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In re D.P.

Supreme Court of West Virginia

September 5, 2017

In re: D.P., B.P.-1, S.C., and M.C.

         (Cabell County 15-JA-236, 15-JA-237, 15-JA-238, & 15-JA-252)

          MEMORANDUM DECISION

         Petitioner Mother M.T., by counsel Michael A. Meadows, appeals the Circuit Court of Cabell County's January 17, 2017, order terminating her parental, custodial, and guardianship rights to D.P., B.P.-1, S.C., and M.C.[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"), Steven M. Kresch, 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 no reasonable likelihood that she could correct the conditions of abuse and neglect in the near future, in terminating her parental, custodial, and guardianship rights based on its finding that she failed to substantially comply with the terms and conditions of the improvement period, and in terminating her parental, custodial, and guardianship rights based on its finding that she did not correct the conditions of abuse and neglect that led to the filing of the 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 April of 2015, Child Protective Services ("CPS") received a referral which alleged that petitioner overdosed in nine-year-old M.C.'s presence. CPS investigated and directed petitioner to submit to drug screens and participate in services to remedy the issue. For several months, beginning in April of 2015, petitioner received services from the DHHR.

         In August of 2015, petitioner advised a provider that she was having substance abuse issues with cocaine and heroin and wanted help. In response, CPS took emergency custody of the children, and the DHHR filed an abuse and neglect petition in September of 2015. Petitioner waived her preliminary hearing.

         The circuit court held an adjudicatory hearing in November of 2015 at which petitioner stipulated that she had a substance abuse problem which impaired her ability to properly care for the children. Petitioner was adjudicated as an abusing parent and received a six-month post-adjudicatory improvement period. In December of 2015, petitioner entered the Genesis Program for Women ("Genesis"), a long-term drug rehabilitation program in Parkersburg, West Virginia.

         In February of 2016, the circuit court held a review hearing and found that petitioner was making adequate progress with classes and visitation with the children at the Genesis program during her improvement period.

         In May of 2016, the circuit court granted petitioner a three-month extension to her post-adjudicatory improvement period. In June of 2016, the circuit court granted petitioner unsupervised weekend visitation pursuant to the guardian's motion for such. However, the unsupervised weekend visitation was stopped after July 2, 2016, due to restrictions on petitioner's ability to have all four children at Genesis, and due to the allegations that petitioner struck M.C. in the face and spanked B.P-1 during visits.

         In August of 2016, the guardian moved to terminate the petitioner's parental rights based on her failure to adhere to and complete the requirements of her improvement period, namely that petitioner left Genesis against medical advice. The guardian further alleged petitioner committed violent acts upon the children during visits, failed to complete a formal domestic violence intervention program, lacked stable and adequate housing, and failed to learn appropriate and safe parenting methods.

         In September and October of 2016, the circuit court held dispositional hearings upon the guardian's motion to terminate petitioner's parental rights. At disposition, petitioner moved for a post-dispositional improvement period. The circuit court found that petitioner failed to complete her inpatient substance abuse treatment program at Genesis and left the program against medical advice. Further, the circuit court found that petitioner failed to learn appropriate and safe parenting and failed to follow a reasonable family case plan. The circuit court also found that petitioner failed to comply with the requirements of her improvement period and that there was no reasonable likelihood that the conditions which led to the removal of the children could adequately and substantially be corrected in the near future without causing further psychological harm to the subject children and delaying permanency. Ultimately, the circuit court denied petitioner's motion for a post-dispositional improvement period and terminated her parental, custodial, and guardianship rights in its January 17, 2017, order.[2] 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). Upon our review, the Court finds no error in the circuit court's findings below.

         On appeal, petitioner argues that the circuit court erred in terminating her parental, custodial, and guardianship rights upon erroneous findings. First, petitioner argues that the circuit court erred in finding there was no reasonable likelihood that she could correct the conditions of abuse and neglect in the near future. We do not agree. West Virginia Code § 49-4-604(c)(3) provides that "no reasonable likelihood that conditions of neglect or abuse can be substantially corrected" exists when "[t]he abusing parent ...


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