In re C.B.-1 ( 2021 )

FILED
STATE OF WEST VIRGINIA June 22, 2021
EDYTHE NASH GAISER, CLERK
SUPREME COURT OF APPEALS SUPREME COURT OF APPEALS
OF WEST VIRGINIA
In re C.B.-1
No. 20-1031 (Kanawha County 19-JA-106)
MEMORANDUM DECISION
Petitioner Grandmother C.B.-2, by counsel Michael Payne, appeals the Circuit Court of
Kanawha County’s November 30, 2020, order terminating her guardianship and custodial rights
to C.B. 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,
Sharon K. Childers, 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 guardianship and custodial rights and in failing to require the DHHR to attempt
reunification of the family.
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 February of 2019, the DHHR filed an abuse and neglect petition 2 alleging that
petitioner—the child’s legal guardian and grandmother—abused and neglected the child by virtue
of her substance abuse, among other issues. According to the petition, the child’s great-grandfather
reported that petitioner was drinking alcohol and fell, after which she required help to get up.
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). Additionally, because the child and petitioner share the same
initials, we will refer to them as C.B.-1 and C.B.-2, respectively, throughout this memorandum
decision.
2
The DHHR later filed an amended petition to include the child’s father as a respondent in
the proceedings.
1
According to the great-grandfather, petitioner was an alcoholic and drank regularly. The great-
grandfather also reported that the home was “deplorable” because of dirt and clutter throughout.
According to the petition, the great-grandfather told petitioner to call him later in the day to
confirm that she was alright. When he did not hear from her, the great-grandfather returned to
petitioner’s home and found the child—who was six years old, autistic, and nonverbal—“outside
roaming around.” Petitioner was passed out on the floor and was ultimately transferred to a hospital
by ambulance where she was treated for a blood clot in her lung. A nurse who treated petitioner
indicated that the hospital referred petitioner’s case to Adult Protective Services due to her
intoxication and the amount of bruising she displayed upon admission. Petitioner explained,
however, that her bruising was from having fallen on three separate occasions. The petition further
alleged that the child’s teacher disclosed to CPS that petitioner had been sending the child to school
in soiled diapers because she was unable to change them. Based upon these facts, the DHHR
alleged that petitioner abused and neglected the child by virtue of her substance abuse, her failure
to provide the child with adequate housing, and her inability to meet the child’s basic needs.
In May of 2019, the circuit court held an adjudicatory hearing, during which petitioner
stipulated to the fact that the home “was in an unsafe, unsanitary and uninhabitable condition.”
Based on this stipulation, the court adjudicated petitioner of having neglected the child. The court
also granted petitioner’s motion for a post-adjudicatory improvement period and ordered that she
participate in parenting and adult life skills education and submit to random drug screens.
Because of the child’s special needs, the DHHR ultimately placed him in a home outside
of Kanawha County. As such, travel was necessary to facilitate visitation with petitioner. As early
as June of 2019, the child’s visitation transportation provider indicated that the child demonstrated
extreme behaviors during transport, including damaging the vehicle, kicking, and yelling.
According to the transportation notes, the child’s foster family had informed Child Protective
Services (“CPS”) that he would react this way to transportation. The foster family also indicated
early on that the child’s behavior following visits was disruptive and created issues with other
children in their home who also have special needs. As such, the transportation provider explained
that “travel time . . . has started to affect [the child’s] behavior and he has started to get destructive
during the transport and has to be monitored closely to ensure safety as he is getting out of his car
seat.” The provider recommended that visits either be decreased or moved to a location closer to
the child’s foster home.
Thereafter, the court held a series of review hearings, beginning in August of 2019. At that
time, the court found that petitioner was substantially complying with the terms of her
improvement period but denied her request for increased visitation with the child. During this first
review hearing, the court ordered the DHHR to help facilitate transportation for petitioner in order
for her to meet the child halfway for visits. The court also noted that the DHHR had not yet
implemented parenting services for petitioner and ordered that it do so immediately. Around this
time, the court ordered petitioner to submit to a psychological evaluation for parental fitness.
