In Re: M.B. and R.B. ( 2017 )

STATE OF WEST VIRGINIA
SUPREME COURT OF APPEALS
FILED
In re: M.B. and R.B. November 22, 2017
EDYTHE NASH GAISER, CLERK
SUPREME COURT OF APPEALS
No. 17-0562 (Kanawha County 15-JA-338 & 15-JA-339) OF WEST VIRGINIA
MEMORANDUM DECISION
Petitioner Mother T.C., by counsel Sandra K. Bullman, appeals the Circuit Court of
Kanawha County’s May 18, 2017, order terminating her parental rights to M.B. and R.B.1 The
West Virginia Department of Health and Human Resources (“DHHR”), by counsel S.L. Evans,
filed a response in support of the circuit court’s order. The guardian ad litem (“guardian”),
Sharon K. Childers, 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
when she substantially complied with the terms of her improvement period and in denying her
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.
In December of 2015, the DHHR filed an abuse and neglect petition against the parents.
The DHHR alleged that the children were abused and/or neglected due to petitioner’s failure to
attend to M.B.’s medical condition, which required surgery. Further, M.B. had five cavities that
had not been filled because petitioner failed to take him to a dentist. The DHHR alleged that
petitioner had a long history of substance abuse and failed to provide the children with the
necessary food, clothing, supervision, and housing. Additionally, the DHHR alleged that
petitioner was not sufficiently motivated or organized to provide for the children’s needs on an
ongoing basis. In January of 2016, the DHHR filed an amended petition in which it alleged that
petitioner was previously involved in an abuse and neglect proceeding during which the DHHR
provided services for one year, after which the children were returned to petitioner’s custody.
The DHHR further alleged that petitioner removed the children from a relative’s home in
violation of a court order; smoked marijuana in front of the children; participated in acts of
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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domestic violence with her stepmother and the children’s father in the children’s presence; failed
to provide medical treatment to M.B.; and allowed the children to live with four different people,
all of whom had histories with Child Protective Services (“CPS”).
The circuit court held a preliminary hearing, during which the circuit court heard the CPS
worker’s testimony. The circuit court found that probable cause existed and found that remaining
in the home was contrary to the children’s best interest. The circuit court granted petitioner
supervised visitation and drug screening services. In March of 2016, the circuit court held an
adjudicatory hearing. Petitioner stipulated to exposing her children to domestic violence.
Accordingly, the circuit court adjudicated petitioner as an abusing parent and subsequently
granted her an improvement period, which included individualized parenting classes, adult life
skills classes, bus passes, a psychological evaluation, and both parental fitness and domestic
violence counseling. Additionally, petitioner was granted supervised visitation with the children
but was prohibited from exposing them to her current boyfriend, a former Latin King gang
member.
After multiple review hearings and the expiration of petitioner’s improvement period, the
circuit court held a dispositional hearing in December of 2016. The DHHR presented the
testimony of the CPS worker and a service provider. Both witnesses testified as to petitioner’s
inability to parent her children and non-compliance with her improvement period. Despite
several months of services, petitioner did not implement any techniques taught in her classes.
The CPS worker testified that petitioner received parenting and adult life skills classes
throughout 2006 and 2007, as well as services throughout her former abuse and neglect
proceeding. While the CPS worker admitted that petitioner participated in those classes, she
failed to consistently attend supervised visitation with her children, missing twelve out of thirty-
six visits. The CPS worker testified that when petitioner missed the visits, the children would act
out by hitting and biting. When petitioner did visit, the children were affected such that it would
take them a day or two to calm down. The CPS worker also noted that petitioner underwent a
psychological evaluation, which suggested her ability to parent the children was “poor.” Finally,
the CPS worker testified that petitioner had recently been arrested for shoplifting in August of
2016, during her improvement period. The service provider then testified that petitioner could
not physically parent the children as petitioner could not control their sometimes violent
behavior.
Petitioner then testified that she occasionally missed visits due to her nerve disease,
which made it difficult for her to read bus schedules. She missed another visit due to a
misunderstanding with her supervised visitation worker. Petitioner admitted that her boyfriend
was a convict and former gang member with a “ruthless past” and that she allowed her children
to be around him. Petitioner testified that her plan was to move with her boyfriend to Tennessee
so that they could live next door to her boyfriend’s mother, who would keep the children.
Petitioner stated that she and her boyfriend were going to get married after her divorce from the
children’s father was finalized. Following the arguments of the parties, the circuit court found
that petitioner did not have the ability to care for her children, that she possessed poor decision-
making skills, and that there was no reasonable likelihood that petitioner could correct the
conditions of abuse. As such, the circuit court terminated petitioner’s parental rights and denied
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post-termination visitation with the children.2 It is from the May 18, 2017, dispositional order
that petitioner appeals.
This 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).
