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In re R.M.-1

Supreme Court of West Virginia

April 19, 2019

In re R.M.-1, R.M.-2, W.M., S.M., C.M., M.M.-1, M.M.-2, E.M. and J.M.

          Lewis County 17-JA-1, 17-JA-2, 17-JA-3, 17-JA-4, 17-JA-5, 17-JA-6, 17-JA-7, 17-JA-8, and 17-JA-32

          MEMORANDUM DECISION

         Petitioner Mother M.M.-3, by counsel Melissa T. Roman, appeals the Circuit Court of Lewis County's October 2, 2018, order terminating her parental rights to R.M.-1, R.M.-2, W.M., S.M., C.M., M.M.-1, M.M.-2, E.M., and J.M.[1] The West Virginia Department of Health and Human Resources ("DHHR"), by counsel James Wegman, filed a response in support of the circuit court's order and a supplemental appendix. The guardian ad litem ("guardian"), Hunter D. Simmons, filed a response on behalf of the children in support of the circuit court's order. On appeal, petitioner argues that the circuit court erred in terminating her parental rights.

         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 February 7, 2017, the DHHR filed an abuse and neglect petition against petitioner and the children's father alleging that the father struck W.M., causing bruising and welts to the child's face, arms, and torso and alleged that petitioner failed to protect the child. The DHHR also alleged that the family had a history of unstable housing. After multiple continuances, the circuit court held an adjudicatory hearing in June of 2017 during which petitioner stipulated to the allegations of abuse and neglect. Following the adjudicatory hearing, the parents were provided with adult life skills services to assist them with budgeting concerns. They also received food vouchers, and received case management and adult life skills through another service provider to assist with paying bills and obtaining employment. In December of 2017, petitioner's ninth child, J.M. was born; however, petitioner failed to notify the DHHR of his birth. Petitioner later admitted that she lied to hospital staff by stating that she had custody of her other children. The DHHR subsequently filed an amended abuse and neglect petition regarding J.M., and petitioner later stipulated to abusing that child.

         During a hearing in March of 2018, petitioner testified that her bills and rent were "paid and caught up." However, in May of 2018, petitioner and the father were advised by correspondence from their landlords that, due to their failure to pay rent, they were required to vacate the residence by June 25, 2018. Also in May of 2018, petitioner was granted a three-month post-adjudicatory improvement period. The DHHR was ordered to continue to provide services to petitioner and create a plan to transition the children back to the parents. The circuit court ordered that the DHHR arrange sign language classes for the family.[2] During the May of 2018 review hearing, the circuit court found that the "case is being properly managed" by the DHHR and that the DHHR was "making reasonable efforts to achieve permanency for the minor children."

         In June of 2018, the circuit court held a review hearing during which evidence was presented that the parents were being evicted from their home due to their failure to pay rent. However, petitioner made representations during this hearing that arrangements were being made to prevent eviction. According to the DHHR, petitioner also advised the multidisciplinary treatment team ("MDT") that she had made arrangements to remain in the home. The transition plan was ordered to continue as previously ordered. Additionally, the circuit court ordered that the parents "report any changes in housing, first to their respective counsel and secondly to the [DHHR]." The circuit court found that the sign language classes arranged by the DHHR were appropriate and that the DHHR was not required to look for another course.

         In July of 2018, the DHHR discovered that petitioner was homeless and lied to the circuit court regarding her housing status. On July 6, 2018, the DHHR filed a motion to suspend the transition of the children to petitioner due to her homelessness. The father was living with his brother in a home that could not accommodate the nine children. The DHHR and the guardian also filed a motion to terminate petitioner's improvement period as well as her parental rights. According to this motion, the parents previously requested individualized therapy and family therapy. The DHHR scheduled the intake for June 22, 2018, and the parents attended. The parents "refused to make a second appointment for family therapy at the end of the first session" and stated that they would call to schedule the next session. However, according to the DHHR, as of July 12, 2018, the parents had not scheduled any other sessions. Subsequently, the circuit court heard evidence in July of 2018 regarding petitioner's eviction and granted the DHHR's motion to suspend the transition of the children to petitioner.

         The circuit court held multiple dispositional hearings in July and August of 2018. Despite the DHHR's allegations that petitioner failed to participate in the sign language classes that were provided in June and July of 2018, a service provider testified that she attended the second sign language class and observed petitioner participating in the class. Next, a therapist testified that she had concerns with the safety of some of the children when they were running in the parking lot immediately following a therapy session and that petitioner did not schedule a second therapy session for several weeks. The therapist also testified that she requested information about the family from the DHHR, but was never provided the information requested. Another therapist testified that she did not have safety concerns for the children, and the circuit court later found that there was no safety risk for the children after the therapy sessions.

         The parents testified that the father collected $750 per month in disability and that petitioner was employed and made $9.75 per hour. The DHHR presented evidence that the parents received a $4, 000 tax refund but failed to use that money to pay their rent. The parents' landlords testified that the parents failed to pay their rent at least nine out of the seventeen months that the abuse and neglect proceedings were pending. According to the landlords, the parents owed at least $2, 000 in overdue rent. The circuit court subsequently found that based upon their dishonesty regarding their eviction, the DHHR was unaware that the parents needed assistance with their rent. The circuit court noted that the parents had "funds available that could have been used to pay their rent but failed to appropriately utilize that income" and that "it is unclear to this [c]ourt what [the parents] are spending their money on."

         The circuit court found that petitioner was untruthful with the MDT and the circuit court by telling them that she made arrangements to stay in her residence; that the parents were "repeatedly and intentionally dishonest with the [c]ourt and . . . provided false information to the [c]ourt and the MDT"; and that the parents were "repeatedly and intentionally dishonest with [service providers] and that said dishonesty . . . resulted in making therapy services ineffective." The circuit court further found that the parents failed to successfully complete their post-adjudicatory improvement periods and failed to maintain suitable housing for the nine children. The circuit court noted that the parents failed to take responsibility for the injuries to W.M., and that failure prevented them from "making actual improvement in the conditions that led to the filing of the abuse and neglect [p]etitions." Specifically, the circuit court found that it was "utterly astonished that seventeen months after this case began and over a year after . . . [the p]arents made admissions to the [c]ourt that . . . [the p]arents are being untruthful about how their child W.M. was injured." The circuit court noted that petitioner testified inconsistently at least four different times regarding the incident, claiming that it was an accident. The circuit court denied petitioner's motion for an extension of her post-adjudicatory improvement period. Furthermore, the circuit court found no reasonable likelihood that the parents could substantially correct the conditions of abuse and neglect in the near future and that the termination of their parental rights was in the children's best interests. Ultimately, the circuit court terminated petitioner's parental rights in its October 2, 2018, dispositional order.[3] 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.

         On appeal, petitioner argues that the circuit court erred in terminating her parental rights. In support, petitioner first argues that the DHHR "intentionally withheld services ordered by the court." She also asserts that the DHHR failed to timely schedule family therapy and sign language classes. However, these ...


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