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In re E.E.

Supreme Court of West Virginia

April 9, 2018

In re E.E., C.E., A.E.-1, A.E.-2, N.E., and D.E.

          (Hardy County 16-JA-29, 30, 31, 32, 33 and 34)

          MEMORANDUM DECISION

         Petitioner Mother A.E.-3, by counsel Lauren M. Wilson, appeals the Circuit Court of Hardy County's September 28, 2017, order terminating her parental rights to E.E., C.E., A.E.-1, A.E.-2, N.E., and D.E.[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"), Marla Zelene Harmon, filed a response on behalf of the children in support of the circuit court's order. On appeal, petitioner argues that the circuit court abused its discretion in terminating her improvement period and in terminating her parental rights without imposing a less-restrictive alternative.

         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 April of 2016, law enforcement came to petitioner's home to take fifteen-year-old D.E. into custody pursuant to a juvenile petition and found the home in deplorable condition. In August of 2016, the DHHR offered adult life skills and parenting classes to petitioner and her husband. However, the DHHR found that petitioner required further intervention to remedy the conditions in the home. In December of 2016, the DHHR filed a petition alleging that petitioner and her husband failed to provide their children with adequate and sanitary housing, appropriate medical care, and ensure their children went to school. The petition further alleged that petitioner and her husband had participated in a previous abuse and neglect case in December of 2013, during which they received an improvement period and extensive services that dealt with the same issues. The circuit court did not order removal of the children from petitioner's custody.

         At the adjudicatory hearing, petitioner stipulated to neglect and moved for a post-adjudicatory improvement period. Petitioner's stipulation included: failure to maintain a suitable residence, including lice and roach infestations; educational neglect, for excessive absences from school; and medical neglect, including failure to address dental issues and ensure prompt dental care. The circuit court then granted petitioner's motion for a post-adjudicatory improvement period. The children remained with petitioner until March of 2017, when a motion for removal of the children and resulting order were filed. The motion alleged that the children's conditions continued to worsen, including further absences and a severe lice infestation.

         In April of 2017, the circuit court held an evidentiary hearing on the DHHR's motion to revoke petitioner's improvement period. The children's nurse practitioner testified regarding the recurring lice infestation, which spanned from 2014 until as recently as March of 2017. The nurse testified that the only time all the children were free of lice was in April of 2017, after they were removed from petitioner's custody. Also, the nurse testified that an appointment was scheduled to have A.E.-1's migraines assessed, but petitioner did not take her to that appointment. A DHHR worker testified that the lice issue was ongoing and petitioner's home was roach infested and unsanitary. The DHHR worker testified that the lice issue contributed to the truancy issue because the children needed to be clear of lice to attend school. The DHHR worked also testified that petitioner had yet to complete specific conditions of the case plan, such as weekly doctor visits for the children or acquisition of her driver's license. Petitioner was also resistant to accepting recommendations from the multidisciplinary team ("MDT") and refused to open a bank account to deposit petitioner and her husband's $9, 500 tax return or track family spending. The children's foster parent testified she cleared the children of lice, and about a video she took of the lice on E.E.'s scalp before treatment. Finally, petitioner testified that she attempted to keep the house clean and made repairs to structural issues of the home. At the conclusion of the hearing, the circuit court found that petitioner demonstrated a pattern of failing to improve and did not illustrate "a likelihood to fully participate in the improvement period." However, the circuit court deferred ruling on the motion to terminate the improvement period and urged petitioner to make a vast improvement in her participation.

         In May of 2017, the DHHR renewed its motion to revoke petitioner's improvement period and the circuit court held two evidentiary hearings. In support, the visitation supervisor testified that the children displayed little affection towards petitioner during visits. A DHHR worker testified that petitioner cooperated with classes and changed residences as required by the case plan; however, the worker saw cockroaches during the last two classes in the new home. This DHHR worker also testified about petitioner's tax return funds, which were already nearly exhausted. Petitioner prepared a "guesstimate" accounting of those funds, which included loans to multiple friends and little spent on her housing issues. A second DHHR worker testified that the new home had some trash accumulated on the two porches, smelled strongly of cat urine, and cat litter was thrown out next to the front porch. Ultimately, the circuit court found that petitioner was unable to rectify the conditions that led to the filing of this petition and the previous petition, and that, even with assistance, petitioner continued to experience issues with maintaining a hygienic environment. The circuit court concluded that there was no reasonable likelihood that the conditions of neglect could be remedied. Thereafter, petitioner's improvement period was revoked. The circuit court granted petitioner continued visitation with the children.

          The circuit court held a dispositional hearing and the DHHR moved for the termination of petitioner's parental rights in July of 2017. A DHHR worker testified that the issues of this petition were essentially the same as petitioner's previous case in December of 2013, and, despite intervention, petitioner made little overall improvement. Petitioner testified that she was now employed and her situation was improved after the change of residence. Ultimately, the circuit court terminated petitioner's parental rights and incorporated its previous findings as a basis for the termination in its September 28, 2017 order.[2] Petitioner now appeals that order.

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, this Court finds no error in the proceedings below.

         Petitioner first argues that the circuit court abused its discretion by terminating her improvement period. We disagree. West Virginia Code § 49-4-610(7) provides that "[u]pon the motion by any party, the court shall terminate any improvement period granted pursuant to this section when the court finds that respondent has failed to fully participate in the terms of the improvement period[.]" This Court has held that "[i]t is within the court's discretion to terminate the improvement period before the twelve-month time frame has expired if the court is not satisfied that the defendant is making the necessary progress." Syl. Pt. 6, In re Katie S., 198 W.Va. 79, 479 S.E.2d 589 (1996).

         The circuit court correctly found that petitioner was not making the necessary progress in her improvement period. Petitioner admitted that she failed to maintain a sanitary residence, permitted the children to be excessively absent from school, and neglected to provide prompt and consistent medical care. The entire family was infested with lice; the children continued to miss school without excuse; and petitioner was not taking the children regularly for medical checkups or recommended specialists as the case plan required. Moreover, almost immediately after the children were removed from petitioner's care, the children were rid of their lice infestation. Petitioner changed housing as required by her case plan; however, that new housing acquired an odor and roaches after petitioner lived there for only a few weeks. Petitioner was afforded additional time to improve and received adult life skills and parenting classes, two major components of her case plan, before the petition was filed. Yet, those classes did not improve petitioner's parenting. The circuit court is granted discretion in terminating an improvement period, and we find that the circuit court did not abuse that discretion in terminating petitioner's improvement period.

         Second, petitioner argues that the circuit court abused its discretion by terminating her parental rights without imposing a less-restrictive alternative. Petitioner asserts that she was a victim of poverty and her previously successful ...


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