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In re T.T.-1

Supreme Court of Appeals of West Virginia

November 8, 2019

In re T.T.-1 and W.C.

          Randolph County 17-JA-085 and 17-JA-092

          MEMORANDUM DECISION

         Petitioner Mother T.T.-2, by counsel J. Brent Easton, appeals the Circuit Court of Randolph County's March 8, 2019, order terminating her parental rights to T.T.-1 and W.C.[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, Heather M. Weese, filed a response on behalf of the children in support of the circuit court's order. On appeal, petitioner argues that the circuit court abused its discretion in finding that petitioner failed to successfully complete her post-adjudicatory improvement period, denying her motion for a post-dispositional 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.

         In October of 2017, the DHHR filed a child abuse and neglect petition alleging that petitioner's substance abuse negatively affected her ability to parent four-year-old T.T.-1. The DHHR alleged that petitioner abused buprenorphine without a valid prescription and that her boyfriend sold and abused methamphetamine in the home. The DHHR further alleged that petitioner was pregnant and was not receiving proper prenatal care. In November of 2017, the DHHR amended its petition following the birth of W.C. The DHHR alleged that petitioner and the child tested positive for Suboxone at the time of delivery and that petitioner could not provide a valid prescription for the same.

         In November of 2017, petitioner stipulated to adjudication, and the circuit court adjudicated the children as neglected children and petitioner as an abusing parent. Thereafter, petitioner was granted a post-adjudicatory improvement period. The terms of that improvement period required petitioner to participate in a psychological evaluation, individual counseling, a drug and alcohol assessment, parenting and adult life skills, supervised visitations, and random drug screening. Additionally, petitioner was required to maintain financial stability and a suitable home with no inappropriate individuals in the home.

         The circuit court held multiple review hearings regarding petitioner's improvement period from January of 2018 to May of 2018. As a result of evidence presented during these hearings, the circuit court found that petitioner was only partially compliant with her improvement period. However, the circuit court, hearing no objections, continued petitioner's improvement period. In May of 2018, petitioner's post-adjudicatory improvement period was extended for ninety-days. During this extension, the circuit court held two review hearings, and the DHHR reported that petitioner was not fully complying with services. In October of 2018, the DHHR asserted that petitioner's improvement period expired and was unsuccessful. Petitioner requested a second extension of her improvement period. The circuit court scheduled an evidentiary hearing regarding the success of petitioner's improvement period.

         In January of 2019, the circuit court held a hearing and heard evidence that petitioner did not fully participate in her improvement period. Testimony established that petitioner participated in 113 random drug screenings and was positive for controlled substances, other than her prescribed buprenorphine, on four occasions. The most recent positive drug screen was in October of 2018, after the DHHR had provided petitioner with services for eleven months. Further testimony showed that petitioner missed four individualized parenting classes, but was otherwise generally compliant with the provider. In regard to supervised visitation, petitioner attended only half of the scheduled visits. Petitioner admitted that four months was her longest period of sobriety during the proceedings and acknowledged that she failed to participate in random drug screening since early December of 2018. Ultimately, the circuit court found that petitioner was not successful in her post-adjudicatory improvement period due to her partial compliance with services; however, the circuit court directed that the DHHR continue to provide petitioner services until the dispositional hearing.

         The circuit court held the final dispositional hearing in February of 2019. According to the testimony presented, a multidisciplinary team ("MDT") meeting was held in early February. During the MDT meeting, the parties expressed concern regarding petitioner's recent lack of consistent drug screening, and, in response, petitioner agreed to submit to a drug screen every day until the final dispositional hearing. However, at the dispositional hearing, petitioner testified that she did not submit to any further drug screening following the MDT. The circuit court found that petitioner participated in only two drug screens since the hearing in January of 2019. Ultimately, the circuit court found that petitioner did not demonstrate that she was likely to fully participate in an additional improvement period and further found that it was not in the children's best interests that she be granted an additional improvement period. Finally, the circuit court found that there was no reasonable likelihood that the conditions of abuse and neglect could be substantially corrected in the near future. Accordingly, the circuit court terminated petitioner's parental rights by its March 8, 2019, order. Petitioner now appeals that order.[2]

The Court has previously held:
"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, this Court finds no error in the proceedings below.

         On appeal, petitioner asserts that the circuit court abused its discretion in finding that she failed to successfully complete her post-adjudicatory improvement period. Petitioner argues that she tested negative for controlled substances 109 times, progressed in parenting and adult life skills classes, and had positive supervised visitations with the children. Further, petitioner states that she maintained stable housing and employment. Therefore, petitioner concludes that she largely participated in the terms of her improvement period and the circuit court ruling was contradictory to the evidence presented and an abuse of discretion. We disagree.

At the conclusion of the improvement period, the court shall review the performance of the parents in attempting to attain the goals of the improvement period and shall, in the court's discretion, determine whether the conditions of the improvement period have been satisfied and whether sufficient improvement has been made in the context of all the circumstances of the case to justify the return of the child.

Syl. Pt. 2, In re C.M., 235 W.Va. 16, 770 S.E.2d 516 (2015). Although petitioner is correct that she made progress in some terms of her improvement period, she failed to successfully address a significant condition of abuse and neglect, her substance abuse. Petitioner participated in a medically assisted substance abuse treatment throughout the proceedings, but admitted to relapsing four times during the year-long improvement period, despite this treatment. Petitioner's most recent positive drug screen result was in October of 2018, eleven months into her substance abuse treatment. In the face of her continuing issues with substance abuse, petitioner ceased participating in random drug screening prior to the circuit court's hearing to determine if the improvement period was successful, and, therefore, her potential continued ...


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