Wood
County 16-JA-98
MEMORANDUM DECISION
Petitioner
Mother R.M., by counsel George M. Torres, appeals the Circuit
Court of Wood County's January 18, 2018, order
terminating her parental rights to H.M.[1] The West Virginia
Department of Health and Human Resources ("DHHR"),
by counsel Mindy M. Parsley, filed a response in support of
the circuit court's order. The guardian ad litem
("guardian"), Justin M. Raber, filed a response on
behalf of the child also in support of the circuit
court's order. On appeal, petitioner argues that the
circuit court erred in terminating her parental rights based
upon the erroneous 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 July
of 2016, the DHHR filed an abuse and neglect petition against
petitioner and the father shortly after the birth of H.M.,
the only child at issue in this appeal. The DHHR alleged that
petitioner previously had her parental rights to two older
children terminated in Cuyahoga County, Ohio, in 2015.
According to the DHHR, the final order from that case
indicated that petitioner abandoned the older children; did
not have stable housing; could not meet the needs of her
children; and failed to complete parenting classes, substance
abuse treatment, drug screens, mental health treatment, and a
mental health evaluation. The DHHR alleged that, due to the
prior termination of her parental rights, the instant
proceedings were based upon aggravated circumstances and it
noted that no substantial change in circumstances had
occurred since the prior terminations. Further, the DHHR
alleged that, at the time of the child's birth,
petitioner had been using marijuana for several weeks.
The
circuit court held an adjudicatory hearing in August 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.
The
circuit court held its first review hearing regarding
petitioner's post-adjudicatory improvement period in
November of 2016. The DHHR reported that petitioner did not
have stable housing, despite having received a housing
voucher; missed some supervised visits with the child; and
continued to test positive for marijuana. A second review
hearing was held in January of 2017. The circuit court was
advised that petitioner's supervised visitation had been
terminated because she continued to test positive for
marijuana. A third review hearing was held in February of
2017, wherein petitioner advised that she had recently begun
providing negative drug screens and her supervised visitation
had been reinstated. Petitioner also advised that she was
working two jobs and maintaining stable housing. However, the
DHHR noted that petitioner had been discharged by her service
provider due to an argument. The circuit court directed the
parties to find a new service provider and scheduled a
dispositional hearing. In April of 2017, the circuit court
held the dispositional hearing and granted petitioner a
post-dispositional improvement period.
In
December of 2017, the circuit court held a dispositional
hearing wherein several people testified as to
petitioner's noncompliance with the terms of her
improvement period. A service provider testified that he had
concerns about petitioner's judgment when parenting the
child and noted that she missed approximately four supervised
visits with the child. Another service provider testified
that, between March of 2017, and the dispositional hearing,
petitioner only appeared for approximately twenty-six of the
fifty-seven required drug screens and tested positive for
marijuana twice. Petitioner testified, admitting that she
abused marijuana in both the underlying proceedings and prior
abuse and neglect proceedings wherein her parental rights to
two older children were terminated. Petitioner denied that
she continued to smoke marijuana and stated that her recent
positive screens must have resulted from "just simply
being around others that smoked it." After hearing
petitioner's testimony, the circuit court continued the
hearing.
In
January of 2018, the circuit court held a final dispositional
hearing. After hearing evidence, the circuit court found that
petitioner had been participating in an improvement period
over the course of fifteen months and had not substantially
complied with the same. Specifically, petitioner lied during
the proceedings; failed to provide drug screens or tested
positive for illegal substances when she did screen;
maintained her relationship with the father of the child,
whose parental rights had been terminated; and cancelled
several visits with the child. 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 child's welfare.
It is from the January 18, 2018, order terminating her
parental rights and denying her post-termination visitation
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
terminating her parental rights in two ways. First, she
argues that the circuit court erred in terminating her
parental rights upon the erroneous finding that there was no
reasonable likelihood that she could correct the conditions
of abuse. Specifically, petitioner argues that she secured an
apartment, maintained employment, participated in services,
and established a bond with the child during supervised
visitation. 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 ...