opposed by both the DHHR and the guardian. The DHHR further asserts that the record at the dispositional ...


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