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In re M.S.

Supreme Court of West Virginia

March 12, 2018

In re M.S., J.S.-1, and P.S.

         Morgan County 16-JA-07, 08, and 09

          MEMORANDUM DECISION

         Petitioner Mother J.S.-2, by counsel Kimberley D. Crockett, appeals the Circuit Court of Morgan County's August 29, 2017, order terminating her parental rights to M.S., J.S.-1, and P.S.[1] The West Virginia Department of Health and Human Resources ("DHHR"), by counsel Mindy M. Parsley, filed a response in support of the circuit court's order. The guardian ad litem ("guardian"), Michael Donadieu, filed a response on behalf of the children in support of petitioner's appeal. Petitioner filed a reply. On appeal, petitioner argues that the circuit court erred in denying her motion for a post-dispositional improvement period and terminating her parental rights despite her successful completion of an improvement period and against the weight of the evidence, and in denying her post-termination visitation.

         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 against the parents after learning that law enforcement was dispatched to the family's home due to then eleven-year-old C.M.'s call for assistance.[2] According to the DHHR, the parents locked C.M. in a shed as punishment over the course of two days. On the first day, the father locked C.M. in the shed while he was at work and petitioner was in the home. The father returned him to the shed the next morning when he left for work. The shed had no heat, no electricity, and no bathroom, and temperatures during those two days were extremely cold. On the second day of being locked in the shed, C.M. escaped and sought help. The DHHR also alleged that the parents locked the child overnight in the bathroom without food. Finally, the DHHR alleged that petitioner failed to protect C.M. from the father's conduct. An amended petition was filed later in February of 2016 in order to include P.S., who was born within two days of the initial petition's filing. The parents waived their preliminary hearing.

         In April of 2016, the circuit court held an adjudicatory hearing during which the parents stipulated to essential allegations contained in the petition. The circuit court accepted the parents' stipulations, adjudicated them as abusing parents, and granted them post-adjudicatory improvement periods.

         Petitioner moved the circuit court for an extension of her post-adjudicatory improvement period in September of 2016, citing a delay in setting up individualized counseling sessions and a general need for additional time to comply with the terms of her improvement period. The circuit court granted petitioner's motion. In December of 2016, a multidisciplinary team ("MDT") meeting was held and the members elected to move forward with a reunification plan for the family, determining that petitioner would complete services around March of 2017. Based upon the MDT's plan, petitioner requested a second extension to her post-adjudicatory improvement period, which the circuit court granted.

         In February of 2017, petitioner was sentenced to six months of incarceration after being convicted for misdemeanor child abuse related to the allegations contained in the petition. Petitioner moved the circuit court for a post-dispositional improvement period in March of 2017.

         The circuit court held a dispositional hearing over the course of three days throughout May and June of 2017.[3] The circuit court heard testimony from several witnesses, including service providers, who all testified that petitioner had appropriately complied with services. While the parents' therapist believed a six-month post-dispositional improvement period would be successful, she testified that the parents would need intensive, significant counseling which could occur after the children were returned to the home. The therapist stated counseling would probably need to occur twice weekly for one year. Four of the parents' neighbors testified that the parents seemed like a normal couple, were affectionate parents, and always cared for the children. They opined that the shed incident was an anomaly based upon their observations of the family over the years. A DHHR worker testified that the case plan was for reunification until February of 2017, when the parents were incarcerated. She testified that, at that point, the children would have been out of the home for over fifteen months. Further, the DHHR noted that they discovered that the father had previously voluntarily relinquished his parental rights to three children after being involved in an abuse and neglect proceeding in Virginia.

         The parents also testified that they understood their prior actions were wrong and that locking C.M. in the shed was an inappropriate form of discipline. Petitioner testified that, after receiving services, she learned that she should have obtained assistance for her son much sooner and that she has many resources available to help her maintain a healthy, appropriate relationship with her children. After hearing evidence, the circuit court found that, although the parents had participated in services, they failed to present any testimony regarding their ability to apply the techniques they learned. Further, the circuit court found that petitioner's testimony showed that she had no ability to make changes in her parenting and demonstrated an unwillingness or inability to change. Accordingly, the circuit court terminated petitioner's parental rights upon finding that there was no reasonable likelihood that the conditions of abuse and neglect could be corrected and that termination was necessary for the children's welfare.[4] It is from the August 29, 2017, dispositional order that petitioner appeals.

         The Court has previously established the following standard of review in cases such as this:

"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 first argues that the circuit court erred in denying her motion for a post-dispositional improvement period when the evidence demonstrated that she successfully completed her post-adjudicatory improvement period. Specifically, petitioner relies heavily on the testimony of service providers, a therapist, her neighbors, and her own testimony, all of which, she argues, demonstrates that she would have successfully completed a post-dispositional improvement period had it been granted. 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 petitioner 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.

         Contrary to petitioner's argument that the testimony of several witnesses established that she was likely to participate in a post-dispositional improvement period, the circuit court, after hearing the testimony, found that several of the witnesses were not credible. Specifically, it found that the neighbors' testimony was not credible, as they had no knowledge of the abuse and only saw limited "snapshots" of the family. Further, the circuit court found that while the therapist believed the children could be returned to the home, the parents would need a year of intensive counseling. In light of that information, the circuit court found that the safety of the three young children remained at risk as they would grow and challenge the parents, much like C.M., and that no testimony established that petitioner learned how to implement the techniques she was taught through services. Moreover, the circuit court paid careful attention to the parents' testimony and found that petitioner did not demonstrate that she had enhanced her diminished capacity to parent the children. Petitioner was unable to specifically or sufficiently explain what she would have done differently ...


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