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In re A.F.

Supreme Court of West Virginia

June 19, 2017

In re: A.F.

         (Raleigh County 15-JA-144-B)


         Petitioner Mother M.M., by counsel Dennie S. Morgan, Jr., appeals the Circuit Court of Raleigh County's February 9, 2017, order terminating her parental rights to A.F.[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 and a supplemental appendix. The guardian ad litem ("guardian"), Thad A. Bowyer, 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 adjudicating her as an abusing parent, admitting medical records for purposes of adjudication, and basing part of its ruling upon testimony of facts not contained in the abuse and neglect petition.

         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 September of 2015, the DHHR filed an abuse and neglect petition against petitioner alleging that she and A.F. were involved in a car accident, while M.M was under the influence. According to the petition, petitioner tested positive for opiates, benzodiazepine, tetrahydrocannabinol ("THC"), and cocaine after the car accident. As a result of the accident, petitioner was also charged criminally with neglect creating risk of harm to the child, driving while under the influence ("DUI"), and having no license or proof of insurance. Petitioner thereafter waived her right to the preliminary hearing.

         In March of 2016, the circuit court held an adjudicatory hearing wherein the DHHR called the director of laboratory services from the Raleigh County General Hospital to testify as to the authenticity of petitioner's medical records. Petitioner stipulated to the authenticity of the medical records but objected to the director's testimony based on her contention that there had "not been a proper chain of custody [of the medical records] [established] to this point." The circuit court allowed the DHHR to continue its presentation of evidence and, following the director's testimony, found that the evidentiary foundation for the records was sufficient to establish a chain of custody. The director also testified that petitioner's medical records indicated that, on the night of the car accident, a drug screen was administered and petitioner tested positive for opiates, benzodiazepine, THC, and cocaine. The director further testified that the drug screen was administered for the purposes of treatment at the hospital and to avoid possible harmful prescription drug interactions. Petitioner moved the circuit court to exclude the director's testimony. The circuit court overruled her objection and granted the DHHR's motion to make the test results a part of the adjudicatory record. The officer who first arrived on the scene of the accident testified that petitioner's eyes were bloodshot and her speech was slurred immediately following the accident. According to the officer's testimony, petitioner admitted to the officer that she consumed marijuana and Xanax. As a result of her admissions, the officer charged petitioner with child neglect creating risk of injury, in addition to other crimes. Following the presentation of the evidence, the circuit court adjudicated petitioner as an abusing parent and found that the child was abused because petitioner operated her vehicle "in a manner that endangered the child." The circuit court found that petitioner had ingested multiple substances that impaired her "judgement in the operation of a vehicle." The circuit court also granted petitioner's request for a post-adjudicatory improvement period.

         In February of 2017, the circuit court held a review and dispositional hearing. Petitioner did not appear at this hearing but was represented by counsel. A DHHR worker testified that the DHHR was seeking the termination of petitioner's parental rights based on her failure to participate in her improvement period or visit the child. Based on the evidence presented, by order dated February 9, 2017, the circuit court found that there was no reasonable likelihood petitioner could substantially correct the conditions of abuse and neglect and terminated her parental rights to the child.[2] It is from that February 9, 2017, order that petitioner appeals.

         The Court has previously established the following standard of review in a case such as this one:

"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 part, In re Cecil T., 228 W.Va. 89, 717 S.E.2d 873 (2011). Upon our review, the Court finds no error in the circuit court's adjudication of petitioner or the termination of her parental rights.

         Petitioner argues on appeal that the circuit court erred in adjudicating her as an abusive parent because there was not sufficient evidence to make the finding "by clear and convincing evidence." This Court does not agree. West Virginia Code § 49-4-601

requires the [DHHR], in a child abuse or neglect case, to prove 'conditions existing at the time of the filing of the petition . . . by clear and convincing [evidence].' The statute, however, does not specify any particular manner or mode of testimony or evidence by which the [DHHR] is obligated to meet this burden.

Syl. Pt. 1, In Interest of S.C., 168 W.Va. 366, 284 S.E.2d 867 (1981). We have described the "clear and convincing" standard as one in which

the evidence in an abuse and neglect case does not have to satisfy the stringent standard of beyond a reasonable doubt; the evidence must establish abuse by clear and convincing evidence. This Court has explained that "'clear and convincing' is the measure or degree of proof that will produce in the mind of the factfinder a firm belief or conviction as to the allegations sought to be established." Brown v. Gobble, 196 W.Va. 559, 564, 474 S.E.2d 489, 494 (1996)

In re F.S. and Z.S., 233 W.Va. 538, 546, 759 S.E.2d 769, 777 (2014). The evidence below was sufficient to establish that petitioner abused her child. Here, the DHHR clearly established that petitioner's substance abuse and resulting impairment led to a car accident as alleged in the abuse and neglect petition. During the proceedings below, the circuit court heard testimony that petitioner tested positive for opiates, benzodiazepine (Xanax), THC, and cocaine on the night of the car accident and admitted to an officer that she consumed marijuana and Xanax. Further, that officer testified that petitioner exhibited bloodshot eyes and slurred speech immediately after the car accident and he charged her with child ...

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