In re A.D. and L.D. ( 2021 )

FILED
STATE OF WEST VIRGINIA
SUPREME COURT OF APPEALS April 20, 2021
EDYTHE NASH GAISER, CLERK
SUPREME COURT OF APPEALS
OF WEST VIRGINIA
In re A.D. and L.D.
No. 20-0727 (Grant County 18-JA-47 and 18-JA-48)
MEMORANDUM DECISION
Petitioner Mother K.D., by counsel Jeremy B. Cooper, appeals the Circuit Court of Grant
County’s August 21, 2020, order terminating her parental rights to A.D. and L.D. 1 The West
Virginia Department of Health and Human Resources (“DHHR”), by counsel Mindy M. Parsley,
filed a response in support of the circuit court’s order. The guardian ad litem, Meredith H.
Haines, filed a response on behalf of the children in support of the circuit court’s order. On
appeal, petitioner argues that the circuit court erred in terminating her parental rights upon a
finding that there was no reasonable likelihood that she could substantially correct the conditions
of abuse and neglect at issue.
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.
Beginning in July of 2018, the DHHR received ten referrals concerning petitioner’s
conduct that included allegations of physical abuse, domestic violence, malnutrition, and failure
to properly supervise the children, among other issues. Although some of the referrals could not
be substantiated and/or did not rise to the level of abuse or neglect, the DHHR did substantiate
abusive or neglectful conduct, and the DHHR filed an abuse and neglect petition in September of
2018. Therein, the DHHR alleged that petitioner’s home was chronically unsanitary due to feces
throughout the home. According to the petition, L.D. “walk[s] through the feces in the floor, rolls
in it when playing and is filthy.” The DHHR also alleged that the home was infested with
1
Consistent with our long-standing practice in cases with sensitive facts, we use initials
where necessary to protect the identities of those involved in this case. See In re K.H., 235 W.
Va. 254, 773 S.E.2d 20 (2015); Melinda H. v. William R. II, 230 W. Va. 731, 742 S.E.2d 419
(2013); State v. Brandon B., 218 W. Va. 324, 624 S.E.2d 761 (2005); State v. Edward Charles
L., 183 W. Va. 641, 398 S.E.2d 123 (1990).
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cockroaches, as the person who reported the matter witnessed cockroaches crawling out of
L.D.’s ears and on his food. The DHHR also alleged that the home lacked water and electricity
for approximately five to seven months. During the DHHR’s investigation, a worker found the
home in an unsanitary condition and without electricity, as reported. The worker also observed
feces on A.D., who had to be bathed “due to her odor and filth.” According to the DHHR, L.D.
was not properly fed or supervised. The DHHR also alleged that petitioner and her husband
engaged in domestic violence in the home. Further, the worker who investigated the matter stated
that petitioner’s husband had been recently arrested on assault charges and the two of them were
not supposed to be together as a condition of the husband’s bond; however, the worker observed
them together in the home.
Following the petition’s filing, petitioner waived her preliminary hearing. At an
adjudicatory hearing in November of 2018, petitioner stipulated that she exposed the children to
domestic violence and failed to provide a safe and suitable environment for them. Petitioner was
then granted a post-adjudicatory improvement period.
As early as October of 2018, the parties expressed concerns with petitioner’s visitation
with the children. At that time, petitioner’s husband was observed at the visitation location,
despite the fact that he was required to have no contact with petitioner as a condition of his bond.
Further, in December of 2018, the guardian expressed concern over petitioner’s failure to interact
with the children. According to the guardian, petitioner spent the vast majority of her visits on
her phone. In February of 2019, the court was informed of concerns raised by several individuals
regarding petitioner’s inability to console A.D. during visits after the child would become
extremely upset. In May of 2019, the parties expressed concerns over petitioner bringing a
boyfriend to her parenting classes and missing some visits with the children. At a hearing in
August of 2019, the circuit court was presented with concerns from a visitation supervisor over
petitioner’s failure to properly feed A.D. during visits or appropriately interact with L.D.
In September of 2019, the parties appeared for a dispositional hearing. According to the
circuit court, visitation supervisors at the hearing presented conflicting testimony about
petitioner’s progress. As a result, the court found that it could not return the children to
petitioner’s care, but also found that it could not terminate petitioner’s parental rights. As such,
the court granted petitioner a post-dispositional improvement period and ordered that she
undergo a parental fitness evaluation. At a hearing in December of 2019, a Child Protective
Services (“CPS”) worker testified that petitioner’s residence lacked heat and that petitioner’s
mother, who was believed to have an extensive CPS history, was present in the home. The court
ruled that petitioner could exercise visitation with the children in the home when she provided
documentation of proper heating and that the maternal grandmother not be present during the
visits.
Finally, the court held dispositional hearings in July and August of 2020. Based on the
evidence, the circuit court found that one of petitioner’s visitation supervisors, Megan Wells, had
concerns about petitioner’s conduct since the case began. According to Ms. Wells, her concerns
had not been alleviated as of disposition because petitioner failed to make progress. Ms. Wells
testified to consistent problems in petitioner’s parenting, such as failing to offer the children
drinks during visits or providing them with moldy food or food from visibly dirty containers. Ms.
