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In re A.S.

Supreme Court of West Virginia

February 23, 2018

In re A.S.

         (Kanawha County 17-JA-99)

          MEMORANDUM DECISION

         Petitioner Mother K.S., by counsel Herbert L. Hively, II, appeals the Circuit Court of Kanawha County's August 2, 2017, order terminating her parental rights to A.S.[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"), Jennifer R. Victor, filed a response on behalf of the child in support of the circuit court's order and a supplemental appendix. On appeal, petitioner argues that the circuit court erred in adjudicating her as an abusing parent and denying her a post-adjudicatory improvement period.[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 February of 2016, the DHHR filed an abuse and neglect petition that alleged the parents neglected the child. According to the petition, the parents were arrested earlier that month and charged criminally with child neglect creating risk of injury when law enforcement found the parents and the child in a residence described as "dangerous and unfit for human habitation." The petition alleged that the home was filled with mold, mildew, unprotected electrical connections and an exposed oven face. Additionally, there were roaches and roach droppings on every surface in the kitchen, and the dishwasher was filled with mold, mildew, insects, and insect droppings. Officers also discovered drug paraphernalia, including used needles, within the child's reach. Additionally, the petition alleged a history of domestic violence between the parents and drug use. Specifically, the DHHR indicated that the prior month, the father tested positive for benzodiazepines and opiates, which required the administration of Narcan. Further, petitioner tested positive for a number of drugs during her pregnancy with the child, who also tested positive for drugs at birth. Finally, the petition alleged that petitioner's rights to an older child were previously involuntarily terminated, which petitioner later confirmed. During a later preliminary hearing, the circuit court heard testimony from a law enforcement officer concerning the conditions in the home and also admitted into evidence the criminal complaints filed against the parents.

         In March of 2017, the circuit court held an adjudicatory hearing, during which it heard testimony from the father and the child's paternal grandmother. The circuit court admitted a DHHR court summary into evidence and also considered all previously-introduced evidence. Based upon the evidence, the circuit court found that the home from which the child was removed "was unsafe and not suitable for human habitation." According to the evidence, the home "was contaminated with rodent and insect feces and mold[, ]" in addition to being "structurally dangerous, with missing flooring, nonfunctioning plumbing, and rotting cabinetry." Moreover, the circuit court found that the home "was covered with spoiled food and open garbage" and also "contained drug paraphernalia such as straws, razor blades and matches." Based upon this evidence, the circuit court found that the parents "knowingly exposed the child to a filthy, dangerous environment." As such, the circuit court adjudicated petitioner as an abusing parent.

         In May of 2017, the circuit court held a dispositional hearing. Petitioner moved for a post-adjudicatory improvement period, but the circuit court ultimately denied that motion. The circuit court based this ruling, in part, upon evidence that petitioner was not "willing to acknowledge any parenting deficiencies amenable to correction." Based upon this evidence, the circuit court found that petitioner "failed to demonstrate that [she was] likely to comply with the terms and conditions of a post-adjudicatory improvement period." Thereafter, the circuit court terminated petitioner's parental rights to the child.[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.

         On appeal, petitioner argues that the circuit court erred in adjudicating her as an abusing parent. In support of this assignment of error, petitioner argues that the DHHR failed to present any evidence of drug use or domestic violence. She further argues that the home in question belonged to the paternal grandmother and, accordingly, "the . . . DHHR did [not] show that [she] lived in that home with the child and exposed her to those conditions . . . ." Moreover, petitioner argues that law enforcement responded to the home several days prior to removal, but permitted the child to remain in the home, thus establishing that it was appropriate for the child. We do not find these arguments compelling.

         In regard to the burden of proof at adjudication, we have held as follows:

"W.Va.Code [§] 49-6-2(c) [now West Virginia Code § 49-4-601(i)], requires the [DHHR], in a child abuse or neglect case, to prove 'conditions existing at the time of the filing of the petition . . . by clear and convincing [evidence].' The statute, however, does not specify any particular manner or mode of testimony or evidence by which the [DHHR] is obligated to meet this burden." Syllabus Point 1, In Interest of S.C., 168 W.Va. 366, 284 S.E.2d 867 (1981).

Syl. Pt. 1, In re Joseph A., 199 W.Va. 438, 485 S.E.2d 176 (1997) (citations omitted). Based upon this holding, it is clear that petitioner's arguments are without merit. First, the fact that the DHHR did not establish petitioner's drug abuse or the presence of domestic violence in the home is immaterial, given that the circuit court ultimately adjudicated petitioner of exposing the child to the uninhabitable environment. Similarly, the issue of whether or not the home in question was petitioner's primary residence is also immaterial, given that the evidence established that petitioner often spent the night in the home with the child and that the child was found in the home. In fact, testimony at the preliminary hearing established that petitioner "had been residing there for some time" after having been removed from a different residence.

         Finally, the fact that law enforcement permitted the child to remain in the home prior to the ultimate removal has no bearing on whether or not the DHHR satisfied its legal burden of establishing that petitioner was an abusing parent. Importantly, testimony at the preliminary hearing indicated that the home's condition deteriorated between the initial contact with law enforcement and the child's removal. Further, testimony established that the child was permitted to remain in the home upon the grandmother's assurance that she could keep the child away from the dangerous conditions in the part of the home in which the parents were staying, while the parents were ...


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