Provider notes from a visit at petitioner’s residence in September of 2019 indicate that
petitioner allowed the child to escape her yard and was unable to pursue him. According to the
provider’s notes, the child’s great-grandfather also attended the visit. After petitioner let him into
the yard through the locked gate, the great-grandfather told petitioner that the gate remained open,
2
which petitioner denied. The provider noted, however, that as petitioner denied the gate was open,
she was “pulling on it and opening it about a foot or so.” The great-grandfather “repeated it louder
saying, ‘hey the gate is open!’” and petitioner “replied with a laugh, ‘no it isn’t.’” The great-
grandfather then emphatically said “you’re holding it open right now” and followed that up with a
warning that the child was headed toward the open gate. According to the provider, the child
“quickly slipped under [petitioner’s] arm and took off running down the sidewalk.” Petitioner was
only able to run “about 4-5 steps” after the child before stopping. It was the visitation supervisor
who was eventually able to catch up to the child and return him to the yard.
At a review hearing in October of 2019, the court ordered that petitioner be given “make-
up supervised visitation . . . in addition to her regular supervised visitation.” According to a court
summary filed in November of 2019, the child continued to demonstrate increasingly dangerous
behavior during transportation to visits. The transportation provider explained that the child freed
himself from his car seat during a recent trip and kicked the provider in the back of the head. The
provider also indicated that the child repeatedly undressed himself, which required the provider to
pull over several times to dress him. This made the child angry and caused him to “scream
relentlessly.” Again, the provider requested that visits be scheduled in Tyler County, where the
child was placed, in order to ensure the child’s safety.
At a review hearing in November of 2019, the guardian informed the court that petitioner
failed to show up for her parental fitness evaluation. Petitioner informed the court that she forgot
about the evaluation. The DHHR’s court summary also addressed the issues with the child’s
transportation for visits and indicated that “the minor child continues to be a safety risk to himself
and the transporter because he does not travel well.” Accordingly, the guardian recommended
moving visitation to Tyler County and that it would be more appropriate for petitioner to travel to
the visitation location. Petitioner, however, informed the court that she could not travel because of
work “and that she wanted the visitation to occur at her home.” The court then suspended visits
between petitioner and the child, noting its concern that petitioner “desire[d] the minor child to
continue to be transported despite the risk to the child.” The court explained, however, that if the
DHHR could schedule supervised visitation over the holidays and petitioner was willing to travel
to Tyler County, she could have supervised visitation under those circumstances. The court also
explicitly ordered petitioner to attend her rescheduled psychological evaluation.
At a hearing in January of 2020, petitioner moved for visitation to be scheduled at a location
halfway between her home and the child’s foster home, but the guardian objected because of the
continued safety concerns for the child during travel. The court, finding it appropriate to put the
travel burden on petitioner, ordered that visitation would continue in Tyler County, but that the
DHHR was directed to identify a weekend visitation location and help facilitate petitioner’s travel.
However, according to a court summary from February of 2020, the DHHR acknowledged that
there had been a delay in finding a transportation provider for petitioner to facilitate visits.
After finally receiving the results of petitioner’s psychological evaluation, the guardian and
the DHHR expressed an intention to seek termination of petitioner’s improvement period in
February of 2020. According to the psychological report, petitioner disclosed a lengthy history of
CPS involvement, including a period of two years when CPS had to intervene in regard to
petitioner and her daughter. The psychologist reviewed material from the proceeding involving
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petitioner’s daughter and indicated that the matter was initiated when the daughter was brought to
a hospital by emergency services and the police. Petitioner could not be located for several hours,
and, when she did appear, she was intoxicated. After the daughter was released into petitioner’s
care, petitioner contacted CPS the next day and asked that CPS take custody of her daughter. After
the daughter was again placed in the hospital, petitioner initially refused to come to the hospital,
but eventually arrived and was again intoxicated. Petitioner told CPS they “could have her child
and then left the hospital.” Petitioner disputed this account of the events and indicated that her
daughter, who was bipolar, was not removed from her home by CPS, but that she was placed with
petitioner’s parents until the daughter turned eighteen years old. The evaluator noted, however,
that the DHHR substantiated petitioner’s alcohol abuse during that prior CPS investigation.
