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In re B.S.

Supreme Court of West Virginia

January 8, 2018

In re: B.S. and J.S.

         Kanawha County 16-JA-374 & 16-JA-375

          MEMORANDUM DECISION

         Petitioner Mother E.S., by counsel Edward L. Bullman, appeals the Circuit Court of Kanawha County's July 24, 2017, order terminating her parental rights to B.S. and J.S.[1] The West Virginia Department of Health and Human Resources ("DHHR"), by counsel Brandolyn N. Felton-Ernest, filed a response in support of the circuit court's order. The guardian ad litem ("guardian"), Jennifer R. Victor, 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 that she failed to make progress in resolving the issues of abuse and neglect; denying her request for an extension of her post-adjudicatory improvement period and denying her motion for a post-dispositional improvement period; refusing to consider evidence of false-positive drug screens; denying drug screening at her place of employment; and denying her motion for post-termination visitation.[2]

         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 July of 2016, the DHHR filed an abuse and neglect petition against petitioner alleging that she abused B.S. and J.S. Specifically, the DHHR alleged that petitioner overdosed on heroin while caring for the children. Petitioner was arrested and criminally charged with child neglect creating risk of injury. The DHHR also alleged that petitioner had a history of substance abuse and failed to provide the children with necessary food, clothing, supervision, and housing. The DHHR further alleged that petitioner failed to provide the children with financial support and that she was unable to provide for the children's needs. Petitioner waived her preliminary hearing.

         In September of 2016, the circuit court held an adjudicatory hearing at which petitioner stipulated to the allegations of abuse and neglect. Petitioner was adjudicated as an abusing parent and was granted a post-adjudicatory improvement period. In December of 2016, the circuit court held a review hearing on petitioner's post-adjudicatory improvement period. The circuit court found that petitioner failed to comply with the terms and conditions of her post-adjudicatory improvement period due to positive drug screens and terminated her improvement period. Petitioner did not testify on her own behalf at the review hearing. The circuit court ordered the DHHR to continue providing petitioner with remedial and reunification services. In January of 2017, the circuit court held a dispositional hearing and continued the hearing for further disposition. The guardian requested that petitioner continue her random drug screens, obtain outpatient substance abuse treatment, participate in weekly counseling, adult life skills and parenting classes, obtain and maintain appropriate housing, and obtain verifiable employment.

         In May of 2017, the circuit court held a final dispositional hearing. The DHHR presented testimony that petitioner did not take advantage of services offered to her, that she took "some drug screens, not all of them, " and was dishonest regarding how much she was working. The DHHR presented testimony that petitioner told service workers that she was working from 9:00 a.m. to 6:00 p.m. every day, but the DHHR determined that petitioner was only working an average of ten hours per week. The DHHR also presented testimony that petitioner did not seem to be "sufficiently motivated to correct the situation which led to the filing of this petition." The DHHR further presented testimony that petitioner could have attended thirty-nine parenting sessions, but only attended nineteen sessions. During the sessions she did attend, the specialist reminded petitioner to participate in treatment and Narcotics Anonymous classes, but petitioner failed to participate in those services. Finally, the DHHR presented testimony that petitioner did not benefit from services.

         A Child Protective Services ("CPS") employee testified that drug testing was being conducted at petitioner's place of work by Empowering Families, but petitioner missed drug screens in January of 2017, February of 2017, and March of 2017. The drug screens from Empowering Families at petitioner's work place stopped in March of 2017. The CPS employee also testified that the DHHR considered missed screens as positive screens. For these reasons, the DHHR recommended termination of petitioner's parental rights. The guardian joined in the DHHR's motions and recommendations and stated that petitioner lied about her work schedule, failed to participate in treatment, failed to attend drug screens, and failed to take responsibility for her actions. The circuit court found no reasonable likelihood that petitioner could correct the conditions of abuse and neglect in the near future and that termination was in the best interests of the children. The circuit court denied petitioner's motions for a post-dispositional improvement period and post-termination visitation. Ultimately, the circuit court terminated petitioner's parental rights in its July 24, 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 proceedings below.

         First, petitioner argues that the circuit court erred in finding that she failed to make progress in resolving the issues of abuse and neglect. However, the DHHR presented ample evidence to demonstrate that petitioner failed to progress in resolving the issues of abuse and neglect. The DHHR established that petitioner lied about her work schedule, missed several parenting sessions and drug screens, failed to participate in treatment, and did not benefit from services. For these reasons, the circuit court found no reasonable likelihood that petitioner could correct the conditions of abuse and neglect. Based on this evidence, we find the circuit court did not err in finding petitioner failed to make progress in resolving the issues of abuse and neglect.

         Next, petitioner argues that the circuit court erred in denying her an extension of her post-adjudicatory improvement period and in denying her motion for a post-dispositional improvement period. Petitioner further asserts that she obtained employment, attended counseling, and attempted to obtain housing. We do not find petitioner's arguments compelling.[4]

         West Virginia Code § 49-4-610(6) provides that a circuit court may grant an extension of a post-adjudicatory improvement period when it finds that the parent "has substantially complied with the terms of the improvement period[.]" Additionally, in order to receive a post-dispositional improvement period, West Virginia § 49-4-610(3)(D) requires that the parent "has experienced a substantial change in circumstances" since the initial improvement period and "demonstrate[] that due to that change in circumstances, the [parent] is likely to fully participate in the improvement period."

         Although petitioner moved for a post-dispositional improvement period, she makes no reference to the record wherein she requested an extension of her post-adjudicatory improvement period. Moreover, petitioner does not argue that she experienced a substantial change in circumstances since her initial improvement period as required by West Virginia Code § 49-4-610(3)(D). On the contrary, the circuit court terminated petitioner's post-adjudicatory improvement period for failure to comply. The DHHR established that petitioner did not take advantage of services, failed to attend drug screens, was dishonest about her work schedule, and failed to benefit from services. The DHHR also provided remedial and reunification services after her post-adjudicatory improvement period was terminated, but she failed to fully comply. Based on this evidence, petitioner failed to fully comply with the terms of her post-adjudicatory improvement period and therefore failed to demonstrate that she would ...


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