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In re C.J.

Supreme Court of West Virginia

June 11, 2018

In re C.J. and J.K.

          Ohio County 16-CJA-146 and 147

          MEMORANDUM DECISION

         Petitioner Mother M.K., by counsel Gerasimos Sklavounakis, appeals the Circuit Court of Ohio County's January 18, 2018, order terminating her parental rights to C.J and J.K.[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"), Joseph J. Moses, filed a response on behalf of the children in support of the circuit court's order. On appeal, petitioner argues that the circuit court abused its discretion by denying her motion to extend her post-adjudicatory improvement period, denying her motion for a post-dispositional improvement period, and 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 October of 2016, the DHHR filed a petition alleging that petitioner consistently abused controlled substances, used family resources to purchase drugs, left the children in the care of her boyfriend who was previously adjudicated as an abusing parent, and failed to provide adequate food and shelter for the children. Further, the DHHR alleged that petitioner told her boyfriend she was going to a substance abuse treatment facility, but never actually reported to that facility. The DHHR alleged that petitioner was missing for some time. Later, it was discovered that petitioner had an allergic reaction to a medication and was induced into a medical coma. The circuit court held a preliminary hearing and found sufficient evidence of imminent danger to the children.

         Petitioner stipulated to the allegations of drug abuse in December of 2016 and was adjudicated as an abusing parent. Petitioner moved for a post-adjudicatory improvement period and the circuit court granted her motion. The terms of petitioner's post-adjudicatory improvement period included random drug screens, a long-term drug treatment program, individualized therapy, parenting and adult life skills classes, mental health treatment, and weekly contact with her case worker.

         The circuit court held a review hearing in April of 2017, where the DHHR alleged that petitioner was noncompliant with the terms of her improvement period. Petitioner tested positive for marijuana on multiple drug screens and, as a result, her visitations with the children were suspended. Further, a provider cancelled petitioner's services due to petitioner's nonparticipation in those services. Petitioner reported recent health issues that required hospitalization. A second review hearing in May of 2017 revealed the same issues, including positive drug screens and failure to treat her mental health issues. Petitioner ultimately moved to extend her post-adjudicatory improvement period. However, the hearing for that motion was continued because petitioner was involuntarily committed to a mental hospital.[2]

         The circuit court held two dispositional hearings in October and November of 2017. Petitioner moved for a post-dispositional improvement period and the DHHR moved for termination of her parental rights. In support of her motion, petitioner presented the testimony of a clinical psychologist from Northwood Health Systems. The psychologist testified that petitioner suffered from long-standing bipolar disorders. Given those disorders, the psychologist testified that it was difficult to reach a prognosis and he could not predict when petitioner's recovery would progress.

         Ultimately, the circuit court found that petitioner did not successfully complete her post-adjudicatory improvement period. Petitioner did not attend all drug screens as required and tested positive when she did attend; her supervised visitations were suspended as a result. Petitioner also did not fully participate in the services provided to her. Finally, the circuit court found that petitioner did not successfully treat her substance abuse issues or her mental health conditions to the point of reaching stability. As a result, the circuit court found that there was no reasonable likelihood that petitioner would substantially correct the conditions that led to the abuse and neglect of her children and that it was in the best interest of the children to terminate her parental rights. Accordingly, the circuit court terminated petitioner's parental rights by its January 18, 2018, order. Petitioner now appeals that order.[3]

         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).

         First, petitioner argues that the circuit court abused its discretion in denying her motion to extend her post-adjudicatory improvement period where petitioner was unable to substantially comply with the terms of that improvement period due to unexpected delays. Petitioner asserts that she informed the circuit court of her recent health issues in April of 2017, that required hospitalization and which rendered her incapable of participating for some time. Further, petitioner asserts that she was incarcerated in June of 2017, which again led to her inability to participate. Upon our review of the record, we disagree.

         Pursuant to West Virginia Code §49-4-610(6), "a court may extend any improvement period granted pursuant to subdivision (2) . . . when the court finds the respondent has substantially complied with the terms of the improvement period[.]" Although petitioner argues that unexpected delays caused her noncompliance, petitioner was noncompliant for three months prior to April of 2017. The record clearly indicates that certain services were cancelled due to petitioner's noncompliance before her hospitalization in April of 2017. Similarly, the record does not reflect that petitioner began participating between her hospitalization and her incarceration. Also, petitioner continued to test positive for controlled substances throughout that time. Finally, petitioner does not take issue with the circuit court finding that she did not substantially comply with the terms of her improvement period. Accordingly, we find petitioner is entitled to no relief.

         Second, petitioner argues that the circuit court abused its discretion by denying her motion for a post-dispositional improvement period because she experienced a substantial change in circumstances. Petitioner asserts that she was participating in inpatient therapy, which was a ...


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