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In re M.S.

Supreme Court of West Virginia

June 16, 2017

In re: M.S., B.E., K.S.-1, and A.S.

         Randolph County 16-JA-031, 16-JA-032, 16-JA-033, & 16-JA-034

          MEMORANDUM DECISION

         Petitioner Mother K.S.-2, by counsel David C. Fuellhart, III, appeals the Circuit Court of Randolph County's February 8, 2017, order terminating her parental rights to M.S., B.E., K.S.-1, and A.S.[1] The West Virginia Department of Health and Human Resources ("DHHR"), by counsel Lee Niezgoda, filed its response in support of the circuit court's order. The guardian ad litem ("guardian"), Heather M. Weese, filed a response on behalf of the children also in support of the circuit court's order and a supplemental appendix. On appeal, petitioner argues that she should have been entitled to an additional improvement period at disposition because of the DHHR's failure to timely file a family case plan.

         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 March of 2016, the DHHR filed an abuse and neglect petition against petitioner and the father that alleged petitioner abused drugs during her pregnancy with M.S. The petition further alleged that petitioner's drug use resulted in abuse and neglect of the other children in the home. The petition also alleged that the father engaged in domestic violence in the home.

         That same month, the circuit court held an adjudicatory hearing, at which petitioner stipulated to neglecting the children due to drug abuse and the domestic violence present in the home. The circuit court thereafter granted petitioner a post-adjudicatory improvement period and directed the multidisciplinary team ("MDT") to meet in order to set the terms and conditions of the post-adjudicatory improvement period. According to the guardian, the MDT met the following day to comply with the circuit court's direction. During the meeting, the parties set the terms and conditions of petitioner's improvement period and memorialized the same in a document that was provided to petitioner. The terms and conditions included, but were not limited to, the following: (1) complete recommended evaluations; (2) submit to random drug screens; (3) participate in any services deemed appropriate, including parenting and adult life skills services; and (4) participate in visitation with the children.

         Thereafter, the MDT met again in May of 2016. According to the guardian, at the meeting, petitioner acknowledged a continued relationship with the father, in spite of his past instances of domestic violence. Petitioner also reportedly stopped taking her prescribed Suboxone that same month. Also in May of 2016, the circuit court granted petitioner an extension of her improvement period.

         In June of 2016, petitioner was arrested for delivery of a controlled substance for allegedly selling her prescription medication. In July of 2016, the circuit court held another review hearing, at which the DHHR presented evidence that petitioner failed to comply with her improvement period, as evidenced by her recent arrest. Although the circuit court noted concern over petitioner's arrest, it nonetheless granted her an extension of her post-adjudicatory improvement period. However, the circuit court cautioned that petitioner would "need to demonstrate much better compliance during the extended improvement period."

         In August of 2016, the circuit court held another review hearing. During the hearing, both the DHHR and the guardian argued that petitioner was noncompliant with the terms and conditions of her improvement period, as she tested positive for illicit substances at her drug screens and failed to consistently attend visitation. Based on the evidence, the circuit court found that petitioner failed to consistently participate in her improvement period. The circuit court suspended petitioner's visitation with the children and directed that she could resume visitation after submitting three clean drug screens. Shortly after the hearing, the DHHR filed a motion to terminate petitioner's parental rights.

         In December of 2016, the circuit court held a dispositional hearing, at which the parents moved for post-dispositional improvement periods on the grounds that the DHHR failed to timely file a family case plan after they were granted post-adjudicatory improvement periods. The circuit court continued the hearing and ordered the DHHR to file a family case plan. In January of 2017, the circuit court held another dispositional hearing subsequent to the DHHR's filing of a case plan.[2] Petitioner initially failed to appear in person and arrived for the hearing several hours late. She was, however, represented by counsel. During the hearing, the circuit court denied petitioner's motion for a post-dispositional improvement period based upon her failure to comply with "the large majority of the terms and conditions of her improvement period[, ]" such as her failure to consistently visit the children; continued drug use; failure to follow through with the recommendations of her psychological evaluation; and failure to complete parenting services, among other issues. As such, the circuit court terminated petitioner's parental rights to the children.[3] 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).

         On appeal, petitioner argues that she should have been entitled to an additional improvement period at disposition because of the DHHR's failure to timely file a family case plan.[4] We do not agree. In support of her argument, petitioner relies heavily on our prior holding in Desarae M. to argue that a list of the specific terms and conditions of an improvement period are insufficient to satisfy the statutory requirement that the DHHR file a family case plan within thirty days of the inception of an improvement period. According to petitioner, her case is analogous to the facts in Desarae M. and, accordingly, she should have been entitled to an improvement period at disposition so that the DHHR could timely file a family case plan upon the initiation of this second improvement period. We do not find this argument compelling, as the facts of petitioner's case differ substantially from Desarae M. Most notably, the mother in that case was complying with services during the improvement period at issue and was actively prejudiced by the DHHR's failure to timely file a family case plan. Specifically, the mother in that case "allege[d] that personnel shortages within [the] DHHR limited her success during her improvement period." Desarae M., 214 W.Va. at 661, 591 S.E.2d at 219. These shortages resulted in the DHHR's failure to transport the children to the designated location for visitation after DHHR caseworkers terminated their employment and the DHHR failed to make alternate arrangements. Id. Moreover, the DHHR requested that the mother cease counseling by one provider in favor of counseling with a different provider who subsequently went on vacation for several weeks, thereby causing the mother to miss services. Id.

         In the present case, the record is clear that the DHHR's failure to timely file a case plan did not prejudice petitioner. In fact, the DHHR accommodated petitioner extensively, despite the fact that her participation with services worsened throughout the proceedings. According to the record, petitioner failed to complete several terms and conditions of her improvement period, including visitation with her children and remedial services designed to remedy the conditions of abuse and neglect, such as services recommended by her psychological evaluation. Most importantly, given the nature of the allegations against her, petitioner stopped ...


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