In re R.R. ( 2021 )

FILED
STATE OF WEST VIRGINIA June 3, 2021
EDYTHE NASH GAISER, CLERK
SUPREME COURT OF APPEALS SUPREME COURT OF APPEALS
OF WEST VIRGINIA
In re R.R.
No. 21-0054 (Gilmer County 20-JA-6)
MEMORANDUM DECISION
Petitioner Mother K.R., by counsel Andrew Chattin, appeals the Circuit Court of Gilmer
County’s December 22, 2020, order terminating her custodial rights to R.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”), Mary Elizabeth
Snead, filed a response on behalf of the child in support of the circuit court’s order and a
supplemental appendix. On appeal, petitioner argues that the circuit court erred in terminating her
custodial rights without granting her an improvement period.
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 May of 2019, the DHHR filed an abuse and neglect petition alleging that petitioner
abused methamphetamine while pregnant with R.R. and was incarcerated on federal drug-related
charges at the time of the child’s birth. Additionally, the DHHR alleged that petitioner’s parental
rights to two older children were involuntarily terminated in a prior proceeding and that she
voluntarily relinquished her parental rights to four other children in a separate proceeding.
According to the record, these prior cases also concerned petitioner’s substance abuse. Following
the petition’s filing, petitioner waived her preliminary hearing.
In September of 2020, petitioner was released from prison and placed on six years of
parole. Later that month, the circuit court held an adjudicatory hearing, and petitioner stipulated to
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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the allegations contained in the petition. The circuit court accepted petitioner’s stipulation and
adjudicated her as an abusive and neglectful parent.
The circuit court held a dispositional hearing in November of 2020, at which time it
considered petitioner’s motion for an improvement period, the DHHR’s motion to terminate
parental rights, and the guardian’s motion to terminate custodial rights. The DHHR presented the
testimony of a Child Protective Services (“CPS”) worker, who testified that the DHHR
recommended termination of petitioner’s parental rights based upon her prior terminations and her
failure to address her drug abuse issues. The CPS worker testified that, to her knowledge, petitioner
had taken no steps to address her drug abuse since the termination of her parental rights to an older
child in late 2019 or early 2020, and had not contacted the DHHR since her release from
incarceration.
Petitioner testified that she would comply with an improvement period if she were granted
one. Petitioner testified that she had served a one-year term of incarceration following her guilty
plea to one count of aiding and abetting the distribution of methamphetamine. Petitioner stated
that she was granted parole and would be bound to its terms for six years. Petitioner testified that
she intended to seek long-term inpatient drug treatment and that she realized her mistakes after
having been incarcerated. However, petitioner testified that she had not made any efforts to contact
the DHHR after her release because she “ha[d not] really thought about it.” Petitioner also
conceded that she had not successfully completed her improvement period during prior cases, all
of which were related to drugs, and that she had not sought out drug treatment since her most
recent case.
The circuit court found that it was undisputed that petitioner’s parental rights had been
terminated, or she had voluntarily relinquished her parental rights, to six older children and that
substance abuse had been a significant issue in all of the cases. The circuit court noted that
petitioner had been drug-free for approximately one year “mainly because she’s been incarcerated”
and not because she received treatment. The circuit court further found that petitioner had not had
contact with the child since birth and had no bond with her. The circuit court denied petitioner’s
motion for an improvement period and, based upon the guardian’s recommendation, terminated
petitioner’s custodial rights upon finding that there was no reasonable likelihood that petitioner
could correct the conditions of abuse and neglect in the near future and that termination was
necessary for the child’s welfare. It is from the December 22, 2020, dispositional order 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
2
Upon the recommendation of the guardian, the circuit court terminated petitioner’s
custodial rights, rather than her parental rights, as the child had achieved permanency by being
placed in the care of her nonabusing father, giving petitioner the opportunity to seek out long-term
drug treatment. The permanency plan for the child is to remain in her nonabusing father’s care.
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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 custodial rights
without first granting her an improvement period. According to petitioner, she testified that she
had never attended long-term inpatient drug treatment and requested an improvement period so
that she could attend such treatment. Petitioner also states that she testified she would comply with
the terms and conditions of an improvement period. Petitioner argues that the DHHR took no
action to assist her or provide her with any services, having made up their minds from the filing of
the petition that they would seek the termination of her parental rights because of her prior case
history. Petitioner avers that her testimony established that there was a reasonable likelihood that
she could correct the conditions of abuse and neglect as she was willing to seek help for her
addiction issues. Petitioner contends that “the burden of proof was upon the [DHHR] to show that
termination was the proper course in this case and . . . they failed to offer her services, failed to
investigate her living arrangement, and generally failed to give [her] any chance at all to correct
the conditions which led to the [petition’s] filing.”
