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In re C.C.

Supreme Court of Appeals of West Virginia

November 19, 2019

In re C.C. and M.C.

          Mingo County 18-JA-73 and 18-JA-74


         Petitioner Mother J.S.[1] appeals the Circuit Court of Mingo County's February 28, 2019 order terminating her parental rights to her children C.C. and M.C.[2] Both the West Virginia Department of Health and Human Resources (DHHR)[3] and the guardian ad litem (guardian)[4] filed responses in support of the circuit court's order. On appeal, Petitioner argues that the circuit court erred in absolving DHHR of its duty to make reasonable efforts to reunify the family and in terminating her parental rights.

         Upon consideration of the standard of review, the briefs, the record presented, and oral argument, the Court finds no substantial question of law and no prejudicial error. For these reasons, a memorandum decision affirming the order of the circuit court is appropriate under Rule 21 of the West Virginia Rules of Appellate Procedure.

         I. Factual and Procedural Background

         Due to their uninhabitable home, Petitioner and her children's father were the subject of an abuse and neglect petition six months prior to the circumstances that gave rise to the petition we consider in this case. DHHR provided them with services, and they corrected the issues, in part by moving into a new trailer. As a result Petitioner and the children's father regained custody of C.C. and M.C., and the abuse and neglect case was dismissed in February 2018.

         Only six months later, DHHR received a referral alleging that Petitioner's family home was again unfit for C.C. and M.C. The August 2018 referral detailed trash piled up in the yard and in the house, laundry piled up on the floors and throughout the hallway, and a roach infestation in the trailer. The referral also alleged that the trailer was being powered by a generator. When CPS workers arrived at the home, they observed roaches and bed bugs in the carpet and crawling along the door facing. Inside the home, they further observed bugs on the walls, ceilings, counters, in the children's rooms, on dishes and on the floor. The counters were covered with dirty dishes and rotted food, and there were roaches in the refrigerator. Dirty laundry covered the trailer, and CPS workers described the smell of the home as "overwhelming." As CPS workers conducted a review of the home and took photos of the conditions, C.C. and M.C. were attempting to clean the kitchen and tried to make excuses for the condition of the home. Upon exiting the home, CPS workers had to remove the bugs from their clothing and remove fleas from their arms and legs.

         During their visit, CPS workers told Petitioner and the children's father that the home was in bad shape and that they needed to clean it up and do something about the bug infestation. The children's father reportedly yelled at workers to "take the God damn kids." Petitioner reportedly stated to the CPS workers that she was tired of having to deal with CPS and that "if [they] remove [her] kids, it's never going to get any better, I won't have them to clean."

         DHHR petitioned the circuit court for immediate custody of the minor children alleging that they were in imminent danger, and removed the children from the home. DHHR's petition reiterated the CPS workers' observations of the home and their interactions with Petitioner and the children's father. The circuit court held a preliminary hearing, during which one of the CPS workers testified to his observations of the home - that the floor almost looked like it was moving there were so many bugs, and that he had never seen so many bugs in a home. Photographs of the home were admitted into evidence.

         The CPS worker testified at the preliminary hearing that the family had, immediately prior to this incident, received services to remedy identical conditions. And, the worker stated that the parties obviously had not benefitted from those services in light of the deplorable condition of the home, which they had moved into recently, near the conclusion of the last abuse and neglect case. The CPS worker testified that DHHR could not provide any additional services since all available services had already been provided, particularly because DHHR had been required to go "above and beyond" for this family at substantial cost due to the children's father's significant medical issues. For those reasons, DHHR asked the circuit court not to require it to provide services that were previously offered. Neither Petitioner nor the children's father presented any witnesses at the hearing.

         The circuit court found clear and convincing evidence that there was probable cause for the abuse and neglect petition and for the children to have been immediately removed from the home. The circuit court further granted DHHR's request not to provide additional services. No objection was made by either Petitioner or the children's father. The adjudicatory hearing was continued due to the hospitalization of the children's father, who died prior to the rescheduled adjudicatory hearing. At the adjudicatory hearing, DHHR asked the circuit court to take judicial notice of the evidence presented at the preliminary hearing, and rested its case. Petitioner did not offer any testimony, and the circuit court adjudicated her as an abusive and neglectful parent. Petitioner, alleging that her circumstances had changed since the death of the children's father, asked for services and an improvement period, which were denied.

