In re I.K. and E.K.
Fayette County 18-JA-3 and 18-JA-4
Mother S.W., by counsel Marc A. Moore, appeals the Circuit
Court of Fayette County's September 5, 2018, order
terminating her parental rights to I.K. and
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 and a
supplemental appendix. The guardian ad litem
("guardian"), Joseph M. Mosko, filed a response on
behalf of the children, also in support of the circuit
court's order, and a supplemental appendix. On appeal,
petitioner argues that the circuit court erred in terminating
her parental rights.
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.
DHHR filed a child abuse and neglect petition against
petitioner and the father in February of 2018, after
receiving referrals regarding drug abuse and domestic
violence in petitioner's home. During the resulting
investigation, Child Protective Services ("CPS")
workers attempted to reach petitioner at the home, but she
refused to open the door. The children were interviewed by
the local Child Advocacy Center, and then-four-year-old E.K.
disclosed that petitioner's boyfriend punched him in the
face and that petitioner "hits [her boyfriend] in the
face." Moreover, the child disclosed seeing drugs and
needles while at his aunt's house. Days later, when CPS
workers were eventually able to locate petitioner at the
home, she appeared "disconnected" and did not
understand the severity of the allegations. The DHHR
concluded that petitioner had a substance abuse problem that
impaired her ability to care for the children and exposed the
children to domestic violence. The DHHR alleged that
petitioner's parental rights to an older child were
terminated in 2010.
in February of 2018, the circuit court held a preliminary
hearing. Petitioner failed to attend, but was represented by
counsel. The circuit court found probable cause that the
children were neglected and/or abused and ordered that
petitioner have no visitation with the children.
circuit court held an adjudicatory hearing in April of 2018.
Petitioner failed to attend but was represented by counsel.
After considering the children's disclosures regarding
domestic violence in the home and petitioner's drug use,
the circuit court found that there was clear and convincing
evidence that petitioner had abused or neglected her children
and adjudicated her as an abusing parent. The circuit court
also ordered that petitioner address her issues with
substance abuse and domestic violence.
of 2017, the circuit court held a dispositional hearing.
Petitioner again failed to attend but was represented by
counsel, who proffered that petitioner had entered a drug
abuse treatment program. As such, the circuit court continued
the hearing. Subsequently, a multidisciplinary team
("MDT") meeting was held and the members were
advised that, although petitioner entered a treatment
program, she left the program against medical advice
approximately nine days later. The dispositional hearing was
reconvened in July of 2018. Counsel for petitioner moved the
circuit court to continue the hearing and proffered that
petitioner, who was absent, "sa[id] she will enter
rehabilitation." The circuit court granted the motion
"to see i[f] she enters the rehabilitation and remains
in rehabilitation" and continued the hearing.
circuit court reconvened the dispositional hearing for a
final time in August of 2018. Petitioner failed to attend but
was represented by counsel. At the close of the hearing, the
circuit court ultimately found that petitioner had abandoned
her children by failing to appear for the proceedings,
despite knowing that her parental rights were at stake.
Further, petitioner showed a complete lack of ability to
parent the children and failed to address her substance abuse
problem. As such, the circuit court determined that there was
no reasonable likelihood that petitioner could correct the
conditions of abuse and neglect in the near future and that
termination of her parental rights was in the children's
best interests. It is from the September 5, 2018,
dispositional order terminating her parental rights that
The Court has previously established the following standard
"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
Syl. Pt. 1, In re Cecil T., 228 W.Va. 89, 717 S.E.2d
appeal, petitioner argues that the circuit court erred in
terminating her parental rights, rather than "extending
her improvement period" in light of her stated intent to
enter into and complete a drug abuse treatment program.
According to petitioner, she completed the most difficult of
the drug abuse treatment program in her first nine days.
Further, she alleges that "[i]t is common for
individuals with substance abuse problems to need more than
one treatment to successfully overcome their condition"
and petitioner avers that, because she was not allowed the
opportunity to enroll a second time, her parental rights
should not have been terminated. We disagree.
first note that the circuit court could not have erred in
"failing" to extend petitioner's improvement
period as she was never granted one. Pursuant to West
Virginia Code § 49-4-610, a circuit court may grant an
improvement period when the parent "files a written
motion requesting the improvement period" and
"demonstrates, by clear and convincing evidence, that
the [parent] is likely to fully participate in the
improvement period." Here, the record shows that
petitioner failed to request an improvement period, in
writing or otherwise, and, therefore, was never granted one.
Indeed, she failed to attend or participate in any hearings
throughout the underlying proceedings. Based on this
evidence, we find that the circuit court did not err.
further find no error in the circuit court's decision to
terminate petitioner's parental rights. West Virginia
Code § 49-4-604(b)(6) provides that circuit courts are
to terminate parental rights upon findings that there is
"no reasonable likelihood that the conditions of neglect
or abuse can be substantially corrected in the near
future" and that termination is necessary for the
children's welfare. According to West Virginia Code
§ 49-4-604(c)(2), 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 . . . ha[s] willfully refused or [is]
presently unwilling to cooperate in the development of a
reasonable family case ...