Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

In re A.L.

Supreme Court of West Virginia

September 5, 2017

In re: A.L.

         Mercer County 15-JA-140-WS

          MEMORANDUM DECISION

         Petitioner Mother T.L., by counsel Gerald R. Linkous, appeals the Circuit Court of Mercer County's March 1, 2017, order terminating her parental, custodial, and guardianship rights to A.L.[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"), Elizabeth A. French, filed a response on behalf of the child in support of the circuit court's order. The intervening foster parent, C.B., by counsel, Kyle G. Lusk, Matthew A. Bradford, and Brandon L. Gray, also filed a brief in support of the circuit court's order.[2] On appeal, petitioner argues that the circuit court erred in refusing to grant her a post-adjudicatory improvement period prior to terminating her parental, custodial, and guardianship rights.

         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 August of 2015, petitioner's neighbor called the Child Abuse Hotline alleging that she could hear a child being hit at petitioner's residence. A Child Protective Services ("CPS") worker arrived at petitioner's residence and observed welts and bruising on the child's face. The CPS worker also observed dried mud on the child's face, arms, and hands and observed that the child's clothes were soiled and dirty.

         In September of 2015, the DHHR filed an abuse and neglect petition against petitioner asserting physical abuse inflicted upon the child. The petition asserted that the owner of the residence where petitioner, the father, and the child resided disclosed to the CPS worker that the child frequently had unexplained injuries. The circuit court held a preliminary hearing and found reasonable cause to believe that the child was in imminent danger due to a nonaccidental trauma that was inflicted upon the child while in petitioner's custody. In October of 2015, the DHHR filed an amended petition including information regarding prior abuse and neglect proceedings against petitioner in Michigan and South Dakota. The amended petition asserted that petitioner, while residing in Michigan and South Dakota, previously had her parental rights to six children terminated, voluntarily and involuntarily. The petition also asserted that the father of the child is a registered sex offender.

         In January of 2016, the circuit court held an adjudicatory hearing where petitioner stipulated to abusing the child based upon excessive corporal punishment. The circuit court accepted the stipulations and petitioner was adjudicated as an abusing parent. At the hearing, petitioner moved for a post-adjudicatory improvement period. The DHHR and the guardian opposed any improvement period being granted to petitioner. Shortly after the adjudicatory hearing, the DHHR moved to terminate parental rights. The DHHR asserted that due to aggravating circumstances, the DHHR was not required to make reasonable efforts to preserve the family.

         In March of 2016, the circuit court held a dispositional hearing in which it heard the testimony of the DHHR's caseworker in this matter. After the caseworker's testimony, the circuit court continued the hearing to allow for the completion of a home study of a relative in another state who wished to have the child placed with her. The child remained in the foster home.

         In February of 2017, the circuit court resumed the dispositional hearing. At the hearing, petitioner testified that while living in Michigan, she had a prior improvement period concerning the subject child for nine months. Petitioner further testified that two months after the improvement period was completed she moved to West Virginia, and approximately six months after that, this abuse and neglect petition was filed against her relating to the same child. Petitioner also testified regarding her prior terminations and admitted that the court in Michigan made a finding that she had beaten one of her children so severely that the child had multiple bruises and a broken arm.

         Ultimately, the circuit court denied petitioner's motion for a post-adjudicatory improvement period and terminated her parental, custodial, and guardianship rights in its March 1, 2017, order.[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). 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 not granting her a post-adjudicatory improvement period prior to terminating her parental rights. We disagree. In support of her argument, petitioner claims that she successfully completed an improvement period in another state prior to moving to West Virginia. However, West Virginia Code § 49-4-610(2)(B) requires that the parent "demonstrates by clear and convincing evidence, that the [parent] is likely to fully participate in the improvement period . . . " Further, we have often noted that the decision to grant or deny an improvement period rests in the sound discretion of the circuit court. See In re: M.M., 236 W.Va. 108, 778 S.E.2d 338 (2015) (stating that "West Virginia law allows the circuit court discretion in deciding whether to grant a parent an improvement period"); Syl. Pt. 6, in part, In re Katie S., 198 W.Va. 79, 479 S.E.2d 589 (1996) (holding that "[i]t is within the court's discretion to grant an improvement period within the applicable statutory requirements").

         Here, petitioner failed to present any evidence to demonstrate to the circuit court that she would be likely to fully participate in a post-adjudicatory improvement period. Although petitioner did receive an improvement period and services in Michigan, they did little to remedy conditions of abuse in the home. In 2009, the Probate Court for the County of Mecosta in Michigan found that petitioner did not benefit from the services offered. Between 2007 and 2011, petitioner's parental rights to four of her children were terminated involuntarily and parental rights to two of her children were voluntarily relinquished. Petitioner allegedly completed an improvement period involving this child in another state prior to the petition being filed in the abuse and neglect case at issue in this appeal, the circumstances surrounding the improvement period were not similar to the case at hand. Petitioner's prior improvement period involved inappropriate housing, not corporal punishment. Although petitioner testified in this matter that she would be willing to comply with a post-adjudicatory improvement period and make all ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.