In regard to C.B., the evaluator also discussed with petitioner an incident in which she
became so intoxicated in Florida that she passed out while caring for the child and police responded
to the situation. Petitioner disputed this account and indicated that she believed law enforcement
was called because of the child’s behavior. During her evaluation, petitioner acknowledged that
she sometimes “had a little too much” to drink and cared for the child while under the influence
but denied a problem with alcohol. She also informed the evaluator that she stipulated at
adjudication because “it was the quickest way to get [the child] back” and clarified that she did not
believe that she had done anything that was either abusive or neglectful. The evaluator noted that
because of the child’s autism and non-verbal condition, he “will require 24/7 care for his entire
life” that is “very demanding and often involves long-term therapies and rehabilitation efforts with
constant monitoring and safeguarding.” According to the psychologist, these heightened needs
required someone who is “fully engaged and not under the influence [of alcohol].” The
psychologist concluded that, “[w]ithout acceptance of responsibility, there is little likelihood that
[petitioner] is motivated to change her behavior” and that petitioner indicated that she did not need
treatment. This caused the psychologist significant concern, especially in light of C.B.’s
vulnerability. Based upon several factors, including her refusal to accept responsibility for her
conduct, the psychologist indicated that petitioner’s prognosis for improved parenting was “very
poor.”
At a hearing in May of 2020, the guardian moved for the termination of petitioner’s
improvement period. The court granted the motion and ordered that petitioner would have no
additional supervised visitation. The court then held a dispositional hearing in July of 2020, during
which it heard testimony from a CPS worker but ultimately continued the matter so that additional
testimony could be obtained. At the hearing, petitioner’s counsel represented that petitioner
intended to check into an alcohol treatment program.
At the continued dispositional hearing in August of 2020, the court heard testimony from
the psychologist who performed petitioner’s evaluation that was consistent with that report. During
petitioner’s cross-examination of the psychologist, she clarified that although she is not an expert
in substance abuse treatment, she was considered “an expert in substance abuse as it applies to
parental fitness” and that she is “trained to treat substance abuse.” The psychologist also confirmed
that she was not aware that petitioner had not tested positive for alcohol on any screens during the
proceedings but indicated that this information would not change her prognosis given that “alcohol
was processed very quickly in the body, and random screenings often miss alcohol.” The
psychologist was also unaware that petitioner had completed an alcohol abuse program several
4
months after her evaluation but stated that this also would not change her opinion, as the
psychologist believed that petitioner “needs to establish a period of sobriety while she’s under the
scrutiny of the [c]ourt and CPS, to ensure that it’s a long-term thing and not just a temporary
thing.” The psychologist also expressed concerns about petitioner participating in treatment “at the
last minute” because of motivation to simply have the child returned to her custody, instead of
making a genuine change in her behavior. The psychologist reiterated that petitioner denied that
she had issues with alcohol and that she still did not know “at the eleventh hour . . . that [petitioner]
even accepts that drinking while she’s caring for this child is problematic.” In short, the
psychologist concluded that because petitioner had not complied with the recommendations from
the evaluation, that her prognosis for petitioner had not changed.
Petitioner testified that she now believed that if she were under the influence of alcohol
that it would impair her ability to care for the child. She further testified that she had completed a
twenty-eight-day alcohol rehabilitation program and subsequently began participating in an
outpatient program. Petitioner also indicated that she underwent a similar treatment program for
alcohol abuse in 2002 that was unsuccessful. She additionally discussed her history of working
with children with special needs as a teacher’s aide for many years. The court then inquired as to
issues surrounding visitation, and a DHHR worker explained that the DHHR “arranged for
[petitioner] to meet [the child] at the DHHR in Tyler County . . . and she did not go to the
visitations.” The worker clarified that, at one point, services were interrupted due to the COVID-
19 pandemic but that the circuit court also terminated visits when it terminated petitioner’s
improvement period. This resulted in petitioner having not visited the child since October of 2019.
