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 K.C.

Supreme Court of West Virginia

April 19, 2019

In re K.C. and A.C.

          Hampshire County 18-JA-7 and 18-JA-8

          MEMORANDUM DECISION

         Petitioner Mother G.C., by counsel David C. Fuellhart, III, appeals the Circuit Court of Hampshire County's September 9, 2018, order terminating her parental rights to K.C. and A.C.[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"), Joyce E. Stewart, 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 failing to transport her to the dispositional hearing, denying her motion for an improvement period, terminating her parental rights, and denying her post-termination visitation with the children.

         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.

         The DHHR filed an abuse and neglect petition that alleged police served a warrant at petitioner's home and observed "feces throughout the house." Despite the fact that petitioner was on probation for animal cruelty and prohibited from possessing animals, police found "rabbits being stored in a closet and chickens . . . being kept in a bath tub." According to a Child Protective Services ("CPS") worker, the home had "a strong odor of ammonia, animal feces, and animal urine" which caused the worker difficulty breathing. As a result, petitioner was charged criminally with being a person prohibited from possessing an animal and animal cruelty. Police also found the children home from school, both exhibiting signs of lice and one with a virus. In fact, the DHHR alleged that one child's hair was so matted that CPS was "unable to get a brush through it to treat the lice." The petition further alleged that petitioner had a history of child abuse and/or neglect, including a criminal conviction of child neglect creating risk of bodily injury and a prior removal of the children from the home. Specifically, a prior abuse and neglect proceeding involving petitioner and the children concerned the same issues present in this matter. In that prior case, law enforcement removed twenty-nine animals from the residence, which was subsequently condemned, and found the children "hiding in the attic in their underwear." Later that month, the DHHR filed an amended petition related to other adult respondents. Petitioner waived her right to a preliminary hearing.

         Beginning in March of 2018, the circuit court held a series of adjudicatory hearings. After the circuit court took extensive evidence in support of adjudication, petitioner ultimately entered a stipulation in June of 2018 whereby she admitted to a prior CPS history, including a prior finding of neglect; that she subjected the children to unsanitary conditions in the home; that she was a person prohibited from possessing animals, although she was in possession of animals at the time the petition was filed; that she was previously convicted criminally of child neglect creating risk of injury; that she had a prior criminal history, despite having denied any such history to CPS; and that she had a history of mental health issues. Moreover, the circuit court made findings related to the prior abuse and neglect proceeding involving petitioner that was based on the uninhabitable conditions of the home due to "a multitude of animals," the same conditions underlying the current proceedings. According to the circuit court, in the prior proceeding the children were reunited with petitioner in December of 2016, only to be removed a little over a year later upon the initiation of the current matter. As such, petitioner was adjudicated as having neglected the children herein.

         The circuit court held dispositional hearings in July of 2018 and August of 2018. Petitioner attended the first hearing but did not attend the second due to her incarceration.[2] She was represented by counsel throughout both hearings. According to the record, the circuit court heard evidence related to petitioner's incarceration for a period of one to five years "with an unknown release date." Petitioner also moved for a post-dispositional improvement period. Based upon the evidence, the circuit court found that petitioner "attempted to thwart any effort by the [DHHR] to assist her minor children" because, when the children were removed, she told them "that the [DHHR] was here to hurt you, not help you." In denying petitioner's motion for an improvement period, the circuit court found that it would be futile given the fact that she was "previously provided services . . . for nearly identical allegations." Ultimately, the circuit court terminated petitioner's parental rights to the children and denied her post-termination visitation. 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 review, the Court finds no error in the proceedings below.

         At the outset, we note that petitioner is entitled to no relief as to her assignment of error regarding the circuit court's failure to transport her to the dispositional hearing, or any other assignment of error in which she relies on the failure to transport for support. The record is clear that petitioner did not request to be transported to the hearing in question and, accordingly, she is not entitled to relief for the circuit court's failure to secure her presence. Petitioner is correct that this Court has set forth procedural protections for incarcerated parents by establishing several factors to be considered in determining whether to permit an incarcerated parent to attend a dispositional hearing. See syl. pt. 11, State ex rel. Jeanette H. v. Pancake, 207 W.Va. 154, 529 S.E.2d 865 (2000). However, petitioner fails to recognize that this Court has additionally held as follows:

In order to activate the procedural protections enunciated in Syllabus points 10 and 11 of State ex rel. Jeanette H. v. Pancake, 207 W.Va. 154, 529 S.E.2d 865 (2000), an incarcerated parent who is a respondent to an abuse and neglect proceeding must inform the circuit court in which such case is pending that he/she is incarcerated and request the court's permission to attend the hearing(s) scheduled therein. Once the circuit court has been so notified, by the respondent parent individually or by the respondent parent's counsel, the determination of whether to permit the incarcerated parent to attend such hearing(s) rests in the court's sound discretion.

Syl. Pt. 4, In re: Stephen Tyler R., 213 W.Va. 725, 584 S.E.2d 581 (2003) (emphasis added).

         Petitioner fails to provide any citation to the record that she informed the circuit court she was incarcerated and/or that she sought permission to attend the dispositional hearing. On appeal to this Court, petitioner asserts only that she "informed the lower court at the first [dispositional] hearing that she wished to testify at the second hearing." Indeed, the record indicates that petitioner expressed her desire to testify at the continued dispositional hearing. However, the record also shows that petitioner and her counsel informed the circuit court at the first dispositional hearing that petitioner would be released by the time the continued hearing was held. When the parties appeared for the continued hearing in August of 2018, petitioner's counsel informed the circuit court that instead of being released, petitioner had been sentenced and transferred to Lakin Correctional Center. The record is also clear that at the dispositional hearing in August of 2018, petitioner's counsel did not request a continuance or otherwise move to secure petitioner's presence at the hearing and did not object to the circuit court holding the dispositional hearing in her absence. As such, we find that the circuit court was not required to consider the factors outlined in Pancake given that petitioner did not inform the circuit court of her incarceration prior to the August of 2018 dispositional hearing or request permission to attend.

         Next, petitioner argues that it was error to deny her motion for an improvement period. In support, petitioner argues that she acknowledged the conditions of neglect by stipulating to adjudication and further testified that "she would place her children above all other concerns." Further, petitioner argues that her successful completion of an improvement period in her prior abuse and neglect proceeding clearly showed that she was likely to fully comply with an improvement period in this matter. Upon review, we find no error in the circuit court's denial of petitioner's motion. While petitioner argues that her prior compliance with services supports the granting of an additional improvement period, the circuit court found that granting petitioner a new improvement period would be futile, given the fact that she was "previously . . . provided services . . . for nearly identical allegations as set forth in the instant case." We agree with the circuit court's reasoning. While it is true that petitioner completed an improvement period and regained custody of ...


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.