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In re D.P.-1

Supreme Court of West Virginia

June 15, 2018

In re D.P.-1, J.P.-1, J.P.-2, and D.P.-2

          Wood County 16-JA-56, 57, 58, and 59

          MEMORANDUM DECISION

         Petitioner Mother J.P.-3, by counsel Jeffrey O. Dye II, appeals the Circuit Court of Wood County's December 20, 2017, order terminating her parental rights to D.P.-1, J.P.-1, J.P.-2, and D.P.-2.[1] The West Virginia Department of Health and Human Resources ("DHHR"), by counsel Brandolyn N. Felton-Ernest, filed a response in support of the circuit court's order. The guardian ad litem ("guardian"), Debra Steed, filed a response on behalf of the children also in support of the circuit court's order. On appeal, petitioner argues that the circuit court erred in finding that there was no reasonable likelihood that she could correct the conditions of abuse and neglect in the near future, terminating her parental rights when less-restrictive alternatives were available, and denying her post-termination visitation.

         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 May of 2016, the DHHR filed a child abuse and neglect petition against petitioner and the father. Thereafter, in August of 2016, an amended petition was filed alleging that, in May of 2016, J.P.-1 was observed to have bruising and redness to her eye and reported that she was punched in the face by her father. The child reported that her father instructed her to say that petitioner caused the injury with a hairbrush. The petition also indicated that the parents had a history of domestic violence in the home. The DHHR alleged that, after having been removed from the home, the children were taken to the hospital where several additional injuries were discovered by the physician. All of the children were observed to have substantial bruising and scratches over their bodies. J.P.-2 was observed to have two black eyes and a hematoma on his forehead. D.P.-1 was also observed to have a hematoma on his scalp. The physician reported that many of the injuries were caused by blunt force trauma and grabbing the children with such force that bruises, finger marks, and restraint marks were left on the skin.

         The circuit court held an adjudicatory hearing in November of 2016, wherein petitioner stipulated to the allegations contained in the petition. The circuit court accepted petitioner's stipulation, adjudicated her as an abusing parent, and granted her a post-adjudicatory improvement period.

         A second amended petition was filed in May of 2017. The DHHR alleged that petitioner admitted to abusing heroin and other drugs throughout her improvement period, arrived to visits with the children under the influence of drugs, and failed to enter a drug rehabilitation treatment program. Shortly thereafter, the guardian filed a motion to terminate petitioner's improvement period. A hearing was held in June of 2017 and, after hearing evidence, the circuit court terminated petitioner's post-adjudicatory improvement period.

         In July of 2017, the circuit court held a dispositional hearing wherein it heard the testimony of several witnesses regarding petitioner's noncompliance with her post-adjudicatory improvement period. A service provider testified that since January of 2017, petitioner provided nine positive drug screens and missed forty-three drug screens. The service provider also noted that petitioner was scheduled for two drug-abuse evaluations but failed to attend either appointment. Another service provider testified that, after two months of parenting and adult life skills services, petitioner began missing classes and appeared under the influence of drugs. The service provider also testified regarding petitioner's supervised visitation, stating that petitioner would "nod off" during her time with the children. The service provider testified that she questioned petitioner regarding her behavior and that petitioner admitted to abusing drugs. The service provider urged petitioner to enter a treatment program and offered to assist her, but petitioner failed to follow through with the recommendation. Petitioner's classes and supervised visitation were suspended in May of 2017 due to her failure to participate and her continued drug abuse.

         Petitioner testified that she failed to attend her parenting and adult life skills classes, in part, due to her drug addiction and stated that she missed her drug-abuse evaluations due to oversleeping. When asked why she missed her drug screens, petitioner responded "[i]t's either I couldn't wake up or I was too high. But, I mean, I was on meth and I just didn't have - it just took over. It just didn't matter really anymore." Petitioner also testified that, at the time of the dispositional hearing, she was incarcerated for reckless driving, which arose from an incident wherein petitioner was driving her friend's car without a license and wrecked, killing another person. Petitioner stated that she had to serve forty-five more days before she would be released from incarceration. Ultimately, the circuit court found that petitioner was unable or unwilling to care for the children, continued to abuse methamphetamine, failed to participate in several aspects of her improvement period, and failed to make a reasonable effort to correct the conditions of abuse that led to the filing of the petition. As such, the circuit court found that there was no reasonable likelihood that petitioner could correct the conditions of abuse in the near future and that termination was necessary for the children's welfare. The circuit court denied petitioner post-termination visitation and terminated her parental rights. It is from the December 20, 2017, order that petitioner appeals.[2]

         The Court has previously established the following standard of review in cases such as this:

"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).

         On appeal, petitioner argues that the circuit court erred in finding that there was no reasonable likelihood that petitioner could correct the conditions of abuse. Specifically, petitioner alleges that the conditions of abuse to which she stipulated were corrected by ending her relationship with the father.[3] We disagree. According to West Virginia Code § 49-4-604(c)(3), a situation in which there is no reasonable likelihood the conditions of abuse and neglect can be substantially corrected includes one in which

[t]he abusing parent or parents have not responded to or followed through with a reasonable family case plan or other rehabilitative efforts of social, medical, mental health or other rehabilitative agencies designed to reduce or prevent the abuse or neglect of the child, as evidenced by the continuation or insubstantial diminution of conditions which threatened the health, welfare or life of the child[.]

         Here, the record demonstrates that petitioner was granted a post-adjudicatory improvement period in November of 2016. Petitioner was offered several services but failed to take advantage of them. Testimony at the dispositional hearing established that petitioner failed to participate in her parenting and adult life skills classes such that she was discharged from the program. Further, supervised visitation with the children was also terminated due to petitioner's noncompliance. Petitioner was ordered to submit to a drug-abuse evaluation, a psychological evaluation, and group sessions to address her issues with domestic violence, but failed to follow through with any of these services. As such, we find that that the circuit court did not err in ...


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