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Wells also testified that petitioner failed to engage with both children and failed to give L.D.
proper attention. Ms. Wells further noted that L.D. appeared to parent the younger A.D., with
whom petitioner did not appear to have a bond. In fact, the reports from petitioner’s visits
indicated that petitioner would not check A.D.’s diaper during visits. According to Ms. Wells,
she often prompted petitioner during these visits, but petitioner did not always follow her
prompts. The court did note, however, that Ms. Wells’ testimony was “in contrast to the
testimony presented by” a different provider.
One of petitioner’s other service providers, Kayla Saville, testified to observing A.D.’s
specific needs and petitioner’s inability to meet them during visits. Corroborating the testimony
from Ms. Wells, Ms. Saville indicated that petitioner could not follow prompts and had difficulty
retaining information across visits. According to Ms. Saville, petitioner simply did not benefit
from services. The children’s foster mother testified to having observed petitioner fall asleep
during a remote visit with the children. The foster mother also testified that she witnessed
petitioner talk to six-year-old L.D. as if he were a baby, causing concern that petitioner did not
understand L.D.’s development. The circuit court also heard testimony from a developmental
specialist with Birth to Three who provided A.D. services for approximately two years to assist
with the child’s sensory issues. According to the witness, parenting a child with these issues
would require a tremendous effort. The witness also testified to having observed petitioner with
the child and stated that she did not believe petitioner had the ability to properly care for A.D.
Finally, the psychologist who performed petitioner’s parental fitness evaluation testified that he
did not believe petitioner had the parental capacity to properly care for the children. The
psychologist also indicated that petitioner’s scores on the Child Abuse Potential Inventory were
invalid because of her elevated lie score.
In reaching its final determination, the court recognized the extensive delays in the
proceedings and noted that although some delay could be attributed to COVID-19, “much of the
delay in the case was due to attempts to provide [petitioner] with more time to be able to
demonstrate . . . that she can effectively and safely parent” the children. The court further noted
that “there is a difference between completing what is asked of you during an improvement
period and actually improving.” According to the circuit court, “‘[c]hecking the boxes off’ does
not always correlate to actual improvement.” The court recognized petitioner’s accomplishments
during the proceedings, including having obtained employment and housing and her participation
in services. However, the court found that the evidence established that petitioner was
unsuccessful in her improvement period. The 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 termination of her parental rights was necessary for the children’s welfare. As such, the
court terminated petitioner’s parental rights. 2 It is from the dispositional order that petitioner
appeals.
The Court has previously established the following standard of review:
2
The parental rights of the children’s fathers were either voluntarily relinquished or
terminated below. The permanency plan for the children is adoption together in the current foster
home.
3
“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 it was error to terminate her parental rights upon a
finding that there was no reasonable likelihood that she could substantially correct the conditions
of abuse and neglect in the near future. Petitioner focuses her argument on the circuit court’s
finding that she failed to successfully complete her improvement period, which she also alleges
was in error. According to petitioner, she achieved every stated goal of her case plan by
obtaining employment and housing, completing a psychological evaluation and following its
recommendations, participating in adult life skills and parenting classes, and avoiding
inappropriate people. Petitioner argues that the DHHR failed to satisfy the clear and convincing
burden necessary to support termination of her parental rights and asserts that “any evidentiary
record that would support the notion that she continues to have unacceptable parenting deficits is
hopelessly conflicted.” We do not agree.
Petitioner’s argument on appeal reflects a superficial recitation of those few facts that
support her position and a failure to fully appreciate that her compliance with services alone was
insufficient to remedy the conditions of abuse and neglect at issue. Petitioner acknowledges the
following:
We have long recognized that “it is possible for an individual to show
‘compliance with specific aspects of the case plan’” while failing “to improve . . .
[t]he overall attitude and approach to parenting.” W. Va. Dept. of Human Servs. v.
Peggy F., 184 W. Va. 60, 64, 399 S.E.2d 460, 464 (1990).
State ex rel. W. Va. Dep’t of Health and Human Res. v. Dyer, 242 W. Va. 505, 519, 836 S.E.2d
472, 486 (2019). Despite this recognition, petitioner simply lists the specific goals she believes
that she satisfied without acknowledging the extensive testimony that she was unable to
implement the instruction she was provided or meaningfully remedy the conditions of abuse or
neglect at issue such that she could appropriately parent the children. As the circuit court noted,
petitioner merely “check[ed] the boxes” of her case plan without meaningfully correcting her
behavior.
