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In re B.F.

Supreme Court of West Virginia

May 14, 2018

In re B.F., M.J., and Z.J.

          Gilmer County 17-JA-10, 11, and 12

          MEMORANDUM DECISION

         Petitioner Mother C.J., by counsel Jared S. Frame, appeals the Circuit Court of Gilmer County's December 27, 2017, order terminating her parental and custodial rights to B.F., M.J., and Z.J.[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"), David Karickhoff, 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 without first granting her an improvement period.

         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 September of 2017, the DHHR filed a petition alleging that petitioner was homeless and, as a result, was subjecting her children to unsafe and unsanitary living conditions. The petition alleged that when DHHR workers came to remove the children from petitioner's custody that the two older children were found sleeping on the bare floor of a pantry in the home they were currently staying. The pantry was full of chemicals, pesticides and other cleaning supplies, some of which were in reach of the children and without the lids attached. DHHR workers also found a coffee can that contained a mixture of Cheerios and animal food in the room. The youngest child was found strapped into a car seat in the front room of the house. According to the petition, petitioner was feeding the youngest child watered-down two-percent milk, but the milk was observed to be spoiled and curdled in the baby's bottle. Finally, it was alleged that petitioner had a previous abuse and neglect petition filed against her in regard to an older child not at issue in this matter which alleged domestic violence in the presence of the child, difficulty coping with the child's crying, and destructive ideations. Ultimately, petitioner relinquished her parental rights to that child in 2013.

         Petitioner waived her preliminary hearing. According to the parties, petitioner was charged with felony child endangerment and jailed as a result of the conditions found when the children were removed from her care. Petitioner remained incarcerated throughout the proceedings.

         The circuit court held an adjudicatory hearing in September of 2017 and the DHHR presented evidence to support the allegations in the petition. After the presentation of evidence, the circuit court found that petitioner was an abusing parent and that the children were abused and neglected children.

         In December of 2017, the circuit court took evidence related to petitioner's motion for a post-adjudicatory improvement period and the DHHR's motion for termination of parental rights. A psychologist opined that petitioner's prognosis for improved parenting was "virtually non-existent." In support of her opinion, the psychologist noted that petitioner previously received DHHR intervention, such as parenting and adult life skills classes, on four separate occasions and still continued to make poor choices for her children. Additionally, the psychologist testified that petitioner did not take responsibility for these poor choices, but rather attempted to blame others, stating that she "trusted the wrong people." A DHHR worker testified that the DHHR was seeking termination due to the multiple unsuccessful past interventions and that further interventions would likely be unsuccessful. Petitioner testified that she was participating in parenting classes while incarcerated and that she would participate in any services required if granted an improvement period. Ultimately, the circuit court found that petitioner received services on four separate occasions and that her failure to improve was due to a lack of motivation. The circuit court further found that there was no reasonable likelihood that petitioner would benefit from further services. Finally, the circuit court concluded that it was in the best interest of the children to terminate petitioner's parental and custodial rights and did so in its December 27, 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's only assignment of error is that the circuit court erred in terminating her parental and custodial rights without granting her an improvement period. Petitioner asserts that she was capable of participating in an improvement period and that the circuit court placed undue emphasis on her incarceration in determining that she could not participate. Respondents argue that the circuit court correctly found that there was no reasonable likelihood that further services would remedy the conditions of abuse and neglect because she failed to remedy the circumstances surrounding her chronic history of abuse and neglect even after the DHHR provided her with extensive services. We agree with respondents.

         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 631, 638 (2004). Further, the circuit court has discretion to deny an improvement period when no improvement is likely. In re Tonjia M., 212 W.Va. 443, 448, 573 S.E.2d 354, 359 (2002).

         The circuit court did not err in denying petitioner's motion for a post-adjudicatory improvement period because it was unlikely that petitioner would have made any improvement. It is clear and uncontradicted in the record that petitioner was the beneficiary of services provided by the DHHR on multiple occasions. Petitioner subjected her children to dangerous and unsanitary conditions, despite the previous education for the proper care of young children. At the dispositional hearing, petitioner admitted that she made a poor choice in allowing her children to stay in the home where they were found. Yet, despite the instruction petitioner was previously provided, she still made that choice for her children. Petitioner's parenting was simply not improving after continual exposure to the parenting and adult life skills curriculum. Thus, the circuit court was correct in concluding that petitioner's parenting would not improve after a fifth series of services.

         Petitioner argues that the circuit court placed undue consideration on her incarceration; however, according to the record, the circuit court was much more concerned with petitioner's failure to provide a safe home for her children despite continual DHHR interventions.[3]Accordingly, we find that petitioner is not entitled to relief on this issue. The circuit court has ...


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