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In re H.M.

Supreme Court of West Virginia

June 15, 2018

In re H.M.

          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 ...

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