Pursuant to West Virginia Code § 49-4-604(b)(7)(C), the DHHR was not “required to make
reasonable efforts to preserve the family” because “the parental rights of [petitioner] to another
child [had] been terminated involuntarily.” Therefore, the DHHR was justified in not affording
petitioner services throughout the proceedings. However, petitioner’s prior termination of her
parental rights was not dispositive as to an improvement period. West Virginia Code § 49-4-
610(3)(B) provides that the circuit court may grant a parent a post-dispositional improvement
period when the parent “demonstrates, by clear and convincing evidence, that the [parent] is likely
to fully participate in the improvement period.” We have noted that “West Virginia law allows the
circuit court discretion in deciding whether to grant a parent an improvement period.” In re M.M.,
236 W. Va. 108, 115, 778 S.E.2d 338, 345 (2015). “Additionally, if a parent is unable to
demonstrate an ability to correct the underlying conditions of abuse and/or neglect in the near
future, termination of parental rights may proceed without the utilization of an improvement
period.” In re Charity H., 215 W. Va. 208, 216, 599 S.E.2d 631, 639 (2004).
Here, petitioner fails to demonstrate that she was entitled to an improvement period. While
it is true that petitioner testified to her willingness to attend substance abuse rehabilitation, the
circuit court, as the fact finder below, was free to judge petitioner’s credibility as a witness in this
regard. Michael D.C. v. Wanda L.C., 201 W. Va. 381, 388, 497 S.E.2d 531, 538 (1997) (“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
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guess such determinations.”). Moreover, the record is clear that petitioner has a significant history
of drug abuse, that she was offered improvement periods during prior proceedings, and that she
failed to comply with services or remedy the conditions of abuse, leading to the termination or
relinquishment of her parental rights to six older children. Additionally, the evidence established
that petitioner failed to attend drug treatment following the termination of her parental rights to
her older children or following her release from incarceration during the proceedings below. This
Court has previously held that “[t]he circuit court has the discretion to refuse to grant an
improvement period when no improvement is likely.” In re Tonjia M., 212 W. Va. 443, 448, 573
S.E.2d 354, 359 (2002). Given the foregoing, it is clear that no improvement was likely and that
the circuit court did not abuse its discretion in denying petitioner’s motion for an improvement
period.
We likewise find no error in the circuit court’s termination of petitioner’s custodial rights.
West Virginia Code § 49-4-604(c)(6) provides that circuit courts are to terminate parental,
custodial, and guardianship rights upon finding 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 child’s welfare. West Virginia Code § 49-4-604(d) provides that a
situation in which there is “[n]o reasonable likelihood that [the] conditions of neglect or abuse can
be substantially corrected” includes when the abusing parent has “demonstrated an inadequate
capacity to solve the problems of abuse or neglect on [his or her] own or with help.” Moreover,
“the legislature has reduced the minimum threshold of evidence necessary for termination where”
the parent’s parental rights to another child have been terminated involuntarily. In re Kyiah P., 213
W. Va. 424, 427, 582 S.E.2d 871, 874 (2003) (quoting Syl. Pt. 2, In the Matter of George Glen B.,
205 W. Va. 435, 437, 518 S.E.2d 863, 865 (1999)); see also W. Va. Code § 49-4-605(a) (outlining
factors under which the DHHR must seek termination of a parent’s parental rights).
The evidence supports a finding that there was no reasonable likelihood that petitioner
could correct the conditions of abuse and neglect in the near future. Petitioner did not successfully
complete improvement periods during at least two of her prior proceedings, resulting in the
termination of her parental rights to two older children and the voluntary relinquishment of her
parental rights to four children. Following the prior proceedings, petitioner was sentenced to
incarceration for drug-related criminal charges, and she remained incarcerated for five months of
the underlying proceedings. While petitioner claims that she has not abused drugs since October
of 2019, the circuit court found that her sobriety was a result of her incarceration and that she had
not independently sought out or received any drug treatment. Accordingly, petitioner demonstrated
an inadequate capacity to solve the problems of abuse and neglect on her own or with help and,
given the reduced threshold of evidence necessary for termination in this case, we find no error in
the circuit court terminating petitioner’s custodial rights to the child.
For the foregoing reasons, we find no error in the decision of the circuit court, and its
December 22, 2020, order is hereby affirmed.
Affirmed.
ISSUED: June 3, 2021
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CONCURRED IN BY:
Chief Justice Evan H. Jenkins
Justice Elizabeth D. Walker
Justice Tim Armstead
Justice John A. Hutchison
Justice William R. Wooton
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