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In re A.G.

Supreme Court of West Virginia

March 12, 2018

In re A.G., J.F.-1, and D.F.

         Gilmer County 16-JA-10, 11, and 14


         Petitioner Mother S.H., by counsel Jared S. Frame, appeals the Circuit Court of Gilmer County's September 5, 2017, order terminating her parental rights to A.G., J.F.-1, and D.F.[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 and a supplemental appendix. The guardian ad litem ("guardian"), Mary Elizabeth Snead, filed a response on behalf of the children also in support of the circuit court's order. On appeal, petitioner argues that the circuit court erred by terminating her parental rights when the conditions of abuse and neglect were correctable and she had begun making improvements during the 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 June of 2016, Child Protective Services ("CPS") opened a case with petitioner and J.F.-2, the father of J.F.-1 and D.F., to address concerns with the parents' caregiving capabilities. The children did not have an adequate living situation, as they moved from home to home on a nearly daily basis. CPS implemented a safety plan with services to address its concerns; however, in July of 2017, the children were removed from the home pursuant to an emergency order. Shortly thereafter, the DHHR filed an abuse and neglect petition against the parents and alleged that they failed to comply with the safety plan. Specifically, law enforcement officers responded to the parents' home after receiving calls regarding a domestic violence incident. Officers responded to the home multiple times that day and observed J.F.-2 to have teeth marks and swollen skin on his forearm. Additionally, petitioner was observed to have marks on her forearms and wrists, a bruise under her eye, and strangulation marks around her neck. The DHHR alleged that the parents engaged in domestic violence after petitioner requested that J.F.-2 take her to obtain Subutex pills and he refused. Two of the children were present in the home during this event. Both petitioner and J.F.-2 were arrested for domestic battery.

         The circuit court held an adjudicatory hearing in August of 2016, during which petitioner stipulated to allegations contained in the petition. The circuit court accepted petitioner's stipulation and adjudicated her as an abusing parent.[2]

         In October of 2016, the circuit court granted petitioner a post-adjudicatory improvement period. As part of the terms and conditions, petitioner was required to (1) participate in adult life skills classes, parenting classes, individual counseling sessions, domestic violence counseling sessions, substance abuse counseling sessions, and any other services the DHHR deemed necessary; (2) submit to a substance abuse evaluation; and (3) submit to random drug and alcohol screening before supervised visitation with the children was initiated.

         In March of 2017, the guardian moved the circuit court to revoke petitioner's post-adjudicatory improvement period and terminate her parental rights. In support of her motion, the guardian stated that, in February of 2017, petitioner refused to appear for an alcohol screen on two separate occasions. Later in February, petitioner appeared for an alcohol screen but tested positive on the preliminary screen; an oral swab was sent to the lab for confirmation. The guardian further alleged that petitioner was essentially homeless for a period of time, having been asked to leave her former residence. Additionally, petitioner admitted during her substance abuse evaluation that she had abused opioids since the age of fifteen and alcohol since the age of eighteen. The evaluator's diagnostic impression was severe opioid use disorder.

         Later in March, the circuit court held a review hearing wherein petitioner requested an extension to her post-adjudicatory improvement period. The circuit court reinstated supervised visitation on the condition that petitioner submit to drug and alcohol screens before each visit and at any other time requested by the DHHR.

         After several continuances, the circuit court held a dispositional hearing in August of 2017, during which several witnesses testified as to petitioner's noncompliance throughout her improvement period. A service provider testified that petitioner continued to abuse alcohol during the improvement period because she believed that it was permissible as long as she did not have the children, despite attempts by the service provider to explain that alcohol use was prohibited. While the service provider believed that petitioner began complying more with the services throughout the improvement period, she did not believe that petitioner made any progress due to her continued relationship with J.F.-2. Another service provider testified that petitioner was not consistently compliant and cooperative with her parenting classes until after she ended her relationship with J.F.-2. The service provider, after learning of petitioner's recent positive drug screen, also testified that she did not believe that petitioner could correct her substance abuse in the near future because, in addition to receiving services throughout the proceedings, she previously had been in intensive treatment programs, including a Suboxone program and a Methadone program, and yet failed to remedy the issue. A CPS worker testified that the DHHR recommended termination because petitioner continued to have a substance abuse problem, did not report the instances of domestic violence against her, and did not timely cooperate with the DHHR. Further, the CPS worker indicated that petitioner had been the subject of prior referrals due to wrecking her car while intoxicated with a child present and giving birth to two children who had drugs in their systems.

         Petitioner testified that she ended her relationship with J.F.-2 in May of 2017, after he sexually assaulted her and that she began making improvements with the services provided. Petitioner testified that she only had one week of her intensive treatment program remaining and that the positive drug screen she had recently produced in July of 2017 was due to medication prescribed for seizures. Despite the drug screen showing traces of methamphetamine, petitioner insisted that she had not abused that substance. Petitioner also admitted to domestic violence in the home throughout the improvement period, but stated that she sought counseling after leaving her abusive relationship. After hearing evidence, the circuit court found that petitioner continued to abuse alcohol, failed to comply with services, and engaged in domestic violence throughout the proceedings and, therefore, revoked her post-adjudicatory improvement period. Further, petitioner had a lengthy history of drug abuse and tested positive for methamphetamine as recently as July of 2017, after extensive substance abuse treatment. Accordingly, the circuit court terminated petitioner's parental rights upon findings that there was no reasonable likelihood that she could correct the conditions of abuse and neglect in the near future and that termination was necessary for the children's welfare.[3] It is from the September 5, 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 the conditions of abuse and neglect were correctable and she had begun making improvements in that regard. Specifically, petitioner argues that she separated from her abuser, began attending counseling sessions, and remained free from drugs and alcohol. However, we find petitioner's argument to be meritless. West Virginia Code § 49-4-604(b)(6) provides that circuit courts are to terminate parental rights upon findings that there is "no reasonable likelihood that the conditions of neglect or abuse can be substantially corrected in the near future" and that termination is necessary for the children's welfare. According ...

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