         At the dispositional hearing, the guardian made the circuit court aware that one of the children had some significant mental health issues. The guardian stated that he thought some limited contact with Petitioner would be helpful for the child because she was very worried about her mother, and that while the CPS case worker had reached out to Petitioner several times to facilitate some form of contact, Petitioner was unresponsive. The guardian represented that the child was in a very fragile mental state, seeing demons and having hallucinations, and asked that Petitioner write a letter to her daughter. Petitioner represented to the court that her home was, at that time, in appropriate condition and available for anybody to come look at it.[5] The circuit court directed DHHR to consider that, but noted "sometimes it's too little, too late." The dispositional hearing was continued because a case plan was not filed.

         At the continued dispositional hearing, DHHR asked the court to take judicial notice of all prior testimony, findings of fact and conclusions of law, and presented the case worker, Ms. Daniels, as a witness. Ms. Daniels testified that her case plan recommended termination of parental rights because Petitioner had very recently been involved in an abuse and neglect proceeding for the same issues and, as soon as that was resolved, she had fallen back into the same pattern. Ms. Daniels additionally testified that Petitioner had not contacted her to ask about her children or otherwise shown any initiative to have her children in her life - the only contact she had with Petitioner was when Petitioner contacted her to inform her that the children's father had passed away. In that same vein, Ms. Daniels testified that she had great difficulty contacting Petitioner to facilitate the children attending their father's funeral, and that Petitioner had not responded to requests to write a letter to her child. Ms. Daniels admitted that she had not done a home study, and did not know if the conditions alleged at the time of the petition were still in effect. The guardian agreed that termination of parental rights was appropriate and in the best interests of the children.

         Petitioner testified that the prior abuse and neglect proceeding was closed, but that she was still receiving parenting services so DHHR would pay for a porch and wheelchair ramp for the children's father, which had never occurred. Petitioner testified that parenting service providers had been in her home the month the children were removed and never raised any issues with the condition of her home.

         Petitioner disagreed with "most" of the CPS worker's testimony regarding the condition of her home, agreeing only that there was laundry in front of the washer that she was getting ready to wash and that the girls' rooms were messy, but were the children's responsibility to clean. She testified that "everything was clean" other than the baskets of laundry, which she had fallen behind on because she was taking care of the children's father. She stated that she had taken care of the things that were "a little messy," taken steps to paint the ceiling, and admitted that she had "a few roaches" but explained she was having Orkin address it. Petitioner further testified that the photographs made her home look worse than it was and no one had ever returned to the home to assess it after the children were removed. She testified that at the time the CPS worker arrived at her home, she told him she could have it fixed in an hour, and had everything cleaned up before he even returned to remove the children. She stated that the CPS worker was lying when he testified that she said the home would never be clean if she didn't have her children to help clean it. She also testified that the CPS worker had staged photographs to make it look worse than it was, and "bare faced lied when he said that [she] had bed bugs and everything else . . .".

         When asked about her lack of contact with the case worker to check on her children, Petitioner admitted that she had never attempted to contact DHHR or the specific case worker because she didn't know who to speak to. But, she also testified that she knew Ms. Daniels was her case worker as of October and hadn't attempted to contact her in the following months. And, relating to her failure to write a letter to her daughter, Petitioner testified that she didn't know what to put in the letter.

         The circuit court found that Petitioner was unwilling and unable to provide adequately for the needs of her children and that there was no likelihood that those conditions could be corrected. The circuit court based its findings on the recent case against Petitioner for the same allegations, her insistence that her home was clean or could be cleaned in an hour, and her total lack of effort to participate, evidenced, in part, by her failure write her daughter a letter and her apparent apathy about the psychological state of her daughter. As a result, Petitioner's parental rights were ...

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