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In re A.N.

Supreme Court of West Virginia

June 5, 2019

In re A.N., D.N., S.N., and B.N.

          Monongalia County 15-JA-86, 15-JA-87, 15-JA-88, and 15-JA-89

          MEMORANDUM DECISION

         Petitioner Mother J.N., by counsel Cheryl L. Warner, appeals the Circuit Court of Monongalia County's May 9, 2018, order terminating her parental rights to A.N., D.N., S.N., and B.N.[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"), Ashley V. Williams Hunt, 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 failing to make specific findings in the adjudicatory and dispositional orders, adjudicating her as an abusing parent with regard to A.N. and D.N., 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.

         In March of 2015, the DHHR opened a case with petitioner due to poor home conditions and began providing services. In November of 2015, the DHHR filed a child abuse and neglect petition against petitioner after she was found passed out in the front seat of her car with her two youngest children, S.N. and B.N., in the backseat. Upon searching the car and petitioner, officers located hypodermic needles and marijuana.[2] Petitioner also failed a field sobriety test. The children were described as hungry and dirty. Petitioner was arrested and charged with child neglect, second offense driving under the influence, and driving on a suspended license for driving under the influence. S.N. and B.N. were removed from petitioner's care at that time; however, the two older children were permitted to remain in the care of their aunt and grandfather, with whom they had been residing for some time.

         The circuit court held an adjudicatory hearing in January of 2016. The circuit court heard the testimony of the arresting officer, a DHHR worker, and petitioner. However, because the blood test results taken pursuant to petitioner's arrest had not yet been received, the circuit court held its ruling in abeyance.

         Petitioner's blood test results were received in July of 2016 and were negative for alcohol, but were inconclusive for marijuana. By that time, petitioner had already been receiving services such as parenting classes, adult life skills classes, and supervised visitation for several months. In August of 2016, petitioner filed a motion requesting a formal preadjudicatory improvement period, which the circuit court granted. As part of the terms and conditions, petitioner was required to continue participating in parenting and adult life skills classes, attend multidisciplinary team ("MDT") meetings, submit to random drug screens, comply with the family case plan, and submit to a psychological evaluation and follow any of the resulting recommendations. At some time during the proceedings, petitioner's family members returned the two older children to her care with the DHHR's permission. However, at the end of her preadjudicatory improvement period, all parties agreed that petitioner was not ready to resume caring for the younger children and they were continued in their foster care placement.

         In December of 2016, the circuit court held a second adjudicatory hearing wherein it took judicial notice of the testimony presented at the January of 2016 hearing and allowed the parties another opportunity to present further evidence regarding adjudication. After hearing evidence, the circuit court found that petitioner had neglected her children and adjudicated her accordingly.[3]

         The circuit court held a dispositional hearing in January of 2017. Petitioner filed a motion requesting a post-adjudicatory improvement period. The DHHR and the guardian expressed some concerns regarding petitioner's progress as she had not paid several of her utility bills or gained employment. Further, the guardian expressed concern regarding the cleanliness of petitioner's home and reported possible issues with cat urine and feces. Ultimately, the circuit court granted petitioner's request for a post-adjudicatory improvement period and continued the proceedings.

         A review hearing was held in April of 2017. The DHHR expressed concerns over petitioner's ability to address issues proactively. Specifically, the DHHR stated that petitioner complied with any direction given by the DHHR but did not demonstrate the ability to properly parent the children without significant prompting. As an example, the DHHR noted that A.N. developed pinworms and petitioner did not address the issue until prompted by the MDT. The guardian again raised concerns with conditions of the home, including filthy conditions and cat urine.

         A second review hearing was held in June of 2017. Petitioner requested a three-month extension to her post-adjudicatory improvement period. The DHHR did not oppose the motion, but requested additional services for petitioner so that she could better learn how to supervise the four children together. Specifically, the DHHR noted that petitioner had trouble with D.N., who exhibited difficult behaviors and excessive aggression towards the younger children during their supervised visits. The circuit court granted the motion and continued the proceedings to October of 2017, when petitioner was further granted a post-dispositional improvement period.

