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In re K.H.-1

Supreme Court of West Virginia

May 24, 2019

In re K.H.-1, K.H.-2, W.H., B.H., and A.H.-1

          Harrison County 17-JA-142-1, 17-JA-143-1, 17-JA-144-1, 17-JA-145-1, and 17-JA-146-1


         Petitioner Mother A.H.-2, by counsel Jason M. Glass, appeals the Circuit Court of Harrison County's November 16, 2018, order terminating her parental rights to K.H.-1, K.H.-2, W.H., B.H., and A.H.-1[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 and a supplemental appendix. The guardian ad litem ("guardian"), Dreama D. Sinkkanen, filed a response on behalf of the children, also in support of the circuit court's order. The guardian ad litem ("guardian") for petitioner, Allison S. McClure, filed a response on behalf of petitioner, also in support of the circuit court's order. On appeal, petitioner argues that the circuit court erred in denying her request for an improvement period and 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.

         The DHHR filed a child abuse and neglect petition against petitioner and the father in October of 2017 after conducting a lengthy investigation regarding conditions in the home. The DHHR alleged that the family lost their home and placed the children with relatives around August of 2017. Thereafter, petitioner failed to participate in the children's lives for several weeks. At the end of August of 2017, the DHHR received a referral that K.H.-2 called a family friend, crying and scared. K.H.-2 reported that petitioner was "acting crazy and that the police were coming to take everyone away." A Child Protective Services ("CPS") worker visited the home and spoke to the children. K.H.-1 and K.H.-2 reported that their father was violent, their parents did not provide food for them to eat, and their parents spent large amounts of time in a shed on their property. The children also reported that petitioner's behavior was scary and unpredictable and that she was using drugs. The worker made initial contact with the parents that day, but was unable to locate them throughout September and October of 2017. Further, in October of 2017, petitioner stole a vehicle, with A.H.-1 as a passenger, and was subsequently arrested for grand larceny. The DHHR concluded that petitioner had a history of domestic violence, failed to adequately supervise the children, subjected the children to unsafe conditions including drugs, and subjected the children to psychological and emotional abuse, among other things.

         Shortly after the preliminary hearing, the DHHR set up services for petitioner, including random drug screens, a forensic parenting evaluation, a drug and alcohol assessment, supervised visitation, individualized parenting and adult life skills classes, and therapy. Petitioner submitted to four drug screens and tested positive for several substances each time, including amphetamine, methamphetamine, buprenorphine, opiates, oxymorphone, and benzodiazepines. In January of 2018, petitioner also submitted to a psychological evaluation, which had to be continued due to the psychologist's concerns that petitioner was exhibiting substance-induced psychosis or paranoia. The psychologist recommended that petitioner be granted her own guardian, and the circuit court complied with that request.

         The circuit court held an adjudicatory hearing in February of 2018. Petitioner failed to attend but was represented by counsel, who moved the court to continue the hearing based upon petitioner's nonappearance. The circuit court denied the motion due to petitioner's failure to attend several appointments with service providers and continued to hear evidence on adjudication. After hearing evidence, the circuit court adjudicated petitioner as an abusing parent based upon her issues with substance abuse, domestic violence, and her general failure to provide for the children.

         In September of 2018, the circuit court held a dispositional hearing. The DHHR presented the testimony of several witnesses, including the evaluating psychologist, police officers, and a CPS worker. The police officers testified that petitioner had recently been arrested in August of 2018 after a traffic stop revealed petitioner in possession of a large amount of cash divided into increments, a pill fob containing controlled substances, a hollowed-out marker which contained two bags of a substance that field-tested positive for methamphetamine, and a drug ledger. Petitioner was arrested and interviewed, during which she claimed that she was working for a federal agency that would "give her drugs to test to make sure they were not killing people." Further, petitioner stated that she and her husband were using methamphetamine and were learning how to package and sell the substance.

         The evaluating psychologist testified that petitioner presented for two evaluations in January and May of 2018. At the first evaluation, the psychologist became concerned about petitioner's presentation and disorientation after she appeared intoxicated, unable to fill out the questionnaires, and unable to complete some testing instruments. Moreover, petitioner wandered through the office and began stacking and unstacking items and folding paperwork. The psychologist noted that the father reported that they engaged in daily methamphetamine use, although petitioner denied this report. At the rescheduled evaluation held in May of 2018, petitioner appeared sober but continued to demonstrate bizarre and paranoid behavior. Given her drug use, the psychologist was unable to ascertain whether petitioner's presentation was due solely to a substance-induced disorder or whether there was some underlying psychotic process in addition to her substance abuse. Either way, the psychologist opined that petitioner exhibited psychosis and a schizoaffective-type disorder and concluded that she lacked the ability to care for her children.

         The CPS worker testified that the DHHR was recommending termination of petitioner's parental rights given her severe substance abuse and failure to participate in any services designed to reduce or prevent the circumstances of abuse to the children. Petitioner only submitted to four drug screens and tested positive for a myriad of substances at each screen. Thereafter, she ceased submitting to drug screens, resulting in her inability to visit with the children. Further, petitioner only attended two individualized parenting and adult life skills classes, failed to attend her drug and alcohol assessment, and did not submit to treatment for her mental illness.

         Petitioner requested an improvement period and testified that she would comply with the terms and conditions of the same. However, despite evidence of her four positive drug screens, petitioner testified that she did not have a drug problem and "[did]n't exactly know what [methamphetamine] is." When asked whether her husband's prior testimony regarding her drug use was false, petitioner responded "no comment." Moreover, petitioner admitted that she had not attended several services, but blamed her husband's disorganization for her failure to participate. After hearing evidence, the circuit court denied petitioner's request for an improvement period and terminated her parental rights. In making its findings, the circuit court determined that there was no reasonable likelihood that petitioner could correct the conditions of abuse and neglect in the near future given her unaddressed mental health issues and drug addiction, and further concluded that the children's welfare required termination of petitioner's parental rights. It is from the November 16, 2018, 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).

         On appeal, petitioner first argues that the circuit court erred in denying her request for a post-adjudicatory improvement period. According to petitioner, she presented evidence regarding her willingness to participate in future services by testifying that she would complete drug screens, parenting classes, substance abuse treatment, and adult life skills classes. She avers that "because [she] showed a willingness to participate in services moving forward, she ...

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