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In re N.B.

Supreme Court of West Virginia

January 14, 2019

In re N.B., I.L., C.C.-1, and C.C.-2

          Ohio County 18-CJA-27-JPM, 18-CJA-28-JPM, 18-CJA-29-JPM, 18-CJA-30- JPM)


         Petitioner Mother J.N., by counsel Michael B. Baum, appeals the Circuit Court of Ohio County's August 9, 2018, order terminating her parental rights to N.B., I.L., C.C.-1, and C.C.-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"), Joseph J. Moses, 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 terminating her parental rights without granting her an improvement period or considering less-restrictive alternatives.

         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 April of 2018, the DHHR filed a child abuse and neglect petition against petitioner regarding her drug abuse. Specifically, the DHHR alleged that in March of 2018, Child Protective Services ("CPS") and law enforcement responded to petitioner's home to conduct an investigation and found petitioner under the influence of drugs with the children in her care. Petitioner's boyfriend was discovered to be hiding in the home and he was arrested based upon a warrant for his arrest from Missouri. The search also revealed drug paraphernalia throughout the home including thirteen hypodermic needles, one of which contained a brown liquid. The DHHR alleged that petitioner's drug use impaired her ability to properly parent the children or provide for their well-being and that she exposed the child to inappropriate people and unsafe situations. The DHHR further alleged that petitioner had a history of mental illness, exposing her children to inappropriate persons, and criminal drug activity and that these issues continued unabated despite the provision of services designed to remedy those issues.[2]

         Later that month, petitioner waived her preliminary hearing and the circuit court ordered her to submit to random drug screens. However, immediately following the hearing, petitioner was arrested upon a warrant from Pennsylvania for a drug-related offense. Petitioner was released from incarceration in May of 2018, but was arrested only days later upon a warrant from Ohio on charges of possession of a controlled substance, trafficking in drugs, and charges related to possession of drug abuse instruments after she was found unconscious in a vehicle while under the influence of drugs.

         The circuit court held an adjudicatory hearing in May of 2018. Petitioner stipulated to the allegations contained in the petition and requested a post-adjudicatory improvement period. The circuit court held petitioner's motion in abeyance pending a multidisciplinary team ("MDT") meeting. Although the MDT met to discuss petitioner's request for an improvement period, no consensus could be reached due to petitioner's chronic history of drug abuse, lack of response to services, and her continued drug abuse and criminal activity throughout the proceedings.

         In July of 2018, the circuit court held a dispositional hearing. Petitioner failed to attend and her counsel requested a continuance, proffering that petitioner's mother indicated that petitioner had checked into a detoxification facility the night before the hearing. The circuit court denied the request, however, due to petitioner's failure to inform her counsel, the DHHR, or the circuit court regarding her admission; her failure to seek treatment prior to the hearing; and her continued drug abuse and related criminal offenses during the pendency of the case.

         The DHHR presented the testimony of a DHHR worker, who was also a former service provider for petitioner. The worker testified that petitioner was offered services following a prior referral, such as safety services and parenting classes. However, petitioner failed to stay enrolled in a treatment program and continued to abuse drugs. A law enforcement officer testified that, upon searching petitioner's home, he found drug paraphernalia such as pipes and needles within the reach of the children. Finally, a CPS worker testified that petitioner initially failed to submit to drug screens. When petitioner began submitting to drug screens, she tested positive for methamphetamine every time and also recently tested positive for ecstasy and cocaine. The worker further testified that petitioner filled out applications for treatment centers and stated she intended to admit herself, but he had no confirmation that she had done so.

         After hearing evidence, the circuit court found that petitioner had a long-standing drug abuse problem and, despite having received services several times, failed to successfully treat the issue. Petitioner also failed to treat her mental health issues, continued to abuse drugs throughout the proceedings, and continued to associate with inappropriate people despite the removal of her children. Finding 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 children's welfare, the circuit court terminated petitioner's parental rights. It is from the August 9, 2018, dispositional order that petitioner appeals.[3]

         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 without granting her an improvement period. Petitioner contends that she should have been granted an improvement period because she was "working on" the conditions of abuse and neglect by drug screening regularly, seeking inpatient treatment, and maintaining contact with the DHHR. Alternatively, petitioner argues that she should have been granted disposition pursuant to West Virginia Code § 49-4-604(b)(5) so that she could regain custody of the children if she ever rectified the circumstances of abuse and neglect.[4] We disagree.

         The decision to grant or deny an improvement period rests in the sound discretion of the circuit court. See In re M.M., 236 W.Va. 108, 115, 778 S.E.2d 338, 345 (2015) ("West Virginia law allows the circuit court discretion in deciding whether to grant a parent an improvement period."); Syl. Pt. 6, in part, In re Katie S., 198 W.Va. 79, 479 S.E.2d 589 (1996) ("[i]t is within the court's discretion to grant an improvement period within the applicable statutory requirements."). We have also held that a parent's "entitlement to an improvement period is conditioned upon the ability of the respondent to demonstrate 'by clear and convincing evidence, that ...

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