Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

In re S.J.

Supreme Court of West Virginia

April 19, 2019

In re S.J., C.B., S.B., A.B., D.B.-1, and D.B.-2

          Ohio County 17-CJA-137-JPM, 17-CJA-138-JPM, 17-CJA-139-JPM, 17-CJA-140-JPM, 17-CJA-141-JPM, and 17-CJA-142-JPM

          MEMORANDUM DECISION

         Petitioner Mother D.B.-3, by counsel Michael B. Baum, appeals the Circuit Court of Ohio County's October 5, 2018, order terminating her parental rights to S.J., C.B., S.B., A.B., D.B.-1, and D.B.-2.[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"), Joseph J. Moses, 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 instead of imposing a less-restrictive dispositional alternative.

         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 December of 2017, the DHHR filed an abuse and neglect petition that alleged the parents routinely left the children in the care of others and, during those times, neglected the children by failing to provide them "with the necessary food, clothing, shelter, supervision, medical care or education." The DHHR also alleged that the parents "lack parenting skills, parenting knowledge and motivation" as evidenced by the fact that "they will not, cannot, and/or do not provide proper physical care, protection, supervision and psychological support appropriate to their children's ages and stages of development." The petition further alleged that both parents had extensive criminal histories; petitioner was only recently released from incarceration prior to the proceedings and the father was incarcerated at the time the petition was filed. Because of their repeated incarcerations, the DHHR alleged that the parents abandoned the children. Moreover, the petition included an allegation that at least one child was sexually abused while living with a relative, in addition to the fact that petitioner allowed the abuser around the children after she was made aware of the allegations.

         In February of 2018, the circuit court held an adjudicatory hearing during which petitioner stipulated to several allegations in the petition, including that she neglected the children due to her "extensive criminal history, resulting in incarcerations" and that she "exposed her children to inappropriate people." The circuit court accepted petitioner's stipulation and adjudicated the children as abused and neglected.

         Thereafter, the circuit court granted petitioner an improvement period. However, in May of 2018 the DHHR moved to terminate petitioner's improvement period because of some positive drug screens and her failure to fully submit to the drug screening process. Additionally, the DHHR alleged that the father committed domestic violence against petitioner, who initially provided a written statement implicating the father but later recanted that statement before admitting that she lied in her recantation. The DHHR alleged that the parents continued to have contact in violation of the father's bond restriction. Ultimately, the circuit court denied the motion in regard to petitioner. However, roughly ten days after the hearing on the DHHR's motion, petitioner was arrested for possession of drugs, including Xanax and cocaine. She additionally tested positive for benzodiazepines and cocaine upon her arrest. As a result, petitioner's probation from a prior conviction was revoked.

         In September of 2018, the circuit court held a dispositional hearing. Petitioner was incarcerated at the time and appeared by telephone. She was additionally represented by counsel. During the hearing, petitioner advocated for disposition under West Virginia Code § 49-4-604(b)(5).[2] The circuit court, however, found that petitioner "habitually abused drugs to the extent that proper parenting skills have been seriously impaired" and that she had "not adequately responded to a reasonable family case plan or other rehabilitative effort[s] designed to reduce or prevent [her] abuse and/or neglect of the children." The circuit court further found that termination of petitioner's parental rights was necessary for the children's welfare. Accordingly, the circuit court terminated petitioner's parental rights to the children. It is from the dispositional order that petitioner appeals.[3]

         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, the Court finds no error in the proceedings below.

         On appeal, petitioner argues that the circuit court erred in terminating her parental rights upon erroneous findings and without imposing a less-restrictive dispositional alternative. Specifically, petitioner argues that the evidence did not support findings that there was no reasonable likelihood the conditions that led to the petition's filing could be substantially corrected in the near future; that she did not adequately respond to a reasonable family case plan or other rehabilitative efforts to reduce or prevent the conditions of abuse or neglect; that termination of her parental rights was in the children's best interest; and that disposition under West Virginia Code § 49-4-604(b)(5) was not supported by the evidence. We do not agree.

         While petitioner argues that she "made substantial improvements to her life and her ability to parent her children," the record does not support this assertion. It is true that petitioner was permitted an extension of her post-adjudicatory improvement period, but she fails to acknowledge that this extension was not predicated on her alleged "substantial improvements," but, rather, upon the circuit court's finding that her "compliance has not been perfect, but there has been some compliance" during the improvement period. While the circuit court acknowledged some of petitioner's compliance, such as obtaining employment and housing and participating in parenting and adult life skills and visitation, the circuit court also recognized that petitioner continued to screen positive for drugs. Based on the evidence presented at the hearing on the motion to revoke her improvement period, the circuit court found that petitioner's compliance did "not mean that she . . . successfully completed her improvement period; just that it [would] not be revoked" at the time of the hearing. Unfortunately, when the circuit court granted petitioner an extension of her improvement period, she was arrested for possession of cocaine and Xanax approximately ten days later and tested positive for cocaine and benzodiazepines upon her arrest.

         On appeal, petitioner refers to this incident as a "backslide" and argues that it did not "nullify the positive steps she made in her improvement period." We do not agree, and note instead that this evidence supports the circuit court's finding that there was no reasonable likelihood the conditions of abuse and neglect could be substantially corrected in the near future. Pursuant to West Virginia Code § 49-4-604(c)(1), 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 . . . [has] habitually abused or [is] addicted to alcohol, controlled substances or drugs, to the extent that proper parenting skills have been seriously impaired and the person . . . [has] not responded to or followed through the recommended and appropriate treatment ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.