The guardian also indicated that the DHHR was “ordered to assist with [petitioner’s] transportation
. . . and . . . underst[ood] that the DHHR did that.” The guardian further indicated that petitioner
“was part of that problem, in not making herself available to travel to see” the child. At the
conclusion of the hearing, petitioner again asked the court to transport the child to supervised
visitation at her home in Kanawha County. The court declined this request but ordered the DHHR
to ensure that they provided petitioner transportation to visits with the child in Tyler County. The
court further reinstated petitioner’s improvement period.
Shortly after the hearing, the guardian filed a motion to reconsider the court’s reinstatement
of petitioner’s improvement period and a renewed motion to terminate her guardianship rights. In
support, the guardian argued that petitioner had already received over one year under her post-
adjudicatory improvement period, which was “double the statutory time frame” for such
improvement periods. The guardian further argued that granting an additional improvement period
only delayed the child’s permanency. The court held a hearing on the motion in October of 2020,
after which it found that its prior order resulted in the minor child’s placement having been
potentially disrupted and delayed contrary to his best interests and the timelines set forth in abuse
and neglect cases. The court found that priority must be given to obtaining finality for the child
and vacated its prior order.
The court then turned to the motion to terminate petitioner’s guardianship rights and found
that although petitioner complied with some of her services, several concerns about her ability to
properly parent the child persisted throughout the proceedings. The court noted that one provider
indicated that “after working with [petitioner] for months, . . . she ‘still does not seem to understand
the severity or problems [the minor child] faces as he gets older” which caused the provider to
5
opine that petitioner would be unable to care for the child’s extensive needs. Further, the court
cited evidence from one provider that the child would “severely act out after visitations because
[petitioner] did not enforce any rules, . . . fed him junk food, [and] gave in[ to] his demands.” Even
with supervision, petitioner struggled to control the child during visits. The court also found that
although petitioner was asked to travel for visits because regular travel became too dangerous for
the child, she did not take advantage of any visits in Tyler County. The court cited extensively to
petitioner’s psychological evaluation, noting her refusal to take responsibility for her conduct or
acknowledge that she abused or neglected the child. The court also cited to the psychologist’s
testimony that petitioner “never secured critical therapies and interventions for the minor child’s
autism, which may explain why he has made such progress while being in his specialized foster
care home.” Further, the court noted petitioner’s late attempt to address her substance abuse. After
continuing on an improvement period for over a year, the court terminated the improvement period
in May of 2020. Despite this extended period, petitioner “did not attempt to enroll in any alcohol
treatment until the day of her dispositional hearing in July 2020.” The court also highlighted
petitioner’s own CPS history of substantiated abuse and/or neglect involving her daughter. Based
on the foregoing, 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 the best interests
of the child required termination of her rights. As such, the court terminated petitioner’s
guardianship and custodial rights to the child. 3 It is from the dispositional order that petitioner
appeals.
The 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 first alleges that the circuit court erred in terminating her guardianship
and custodial rights. Petitioner argues that to support termination, the court was required to find
that there was no reasonable likelihood that she could substantially correct the conditions of abuse
3
The parents’ parental rights were also terminated below. The permanency plan for the
child is adoption in the current foster home.
6
and neglect in the near future. Petitioner cites to West Virginia Code § 49-4-604(d), 4 which sets
forth several circumstances in which there is no reasonable likelihood that the conditions of abuse
and neglect can be substantially corrected in the near future and asserts that none of these
circumstances apply to her. Petitioner recognizes, however, that this list is non-exhaustive. This
argument, however, ignores the fact that the evidence overwhelmingly supports the circuit court’s
finding that petitioner failed to acknowledge the conditions of abuse and neglect at issue.
This Court has routinely held that
[i]n order to remedy the abuse and/or neglect problem, the problem must first be
acknowledged. Failure to acknowledge the existence of the problem, i.e., the truth
of the basic allegation pertaining to the alleged abuse and neglect or the perpetrator
of said abuse and neglect, results in making the problem untreatable and in making
an improvement period an exercise in futility at the child’s expense.
