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In re A.H.

Supreme Court of West Virginia

January 8, 2018

In re: A.H.

         Harrison County 15-JA-68-3

          MEMORANDUM DECISION

         Petitioner Mother J.W., by counsel Allison S. McClure, appeals the Circuit Court of Harrison County's August 1, 2017, order terminating her parental rights to A.H.[1] The West Virginia Department of Health and Human Resources ("DHHR"), by counsel Michael L. Jackson, filed a response in support of the circuit court's order. The guardian ad litem ("guardian"), Jenna L. Robey, filed a response on behalf of the child in support of the circuit court's order. Father M.H., by counsel E. Ryan Kennedy, filed a brief in support of the circuit court's order. Petitioner filed a reply to M.H.'s brief. On appeal, petitioner argues that the circuit court erred in terminating her parental rights where less-restrictive alternatives to termination existed. The father raises a cross-assignment of error, arguing that the circuit court erred in ruling that he was not entitled to seek discovery in the underlying proceedings.

         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, petitioner gave birth to A.H. while completing an improvement period regarding four older children.[2] Thereafter, in December of 2015, the DHHR filed an amended abuse and neglect petition to add A.H. to the case involving her siblings. In the amended petition, the DHHR alleged that petitioner failed to attend appointments with various service providers, failed to take drug screens, and was arrested on outstanding warrants for driving under the influence and driving without insurance. The DHHR also noted that A.H.'s father had filed for an Emergency Protective Order ("EPO") against petitioner. Although the circuit court denied the request for an EPO, the DHHR filed a request for emergency custody of the child due to concerns of drug abuse by petitioner and subsequently placed A.H. with her father.

         The DHHR filed a second amendment to the petition in January of 2016. In its amended petition, the DHHR alleged that petitioner tested positive at several drug screens and allowed her older children to be physically abused by her boyfriend. The DHHR further alleged that petitioner pled guilty to first offense of driving under the influence and driving without insurance and was sentenced to five months of home incarceration.

         In May of 2016, the DHHR filed a third amendment to the petition in which it alleged that petitioner's post-adjudicatory improvement period regarding her four older children had been revoked due to her failure to attend all random drug screens and because she tested positive for hydrocodone and alcohol. The DHHR also alleged that petitioner had undergone a psychological evaluation in which she took little responsibility for her drug abuse. The evaluator opined that petitioner's prognosis for improving her parenting deficiencies was poor. The DHHR noted that petitioner's non-compliance and parenting deficiencies led it to seek adjudication of petitioner regarding A.H.

         The DHHR filed a fourth amendment to the petition in June of 2016, in which it alleged that petitioner had been observed drinking alcohol at a local bar; that she had been sleeping at a location different than the address she gave to the DHHR; that she was scheduled for weekend jail time, having violated the terms of her home incarceration; and that she had been prescribed a narcotic for her ear surgery despite orders to request non-narcotics for pain. Later in June, the circuit court held an adjudicatory hearing with regard to A.H. Petitioner stipulated that she failed to provide a stable living environment for A.H. Specifically, petitioner admitted to residing in at least three separate homes with three separate individuals and to being periodically incarcerated. Petitioner then filed a written request for a post-adjudicatory improvement period. At a subsequent hearing, the circuit court granted petitioner's request, finding that she had not previously been granted one with respect to A.H., that she had attended visits with the child, and that she had made substantial improvement in complying with services since the revocation of her improvement period regarding the four older children.

         In September of 2016, the circuit court granted petitioner an extension of her post-adjudicatory improvement period, despite having been incarcerated following the revocation of her home incarceration. The circuit court extended petitioner's improvement period again in October of 2016 and granted a post-dispositional improvement period in January of 2017, finding that petitioner had been substantially complying with the terms and conditions.

         In July of 2017, the guardian requested that the circuit court terminate petitioner's parental rights because she believed little progress had been made during the improvement period, as petitioner would exhibit periods of compliance followed by bouts of missed appointments and alleged transportation issues. The guardian also stated concerns about petitioner's inability to maintain stable housing and provide proper care for A.H. Thereafter, the circuit court held a dispositional hearing, during which several witnesses testified that petitioner failed to fully comply with services. A therapist testified that petitioner failed to complete individual therapy, missed several appointments, and had not returned to her office since November of 2016. The service provider for co-parenting counseling testified that petitioner only attended one session for which she arrived thirty minutes late. Another service provider testified that petitioner missed seventy-two drug and/or alcohol screens since entering the program in September of 2015. After being granted a post-dispositional improvement period in January of 2017, petitioner made a voluntary admission that she would test positive for alcohol in April of 2017 and tested positive for alcohol in May of 2017. The service provider testified that petitioner had not returned since testing positive in May and agreed with the Child Protective Services ("CPS") worker's report that petitioner would have missed at least seven random screens since that time. The CPS worker testified that petitioner claimed transportation problems prevented her from participating in some services yet failed to utilize transportation services available to her. While the CPS worker admitted that petitioner had participated in the bulk of her random screens between January and May of 2017, she testified that petitioner did not comply with requirements to obtain stable housing, missed some supervised visits, and continued to drive without a valid driver's license.

         Petitioner then requested an extension of her post-dispositional improvement period. Petitioner explained that she failed her alcohol screen in May of 2017 after having a conversation with her oldest daughter, who informed her that she hated petitioner and did not wish to see her, which led petitioner to drink. Petitioner stated that she quit drinking approximately one and a half weeks prior to the hearing, obtained stable housing one week prior, and obtained employment as a bartender. Petitioner acknowledged that she resided at three separate locations in the six months leading up to the dispositional hearing and failed to pay child support. Ultimately, the court terminated petitioner's post-dispositional improvement period, finding that she had not exhibited substantial compliance with the required terms and conditions. Further, the circuit court found that petitioner had not demonstrated that she was likely to follow through with an extension. The circuit court found that petitioner had not complied with individual therapy or co-parenting counseling and failed to participate in drug screens after May of 2017. Ultimately, the circuit court found that there was no reasonable likelihood that petitioner could correct the conditions of abuse and/or neglect and that termination was necessary for the child's welfare, particularly due to her tender age. As such, the circuit court terminated petitioner's parental rights.[3] It is from this August 1, 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 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).

         On appeal, petitioner argues that the circuit court erred in terminating her parental rights when less-restrictive alternatives to termination existed. According to petitioner, West Virginia Code § 49-4-604(b) requires courts to give precedence to the least-restrictive dispositional alternative. As such, petitioner argues that granting a less-restrictive alternative to termination would have been appropriate as it would not have adversely affected A.H.'s needs as ...


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