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In re B.S.

Supreme Court of West Virginia

April 9, 2018

In re B.S. and H.M.

          Taylor County 14-JA-26 and 15-JA-22

          MEMORANDUM DECISION

         Petitioner Mother S.S., by counsel Andrew Tyler Reseter, appeals the Circuit Court of Taylor County's November 3, 2017, order terminating her parental rights to B.S. and H.M.[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"), Ashley V. Williams Hunt, 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 in terminating her parental rights without timely granting her a dispositional hearing pursuant to West Virginia Code § 49-4-610(8)(B) and Rule 38 of the Rules of Procedure for Child Abuse and Neglect Proceedings. Petitioner also argues that her counsel's failure to move the circuit court for a final dispositional hearing constitutes ineffective assistance of counsel.[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, petitioner's parents, the maternal grandparents of B.S., filed an abuse and neglect petition alleging that petitioner's boyfriend, K.M., sexually abused B.S. and further alleged that petitioner was a drug addict and could not provide a safe home for the child.[3] The grandparents filed an amended petition later in July of 2014 alleging that petitioner failed to protect the child from K.M.'s physical abuse as evidenced by hand marks found on the child's buttocks. A preliminary hearing was held wherein the child's aunt testified that B.S. told her that K.M. beat her and further described him as a "mean" man. The aunt also testified that B.S. reported sexual abuse by K.M. Petitioner testified that she had no knowledge of K.M.'s harming B.S. and disclosed that she was pregnant with his child.

         The circuit court held an adjudicatory hearing in October of 2014, during which petitioner stipulated to allegations of drug abuse and failure to protect B.S. The circuit court accepted petitioner's stipulation, adjudicated her as an abusing parent, and granted her a six-month post-adjudicatory improvement period.

         In January of 2015, petitioner gave birth to K.M.'s child, H.M. The circuit court allowed H.M. to remain in the parents' custody. In March of 2015, the DHHR filed an amended petition against K.M., alleging that he failed to protect and ensure a suitable home for B.S. The circuit court held an adjudicatory hearing on the amended petition in July of 2015, and, after hearing evidence, adjudicated K.M. as an abusing parent based upon his physical abuse of B.S.

         The circuit court held an initial dispositional hearing in September of 2015. Petitioner was granted a six-month post-dispositional improvement period, which expired in March of 2016. B.S. was returned to the custody of petitioner and K.M. in June of 2016.

         In August of 2016, petitioner filed a petition for a domestic violence protective order ("DVPO") against K.M., alleging that he had choked her, taken her phone, thrown rocks at her, and refused to allow her to leave the home. The order was granted. Following a review hearing in September of 2016, the circuit court ordered that the DVPO continue and that the children remain in petitioner's care. Later in September of 2016, the DHHR filed an amended petition and alleged that petitioner abused and neglected the children through continued contact with K.M. and allowing K.M. to have contact with the children in violation of the DVPO. The children were removed from the home at that time.

         A preliminary hearing on the amended petition was held in October of 2016. Petitioner testified that she and K.M. had been living together in violation of the DVPO. She retracted her allegations of domestic violence and stated that she had exaggerated the situation at the time she requested the DVPO. K.M. testified and admitted to having contact with petitioner, but stated that he did not know that it was a problem as they had requested a dismissal of the DVPO. During this hearing, the circuit court noted that petitioner's appearance had deteriorated and the court ordered her to submit to a drug screen following the hearing, which she failed to do. Later in October, an incident occurred when petitioner and K.M. were visiting H.M. at K.M.'s parents' home. During an altercation between K.M. and his father, shots were fired and K.M.'s father was injured. H.M. was present during the altercation.

          The circuit court held an adjudicatory hearing on the amended petition in December of 2016. Petitioner failed to attend, but was represented by counsel who advised the circuit court that he was unsure of petitioner's whereabouts. Petitioner's mother attended the hearing and advised that petitioner chose not to attend the hearing because she did not believe that there was anything more she could do to regain custody of the children. The circuit court informed the DHHR that it would need to subpoena petitioner in order to proceed with the adjudicatory hearing.

         The DHHR filed a second amended petition in January of 2017 in order to incorporate the allegations of domestic violence surrounding the shooting incident. The parties agreed to proceed to the scheduled adjudicatory hearing on the previously filed amended petition as the only new allegations surrounded the shooting incident. During the hearing, petitioner retracted her prior testimony that she exaggerated the domestic violence allegations contained in the DVPO and testified that, in fact, the events occurred as described therein. According to petitioner, K.M. previously broke her windshield in B.S.'s presence after an argument. Further, she testified that H.M. was present when the shooting incident occurred. The circuit court adjudicated petitioner as an abusing parent based upon her failure to protect her children from domestic violence.

         The circuit court held a final dispositional hearing in April of 2017, during which it heard evidence that petitioner and K.M. continued to have contact with each other in violation of the DVPO. Counsel for petitioner objected to the termination of petitioner's parental rights but did not call any witnesses. The circuit court found that petitioner violated the DVPO, failed to submit to drug screens, failed to cooperate with those involved in the proceedings, and failed to comply with the terms of her improvement period. As such, the circuit court terminated petitioner's parental rights after finding that it was in the children's best interests.[4] It is from the November 3, 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 ...

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