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In re I.H.

Supreme Court of West Virginia

May 24, 2019

In re I.H., J.H., K.H., and A.S.

          Grant County 18-JA-1, 18-JA-2, 18-JA-3, and 18-JA-4

          MEMORANDUM DECISION

         Petitioner Mother K.T., by counsel Jeffrey N. Weatherholt, appeals the Circuit Court of Grant County's October 10, 2018, order terminating her parental rights to I.H., J.H., K.H., and A.S.[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"), Meredith H. Haines, 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 improvement period and in terminating her parental rights without making findings upon clear and convincing evidence, without imposing a less-restrictive alternative, and without making findings as to why other dispositional alternatives were not appropriate.

         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 January of 2018, the DHHR filed an abuse and neglect petition that alleged petitioner failed to provide the children with a stable home given that she would "frequently drop the children off with people for 'a few days' . . . and then leave the children there for weeks at [a] time." The petition further alleged that petitioner abused methamphetamine, was recently arrested, and that both J.H. and K.H. were born drug exposed. Additionally, the DHHR noted that then-three-year-old J.H. weighed thirty-five pounds in August of 2017, but weighed only twenty-five pounds at the time the petition was filed. Finally, the petition alleged that petitioner had recently been arrested and was incarcerated at the time of the petition's filing. Thereafter, petitioner waived her right to a preliminary hearing.

         At an adjudicatory hearing in March of 2018, petitioner stipulated to allegations in the petition and was granted a post-adjudicatory improvement period. Thereafter, the circuit court held two hearings to approve the case plan setting forth the terms and conditions of petitioner's improvement period, but petitioner did not appear for either hearing. Additionally, upon reports that petitioner was late for visits with the children and appeared to be under the influence of drugs or alcohol during some services, the circuit court suspended petitioner's visitation with the children.

         In June of 2018, the circuit court held another hearing to approve the case plan. Petitioner appeared and moved to reinstate her visitation, which the circuit court permitted. In regard to the case plan, petitioner was required to submit to random drug screens, obtain employment, maintain stable housing, refrain from illegal activity that could result in incarceration, participate in parenting and adult life skills classes, and complete domestic violence services. Based on the approval of petitioner's case plan, the circuit court ordered that petitioner's post-adjudicatory improvement period was to commence as of the date of the hearing.

         In September of 2018, both the DHHR and the guardian moved to schedule a dispositional hearing due to petitioner's noncompliance with the terms of her case plan. At the dispositional hearing in October of 2018 a DHHR employee testified that petitioner failed to comply with a single term of her case plan. Petitioner failed to consistently participate in drug screening, was discharged from parenting and adult life skills classes for nonparticipation, and again had visitation with the children suspended for failure to appear. According to further testimony, petitioner had not obtained employment or housing and was arrested in September of 2018. Petitioner moved for a post-dispositional improvement period, but the circuit court denied the request. Ultimately, the circuit court terminated petitioner's parental rights based on her noncompliance with the terms and conditions of the case plan. It is from the dispositional order that petitioner appeals.[2]

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.

         In her first assignment of error, petitioner alleges that the circuit court's dispositional order "fails to state any standard of proof" by which it made its findings of fact in reaching disposition. We note, however, that petitioner has cited to no authority that requires a circuit court to specifically identify the burden of proof applied to the proceedings. It is well established that the clear and convincing burden of proof is applicable to abuse and neglect proceedings and to disposition specifically. See State v. C.N.S., 173 W.Va. 651, 656, 319 S.E.2d 775, 780 (1984) (holding that, before a circuit court may sever a parent's rights, "[t]he State must produce clear and convincing evidence to support this finding"). Further, this Court has long held that

"[t]here is a presumption of regularity of court proceedings that remains until the contrary appears, and the burden is on the person who alleges such irregularity to show it affirmatively; and where an order of a court of record is merely silent upon any particular matter, it will be presumed, notwithstanding such silence, that such court performed its duty in every respect as required by law[.]" Syllabus, in part, State ex rel. Smith v. Boles, 150 W.Va. 1, 146 S.E.2d 585 (1965).

Syl. Pt. 2, State v. J.S., 233 W.Va. 198, 757 S.E.2d 622 (2014). Here, petitioner does not allege that the evidence was insufficient or that the circuit court incorrectly held the DHHR to a lower burden of proof. The entire argument is simply that the circuit court did not explicitly articulate the burden of proof in the order on appeal. Because petitioner has failed to affirmatively show that the circuit court applied an erroneous burden of proof, and because, as more fully set forth below, the termination of petitioner's parental rights was based upon substantial evidence sufficient to satisfy the clear and convincing burden, we find that petitioner is entitled to no relief in this regard.

         Next, petitioner argues that the circuit court erred in terminating her post-adjudicatory improvement period when she was substantially complying with the terms and conditions of her case plan. In support of this assignment of error, petitioner cites to certain evidence that she argues establishes she was substantially complying, such as the fact that her drug screens were negative, she was seeking employment, and she made improvement in parenting abilities due to her participation in services. Petitioner also relies heavily on evidence that the visits she exercised with the children went well and demonstrated the ...


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