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In re A.C.

Supreme Court of West Virginia

May 14, 2018

In re A.C. and D.C.

          Kanawha County 16-JA-179 and 180

          MEMORANDUM DECISION

         Petitioner Mother J.C., by counsel Edward L. Bullman, appeals the Circuit Court of Kanawha County's November 21, 2017, order terminating her parental rights to A.C. and D.C.[1]The West Virginia Department of Health and Human Resources ("DHHR"), by counsel Mindy M. Parsley, 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 terminating her parental rights, instead of imposing a less-restrictive dispositional alternative, and denying her post-termination visitation with the children.

         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 March of 2016, the DHHR filed an abuse and neglect petition that alleged child D.C. was born with numerous controlled substances in her system, including "high levels" of cocaine and methamphetamine. The petition further alleged that petitioner tested positive for amphetamine, methamphetamine, and cocaine at the time of birth. Additionally, the DHHR alleged that, five minutes after the child's birth, petitioner checked herself out against medical advice to smoke. After an extended period, petitioner returned "extremely high." According to the petition, when child A.C. was born in 2011, that child was addicted to drugs and, thereafter, petitioner "absconded from" services offered by Child Protective Services. Further, the petition alleged that petitioner admitted to a long history of substance abuse, including twelve years of methamphetamine use. Finally, the petition alleged that petitioner failed to properly provide the children with necessary food, clothing, supervision, and housing. Thereafter, petitioner waived her right to a preliminary hearing.

         In March of 2016, the circuit court held an adjudicatory hearing. Petitioner testified on her own behalf and admitted to a history of substance abuse and the presence of drugs in her system and that of D.C. at the time of the child's birth. As such, the circuit court adjudicated petitioner as an abusing parent. The circuit court further granted petitioner's motion for a post-adjudicatory improvement period. Pursuant to the terms of the improvement period, petitioner was required to participate in long-term substance abuse treatment, random drug screens, parenting education, adult life skills education, and supervised visits with her children. Thereafter, the circuit court held a series of review hearings and extended petitioner's post-adjudicatory improvement period. During this period, petitioner initially entered a residential substance abuse treatment program through the Renaissance Program at the Prestera Center, although she was discharged from the program in October of 2016 for violation of the program's rules. She then entered a second substance abuse treatment program before eventually entering a third substance abuse program at Rea of Hope.

         In June of 2017, the parties appeared for a dispositional hearing. Petitioner moved for a post-dispositional improvement period, and both the guardian and the DHHR recommended granting the same. After finding that she substantially complied with the terms and conditions of her post-adjudicatory improvement period, the circuit court granted petitioner's motion for a post-dispositional improvement period and required that she continue her substance abuse treatment with Rea of Hope, obtain and maintain appropriate housing and verifiable employment, participate in random drug screens, and participate in unsupervised and overnight visitation with the children.

         In August of 2017, the program care manager at Rea of Hope sent the circuit court a letter that indicated that petitioner would not be attending Phase II of the program. According to the letter, despite petitioner's initial compliance with the program's requirements, the program care manager "noticed a significant change in her overall attitude" in the weeks preceding the correspondence. As a result, petitioner "chose[] to move back to her previous home" and was officially discharged. Moreover, according to a DHHR court summary, petitioner had "not been fully compliant" since moving back to her prior residence. According to the summary, petitioner stopped complying with drug screens and ceased communication with the DHHR as of August 18, 2017. During her final meeting with DHHR personnel, it was suspected that petitioner was under the influence, but this was never confirmed due to her lack of screening. The DHHR also indicated that petitioner stopped calling the children, as she had consistently done in the past. Accordingly, the DHHR recommended termination of petitioner's parental rights. At a review hearing in September of 2017, which petitioner did not attend, the circuit court terminated petitioner's post-dispositional improvement period due to her noncompliance.[2]

         In October of 2017, the circuit court held a dispositional hearing. Petitioner failed to attend this hearing, but was represented by counsel. The circuit court found that petitioner failed to substantially complete her post-dispositional improvement period. The circuit court further found that there was no reasonable likelihood petitioner could substantially correct the conditions of abuse and neglect and that termination was necessary for the children's welfare. As a result, the circuit court terminated petitioner's parental rights.[3] 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, the Court finds no error in the circuit court's refusal to impose a less-restrictive dispositional alternative. On appeal, petitioner predicates this assignment of error upon her argument that she successfully complied with the services offered and reached a level of functioning sufficient to care for her children. We disagree. While petitioner is correct that she complied with the terms and conditions of her improvement period for an extended period and demonstrated improvement in certain areas, petitioner's argument ignores the fact that, prior to the conditions of abuse and neglect being remedied, she entirely abandoned the proceedings. The record shows that in August of 2017, petitioner had her last contact with the DHHR during a visit to her home in which the DHHR employee suspected petitioner was under the influence. This could not be confirmed, however, because petitioner refused to submit to any drug screens during the final months of the proceedings, despite the fact that her failure to comply with said screenings precluded her from exercising visitation with the children.

         We have previously held as follows:

"At the conclusion of the improvement period, the court shall review the performance of the parents in attempting to attain the goals of the improvement period and shall, in the court's discretion, determine whether the conditions of the improvement period have been satisfied and whether sufficient improvement has been made in the context of all the circumstances of the case to justify the return of ...

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