On appeal, petitioner argues that the circuit court erred in terminating her parental rights
when she substantially complied with her improvement period. We disagree. Pursuant to West
Virginia Code § 49-4-604(b)(6), circuit courts are directed to terminate parental rights upon
findings that there is no reasonable likelihood the conditions of abuse and neglect can be
substantially corrected in the near future and when necessary for the children’s welfare. Further,
West Virginia Code § 49-4-604(c)(3) provides that a situation in which there is no reasonable
likelihood that the conditions of abuse or neglect can be substantially corrected include one in
which “[t]he abusing parent . . . ha[s] not responded to or followed through with a reasonable
family case plan or other rehabilitative efforts[.]” We have also held that “[t]ermination . . . may
be employed without the use of intervening less restrictive alternatives when it is found that there
is no reasonable likelihood . . . that conditions of neglect or abuse can be substantially
corrected.” Syl. Pt. 7, in part, In re Katie S., 198 W.Va. 79, 82, 479 S.E.2d 589, 592 (1996).
Based on the record before us, petitioner failed to substantially correct the conditions of
abuse and neglect. At the dispositional hearing, a CPS worker testified that petitioner received
parenting and adult life skills services as early as 2006. Petitioner also received services in a
prior abuse and neglect proceeding, as well as throughout nine months of the underlying
proceedings. Contrary to petitioner’s argument that she substantially complied with the services
offered throughout her improvement period, the CPS worker testified that petitioner missed
twelve of her thirty-six supervised visits with the children. Further, petitioner was arrested for
shoplifting during her improvement period. Both the service provider and the CPS worker
2
Both parents’ parental rights have been terminated. According to the DHHR, the
children are currently in separate foster homes with a goal of adoption therein. The children visit
each other regularly.
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testified that, despite receiving services, petitioner was incapable of properly parenting her
children. Petitioner admitted that she continued to maintain a relationship with an ex-gang
member whose past she described as “ruthless” and that she intended to move the children to his
family’s home in Tennessee. Petitioner testified to this plan knowing that she was prohibited
from allowing the children around her boyfriend. The record establishes that petitioner has not
responded to rehabilitative efforts despite years of services. As such, we find no error in the
circuit court’s finding that there was no reasonable likelihood that petitioner could substantially
correct the conditions of abuse and that termination was necessary for the children’s welfare.
Petitioner next argues on appeal that the circuit court erred in denying her post-
termination visitation with the children because she has a strong bond with the children and they
would benefit from continued contact with her. Petitioner states that no evidence suggesting
otherwise was submitted. Upon our review, the Court finds this assignment of error to be without
merit. We have explained that
a parent whose rights have been terminated pursuant to an abuse and neglect
petition may request post-termination visitation. Such request should be brought
by written motion, properly noticed for hearing, whereupon the court should hear
evidence and arguments of counsel in order to consider the factors established in
Syllabus Point 5, In re Christina L., 194 W.Va. 446, 460 S.E.2d 692 (1995),
except in the event that the court concludes the nature of the underlying
circumstances renders further evidence on the issue manifestly unnecessary.
In re Marley M., 231 W.Va. 534, 544, 745 S.E.2d 572, 582 (2013). There is no evidence in the
record on appeal that petitioner filed such written motion. Moreover, we have previously held
that
[w]hen parental rights are terminated due to neglect or abuse, the circuit
court may nevertheless in appropriate cases consider whether continued visitation
or other contact with the abusing parent is in the best interest of the child. Among
other things, the circuit court should consider whether a close emotional bond has
been established between parent and child and the child’s wishes, if he or she is of
appropriate maturity to make such request. The evidence must indicate that such
visitation or continued contact would not be detrimental to the child’s well being
and would be in the child’s best interest. Syl. Pt. 5, In re Christina L., 194 W.Va.
446, 460 S.E.2d 692 (1995).
Syl. Pt. 11, In re Daniel D., 211 W.Va. 79, 562 S.E.2d 147 (2002).
In this case, petitioner failed to provide evidence to contradict the circuit court’s finding
that there was no identifiable benefit to the children by continued contact with petitioner and that
continued contact would likely cause disruption in the children’s lives, making permanency more
difficult. Petitioner missed one-third of her supervised visits with the children throughout the
pendency of the proceedings, and the children acted out violently after missed visits. Further, the
children also acted out following visits with petitioner, so the record is clear that continued
contact with petitioner would disrupt the children’s lives. Finally, petitioner failed to
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acknowledge the safety concerns related to allowing the children to be in her boyfriend’s
presence. Accordingly, the circuit court did not err in terminating petitioner’s parental rights.
For the foregoing reasons, we find no error in the decision of the circuit court, and its
May 18, 2017, order is hereby affirmed.
Affirmed.
ISSUED: November 22, 2017
CONCURRED IN BY:
Chief Justice Allen H. Loughry II
Justice Robin Jean Davis
Justice Margaret L. Workman
Justice Menis E. Ketchum
Justice Elizabeth D. Walker
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