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In re J.M.

Supreme Court of West Virginia

June 19, 2017

In re: J.M., E.A., and K.A.

         Wood County 16-JA-71, 16-JA-72, & 16-JA-73

          MEMORANDUM DECISION

         Petitioner Mother B.M., by counsel Jessica E. Myers, appeals the Circuit Court of Wood County's February 3, 2017, order terminating her parental rights to J.M., E.A., and K.A.[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"), Justin M. Raber, filed a response on behalf of the children in support of the circuit court's order. Responder Father Joshua A. (the non-offending father of K.A.), by counsel Eric K. Powell, also filed a response in support of the circuit court's order. [2] On appeal, petitioner argues that the circuit court erred in finding that she abused and neglected her children based on insufficient evidence and in terminating her parental rights to the children based on erroneous findings.

         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 2016, the DHHR filed an abuse and neglect petition against petitioner alleging that she was driving her vehicle at a high rate of speed on June 9, 2016, when she struck a bank and rolled the vehicle three times. Two of her three children (E.A. and K.A.) were in the vehicle during the accident and were wearing nothing but diapers. Following the accident, emergency personnel removed petitioner and her two children from the vehicle, and they were transported by ambulance to a hospital. Despite the serious nature of the accident, the DHHR noted that K.A. had only scratches on his arm and a "goose egg" on his forehead, and E.A. had no discernible injuries. Neither child was admitted for treatment. It was reported that petitioner had a suspended driver's license and may have been "under the influence of some type of substance." She refused testing at the hospital for controlled substances or alcohol. By the time an officer arrived at the hospital, petitioner could not be found and had not been properly discharged. She left E.A. and K.A. at the hospital.

         The DHHR further alleged that officers responded to a mental hygiene call in the late hours of June 9, 2016. Officers found petitioner wandering in the area of the accident. She was reportedly looking for her vehicle. She appeared belligerent and could not remember her address and misguided the officers in their attempts to find her home. Ultimately, officers took her back to the hospital where she stated that she had prescriptions for Xanax, Methadone, and other medications.

         In June of 2016, the circuit court held a preliminary hearing. Petitioner was not present in person, but was represented by court-appointed counsel. Petitioner's counsel stated that she had no contact with petitioner. In July of 2016, the circuit court held an adjudicatory hearing. Petitioner was not present in person, but was represented by counsel. The DHHR moved for a continuance to resolve service concerns for certain parties. The circuit court granted the motion.

         In August of 2016, the circuit court held a second adjudicatory hearing. Petitioner appeared and moved for a continuance for additional time to meet with her counsel. The circuit court granted the request and scheduled the next adjudicatory hearing for October of 2016. The circuit court ordered petitioner to submit to a drug screen and permitted visitation with the children if she passed her drug screen.[3]

         In October of 2016, the circuit court held a third adjudicatory hearing. At that hearing, an officer and a DHHR worker testified to the details of the accident and the subsequent events at the hospital. The officer also testified that petitioner's license was suspended for a medical issue.[4] The DHHR worker explained that petitioner left the hospital without E.A. and K.A. on the night of the accident and that she had not directed any other person to care for them before leaving. It is unclear when, or if, she intended to return to the hospital, but at least one hour passed before petitioner was located by authorities.[5]

         The DHHR worker further testified that E.A. and K.A. were "very dirty" when she saw them at the hospital. The DHHR worker also noted in her testimony that petitioner had a history of drug use. There was also testimony that petitioner had previously left her children at a gas station, resulting in the gas station staff providing care for the children and ultimately contacting Child Protective Services ("CPS"). At the conclusion of the hearing, the circuit court found by clear and convincing proof that petitioner abused and neglected her children by leaving them unattended at the hospital.

         In January of 2017, the circuit court held a dispositional hearing. Petitioner was not present in person, but was represented by counsel. According to the DHHR, petitioner was given contact information for a CPS worker but made no attempt to contact the DHHR to initiate services. It was reported that petitioner provided no update as to her whereabouts and failed to visit with her children during these proceedings. Both the DHHR and the guardian recommended termination. By order entered on February 3, 2017, the circuit court found that there was no reasonable likelihood that petitioner could substantially correct the conditions of neglect in the near future and that the children required continuity of care and caretakers. As such, the circuit court terminated petitioner's parental rights to the children.[6] Thereafter, the circuit court held permanency review hearings and granted "legal and physical custody" of the children to Joshua A. It is from the termination 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 the circuit court erred in finding that she abused and neglected her children. Petitioner claims that the evidence of her conduct at the hospital, and immediately thereafter, was insufficient to prove abuse or neglect under the clear and convincing standard of proof. Petitioner asserts, as she did below, that her actions were the result of her injuries from the accident and should not be held against her. The DHHR, ...


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