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In re A.P.

Supreme Court of West Virginia

June 11, 2018

In re A.P. and C.P.-1

          Raleigh County 2017-JA-46 and 47

          MEMORANDUM DECISION

         Petitioner Mother C.P.-2, by counsel Stanley I. Selden, appeals the Circuit Court of Raleigh County's October 20, 2017, order terminating her parental rights to A.P. and C.P.-1.[1]The West Virginia Department of Health and Human Resources ("DHHR"), by counsel S.L. Evans, filed a response in support of the circuit court's order and a supplemental appendix. The guardian ad litem ("guardian"), Thad A. Bowyer, filed a response on behalf of the children in support of the circuit court's order. Petitioner filed a reply. On appeal, petitioner argues that the circuit court erred in not ruling on her motion for a post-adjudicatory improvement period, terminating her parental rights when she did not have effective assistance of counsel, and not employing a less-restrictive dispositional alternative than termination.

         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.

         On February 22, 2017, the DHHR filed an abuse and neglect petition alleging that petitioner and the father engaged in domestic violence in the children's presence. The children disclosed to a Child Protective Services ("CPS") worker that their parents argue and fight and that they were scared at times during the fights. Petitioner disclosed to the CPS worker that she and the father engaged in domestic violence. She further explained that the fights scare the children and that "her son holds his hands over his ears yelling '[d]addy[, ] stop it.'" Petitioner also disclosed that she used multiple illegal substances in the past and that she and the father continued to smoke marijuana. On March 8, 2017, the circuit court held a preliminary hearing, which petitioner and the father both waived. The circuit court ordered both parents to undergo psychological testing including a substance abuse evaluation.

         On April 26, 2017, the circuit court held an adjudicatory hearing. A CPS worker testified that when she met with the parents on February 3, 2017, prior to the filing of the petition, petitioner admitted to past substance abuse and that she and the father continued to smoke marijuana. She explained that, while petitioner initially agreed to drug screen on that day, the father refused and both parents subsequently left. Since that interaction, petitioner tested positive for marijuana and one of the screens showed high levels of creatinine, which indicates that a substance was taken to disguise the drug screen. The CPS worker testified regarding petitioner's admissions of domestic violence between her and the father. According to the CPS worker, petitioner indicated that the children were afraid during the instances of domestic violence. The CPS worker testified that she attempted to have conversations with the father on February 3, 2017, but he refused to cooperate, denied all allegations of abuse and neglect, and left abruptly. She also stated that on this day, the father appeared to be under the influence and acted "hyper" and "high strung." The CPS worker further explained that both parents were cooperative at a multidisciplinary treatment team meeting at a later date. On cross-examination, the CPS worker testified regarding a January 27, 2017, incident wherein police responded to domestic violence between petitioner and the father. She testified that, according to the police report, petitioner told the police that the father hit her with a flashlight and smacked her. She testified that she was not aware of any domestic violence directed towards the children. Upon cross-examination by the guardian, the CPS worker explained that her February 3, 2017, meeting with the parents was in response to a call to a different CPS worker regarding the children's fear of their father. A protection plan was implemented following that call.

         Petitioner testified regarding the domestic violence incident wherein the police were called. She explained that she believed that the children were at their aunt's house, but her son was actually on the porch yelling at his parents to "just quit" fighting. She also admitted to smoking marijuana daily, but stated that she had been clean from other substances for three years. She further explained that she self-medicated with marijuana and that the father self-medicated his attention deficit hyperactivity disorder with marijuana. She stated that the father was never violent and never hit her. She continued to explain away the January 27, 2017, incident and stated that it arose from neighbors threatening the children. She stated that she and the father were very mad and that she eventually calmed down, but the father remained upset. According to petitioner, the father did not hit her with a flashlight or smack her, but she pushed the father away from his truck as he made threats toward the neighbors. On cross-examination petitioner explained that the children did not live in the home, but at their aunt's house approximately 150 feet away, and that they do visit petitioner and the father during the day and spend the night on occasion. The circuit court ordered petitioner and the father to drug screen immediately following the hearing. The father, however, was incapable of providing a specimen for a drug screen, and petitioner refused to screen. Both screens were deemed administrative positives. Thereafter, the circuit court entered an order on April 28, 2017, adjudicating petitioner and the father as abusing parents.

         The record indicates that the DHHR arranged transportation to drug screenings for petitioner and the father. However, on September 21, 2017, the CPS worker reported that when she arrived to the parents' home, the father's mother informed her that petitioner and the father had just left. On September 26, 2017, the CPS worker took only petitioner to drug screen. According to the guardian's report, on August 24, 2017, criminal charges were filed against the father for domestic violence and family members reported that domestic violence between petitioner and the father continued to be an issue. The guardian further reported that the parents failed to attend the psychological evaluation and substance abuse assessment, have any visitation with the children since April of 2017, nor submit to drug screens as ordered by the circuit court. The record indicates that petitioner was aware of the scheduled psychological evaluation because she called to reschedule after missing the first appointment, but still did not attend after she rescheduled. The guardian recommended termination of the parents' parental rights to the children.

         On October 18, 2017, the circuit court held a dispositional hearing. Neither petitioner nor the father attended the hearing, but both were represented by counsel. Counsel for petitioner informed the circuit court that he called petitioner to remind her of the dispositional hearing and left a message prior to the hearing. Petitioner's name was called three times before proceeding with the hearing. The DHHR presented both parents' drug screen results which indicated that petitioner missed seven out of ten drug screens, along with one screen's results pending, one positive screen for marijuana, and one diluted screen. The father missed eight out of ten drug screens. The circuit court found that the parents "have done nothing to try and correct the abuse and neglect that took place in this case, and they've done nothing to exercise the rights that parents normally exercise." The circuit court further found no reasonable likelihood that petitioner or the father could substantially correct the conditions of abuse and neglect in the near future and that termination of their parental rights was in the children's best interests. The circuit court ultimately terminated petitioner's parental rights in its October 20, 2017, order.[2] It is from this 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, this Court finds no error in the proceedings below.

         First, petitioner argues that the circuit court erred in not ruling on her motion for a post-adjudicatory improvement period.[3] Pursuant to West Virginia Code § 49-4-610(2),

a court may grant a [parent] an improvement period of a period not to exceed six months when: (A) The [parent] files a written motion requesting the improvement period; (B) The [parent] demonstrates, by clear and convincing evidence, that the [parent] is likely to fully participate in the improvement period[.]

         Although petitioner met the first requirement for consideration of a post-adjudicatory improvement period by filing a written motion, the burden was on her to prove that she was likely to fully participate in the improvement period. Petitioner failed to meet this burden because she failed to comply with the circuit court's orders to participate in psychological testing, a substance abuse evaluation, and drug screens, and admittedly continued to smoke marijuana during the proceedings. Evidence was also presented at the dispositional hearing that petitioner missed seven out of ten drug screens during the proceedings and failed to visit with the children after April of 2017, due to her failure to drug screen. The record further shows that domestic violence between petitioner and the father continued to be a problem throughout the proceedings, ...


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