In re J.F. and T.F.
Monongalia County 16-JA-65 and 66
MEMORANDUM DECISION
Petitioner
Mother T.G., by counsel Ashley V. Williams-Hunt, appeals the
Circuit Court of Monongalia County's December 22, 2017,
order terminating her custodial rights to J.F. and
T.F.[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"), DeAndra Burton, 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 custodial rights
without first granting a continuance of the proceedings and
giving her a meaningful opportunity to be heard.
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 23, 2016, the DHHR filed a petition alleging that
petitioner abused and neglected the children due to her
chronic substance abuse and failure to provide them with safe
housing. The DHHR alleged that petitioner had a history of
Child Protective Services intervention in West Virginia and
Pennsylvania. On September 9, 2016, the circuit court held a
preliminary hearing, which petitioner waived. On September
30, 2016, the circuit court held an adjudicatory hearing at
which the DHHR presented evidence that petitioner abused
substances while caring for the children. Based on this
evidence, petitioner was adjudicated as an abusing parent. On
October 12, 2016, the circuit court granted petitioner's
motion for a post-adjudicatory improvement period.
The
circuit court held a dispositional hearing in April of 2017
and another in May of 2017, both of which were continued. On
July 12, 2017, the circuit court held a dispositional hearing
and granted petitioner's motion for a post-dispositional
improvement period and continued the hearing. On October 12,
2017, the circuit court held a dispositional hearing at which
counsel for petitioner requested a continuance due to
petitioner's hospitalization. The circuit court did not
rule on petitioner's motion to continue, but rescheduled
the dispositional hearing.
On
November 27, 2017, the circuit court held a final
dispositional hearing which petitioner did not attend, but
was represented by counsel. Counsel did not move for a
continuance of the hearing. Prior to the dispositional
hearing, the guardian filed a report wherein she recommended
that the circuit court grant petitioner a "disposition
five" pursuant to West Virginia Code §
49-4-604(b)(5). According to the guardian's report,
petitioner was admitted to Ruby Memorial Hospital to receive
treatment for a brain condition. The report also explained
that petitioner failed to comply with the terms of her
improvement period, as she missed circuit court hearings,
multidisciplinary treatment ("MDT") team meetings,
visits with the children, and failed to maintain stable
housing throughout the proceedings. The guardian also
reported that petitioner failed to provide verification of
any substance abuse treatment or counseling. The circuit
court terminated petitioner's custodial rights and
ordered the children to remain in the custody of their
father. The circuit court found that petitioner was
"unlikely to recover medically to such a point where she
could potentially take custody of the children anytime in the
near future" and granted petitioner supervised
visitation. Ultimately, the circuit court terminated
petitioner's custodial rights in its December 22, 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.
On
appeal, petitioner argues that the circuit court erred in
terminating her custodial rights. We disagree. Pursuant to
West Virginia Code § 49-4-604(b)(6) circuit courts are
to terminate custodial rights upon findings that there is
"no reasonable likelihood that the conditions of neglect
or abuse can be substantially corrected in the near
future" and that termination is necessary for the
children's welfare.[3] West Virginia Code §
49-4-604(c)(3) provides that no reasonable likelihood that
the conditions of abuse or neglect can be substantially
corrected exists when "[t]he abusing parent . . . ha[s]
not responded to or followed through with a reasonable family
case plan or other rehabilitative efforts[.]"
Here,
the record indicates that petitioner was unable to care for
the children's needs due to her hospitalization and
failure to maintain stable housing during the proceedings.
Petitioner also failed to attend circuit court hearings, MDT
meetings, and visits with the children. She also neglected to
provide the circuit court with verification of any substance
abuse treatment. Based on this evidence, it is clear that
there was no reasonable likelihood that petitioner could
correct the conditions of abuse and neglect in the near
future and that termination of her custodial rights was in
the children's best interest. Therefore, we find no error
in the circuit court's termination of petitioner's
custodial rights.
Next,
petitioner argues that the circuit court erred in denying her
a continuance of the proceedings. We disagree. We have held
that "[w]hether a party should be granted a continuance
is a matter left to the discretion of the trial judge, and a
reviewing court plays a limited and restricted role in
overseeing the lower court's exercise of that
discretion." State v. Snider, 196 W.Va. 513,
516, 474 S.E.2d 180, 183 (1996). Although petitioner moved
for a continuance of the proceedings at the October 12, 2017,
hearing due to her hospitalization, there is no evidence that
she renewed this motion at the final dispositional hearing on
November 27, 2017, or that she objected to the disposition of
the proceedings. Therefore, we find that the circuit court
did not abuse its discretion by denying petitioner a
continuance of the proceedings.
Finally,
petitioner argues that the circuit court violated her due
process rights by denying her a meaningful opportunity to be
heard at the dispositional hearing when it denied
counsel's previous motion to continue. Due to said
denial, petitioner claims that she was not afforded the
opportunity to testify on her own behalf, present evidence,
or cross-examine witnesses at the dispositional hearing
pursuant to West Virginia Code §
49-4-601(h).[4] However, as discussed above, petitioner
fails to acknowledge that counsel did not renew her motion to
continue at the final dispositional hearing. Further,
petitioner was absent from the dispositional hearing, but
does not assert that she was not provided with notice of the
hearing. While it is true that parents are afforded an
opportunity to be heard, petitioner's absence at the
dispositional hearing did not violate this requirement.
Petitioner offers no explanation for her absence and fails to
recognize that the circuit court granted her multiple
continuances of the dispositional hearing and rescheduled the
hearing until it ultimately held the final dispositional
hearing in November of 2017. Therefore, we find that
petitioner is not entitled to relief in this regard.
For the
foregoing reasons, we find no error in the decision of the
circuit court, and its December 22, 2017, ...