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In re J.L.

Supreme Court of West Virginia

November 22, 2017

In re: J.L., T.Y., and G.B.

         Wood County 13-JA-61, 13-JA-62, & 13-JA-63

          MEMORANDUM DECISION

         Petitioner Mother A.L., by counsel Berkeley L. Simmons, appeals the Circuit Court of Wood County's May 25, 2017, order terminating her parental rights to J.L., T.Y., and G.B.[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.[2] The guardian ad litem ("guardian"), Courtney L. Ahlborn, filed a response on behalf of the children in support of the circuit court's order. The father C.B., by counsel Ernest M. Douglass, filed a brief in support of the circuit court's order. The father L.Y., by counsel Eric K. Powell, also filed a brief in support of the circuit court's order. Petitioner filed two reply briefs. On appeal, petitioner argues that the circuit court erred in (1) not allowing thirteen-year-old T.Y. to express her wishes; (2) not returning petitioner's children to her custody despite the recommendation set forth in the evaluating psychologist's parental fitness evaluation; (3) terminating her parental rights when none of the factors requiring termination set forth in West Virginia Code §49-4-604(b)(7) were present; (4) making erroneous findings of fact based on the DHHR's and the guardian's biased and unfair treatment of her; (5) not considering that petitioner was the only parent in the proceedings who sought and obtained employment; and (6) entering its May 25, 2017 dispositional order, which departed from the circuit court's observations on the bench.[3]

         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 2013, the DHHR filed an abuse and neglect petition against petitioner and J.L.'s father after receiving a referral from the Family Court of Wood County. The DHHR alleged that the child J.L. had been diagnosed with severe anxiety such that he was prescribed Prozac, which was believed to be due to his parents' inability to get along. Petitioner and J.L.'s father had been litigating domestic relations issues in family court since 2007. In the referral, the DHHR stated that J.L. and T.Y. were interviewed and their responses indicated that the children were being influenced by petitioner to make false reports against J.L.'s father. Further, the DHHR noted that petitioner previously made false reports against J.L.'s father and ultimately pled guilty to three counts of false reporting in 2012. The DHHR alleged that petitioner abused and neglected J.L. by falsely accusing his father of abuse in an attempt to alienate the child from his father. Due to these false allegations, J.L. and his father were separated for a long period of time, thereby disrupting their bond.[4]

         The circuit court held an adjudicatory hearing in November of 2013, during which petitioner stipulated that she emotionally neglected J.L. by willfully and wantonly taking action to alienate the child from his father. The circuit court granted petitioner a post-adjudicatory improvement period in which she was required to participate in parenting skills and therapy and undergo a psychological evaluation. Petitioner thereafter underwent a psychological evaluation in which the psychologist found that petitioner established a pervasive lack of insight during her persistent efforts to alienate J.L. from his father. Further, the psychologist found that petitioner consistently placed the child in harm's way, denied him a relationship with his father, and ignored the recommendation of professionals involved in her case. J.L. was placed in the custody of his father throughout petitioner's improvement period.

         In November of 2014, the circuit court held a review hearing regarding petitioner's post-adjudicatory improvement period. The circuit court directed the former guardian to submit a recommended parenting plan. However, issues arose with that guardian such that the proceedings were delayed until the circuit court appointed a new guardian in November of 2015. Later in November, petitioner made additional allegations of abuse against J.L.'s father and stated that J.L. does not sleep well before he returns to his father's home, wants to remain with petitioner, and has become "nervous" since living with his father. The circuit court ordered the DHHR to investigate these issues.

         The circuit court held a hearing in February of 2016 to address the allegations made by petitioner against J.L.'s father. The DHHR stated that it failed to substantiate the allegations made by petitioner. Petitioner then withdrew her motion for custody of J.L., claimed that she was a victim of domestic violence at the hand of G.B.'s father, and requested services to address this issue. At the conclusion of the hearing, the circuit court placed T.Y. and G.B. in the custody of the DHHR pending further investigation. The DHHR subsequently filed an amended petition alleging that petitioner continued to make false reports against J.L.'s father in an attempt to regain custody of the child and alienate him from his father. Additionally, the DHHR alleged that it conducted an unannounced home visit at petitioner's home and found it to be in a state of disarray. Further, G.B.'s father appeared to be living in the home, contrary to petitioner's prior claims. The DHHR also alleged that petitioner failed to maintain G.B. in preschool despite court orders requiring her to do so, and failed to assure that T.Y. attended school. Petitioner also failed to provide T.Y. with necessary therapy.

