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In re L.L.

Supreme Court of West Virginia

April 9, 2018

In re L.L.

          Ohio County 16-CJA-129

          MEMORANDUM DECISION

         Petitioner Mother, A.C., by counsel P. Zachary Stewart, appeals the Circuit Court of Ohio County's September 19, 2017, order terminating her parental rights to L.L.[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"), Joseph J. Moses, filed a response on behalf of the child in support of the circuit court's order. On appeal, petitioner argues that the circuit court erred in (1) failing to hold the dispositional hearing within thirty days of the termination of petitioner's post-adjudicatory improvement period, (2) failing to order the DHHR to file a unified child and family case plan pursuant to West Virginia Code § 49-4-408; (3) weighing evidence from the visitation provider; and (4) failing to properly weigh the totality of the evidence.

         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 August of 2016, the DHHR filed an abuse and neglect petition that alleged petitioner abused the child by virtue of the fact that L.L. was born with Subutex, marijuana, and methamphetamine in her system. The child was initially discharged from the hospital shortly after birth, but was later readmitted and treated for symptoms of drug withdrawal, among other issues. Ultimately, the child required the administration of morphine to ease her symptoms. The petition further alleged that petitioner previously voluntarily relinquished her parental rights to two older children in order to avoid termination of her parental rights upon allegations of substance abuse. Finally, the petition alleged that the father abused and neglected the child by virtue of his substance abuse.

         Following an adjudicatory hearing in December of 2016, petitioner was adjudicated of abuse and neglect based upon her substance abuse. Thereafter, the circuit court granted petitioner a post-adjudicatory improvement period in January of 2017. According to the order granting the improvement period, petitioner was required to "rectify the conditions of abuse and neglect, as previously adjudicated, " by complying with the following terms and conditions, among others: (1) maintain sobriety from alcohol and illicit drugs; (2) participate in random drug screening as directed by the DHHR; (3) exhibit negative test results on the random drug and alcohol screens; (4) not knowingly associate with persons who actively abuse drugs and/or alcohol; (5) actively pursue treatment and counseling for any drug addiction or substance abuse issues from which she may suffer; (6) participate in individual therapy sessions to address her mental health issues; (7) maintain suitable housing and employment; (8) actively participate in supervised visitation, adult life skills classes, and parenting classes; (9) attend all court hearings and multidisciplinary team ("MDT") meetings, unless excused; (10) provide for the child's physical, emotional, and health needs at all times; and (11) obey all state and federal laws.

         In February of 2017, the circuit court held a review hearing, which petitioner failed to attend, although she was represented by counsel. In May of 2017, the circuit court held another review hearing. According to the DHHR, petitioner provided screens positive for alcohol and complained about the frequency with which she was required to submit to screening. At a subsequent hearing, the circuit court was informed that petitioner admitted to drinking. At a status hearing in July of 2017, petitioner failed to appear due to her arrest for shoplifting.[2] On appeal, petitioner alleges that the circuit court terminated her improvement period at this hearing, although she acknowledges that the termination was "not explicitly stated in the . . . [o]rder from the hearing." According to the DHHR, petitioner's improvement period was set to expire on July 27, 2017, and the circuit court instead decided to let the improvement period conclude naturally. Regardless, it is uncontroverted that petitioner's post-adjudicatory improvement period ended no later than July 27, 2017. Later in July of 2017, petitioner was again arrested for shoplifting. According to the DHHR, petitioner attempted to steal alcohol during both of the incidents for which she was arrested during her improvement period.

         On September 13, 2017, the circuit court held a dispositional hearing. Four days prior to the hearing, the DHHR filed a case plan, to which petitioner did not object.[3] The provider who supervised petitioner's visitation with the child was unable to attend the hearing due to a health emergency. Both the DHHR and petitioner listed the provider as a witness for disposition. Instead of rescheduling the hearing, the parties agreed to admit the provider's records into evidence, despite his inability to testify to them. According to the provider's documents, petitioner continued to exhibit issues with decision making that placed the child at risk. The provider further noted petitioner's poor decision making in regard to alcohol abuse and domestic violence. The circuit court further heard testimony regarding petitioner's positive screens, criminal activity during the improvement period, and involvement with violent partners. Petitioner testified and failed to take responsibility for these issues. Accordingly, the circuit court found there was no reasonable likelihood the conditions of abuse and neglect could be substantially corrected and that termination was necessary for the child's welfare before terminating petitioner's parental rights.[4] 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.

         First, petitioner argues that the circuit court erred in failing to hold the dispositional hearing within thirty days of the expiration of her post-adjudicatory improvement period.[5]According to petitioner, this delay not only violated Rule 32(a) of the Rules of Procedure for Child Abuse and Neglect Proceedings, but further prejudiced her because it resulted in the unavailability of her visitation provider. Petitioner argues that, had the provider's testimony mirrored his reports, the circuit court may have come to a different dispositional resolution. We disagree.

         This Court has previously held that

"[w]here it appears from the record that the process established by the Rules of Procedure for Child Abuse and Neglect Proceedings and related statutes for the disposition of cases involving children [alleged] to be abused or neglected has been substantially disregarded or frustrated, the resulting order . . . will be vacated and the case remanded for compliance with that process and entry of an appropriate . . . order." Syllabus point 5, in part, In re Edward B., 210 W.Va. 621, 558 S.E.2d 620 (2001).

Syl. Pt. 3, In re Emily G., 224 W.Va. 390, 686 S.E.2d 41 (2009). Under the limited circumstances of this case, we decline to find that the circuit court's failure to strictly comply with the thirty-day requirement in Rule 32(a) constitutes a substantial disregard or frustration of the applicable rules such that vacation of the dispositional order is warranted. This is especially ...


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