         In February of 2018, the circuit court held a dispositional hearing. The DHHR requested permission to amend the petition with regard to A.N. and D.N., which the circuit court granted. The amended petition was filed later that month, and the DHHR alleged that petitioner abused and neglected A.N. and D.N. by failing to provide adequate supervision, sanitary living conditions, and proper hygiene and clothing. Regarding proper supervision, the DHHR alleged that petitioner failed to properly supervise the children by spending large amounts of time locked in her bedroom or on the phone, leaving her without minutes for her cellphone and out of reach from school personnel who tried to reach her with emergency situations. As an example, the DHHR noted that petitioner failed to properly supervise D.N., who set fire to a pillow when petitioner was in her bedroom, stole several iPads from his school, and threatened to harm his teachers. Petitioner did not respond to school personnel's attempts to address the situation and did not proactively intervene during D.N.'s outbursts. Regarding the allegations of unsanitary home conditions, the DHHR alleged that the home was filled with garbage, extreme clutter, and cat urine. School personnel reported that D.N. often came to school dirty and smelling of cat urine. After the petition's filing, A.N. and D.N. were removed from petitioner's care and placed in a foster home.

         The circuit court held an adjudicatory hearing on the amended petition in April of 2018. The DHHR presented the testimony of two witnesses, both of whom opined that petitioner had not made meaningful progress despite the provision of significant services. A service provider testified that petitioner did not make progress in the one and a half years she had been providing services. Petitioner was argumentative and resistant to suggestions, failed to obtain employment, and remained dependent on her family to pay her bills. Also, petitioner had not timely addressed the issues of cat urine in her home. A visitation supervisor testified regarding the conditions of the home and noted that petitioner did not adequately address the roaches, bed bugs, gnats, clutter, and garbage in the home. Further, when petitioner cared for all four children, she was unable to properly supervise all of them.

         Petitioner testified that she did not benefit from adult life skills classes and had no idea why she was not receiving any job offers. Petitioner also stated that school personnel had never attempted to contact her. Petitioner then presented the testimony of her therapist, who opined that petitioner was compliant with services. The therapist described petitioner's home as "less than pristine" and disorganized, but not filthy. The therapist had noticed the odor of cat urine but believed it had lessened since petitioner had the cats neutered and removed a sofa from her home. She further reported only seeing one bug on one occasion.

         The guardian presented the testimony of D.N.'s special education teacher, who stated that she had trouble reaching petitioner to talk about D.N.'s behavioral issues. The teacher stated that the child had issues with hygiene and appeared disheveled, wore ill-fitting clothes, and smelled of cat urine. When the teacher was able to contact petitioner, their interactions were negative. The teacher also noted that petitioner ceased giving D.N. his medication, without medical authorization, and subsequently failed to notify the school of this change, which resulted in school personnel medicating him differently. After hearing evidence, the circuit court took judicial notice of the testimony presented during prior hearings and found sufficient evidence to adjudicate petitioner as an abusing parent in regard to all the children.

         Later in April of 2018, the circuit court held a dispositional hearing wherein it took judicial notice of all prior testimony presented. A DHHR worker testified that the younger children had been in foster care since they were removed from petitioner's care in November of 2015. Petitioner continuously received services since that time, including parenting and adult life skills classes, assistance with transportation, supervised visits, and therapy. Indeed, petitioner participated in adult life skills classes on two separate occasions, one of which was solely focused on assisting petitioner find a job. Nevertheless, petitioner continued to lack insight, refused to acknowledge her responsibility in the abuse and neglect, and made excuses for her situation. Petitioner testified that she remedied the issues with her cats, cleaned her home, and obtained employment the week before the dispositional hearing. However, petitioner testified that she did not abuse or neglect her two older children and learned nothing from either her adult life skills or parenting classes.

         After hearing evidence, the circuit court found that there was clear and convincing evidence that termination of petitioner's parental rights was in the children's best interests as petitioner had not corrected the conditions of abuse or neglect, nor had she demonstrated that she would be able to correct them in the near future. The circuit court noted that its decision was "not based on any one thing" but was based on petitioner's overall performance in the case. Specifically, petitioner failed to proactively address issues in her home without substantial prompting by either the guardian or service providers. According to the circuit court, petitioner's inaction demonstrated that she was incapable or unwilling to parent the children. Despite having participated in services for three years, petitioner did not demonstrate the ability to correct the issues which led to the petition's filing and the circuit court found "no likelihood that they would be resolved." Regarding petitioner's employment, the circuit court noted that her ability to maintain a job for one week did not demonstrate that she was willing to "do what she needs to do" if the children were placed in her care and the case closed. The ...


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