         In March of 2016, the circuit court held an adjudicatory hearing regarding the amended petition. Petitioner stipulated to the allegations that she failed to meet the educational needs of T.Y., failed to maintain G.B. in preschool, deprived G.B. of assistance to meet his developmental needs, maintained an unsanitary and unfit home for the children during the home visit, and participated in domestic violence with G.B.'s father in the children's presence. However, the DHHR noted that, despite her claims of domestic violence, petitioner had dropped the domestic violence protective order against G.B.'s father. The circuit court ordered petitioner to participate in therapy and undergo a parental fitness evaluation.

         The circuit court held a review hearing in May of 2016 on petitioner's motion for an improvement period. The circuit court heard the testimony of a therapist who provided services to petitioner in 2014 and petitioner's former manager from her place of employment. However, because the report of petitioner's evaluating psychologist had been submitted less than five days prior to the hearing, it was continued to allow the parties time to review the new information. A second review hearing was held in June of 2016. At that time, the guardian expressed concerns over petitioner's continued inability to tell the truth, stating that she experienced difficulty in locating petitioner's new home. The guardian believed that she was unable to locate petitioner's new home because petitioner intentionally gave her the wrong address. The guardian explained that petitioner had been evicted from her first home in Kanawha County and then allegedly gave the guardian the incorrect address to her second home. However, petitioner testified that she gave the guardian the pre-9-1-1 address as listed on the utilities. After taking petitioner's testimony, the circuit court continued the hearing once again to allow parties time to review new evidence submitted.

         In October of 2016, the circuit court determined that it would hear evidence on both petitioner's motion for an improvement period and the DHHR's motion to terminate petitioner's parental rights. Over the course of two dispositional hearings throughout October and December of 2016, the circuit court heard testimony from a multitude of persons, including petitioner; petitioner's evaluating psychologist; a service provider; and the child T.Y.'s therapist. Regarding the parental fitness evaluation, the record indicated that, unbeknownst to the DHHR, counsel for petitioner contacted the psychologist to arrange for the evaluation to be performed, despite it being the DHHR's responsibility to arrange the evaluation. The psychologist testified that she informed petitioner's counsel that she would not perform the evaluation because the DHHR had not paid her quickly enough in the past. The psychologist testified that she flippantly told petitioner's counsel that if he could get the DHHR to issue her a payment, that she would perform the evaluation. Coincidentally, several days later the psychologist received a substantial payment from the DHHR for her past services performed. True to her word, the psychologist performed the evaluation. Having no knowledge of what had transpired, the DHHR attempted to send the necessary documentation to the psychologist, who refused to review the information, having already performed the evaluation. The psychologist eventually reviewed one document the morning of the dispositional hearing, but testified that she had refused to review the other documentation because the DHHR frequently sent her untimely information and she did not have time to go back and review everything. The psychologist testified that having the other documentation would have been helpful, but that, having reviewed the one document that morning, her recommendation that the children immediately be returned to petitioner's custody had not changed.

         The circuit court heard further evidence that after the children were removed from her custody, petitioner moved to Kanawha County in order to pursue a job, from which she had already been fired at the time of the dispositional hearing. After petitioner's move, she failed to participate fully in visitation and services. A service provider testified that petitioner missed several visits with her children, who remained in Wood County. According to testimonial evidence, both the attended and missed visits had a negative effect on the children. A DHHR worker testified that T.Y. became disturbed by petitioner's inconsistent visitation schedule and expressed that she did not know why petitioner bothered to attend visits if she could not be consistent. Further, G.B.'s father testified that when petitioner did visit, the children exhibited concerning behaviors in the days following the visit. Regarding other missed services, the circuit court heard evidence that after moving to Kanawha County, petitioner did not seek out therapy or counseling for four to five months. The circuit court also heard evidence that petitioner made several inconsistent statements regarding her living arrangements, her relationship with G.B.'s father, and her discharge from her employment. Finally, petitioner requested that T.Y., then thirteen years old, be allowed to give her opinion concerning disposition. However, T.Y.'s therapist subsequently authored a statement recommending that T.Y. not be consulted, as rendering such an opinion on whether she should return to her mother's care would be detrimental to T.Y. After hearing all the evidence, the circuit court determined that the psychologist's parental fitness evaluation was so vastly inconsistent with the evidence that its credibility was very limited. The circuit court found that there was no reasonable likelihood that petitioner could correct the conditions of abuse and that termination was necessary for the children's welfare. As such, the circuit court terminated petitioner's parental rights.[5] It is from this May 25, 2017, 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 ...

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