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In re B.C.

Supreme Court of West Virginia

May 14, 2018

In re B.C.

          (Logan County 16-JA-9)

          MEMORANDUM DECISION

         Petitioner Mother A.J., by counsel J. Christopher White, appeals the Circuit Court of Logan County's November 27, 2017, order terminating her parental rights to B.C.[1] The West Virginia Department of Health and Human Resources ("DHHR"), by counsel Brandolyn N. Felton-Ernest, filed a response in support of the circuit court's order. The guardian ad litem ("guardian"), Karen S. Hatfield, 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) denying her a post-dispositional improvement period; (2) failing to consider her efforts in leaving a domestically violent situation; and (3) terminating her parental rights.

         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, the DHHR filed an abuse and neglect petition against the parents. According to the DHHR, the parents had an extensive history of domestic violence and drug use. Moreover, the petition alleged that B.C. was born addicted to controlled substances and suffered withdrawal symptoms that required the administration of methadone.[2] Petitioner thereafter waived her preliminary hearing.

         In June of 2016, the circuit court held an adjudicatory hearing in regard to the mother, wherein it accepted her "admission to having a substance abuse addiction [that] impaired her ability to properly parent" the child. Petitioner additionally moved for a post-adjudicatory improvement period, which neither the DHHR nor the guardian opposed. The circuit court set forth the terms and conditions of the improvement period, which included random drug screens; submission of petitioner's prescriptions with random pill counts of controlled substances; and participation in adult life skills education, parenting education, and domestic violence prevention counseling. Petitioner was also granted supervised visitation with the child, contingent upon negative drug screens and an accurate pill count.

         In September of 2016, the guardian ad litem filed a report in which she asserted that petitioner left a detoxification program after only four days and was removed from a Suboxone clinic. The report also identified issues with visitation, such as the fact that one visit with the child ended early because the parents "were screaming in the presence" of the child. Further, the guardian also indicated that petitioner "continue[d] to cancel visits for inappropriate reasons (i.e. because it's raining)." Finally, the guardian noted that petitioner had recently tested positive for marijuana and methamphetamine, admitted to methamphetamine use, and was hospitalized for a suspected Neurontin overdose.

         Thereafter, the DHHR filed a motion to terminate petitioner's parental rights.[3] This motion was based, in part, upon evidence of the issues addressed in the guardian's report, as outlined above. In addition, the DHHR alleged that petitioner failed to submit to domestic violence counseling, "despite multiple issues of domestic violence occurring while this matter [was] pending . . . " in the circuit court. The DHHR asserted that the parents remained in contact, despite the fact that the father continued to engage in domestic violence incidents perpetrated against petitioner. In fact, the DHHR alleged that the parents "attempt[ed] to keep their relationship secret" from the DHHR and the circuit court. Moreover, the DHHR noted that petitioner's psychological evaluation concluded that, without complying with the services offered, it was "highly unlikely that [petitioner] would be able to attain even minimally adequate parenting[.]" Finally, the DHHR alleged that petitioner "minimize[d] her addiction" and "blamed everyone from her mother to [the father] to the []DHHR . . . for her continued struggles with addiction" and the other issues of abuse and neglect.

         In September of 2017, petitioner filed a motion for a post-dispositional improvement period. In support, petitioner admitted that she failed to successfully complete her post-adjudicatory improvement period, but asserted that she had undergone a substantial change in circumstances in that she submitted to psychological counseling.

         In November of 2017, the circuit court held a dispositional hearing, during which it heard evidence in support of the DHHR's motion to terminate petitioner's parental rights. This included evidence of petitioner's admission to continued substance abuse during the proceedings, failure to successfully complete her post-adjudicatory improvement period, and failure to submit to a drug screen in August of 2017. Moreover, the circuit court noted that petitioner attempted at least four separate methods to address her substance abuse, none of which were successful. Further, the circuit court found that petitioner failed to address the ongoing issues of domestic violence and, in fact, continued her relationship with the father. In fact, the circuit court highlighted petitioner's testimony, in which she "continue[d] to downplay the issues of domestic violence" at issue and claimed that such incidents occurred between the parents "once in a blue moon." This was despite the fact that at least a dozen domestic violence incidents between the parents occurred since 2012. Highlighting the psychologist's conclusion that it would be "highly unlikely" for petitioner to improve her parenting in the absence of compliance with services, the circuit court found that there was no reasonable likelihood petitioner could substantially correct the conditions of abuse and neglect and that termination of her parental rights was necessary for the child's welfare. Accordingly, the circuit court terminated her 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, the Court finds no error in the circuit court's denial of petitioner's motion for a post-dispositional improvement period. On appeal, petitioner alleges that she recognized that "she still has additional work to do to address" the issues of abuse and neglect and that she would have participated in a post-dispositional improvement period, if offered. In her motion below, petitioner asserted that, because she began undergoing psychological counseling, she experienced a substantial change in circumstances that warranted a post-dispositional improvement period. We do not agree.

         The decision to grant or deny an improvement period rests in the sound discretion of the circuit court. See In re: M.M., 236 W.Va. 108, 115, 778 S.E.2d 338, 345 (2015) ("West Virginia law allows the circuit court discretion in deciding whether to grant a parent an improvement period"); Syl. Pt. 6, in part, In re Katie S., 198 W.Va. 79, 479 S.E.2d 589 (1996) ("It is within the court's discretion to grant an improvement period within the applicable statutory requirements"). We have also held that a parent's "entitlement to an improvement period is conditioned upon the ability of the [parent] to demonstrate 'by clear and convincing evidence, that the [parent] is likely to fully participate in the improvement period . . . .'" In re: Charity H., 215 W.Va. 208, 215, 599 S.E.2d ...


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