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In re K.H.-1

Supreme Court of Appeals of West Virginia

November 8, 2019

In re K.H.-1, A.T.- V. K.H.-2, and G.S.

          Wood County No. 17-JA-261, 17-JA-262, 17-JA-263, 17-JA-264

          MEMORANDUM DECISION

         Petitioner Mother A.T., by counsel Eric K. Powell, appeals the Circuit Court of Wood County's February 22, 2019, order terminating her parental rights to K.H.-1, A.T.-V., K.H.-2, and G.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"), Debra L. Steed, filed a response on behalf of the children in support of the circuit court's order. Petitioner filed a reply. On appeal, petitioner argues that the circuit court erred in granting her post-termination visitation at the discretion of the children's great-grandmother.[2]

         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 August 14, 2017, the circuit court dismissed an abuse and neglect petition against petitioner after she successfully remedied the conditions of neglect due to her substance abuse. The circuit court's dismissal order provided that the DHHR would continue to monitor petitioner's home and provide services. In September of 2017, while visiting petitioner's home, a Child Protective Services worker observed petitioner to be under the influence of drugs. Petitioner admitted that she used heroin and methamphetamine "a day or so before." The children's great- grandmother, with whom the children were placed during the prior proceeding, reported that she also suspected that petitioner was using drugs and took the youngest child to her home. The older children refused to come with her. However, all the children were subsequently placed with the great-grandmother under a temporary protection plan.

         On September 27, 2017, the DHHR filed the instant abuse and neglect petition alleging that petitioner neglected the children based upon her substance abuse. Petitioner waived her preliminary hearing, and the children continued in the care of the great-grandmother. On November 30, 2017, the circuit court held an adjudicatory hearing. The great-grandmother testified that, because she observed petitioner abuse drugs for nearly ten years, she knew what petitioner looked like and how she acted when she was under the influence of drugs and when she was not. Upon petitioner's admission to neglecting her children as a result of her continued substance abuse, the circuit court found that petitioner "engaged in substance abuse to the extent that her parenting was impaired" and adjudicated petitioner as an abusing parent.

         Over the next year, petitioner participated in a post-adjudicatory improvement period and a post-dispositional improvement period. On December 21, 2018, the circuit court held a review hearing which petitioner failed to attend, but was represented by counsel. The DHHR presented evidence that petitioner failed to consistently appear for drug screens. The circuit court found that petitioner failed to comply with the terms and conditions of her post-dispositional improvement period, terminated the improvement period, and set the case for a dispositional hearing.

         The circuit court held a final dispositional hearing on January 25, 2019. Following the presentation of testimony, counsel for petitioner requested that the court consider granting petitioner "post-termination visitation at the discretion of the custodian or caretaker of the children and allow her to come back at a later point in time to show the [circuit c]ourt that she can be a fit mom." The guardian then recommended termination of petitioner's parental rights in order to establish permanency for the children. The great-grandmother indicated to the guardian that "she wants to adopt the children and the children have indicated, the older ones, that they want to be adopted so they know they are always going to stay there. At this point they want some firm placement." The circuit court considered less-restrictive dispositional alternatives, but ultimately decided that termination was necessary. In its dispositional order, the court noted that petitioner failed to adequately address her substance abuse issues and drank alcohol, which she admitted that she should not do because of her substance addiction. Further, the circuit court found that the termination of petitioner's parental rights was in the children's best interests and ordered that post-termination visitation be left to the discretion of the great-grandmother. The circuit court terminated petitioner's parental rights in its February 22, 2019, order.[3] 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 the proceedings below.

         In her sole assignment of error, petitioner argues that the circuit court erred in "vesting in the [great-grandmother] of the children the right to determine whether petitioner will be allowed to have visits with her children." In support of her argument, petitioner contends that her constitutional rights were violated when the circuit court granted her post-termination visitation at the great-grandmother's discretion. What petitioner fails to recognize, however, is that

[a] final order terminating a person's parental rights, as the result of either an involuntary termination or a voluntary relinquishment of parental rights, completely severs the parent-child relationship, and, as a consequence of such order of termination, the law no longer recognizes such person as a "parent" with regard to the child(ren) involved in the particular termination proceeding.

Syl. Pt. 4, In re Cesar L., 221 W.Va. 249, 654 S.E.2d 373 (2007).

         Because petitioner's parental rights were terminated, she no longer has any right, constitutional or otherwise, to parent her children. Accordingly, any argument that the great-grandmother may, in the future, violate petitioner's ...


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