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In re J.P-1

Supreme Court of West Virginia

June 15, 2018

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

          Hampshire County 17-JA-36 and 37

          MEMORANDUM DECISION

         Petitioner Mother J.P.-3., by counsel Jeremy B. Cooper, appeals the Circuit Court of Hampshire County's January 3, 2018, order terminating her parental rights to J.P.-1 and J.P.-2.[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"), Marla Zelene Harman, filed a response on behalf of the children in support of the circuit court's order. Petitioner filed a reply. On appeal, petitioner argues that the circuit court lacked jurisdiction in this case pursuant to the Uniform Child Custody Jurisdiction Enforcement Act ("UCCJEA"), she was denied effective assistance of counsel, and the circuit court erred in terminating her parental rights without first granting her an improvement period.

         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 May 26, 2017, the DHHR received a referral from Child Protective Services ("CPS") in Allegheny County, Maryland, indicating that petitioner had a long, ongoing history with CPS in that area. According to the reporter, petitioner and the children relocated to Hampshire County, West Virginia. Petitioner and her children were ejected from multiple homeless shelters in Maryland prior to their relocation to West Virginia. The reporter expressed concern about the well-being of the children because petitioner failed to bring the children to CPS in Maryland for a previously-scheduled appointment. The children were reportedly left in Hampshire County with petitioner's disabled, wheelchair-bound mother, who was unable to provide proper care to the children. The reporter also stated that petitioner possibly abused drugs. The CPS worker in West Virginia investigated and confirmed that both children were born addicted to drugs. Subsequently, the DHHR filed an abuse and neglect petition against petitioner alleging that she left the children during the day with her disabled mother who could not properly care for the children. Both children were left in urine-soaked diapers for an extended period of time. The petition also alleged that petitioner admitted to a CPS worker to being under the influence of methamphetamine. Petitioner waived her preliminary hearing.

         On July 13, 2017, petitioner attempted to enter into a stipulated adjudication, but denied that she was under the influence of substances at the time of the children's removal. The DHHR moved the circuit court to schedule a contested adjudicatory hearing, which was granted. On August 29, 2017, the circuit court held a contested adjudicatory hearing. The CPS worker testified as to the allegations in the petition and petitioner's admission to being under the influence of methamphetamine at the time of the children's removal from the home. At the close of the CPS worker's testimony, the DHHR moved to continue the hearing, which the circuit court granted. On October 20, 2017, the circuit court proceeded with the adjudicatory hearing. However, petitioner elected to stipulate to the allegations that her abuse of controlled substances and unstable housing adversely impacted her ability to parent and care for her children.

         On December 21, 2017, the circuit court held a dispositional hearing. The DHHR presented evidence that petitioner tested positive for amphetamine, methamphetamine, and illicit suboxone on August 29, 2017, and that she failed to screen four times in September of 2017. Petitioner also failed to screen three times in October of 2017, and tested positive for amphetamine, methamphetamine, and suboxone on October 31, 2017. Petitioner failed to screen four times in November of 2017. A DHHR caseworker testified that petitioner was encouraged to enter into an inpatient drug treatment program, but failed to make any effort to obtain treatment. The caseworker also testified that petitioner lacked stable housing throughout the entirety of the proceedings. Petitioner presented the testimony of Dr. Mary Jo Cannon, who had prescribed petitioner suboxone since September of 2017. Dr. Cannon testified that petitioner participated in weekly counseling through the facility, but did not participate in the intensive outpatient program the facility offers. Finally, petitioner testified that she wanted to attend an inpatient drug treatment program, but offered numerous excuses as to why she had not done so. She also offered numerous excuses for why she failed to consistently submit to drug screens. She explained that she was unemployed and did not have housing. Following the parties' testimony, the circuit court denied petitioner's motion for a post-adjudicatory improvement period. The circuit court found no reasonable likelihood that petitioner could correct the conditions of abuse and neglect in the near future and that termination of her parental rights was in the children's best interests. Ultimately, the circuit court terminated petitioner's parental rights in its January 3, 2018, 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.

         First, petitioner argues that the circuit court lacked jurisdiction in this case pursuant to the UCCJEA because Maryland was the "home state" of the children and because the family's CPS history was there. Additionally, petitioner argues that while the issue of jurisdiction was not raised below, it is appropriate for appellate review under "plain error." "The 'plain error' doctrine grants appellate courts, in the interest of justice, the authority to notice error to which no objection has been made." State v. Miller, 194 W.Va. 3, 18, 459 S.E.2d 114, 129 (1995). To satisfy the "plain error" standard to allow appellate review of unpreserved errors, the appellate court must find: "(1) an error; (2) that is plain; (3) that affects substantial rights; and (4) seriously affects the fairness, integrity, or public reputation of the judicial proceedings." Id. at 7, 459 S.E.2d at 118, Syl. Pt. 7, in part. We find that this assignment of error is not appropriate for review under "plain error" for the following reasons.

         Petitioner relies on West Virginia Code § 48-20-201(a)(1), which provides that a court in West Virginia has jurisdiction in a matter concerning child custody when

[t]his state is the home state of the child on the date of the commencement of the proceeding, or was the home state of the child within six months before the commencement of the proceeding, and the child is absent from this state but a parent or person acting as a parent continues to live in this state[.]

         However, West Virginia Code § 48-20-204(a) provides that

[a] court of this state has temporary emergency jurisdiction if the child is present in this state and the child has been abandoned or it is necessary in an emergency to protect the child because the child, or a sibling or parent of the ...

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