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In re A.C.

Supreme Court of West Virginia

June 11, 2018

In re A.C., R.C., D.K., and R.K.

          Raleigh County 2017-JA-195, 196, 197, and 198

          MEMORANDUM DECISION

         Petitioner Mother A.M., by counsel G. Todd Houck, appeals the Circuit Court of Raleigh County's December 21, 2017, order terminating her parental rights to A.C., R.C., D.K., and R.K.[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. The guardian ad litem ("guardian"), Amber R. Hinkle, 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 a post-dispositional 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.

         On August 15, 2017, the DHHR filed an abuse and neglect petition against petitioner alleging that her residence was infested with mice and bugs, covered in trash, and that the children were observed walking barefoot on broken glass from the windows. According to a referral, A.C. and R.C. were frequently left home alone and neighbors fed them because there was limited food in the home. A Child Protective Services ("CPS") worker visited the home and observed that the porch was covered in trash bags, loose trash, and broken glass. Petitioner would not allow the CPS worker inside the home and reported that the children did not live there. Petitioner also advised the CPS worker that the children were living with another family, but could not provide the worker with an address. The CPS worker ultimately located the children at two different residences. Upon investigation, the CPS worker discovered that petitioner was arrested on August 7, 2017, for driving on a suspended license and possession of methamphetamine.

         On August 25, 2017, the circuit court held a preliminary hearing, which petitioner waived. The circuit court ordered petitioner to undergo a psychological evaluation and participate in drug screens. On October 6, 2017, the circuit court held an adjudicatory hearing. Petitioner did not attend, but was represented by counsel. The DHHR presented evidence of the conditions of the home. Based on the evidence presented, petitioner was adjudicated as an abusing parent. On November 3, 2017, the circuit court held a dispositional hearing. Petitioner tested positive for methamphetamine and buprenorphine prior to the hearing, which was ultimately continued. According to the guardian, following the hearing, petitioner missed drug screens, failed to produce samples at drug screens, and tested positive for controlled substances. Petitioner was arrested on November 20, 2017, for shoplifting.

         On December 15, 2017, the circuit court held a final dispositional hearing. A CPS worker testified that the DHHR offered to agree to a post-dispositional improvement period if petitioner participated in a psychological evaluation and drug screens. However, petitioner missed several drug screens and tested positive for methamphetamine on November 13, 2017. Petitioner also failed to appear for her psychological evaluation. Testimony further established that A.C. and R.C. exhibited behavioral problems at school. Ultimately, the CPS worker testified that petitioner repeatedly refused to take responsibility for her actions. In regard to the deplorable condition of her home, petitioner told the CPS worker that she did not live there. She also failed to take responsibility for her arrests and positive drug screens and attempted to place blame on other people. The DHHR recommended termination of petitioner's parental rights due to her failure to comply with the circuit court's orders. The guardian also advised that petitioner failed to cooperate with the DHHR and recommended that petitioner's parental rights be terminated.

         Petitioner testified that she called Saar Psychological to advise them that she was unable to appear for her psychological evaluation, but only after she missed the appointment. Petitioner argued that she did not attend her psychological evaluation because school in Raleigh County was canceled due to snow and she could not find a ride to Charleston. Petitioner denied having a substance abuse problem and stated that she did not think she needed treatment, but that she would go to drug rehabilitation only if she had to in order to keep her children. When asked what caused her to test positive for methamphetamine, petitioner replied that she did not know. Petitioner requested a post-dispositional improvement period and argued that an additional forty-five to ninety days for an improvement period would not "have any impact on the children." The circuit court found that petitioner had a serious substance abuse problem that she had not acknowledged or worked to remediate and failed to cooperate with the DHHR. The circuit court also found that petitioner failed to establish by clear and convincing evidence that she could fully participate in an improvement period, denied her motion for a post-dispositional improvement period, and, ultimately, terminated her parental rights to the children in its December 21, 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 terminating her parental rights without first granting her a post-dispositional improvement period. In support of this argument, petitioner claims that she was fully prepared to enter an inpatient substance abuse program and that she would have attended the psychological evaluation, if not for inclement weather the day of the appointment.

         We do not find this argument persuasive. West Virginia Code § 49-4-610(3)(B) provides that a parent may receive a post-dispositional improvement period when the "[parent] demonstrates, by clear and convincing evidence, that the [parent] is likely to fully participate in the improvement period." Further, we have held that

[i]n order to remedy the abuse and/or neglect problem, the problem must first be acknowledged. Failure to acknowledge the existence of the problem, i.e., the truth of the basic allegation pertaining to the alleged abuse and neglect or the perpetrator of said abuse and neglect, results in making the problem untreatable and in making an improvement period an exercise in futility at the child's expense.

In re Timber M., 231 W.Va. 44, 55, 743 S.E.2d 352, 363 (2013) (quoting In re: Charity H., 215 W.Va. 208, 217, 599 ...


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