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In re B.P.

Supreme Court of Appeals of West Virginia

November 8, 2019

In re B.P., B.S.-1, and B.S.-2

          (Kanawha County 18-JA-172, 18-JA-173, 18-JA-174)

          MEMORANDUM DECISION

         Petitioner Mother T.S., by counsel Peggy L. Collins, appeals the Circuit Court of Kanawha County's March 26, 2019, and April 9, 2019, orders terminating her parental rights to B.P., B.S.-1, and B.S.-2 and denying her post-termination visitation, respectively.[1] The West Virginia Department of Health and Human Resources ("DHHR"), by counsel Brandolyn N. Felton-Ernest, filed a response in support of the circuit court's orders. The guardian ad litem ("guardian"), Sharon K. Childers, filed a response on behalf of the children also in support of the circuit court's orders and a supplemental appendix. On appeal, petitioner argues that the circuit court erred in denying her request for a post-dispositional improvement period, terminating her parental rights, and denying her post-termination visitation with the children.

         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 April of 2018, the DHHR filed a child abuse and neglect petition against petitioner. Specifically, the DHHR alleged that petitioner abused drugs, which affected her ability to parent the children. Referrals indicated that petitioner had been observed abusing drugs in the parking lot of a shopping center. Further, a video showed petitioner "shooting up" heroin with a syringe while the two youngest children were in the room with her. Needles and bleach were also in their reach. Upon speaking with a Child Protective Services ("CPS") worker, petitioner denied abusing drugs, but stated she could pass a drug screen "in a few days." The DHHR also alleged that petitioner neglected the children by failing to adequately feed them and by failing to change B.S.-1's diaper for so long that a fungal infection and a boil developed in her diaper area. Doctors had to lance the child's boil and treat her with antibiotics. Petitioner initially challenged the petition, but eventually waived her preliminary hearing.

         The circuit court held an adjudicatory hearing in May of 2018. Petitioner stipulated that she had a substance abuse problem that affected her ability to adequately parent her children. The circuit court accepted petitioner's stipulation, adjudicated her as an abusing parent, and granted her a post-adjudicatory improvement period. As part of the terms and conditions of the post-adjudicatory improvement period, petitioner was required to complete a drug treatment program, submit to random drug screens, participate in supervised visitation, and attend parenting and adult life skills classes.

         At a review hearing held in July of 2018, the circuit court was advised that petitioner checked herself out of her treatment program against medical advice. The guardian requested that the circuit court terminate petitioner's improvement period but, because petitioner planned to enter another treatment program, the circuit court denied the request and continued her improvement period. However, petitioner was prohibited from having contact with B.S.-2, who was twelve years old, due to issues the two were having during visitation. A second review hearing was held in September of 2018. As of that hearing, petitioner had not entered another treatment program and was having issues with supervised visitation, such as falling asleep during visits and not fully engaging with the children. Despite her lack of compliance, the circuit continued petitioner's improvement period. At a final review hearing held in November of 2018, the circuit court was advised that petitioner continued to be noncompliant with services and had recently tested positive for methamphetamine. While petitioner was permitted to continue with services, the circuit court scheduled the dispositional hearing.

         The circuit court held the dispositional hearing in January of 2019. The DHHR presented the testimony of a caseworker regarding petitioner's noncompliance with her improvement period. According to the caseworker, petitioner only sporadically submitted to drug screens and tested positive for methamphetamine in September of 2018. The caseworker testified that petitioner started multiple treatment programs, but failed to follow through with treatment and left the programs early. Further, the caseworker stated that petitioner failed to accept responsibility for her actions or meaningfully acknowledge her substance abuse. While the caseworker conceded that petitioner had been attentive to the children during supervised visitation, she noted that petitioner failed to implement any of the parenting skills taught to her through parenting classes. Petitioner appeared overly tired at visits and failed to check on the children if they were out of her sight. Petitioner also had to be reminded to stay off her cell phone during the visits.

         Petitioner testified that she completed a detoxification program around March or April of 2018, and then entered a twenty-eight-day treatment program, which she completed. Petitioner admitted that she entered another program after that, which she left prematurely. Petitioner then attempted to enter a program administered by Prestera, but ultimately entered a different six-week program, which she completed. Petitioner testified that she accepted responsibility for her actions and became "head strong" during the proceedings, refusing to screen. Petitioner also admitted that she did not have stable housing and had not had consistent contact with the DHHR. However, petitioner stated that she did not "believe that a whole lot of effort was put into my case" and that she did not "believe that [she] was given some opportunities that could have possibly been [provided to her by] another worker." Petitioner further explained that she did not "intentionally" abuse methamphetamine when she tested positive for the substance in September of 2018. Rather, petitioner claimed that she was "sabotaged" and that the substance must have been put in her food or drink. After hearing evidence, the circuit court continued the matter to facilitate phone contact between B.S.-2 and petitioner to determine whether continued contact would be in the child's best interest.

         At a hearing held in March of 2019, the circuit court heard evidence that petitioner had entered another twenty-eight-day treatment program and two sober-living facilities since the last hearing. Further, despite only having a few weeks to engage in phone calls with B.S.-2, petitioner missed a phone call with the child. Following the hearing, the circuit court entered an order terminating petitioner's parental rights based upon findings that there was no reasonable likelihood that petitioner could correct the conditions of abuse and neglect in the near future because she had not successfully responded to rehabilitative services or rectified the circumstances that led to the filing of the petition. The circuit court also determined that termination of petitioner's parental rights was in the children's best interest. In a subsequent order, the circuit court denied petitioner post-termination visitation with the children. It is from the March 26, 2019, and April 9, 2019, orders that petitioner appeals.[2]

         The Court has previously established the following standard of review in cases such as this:

"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).

         On appeal, petitioner argues that the circuit court erred in denying her motion for a post-dispositional improvement period. According to petitioner, she successfully completed several short-term rehabilitation programs, was compliant with her parenting and adult life skills classes, and "participated in what was essentially joint counseling with her oldest daughter." Petitioner avers that this demonstrated a substantial change of circumstances and that she was likely to participate in an improvement period. We disagree.

         The decision to grant or deny an improvement period rests in the sound discretion of the circuit court. See In re M.M., 236 W.Va. 108, 115, 778 S.E.2d 338, 345 (2015) ("West Virginia law allows the circuit court discretion in deciding whether to grant a parent an improvement period."); Syl. Pt. 6, in part, In re Katie S., 198 W.Va. 79, 479 S.E.2d 589 (1996) ("It is within the court's discretion to grant an improvement period within the applicable statutory requirements . . . ."). ...


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