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In re J.J.

Supreme Court of West Virginia

May 24, 2019

In re J.J. and A.F.

          Taylor County 18-JA-24 and 18-JA-25


         Petitioner Mother R.F., by counsel Jamella L. Lockwood, appeals the Circuit Court of Taylor County's November 28, 2018, order terminating her parental rights to J.J. and A.F.[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"), Mary S. Nelson, 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 denying her motions for an improvement period and terminating her parental rights instead of using 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.

         On February 21, 2018, the DHHR filed an abuse and neglect petition alleging that petitioner's substance abuse issues prohibited her from properly caring for the children. Further, the DHHR alleged that petitioner was arrested for driving under the influence of marijuana, abused substances in the children's presence, and failed to maintain a sanitary living environment for the children. According to the DHHR, the children were regularly sent to school dirty and unkempt and missed an excessive amount of school. Additionally, the DHHR alleged that the father neglected the children due to his substance abuse, was a sexual offender, and had mental health issues and an extensive criminal history.

         On April 19, 2018, the circuit court held an adjudicatory hearing during which the father stipulated to the allegations of abuse and neglect. He admitted that he struggled with alcohol and illegal substance addictions and spent money on drugs that should have been spent on the children. He also admitted that the children had excessive absences from school and that they went to school dirty. He explained that the school provided J.J. with two coats, but that the coats were lost, so J.J. was sent to school wrapped in a dirty comforter for warmth. He also admitted that there were domestic violence issues between him and petitioner and that he recently attempted to commit suicide by wrecking petitioner's car. He also testified that he and petitioner smoked marijuana frequently in the children's presence, including in the car while the children were with them.

         Next, petitioner admitted that there were times that the children went to school dirty and admitted that she was arrested for driving under the influence of marijuana. However, according to petitioner, she was pulled over for swerving on an icy road and did not smoke marijuana before driving. She further explained that, although she tested positive for marijuana at the time of her arrest, it was because she smoked marijuana the previous weekend. Petitioner testified that she smoked marijuana only three times in her life and denied ever smoking in the children's presence. The circuit court reminded petitioner that during forensic interviews the children disclosed that petitioner and the father went into their bedroom to smoke and "came out acting silly." However, petitioner continued to deny that she smoked marijuana and stated she did not know why the children would make those statements. When questioned about the children going to school dirty, petitioner denied responsibility and testified that they may have fallen and gotten dirty before school. Petitioner denied any form of abuse or neglect of the children and stated, "I do not feel in my heart that I have done any abuse."

         The DHHR then presented the testimony of the children's principal who testified that when the children were in the care of their parents, they came to school dirty every day and had an offensive odor about them. She explained that A.F. cleaned herself when she arrived at school and that J.J.'s teacher and school counselor would help him wash his face and comb his hair. They also washed his clothes. She further testified that the children's appearances and smell caused them to be ridiculed at school and adversely affected their emotional well-being. The principal also testified that the children had excessive absences from school. The majority of the absences were unexcused, and the children were also often tardy for class. Lastly, the principal testified that six-year-old J.J. often urinated and defecated in his pants at school. However, after the child was placed with his aunt, he did not have any more accidents. The DHHR next presented the testimony of the police officer who arrested petitioner for driving under the influence of marijuana on February 8, 2018. He testified that he initiated the stop because petitioner was driving in the wrong lane toward him. He explained that petitioner admitted to smoking marijuana earlier that day and observed that petitioner showed signs of impairment such as "slurred speech, glassy eyes, pinpoint pupils, and droopy eyes." The officer also testified that petitioner failed three field sobriety tests and that he found marijuana in the vehicle.

         Finally, the children's aunt testified that she had been caring for the children since their removal from the parents. She testified that she picked up the children after petitioner was arrested on February 8, 2018. She explained that she also saw petitioner that day, and that petitioner was "so impaired that she could not carry on a conversation." The children's aunt further explained that she had concerns about the filthy conditions of the family's home. She described the home as smelling "offensive . . . generally of soiling and defecation." She further explained that when the children came to live with her, it was clear that they did not bathe regularly and did not think that bathing was something they needed to do. The children's aunt also testified that A.F. reported that she was sexually abused by an older male child twice and told petitioner that the abuse occurred. However, petitioner told the child not to talk about the abuse.

         Following the presentation of testimony, the circuit court found that petitioner was "absolutely untruthful" and that she denied any abuse and neglect despite overwhelming evidence that she abused and neglected the children by abusing substances and failing to provide proper hygiene, among other things. The circuit court also found that petitioner failed to protect A.F. and provide her with proper care following her reported sexual abuse. The circuit court noted that it was disturbed by petitioner's lack of emotional reaction when testimony was offered concerning the sexual abuse of the child. The circuit court found that petitioner failed to acknowledge the conditions of abuse and neglect and denied petitioner's motion for a post-adjudicatory improvement period.

         On June 19, 2018, the circuit court held a dispositional hearing and addressed the DHHR's motion to terminate petitioner's parental rights as well as petitioner's motion for a post-dispositional improvement period. During the proceedings, the DHHR provided petitioner with parenting services and random drug screens, which petitioner complied with. However, the DHHR presented testimony that throughout the proceedings, and even at a multidisciplinary treatment team ("MDT") meeting one day before the dispositional hearing, she continued to deny that she abused or neglected the children. She was also argumentative and combative toward the foster parent during the MDT meeting. Nevertheless, petitioner testified at the dispositional hearing that she just realized that she did abuse and neglect the children and was "willing to do or work on whatever she needed to work on." However, on cross-examination, petitioner again testified that she only used marijuana three times in her life and denied that she was driving under the influence on the day she was arrested. Petitioner also testified that A.F. disclosed that a boy kissed her rather than sexually abused her and that she took the child for medical treatment after she was kissed, but did not keep a record of said medical treatment. Additionally, petitioner testified that the children were "always properly washed" and that the odor complained of may have been the firewood burned in the home and that she did her best to keep the children's clothes clean. When asked what she needed to do to improve the conditions of her home, petitioner replied that she needed to stop burning firewood and have a better yard for the children. Petitioner denied that the home was filthy or smelled of feces. Lastly, petitioner testified that all of the children's absences from school were medically necessary, that she and the father tried not to argue in front of the children, and that the father's mental health issues did not affect the children.

         At the conclusion of the dispositional hearing, the circuit court found that petitioner lacked insight into the issues of abuse and neglect and her continued denial of any issues rendered her incapable of complying with a post-dispositional improvement period or remedying the conditions of abuse and neglect. The circuit court further found no reasonable likelihood that petitioner could substantially correct the conditions of abuse and neglect in the near future and that the termination of petitioner's parental rights was in the children's best interests. Accordingly, the circuit court denied petitioner's motion for a post-dispositional improvement period and terminated petitioner's parental rights in its November 28, 2018, dispositional order.[2] It is from this order that petitioner appeals.

         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, this Court finds no error in ...

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