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In re D.S.

Supreme Court of West Virginia

February 23, 2018

In re D.S.

         Preston County 16-JA-60

          MEMORANDUM DECISION

         Petitioner Mother M.S., by counsel Jeremy B. Cooper, appeals the Circuit Court of Preston County's July 20, 2017, order terminating her parental rights to D.S.[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. The guardian ad litem ("guardian"), Cheryl L. Warman, filed a response on behalf of the child also in support of the circuit court's order. On appeal, petitioner argues that the circuit court erred in terminating her parental rights when less-restrictive alternatives were available.

         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 was involved in a motor vehicle accident in which the child was not properly restrained in the vehicle, that the driver of the vehicle was impaired due to the consumption of illegal drugs, and that petitioner allowed the child to be a passenger in a vehicle which was operated by an intoxicated driver. The DHHR also alleged that petitioner consumed illegal drugs with the driver prior to the accident and that her drug use impaired her ability to properly care for the child. The DHHR further alleged that petitioner's drug abuse and untreated mental illness caused her to abuse and neglect the child.

         In August of 2016, the circuit court held a preliminary hearing and found that placing the child in petitioner's care "would be contrary to her welfare and best interests." Later in August, the circuit court held an adjudicatory hearing during which petitioner stipulated to failing to properly restrain the child during the vehicle collision and failing to address her issues with mental health and the use of controlled substances. The circuit court accepted her stipulation and granted a post-adjudicatory improvement period, which required that she (1) participate in supervised visitation, (2) participate in parenting classes, (3) submit to random drug screens, (4) submit to mental health and substance abuse treatment, and (5) undergo a psychological evaluation.

         Several review hearings were held to assess petitioner's progress in her post-adjudicatory improvement period. The circuit court was advised that service providers were concerned that petitioner was overmedicating with prescription drugs, as she tested positive for illicit drugs and obtained drugs from multiple physicians, often for short periods of time. The circuit court ordered petitioner to utilize the services of only one primary care physician in order to alleviate concerns of "doctor shopping" and medication interactions for her diagnosed conditions. Despite the DHHR's concerns and recent positive drug screens, the circuit court extended petitioner's improvement period in March of 2017.

         In June of 2017, the circuit court held two dispositional hearings to address petitioner's parental rights. Petitioner requested a post-dispositional improvement period or, in the alternative, a disposition pursuant to West Virginia Code § 49-4-604(b)(5).[2] The DHHR and the guardian moved the circuit court to terminate petitioner's parental rights. At disposition, a community corrections worker testified that petitioner tested positive for marijuana, alcohol, methamphetamine, buprenorphine, and morphine during the proceedings, and failed to report for drug screens after May 19, 2017. The worker further testified that, regarding petitioner's prescription drug use, her prescriptions were from multiple providers and for short durations which made it difficult to determine whether petitioner was taking her medications as prescribed. The worker finally testified that petitioner appeared for drug screens on two occasions and was so impaired that the worker was concerned for her safety. Similarly, a service provider testified that petitioner participated in services "as long as she was coherent." The provider also testified that petitioner would fall asleep, stumble, and write illegibly during some in-home parenting and adult life-skills sessions. A DHHR worker testified that petitioner failed to make any significant improvement during her improvement period, despite being provided with services and multidisciplinary team ("MDT") intervention. The DHHR worker also testified that petitioner was resistant to in-patient drug treatment and consistently stated that she did not have a drug abuse problem. Further, petitioner's intoxication led to the suspension of her supervised visitation with the child and she had no contact with the child after April of 2017.

         Petitioner testified that she did not have a drug problem and did not neglect her child. She also testified that she completed parenting and adult life-skills classes, despite the provider's testimony to the contrary. According to petitioner, any issues with the completion of her services were due to the failure of the workers and service providers to contact her. She further testified that she stopped appearing for drug screening because of her employment and did not go to in-patient drug treatment because she could not afford to. At the conclusion of the hearing, the circuit court found that petitioner demonstrated an inadequate capacity to solve the issues of abuse and neglect on her own or with help, was habitually addicted to controlled substances to the extent that her parenting skills had been seriously impaired, and failed to follow through with treatment that could have improved her capacity for parental functioning. Ultimately, the circuit court terminated petitioner's parental and custodial rights upon findings that there was no reasonable likelihood that she could substantially correct the conditions of abuse and neglect in the near future and that termination was necessary for the child's welfare.[3] It is from the dispositional order dated July 20, 2017, 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 were available. Specifically, petitioner argues that the circuit court could have granted her a post-dispositional improvement period. We disagree. Pursuant to West Virginia Code § 49-4-610(3)(D), a circuit court may grant a parent an improvement period at disposition if, "the [parent] demonstrates that since the initial improvement period, the [parent] has experienced a substantial change in circumstances. Further, the [parent] shall demonstrate that due to that change in circumstances, the [parent] is likely to fully participate in the improvement period . . . ." Here, petitioner was previously granted a post-adjudicatory improvement period. However, the record demonstrates that she could not establish a substantial change in circumstances since her initial improvement period or that she was likely to fully participate in a new improvement period.

         Petitioner argues that she provided sufficient evidence to suggest that she stabilized her medications for her various health conditions, demonstrating a significant change in circumstances. However, petitioner testified at disposition that she did not have a substance abuse problem, even though she tested positive for marijuana at the outset of her improvement period and for other non-prescribed medications throughout the proceedings. Moreover, petitioner's "evidence" was her own self-serving testimony that she ceased taking any proscribed medications. We have previously held that

[i]n order to remedy the abuse and/or neglect problem, the problem must first be acknowledged. Failure to acknowledge the existence of the problem, i.e., the truth of the basic allegation pertaining to the alleged abuse and neglect or the perpetrator of said abuse and neglect, results in making the problem untreatable and in ...

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