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In re A.C.

Supreme Court of West Virginia

March 12, 2018

In re A.C. and C.C.

         Kanawha County 14-JA-215 and 216

          MEMORANDUM DECISION

         Petitioner Mother B.R., by counsel Jennifer N. Taylor, appeals the Circuit Court of Kanawha County's September 15, 2017, order terminating her parental rights to A.C. and C.C.[1]The West Virginia Department of Health and Human Resources ("DHHR"), by counsel S.L. Evans, 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 children in support of the circuit court's order. On appeal, petitioner argues that the circuit court erred in finding that she had not made substantial improvements to her parenting and in terminating her parental rights.[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 July of 2014, the DHHR filed a petition that alleged petitioner was found "passed out in the middle of the street intoxicated" along with her boyfriend and her three year old infant, A.C., who was left unattended in a stroller. Petitioner still had a needle in her arm. Further, the petition alleged that petitioner (1) failed to provided food, clothing, and supervision to A.C. and C.C. ("the children"), (2) was not sufficiently motivated and organized to provide for the children's needs, and (3) her actions constituted "extreme maltreatment." The petition also alleged that the biological father was found incoherent in a hotel room "filled with blood, feces, pills and needles." One of the children, who was in his care at the time, was found unattended outside of the hotel room.

         Petitioner and the father both stipulated to adjudication and admitted to a history of substance abuse that negatively affected their ability to parent. Petitioner was granted a post-adjudicatory improvement period with requirements to participate in supervised visitation, substance abuse treatment, random drug screens, adult life skills, parenting classes, a parental fitness evaluation, and a substance abuse evaluation.[3]

         In December of 2015, after multiple review hearings and an unopposed motion by the guardian to continue the dispositional hearing, petitioner was granted a post-dispositional improvement period with the same services as the previous improvement period. The circuit court noted problems in the initial improvement period, including petitioner not participating in random drug screening or out-patient substance abuse treatment and not making sufficient progress in parenting. However, petitioner and the father did test negative on drug screens when the DHHR transported them to the screening location. Moreover, petitioner was working and maintaining housing at this time, which was a noted improvement.

         The circuit court reviewed the post-dispositional improvement period and found petitioner was making enough progress to continue the improvement period. However, petitioner was not participating in drug screens or substance abuse therapy and issues were noted after an overnight visitation. Parenting providers continued to report that petitioner was not making enough progress in parenting and continued to have safety concerns.

         In July of 2016, the circuit court terminated the post-dispositional improvement period for a lack of compliance. The circuit court was concerned that petitioner tested positive for marijuana and morphine after the March of 2016 hearing, was not participating in drug screens, and did not participate in substance abuse therapy for a month preceding the final review. The circuit court ordered that services continue until the dispositional hearing.

         At the dispositional hearing, the circuit court heard testimony from service providers that petitioner was only partially participating in drug screening and some of the tests were positive for marijuana. The circuit court noted the provider's concerns that the father was not consistent with discipline. Ultimately, the circuit court ordered that petitioner's substance abuse therapy be discontinued and that extended overnight visitations begin.

          In February of 2017, the circuit court began reunification and gave petitioner and the father full custody of the children, with services to continue. The DHHR reported clean drug screens and that all overnight visitations were going well. Also, A.C. was noted to have made extraordinary progress while in his foster placement and was performing much better in school and around his sister. The circuit court noted that petitioner would need to enroll A.C. in a different elementary school and provide for his education. Ultimately, the case was continued for disposition with an order to continue services.

         In May of 2017, the circuit court held a dispositional hearing and heard testimony about the preceding ninety days while the children were in petitioner's home. It was reported that A.C. was coming to school dirty, unfed, not prepared to participate in class, and was absent without excuse for multiple days. Additionally, A.C. was sent to school one day with a fever and earache or infection. A.C.'s grades dropped dramatically as a result. Further, the children stopped attending scheduled therapy sessions. A DHHR worker testified that petitioner's home was clean, appropriate, and with food for the children. The DHHR recommended the case be dismissed with services. The circuit court granted the Court Appointed Special Advocates' ("CASA") motion to re-engage with the children's therapist. Ultimately, the circuit court showed particular concern for these new education and hygiene issues and ordered that the dispositional hearing be continued for ninety days with continued services.

         In August of 2017, the circuit court held the final dispositional hearing. By the final hearing, one of the father's screens returned a preliminary result for amphetamines. At first, the father denied using any drugs and instead insisted energy drinks caused a false positive. A DHHR worker confronted the parents with the preliminary result and Petitioner stated that she would force the father to leave the house if the confirmation result was a positive screen. Petitioner did not take any immediate action to remove the father. Later, the father admitted to a DHHR worker that he relapsed three times since the children were returned to the parent's care in February. A DHHR worker testified that the father stated that he was stressed because he was often left alone with the children, even when he believed petitioner was not at work, and the stress contributed to his relapse. After the positive drug screen was confirmed by laboratory testing, petitioner testified that she forced the father to leave the house. However, the father stated that he watched the children alone a few days after petitioner made him leave. Also, after the positive drug screen, petitioner took the children camping and invited their father, who stayed overnight at the campsite. Petitioner's older child, A.C., believed that petitioner took the children camping specifically so no one would know about the visit with their father. A DHHR worker testified that petitioner and the father continued to exhibit problems from the beginning of the case and testified that their home had an inadequate food supply, that the home was unfit for children, and that petitioner continued to provide inadequate supervision. Additionally, once the children were removed, both were noted to have staph infections; A.C.'s infection manifested as a large and painful boil. Further, A.C. had an infected splinter that was wrapped in duct tape. The DHHR worker testified about an earlier incident when petitioner covered splinters with duct tape and that she had advised petitioner not to do so in the future.

         Following all testimony and argument, the circuit court found that petitioner failed to complete her post-dispositional improvement period. Specifically, the circuit court found petitioner failed to supervise the children properly, permitted the children to be cared for by inappropriate people, failed to provide appropriate medical attention, failed to maintain the home and have adequate food for the children, and failed to ensure the children attended school regularly. Additionally, petitioner allowed the children to be around their father when she knew he tested positive for illicit drugs. Further, the circuit court found that petitioner had not responded to a reasonable family case plan and that there was no reasonable likelihood the conditions of abuse and neglect could ...


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