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In re D.H.

Supreme Court of West Virginia

June 16, 2017

In re: D.H. and E.H.

         Kanawha County 16-JA-124 & 16-JA-224

          MEMORANDUM DECISION

         Petitioner Mother B.H., by counsel Erica Lord, appeals the Circuit Court of Kanawha County's February 10, 2017, order terminating her parental rights to D.H. and E.H.[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"), W. Jesse Forbes, filed a response on behalf of the children in support of the circuit court's order. On appeal, petitioner argues that the circuit court erred in finding that (1) she was not entitled to more time to show compliance with an improvement period and (2) the DHHR provided reasonable services to achieve reunification of the family.[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 April of 2014, the DHHR filed an abuse and neglect petition against petitioner and the father that alleged the parents' home was in deplorable condition and unfit for human habitation. According to the petition, the home was filled with trash, dirty dishes, discarded food, and dirty diapers. The DHHR further alleged that the home lacked electricity and was heated by leaving the burners from the gas stove running while unattended. Child D.H., then approximately twenty months old, was "absolutely filthy" when removed from the home.[3] Accordingly, the DHHR alleged that the parents failed to provide the child with appropriate food, clothing, shelter, supervision, medical care, or education. The DHHR further alleged that the parents' conduct constituted extreme maltreatment. Petitioner waived her preliminary hearing that same month.

         In June of 2014, petitioner submitted to a psychological evaluation that resulted in a guarded prognosis for an improvement in her ability to properly parent the child. According to the psychologist, petitioner scored in the "dementia" range on her mental status examination. She was also diagnosed with cognitive disorder, not otherwise specified, although her symptoms were not severe enough to warrant a diagnosis of acute clinical condition or personality disorder. In August of 2014, the circuit court held an adjudicatory hearing, at which petitioner admitted that her home was in a condition that rendered it unsuitable for habitation. The circuit court accepted petitioner's stipulation and adjudicated her of neglect. The circuit court additionally granted petitioner a post-adjudicatory improvement period that required she participate in parenting and adult life skills education and comply with any recommendations from her psychological evaluation. The circuit court also granted the parents supervised visitation with the children and ordered the DHHR to assist the family financially.

         Over the next several months, the circuit court conducted review hearings and continued the parents' improvement periods several times. At a review hearing in March of 2015, the DHHR recommended that the parents rid their home of a lice infestation. Additionally, the circuit court granted the guardians' motion to cease visitation if the children contracted lice again. The circuit court also found that, despite the DHHR's reasonable efforts to maintain the family, the efforts failed. In May of 2015, the circuit court found that the parents' improvement periods had expired and set the matter for disposition.

         In June of 2015, the circuit court held a dispositional hearing, at which it granted both parents improvement periods as disposition. The terms and conditions of petitioner's improvement period included participation in parenting and adult life skills education, obtaining and maintaining appropriate housing, and following all recommendations from the psychological evaluation. The circuit court also required petitioner to participate in mental health treatment. The circuit court held a review hearing in August of 2015, and continued the parents' improvement periods.

         In a court summary from December of 2015, the DHHR informed the circuit court that the parents had recently admitted to abusing marijuana. Despite the DHHR's concern over the parents' admissions, the circuit court thereafter continued the parents' improvement periods at a review hearing in February of 2016. The circuit court further ordered more intensive services for the parents by directing the DHHR to provide them with twelve hours of parenting and adult life skills education per week so that the parents could learn to maintain proper hygiene and a suitable home for the children. The circuit court also directed the parents to submit to updated parental fitness evaluations by a psychologist.

         In August of 2016, petitioner submitted to the required psychological evaluation. The updated evaluation resulted in findings similar to her prior evaluation in 2014. However, the psychologist's ultimate prognosis following this evaluation was poor, with the psychologist noting that it was unlikely that petitioner would be able to attain minimally adequate parenting ability. The psychologist also indicated that "[f]urther efforts toward reunification [were] not recommended."

         In January of 2017, the circuit court held a dispositional hearing, at which both the guardian and the DHHR moved for termination of the parents' parental rights. The circuit court found that the parents failed to make sufficient improvement such that the conditions of abuse and neglect in the home were corrected. The circuit court further found there was no reasonable likelihood the parents could substantially correct the conditions of abuse and neglect in the near future, based on their failure to follow through with the family case plan. According to the circuit court, the children's best interests required termination of parental rights. Therefore, the circuit court terminated petitioner's parental rights to the children.[4] It is 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, the Court finds no error in the circuit court's finding that petitioner was not entitled to additional time to show she could comply with the terms and conditions of an improvement period. On appeal, petitioner argues that certain DHHR workers testified that she participated in services below, including adult life skills and other services designed to remedy the conditions of abuse and neglect in the home. Petitioner further argues that her own testimony established that she obtained a suitable home for the children. However, petitioner's arguments on appeal ignore the fact that she failed to remedy the conditions of abuse and neglect present in the home sufficient to safely return the children to her care. We have previously held that "[i]n making the final disposition in a child abuse and neglect proceeding, the level of a parent's compliance with the terms and conditions of an improvement period is just one factor to be considered. The controlling standard that governs any dispositional decision remains the best interests of ...


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