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In re S.M.

Supreme Court of West Virginia

June 15, 2018

In re S.M.

          Raleigh County 16-JA-001

          MEMORANDUM DECISION

         Petitioner Mother A.M., by counsel Jennifer Dempsey Meeteer, appeals the Circuit Court of Raleigh County's February 9, 2018, order terminating her parental rights to S.M.[1] The West Virginia Department of Health and Human Resources ("DHHR"), by counsel S.L. Evans, filed a response in support of the circuit court's order. The guardian ad litem ("guardian"), Lindsey C. Ashley, 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 solely on the finding that she did not independently maintain housing, terminating her parental rights based on the finding that petitioner's home was unsuitable, and in finding that petitioner was living with a "known abuser" and demonstrated a lack of maturity.

         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 January of 2016, the DHHR filed a child abuse and neglect petition against petitioner and the father. The DHHR alleged that the parents and the child were living in a homeless shelter and that the father was asked to leave due to his violent behavior. The shelter personnel expressed concern that the father was controlling petitioner and not permitting her to speak or act of her own volition. Despite being allowed to stay at the shelter with the child, petitioner left with the father. Thereafter, the parents and child were seen wandering through town begging for food and diapers in cold temperatures. The DHHR also alleged generally that the parents were abusing and/or neglecting the child due to their homelessness, medical neglect, domestic violence, and drug abuse.

         The circuit court held an adjudicatory hearing in March of 2016, wherein petitioner stipulated that she "did not provide consistent shelter and/or failed to provide a permanent home for [the] child[.]" The circuit court accepted petitioner's stipulation and granted her a post-adjudicatory improvement period, which required her to complete the following terms and conditions: (1) establish and maintain suitable housing for a period of six months, (2) maintain stable employment for a period of six months, (3) participate in services to address her poor-decision making issues, (4) undergo a psychological evaluation and follow any recommendations made therein, and (5) participate in counseling sessions with a goal of becoming more self-aware and independent.

         In January of 2017, the circuit court held a status hearing regarding petitioner's post-adjudicatory improvement period. A Child Protective Services ("CPS") worker filed a summary with the circuit court, which related that the parents were evicted from their apartment in September of 2016. Petitioner then moved to North Carolina to live with her brother and thereafter failed to participate in services or visitation for several months. In December of 2016, petitioner began cooperating and returned to West Virginia every other weekend for visitation and services. Petitioner requested and was granted an extension to her post-adjudicatory improvement period.

         The circuit court held a dispositional hearing in July of 2017. The DHHR presented the testimony of a DHHR worker who testified to petitioner's noncompliance with her improvement period. Specifically, the worker testified that petitioner continued to exercise poor decision-making skills with regard to her relationships. According to the worker, petitioner engaged in two relationships over the course of her improvement period with men who had extensive criminal histories. Petitioner's most recent boyfriend had been arrested twice in the preceding months and petitioner was present at the scene for both arrests. The worker also testified that she had been unable to contact petitioner's brother to verify if petitioner was living in his home and, as such, was unable to facilitate a home study. A service provider also testified that, while petitioner complied with several aspects of her improvement period, the provider was unable to definitively say that the child should be returned to petitioner's care because she had never seen the home environment. Petitioner then testified that she was living with her brother and believed that his home was spacious, clean, and suitable for the child. Petitioner also testified that she had ceased her relationship with her most recent boyfriend. After hearing evidence, the circuit court noted that it would take the matter under advisement and concluded the hearing. Thereafter, in August of 2017, the circuit court ordered that a home study be performed of petitioner's place of residence in North Carolina.

         In February of 2018, the circuit court issued its dispositional order terminating petitioner's parental rights. The circuit court noted that it had received the report of the home study, which petitioner failed. The report indicated that, despite her prior testimony to the contrary, petitioner maintained her relationship with her most recent boyfriend, became pregnant with his child, and moved into his home in North Carolina. The report also indicated that the home situation was unstable as the boyfriend's parents also lived in the home, the family had a month-to-month lease, and the home was for sale. Further, both petitioner's boyfriend and his father had extensive criminal histories that included charges for assault on a female, assault inflicting serious injury, and assault with a deadly weapon, among other serious charges. Having viewed the report, the circuit court acknowledged that petitioner complied with a portion of her case plan, but found that she failed to independently maintain suitable housing. Moreover, the circuit court noted that petitioner lied about living with a "known abuser" and demonstrated a lack of maturity through her repeated involvement with men who have criminal histories. As such, the circuit court found that there was no reasonable likelihood that petitioner could correct the conditions of abuse and neglect in the near future and that termination was necessary for the child's welfare. It is from the February 9, 2018, 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 first assigns as error the circuit court's termination of her parental rights based solely on the ground that she did not maintain independent housing. Specifically, petitioner argues that the circuit court erroneously found that she complied with only a portion of her improvement period, as the evidence demonstrates that she substantially complied with the services offered to her. According to petitioner, failure to complete one case plan goal is insufficient to terminate her parental rights in light of her substantial compliance.

         After reviewing the record, we find petitioner's argument to be a mischaracterization of the evidence. Contrary to her argument, her lack of independent housing was only part of the basis for the termination of her parental rights. The final order details other findings of fact made by the circuit court in terminating petitioner's parental rights, including her lack of candor with the circuit court and her inability to make good decisions, as evidenced by her repeated involvement with men that have a history of violent and/or criminal behavior. As such, petitioner's argument that the circuit court terminated her parental rights solely based on her failure to maintain independent housing is inaccurate and as such, she is entitled to no relief in this regard.

         Further, we find that petitioner's argument that she largely complied with her improvement period is not supported by the record. Petitioner is correct that she did comply with some terms and conditions of her improvement period, such as visitation and parenting classes. However, petitioner's assertions that she completed all but one aspect of her post-adjudicatory improvement period are inaccurate. As part of her improvement period, petitioner was ordered to address her poor decision-making issues, participate in counseling sessions for the purpose of becoming self-aware and ...


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