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In re B.F.

Supreme Court of Appeals of West Virginia

November 8, 2019

In re B.F., M.H., and B.R.

          (Wood County 17-JA-242, 17-JA-243, and 17-JA-244)

          MEMORANDUM DECISION

         Petitioner Mother K.R., by counsel Jeffrey B. Reed, appeals the Circuit Court of Wood County's March 8, 2019, order terminating her parental rights to B.F., M.H., and B.R.[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"), Jessica E. Myers, 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 failed to make sufficient findings of fact in its dispositional order, erred in terminating her parental rights, and erred in denying her request for post-termination visitation.

         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 September 6, 2017, the DHHR filed an abuse and neglect petition against petitioner alleging that, immediately following the birth of B.F., petitioner tested positive for methamphetamine, amphetamine, THC, and cocaine. The child tested positive for methamphetamine, amphetamine, THC, and Suboxone after he was born. Petitioner later admitted that she snorted heroin in her hospital room right before delivering B.F.

         On December 5, 2017, the circuit court held an adjudicatory hearing. Based upon her stipulation to the allegations in the petition, petitioner was adjudicated as an abusing parent. The circuit court granted her a post-adjudicatory improvement period. On February 8, 2018, petitioner was arrested and incarcerated upon a charge of possession with intent to deliver a controlled substance. On February 20, 2018, the circuit court held a review hearing during which it found that petitioner failed to comply with her post-adjudicatory improvement period prior to her incarceration. Due to petitioner's lack of participation, the circuit court scheduled a dispositional hearing.

         On April 17, 2018, the circuit court held a dispositional hearing and granted petitioner a post-dispositional improvement period. Petitioner subsequently admitted herself to an in-patient substance abuse treatment program. On September 18, 2018, the circuit court held a review hearing regarding petitioner's post-dispositional improvement period. The DHHR presented evidence that petitioner was not complying with services and failed to complete the treatment program. The DHHR moved to terminate petitioner's improvement period, and the circuit court scheduled the case for a dispositional hearing. On November 5, 2018, the circuit court held a dispositional hearing, which was continued.

         On December 7, 2018, the circuit court resumed the dispositional hearing and was informed that petitioner had been complying with some of the terms and conditions of her improvement period. The court granted petitioner's motion to extend her post-dispositional improvement period. In February of 2019, petitioner again entered an in-patient substance abuse treatment program. She was subsequently caught with alcohol in the facility. The facility allowed her to continue treatment, but suggested that petitioner needed a more structured treatment facility.

         On March 5, 2019, the circuit court held a final dispositional hearing in the matter. The DHHR presented evidence that petitioner began multiple substance abuse treatment programs during the course of the proceedings, but failed to complete any of them. Additionally, petitioner failed to fully participate in parenting and adult life skills classes and was released by the provider due to her noncompliance. Petitioner also failed to participate in drug screens and tested positive for illegal substances on multiple occasions. The DHHR and guardian moved to terminate petitioner's parental rights and deny her request for post-termination visitation due to her continued substance abuse issues. The circuit court took judicial notice of the case file and adopted the position of the DHHR and the guardian. The court noted on the record that petitioner failed to make any substantial improvements during the proceedings, which had been ongoing for approximately nineteen months. Based upon the evidence presented, the circuit court found that there was no reasonable likelihood that petitioner could substantially correct the conditions of abuse and neglect in the near future and that the termination of her parental rights was in the children's best interests. Ultimately, the circuit court terminated petitioner's parental rights and denied her request for post-termination visitation in its March 8, 2019, order. Petitioner now appeals that order.[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). Upon our review, this Court finds no error in the proceedings below.

         First, petitioner argues that the circuit court's dispositional order "does not contain sufficient findings of fact and conclusions of law for proper appellate review." In support, petitioner contends that the court failed to comply with Rule 36 of the Rules of Procedure for Child Abuse and Neglect Proceedings which provides, in part, that "[a]t the conclusion of the disposition hearing, the court shall make findings of fact and conclusions of law, in writing or on the record, as to the appropriate disposition in accordance with the provisions of W.Va. Code § 49-4-604."[3] Petitioner asserts that the statements in the dispositional order were conclusions, not findings of fact. We disagree and find that the order in question meets the applicable requirements for review on appeal.

         The record shows that the circuit court made sufficient findings on the record to support its written findings in the dispositional order. The court adopted the position of the DHHR and the guardian and specifically found that petitioner failed to make any measurable improvements during the proceedings, which lasted approximately nineteen months. In its dispositional order, the circuit court made the appropriate findings regarding termination of parental rights as required by West Virginia Code § 49-4-604. Therefore, the circuit court did not err, and petitioner is entitled to no relief.

         Next, petitioner argues that the circuit court erred in terminating her parental rights because the children had already achieved permanency with family members. We disagree. West Virginia Code § 49-4-604(b)(6) provides that a circuit court may terminate parental rights upon findings that "there is no reasonable likelihood that the conditions of neglect or abuse can be substantially corrected in the near future" and that termination is necessary for the welfare of the children. Further, West Virginia Code § 49-4-604(c)(3) ...


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