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Petitioner argues that because the finding that she failed to successfully complete her
improvement period was not supported by clear and convincing evidence, then the finding that
there was no reasonable likelihood that she could substantially correct the conditions of abuse
and neglect must necessarily have also lacked appropriate support. Given that we find the circuit
court did not err in determining that petitioner was unsuccessful in her improvement periods, we
similarly find no error in the determination that there was no reasonable likelihood petitioner
could correct these conditions. Underlying both of petitioner’s arguments is her reliance on
testimony from one visitation provider that conflicted with testimony from other service
providers. As noted above, the circuit court specifically addressed these inconsistencies but
found that the overwhelming evidence from several service providers and the psychologist who
evaluated petitioner outweighed the testimony from this lone provider. As we have routinely
held, “[a] reviewing court cannot assess witness credibility through a record. The trier of fact is
uniquely situated to make such determinations and this Court is not in a position to, and will not,
second guess such determinations.” Michael D.C. v. Wanda L.C., 201 W. Va. 381, 388, 497
S.E.2d 531, 538 (1997). The court below recognized the conflicting evidence presented and
made its own determination as to the weight of this evidence. We will not disturb these
determinations on appeal.
Contrary to petitioner’s argument that the circuit court had insufficient evidence upon
which to terminate her parental rights, we find that the DHHR satisfied its burden of proof. As
we have held,
[t]ermination of parental rights, the most restrictive alternative, is authorized only
“[u]pon a finding that there is no reasonable likelihood that the conditions of
neglect or abuse can be substantially corrected in the near future, and when
necessary for the welfare of the child.” W.Va. Code § [49-4-604(c)(6)]. The State
must produce clear and convincing evidence to support this finding.
State v. C.N.S., 173 W. Va. 651, 656, 319 S.E.2d 775, 780 (1984). As laid out above, several of
the service providers who observed petitioner interacting with the children testified that she was
not implementing what she was taught through services and demonstrated an inability to
properly care for the children. This was especially true in regard to A.D., who suffers from
sensory issues that require more intensive care. Further, the psychologist who evaluated
petitioner testified that she did not have the parental capacity to adequately care or provide for
her children. Petitioner argues that the psychologist originally did not reach this conclusion and
that it was only after the DHHR provided the psychologist with information from its files that he
changed his recommendation. Petitioner also asserts that this change in the assessment was based
entirely on information about her conduct prior to the filing of the petition in this matter. That is
simply not the case. Instead, the record shows that the psychologist’s initial report was based
entirely on petitioner’s recitation of events. Indeed, the initial report indicates that no records,
other than the order directing petitioner to undergo the evaluation, were reviewed. However,
once the psychologist was provided with the DHHR’s records, he submitted an addendum and
changed his conclusion concerning petitioner’s ability to parent the children. On appeal,
petitioner fails to explain how providing the psychologist with a clearer understanding of her
abusive and neglectful conduct undermines the psychologist’s ultimate conclusion that she was
unfit to properly parent the children.
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As set forth in West Virginia Code § 49-4-604(d) “‘[n]o reasonable likelihood that
conditions of neglect or abuse can be substantially corrected’ means that, based upon the
evidence before the court, the abusing adult or adults have demonstrated an inadequate capacity
to solve the problems of abuse or neglect on their own or with help.” This is precisely what the
evidence below established. Despite the circuit court granting petitioner two improvement
periods and allowing petitioner ample time to correct the conditions of abuse and neglect, it was
clear at the final dispositional hearing that petitioner had simply not internalized her instruction
in a way that allowed her to properly care for the children. As we have explained, “[i]n making
the final disposition in a child abuse and neglect proceeding, the level of a parent’s compliance
with the terms and conditions of an improvement period is just one factor to be considered. The
controlling standard that governs any dispositional decision remains the best interests of the
child.” Syl. Pt. 4, In re B.H., 233 W. Va. 57, 754 S.E.2d 743 (2014). While petitioner asserts that
she completed all that was asked of her, she ignores the fact that the children’s best interests
necessitated termination of her parental rights. As the circuit court found, there was no
reasonable likelihood that petitioner could substantially correct the conditions of abuse and
neglect in the near future and termination of her parental rights was necessary for the children’s
welfare. West Virginia Code § 49-4-604(c)(6) permits the termination of parental rights upon
these findings. Further, as this Court has held,
“[t]ermination of parental rights, the most drastic remedy under the
statutory provision covering the disposition of neglected children, [West Virginia
Code § 49-4-604] . . . may be employed without the use of intervening less
restrictive alternatives when it is found that there is no reasonable likelihood
under [West Virginia Code § 49-4-604(d)] . . . that conditions of neglect or abuse
can be substantially corrected.” Syllabus point 2, In re R.J.M., 164 W. Va. 496,
266 S.E.2d 114 (1980).
Syl. Pt. 5, In re Kristin Y., 227 W. Va. 558, 712 S.E.2d 55 (2011). Accordingly, we find no error
in the circuit court’s termination of petitioner’s parental rights.
For the foregoing reasons, we find no error in the decision of the circuit court, and its
August 21, 2020, order is hereby affirmed.
Affirmed.
ISSUED: April 20, 2021
CONCURRED IN BY:
Chief Justice Evan H. Jenkins
Justice Elizabeth D. Walker
Justice Tim Armstead
Justice John A. Hutchison
DISSENTING:
Justice William R. Wooton
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