In re Timber M., 231 W. Va. 44, 55, 743 S.E.2d 352, 363 (2013) (citation omitted). As the
psychologist who evaluated petitioner for her parental fitness indicated in her report and testimony,
petitioner failed to acknowledge that she behaved in any manner that was abusive or neglectful;
explained that she did not believe that being under the influence while caring for the child, who
has extensive special needs and requires constant attention, was a problem; and only stipulated at
adjudication in an effort to quickly regain custody of the child. Further, a service provider indicated
that petitioner did not recognize the severity of the child’s issues, raising concerns that she could
not properly care for the child. This evidence fully supports the circuit court’s finding that
petitioner did not acknowledge the relevant conditions, despite her testimony at the August of 2020
hearing to the contrary.
It is true that petitioner eventually testified that she realized caring for the child while under
the influence was problematic and that she realized she required substance abuse treatment, but
the circuit court considered this testimony and made a credibility determination that we decline to
disturb on appeal. 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
guess such determinations.”). Indeed, petitioner displayed a willingness to stipulate to adjudication
not because she believed that she engaged in any inappropriate conduct, but because she sought to
expedite the proceedings. As such, both petitioner’s evaluator and the circuit court questioned her
sincerity in making admissions at the August of 2020 hearing after failing to do so for
approximately eighteen months during the proceedings. In short, petitioner cannot be entitled to
relief upon an argument that the circuit court, as the trier of fact, found that her late testimony
lacked credibility.
Petitioner also argues that the DHHR failed to offer expert testimony in regard to the child’s
need for continuity of caretakers and the amount of time it would take to integrate the child into a
stable and permanent home, among other considerations. It is unclear why petitioner believes
4
Petitioner actually cites to West Virginia Code § 49-6-5(b), a statute that was repealed in
2015 and replaced by West Virginia Code § 49-4-604.
7
expert testimony is necessary on these issues, however, and she provides no citation to any
authority that would require such evidence. Instead, West Virginia Code § 49-4-604(c)(6)(A) and
(B) simply require that “in fixing its dispositional order the court shall consider the following
factors: (A) The child’s need for continuity of care and caretakers; (B) The amount of time required
for the child to be integrated into a stable and permanent home environment.” Without providing
any analysis as to how the circuit court failed to consider these factors, petitioner simply alleges
that the DHHR did not produce evidence, expert or otherwise, on these issues. This is insufficient
to entitle petitioner to relief. Further, this argument ignores that the DHHR introduced the child’s
psychological report into evidence and that the report clearly explained that the child “requires a
structured, stable, and supportive home environment, offering consistent discipline and
consequences for his behavior, as well as consistent emotional support, and a stimulating
environment.” The record further demonstrated that petitioner could not meet these requirements,
as the visitation provider indicated that petitioner failed to provide structure during her visits with
the child and could not control him. This included a visit in which petitioner allowed the child to
escape her yard and was unable to retrieve him.
Next, petitioner argues that the circuit court erred by not requiring the DHHR to attempt
reunification, but this argument is both factually and legally flawed. Petitioner appears to argue,
by citing to both state and federal law, that the DHHR was required to make reasonable efforts to
preserve the family and did not satisfy this duty because the child was never returned to her care.
None of the authority upon which petitioner relies, however, requires that a child be returned to a
parent, guardian, or custodian. Instead, the DHHR was required to make reasonable efforts to
attempt such reunification, which it did. See W. Va. Code § 49-4-604(c)(6)(C)(iii) and (iv)
(requiring courts, upon termination of parental, custodial, and guardianship rights, to consider the
DHHR’s efforts to preserve and reunify the family). It is uncontroverted that, in an attempt to
remedy the issues of abuse and neglect in petitioner’s home and achieve reunification with the
child, the DHHR implemented parenting and adult life skills services for petitioner. The DHHR
also sought to facilitate visitation between petitioner and the child. These services constitute the
DHHR’s reasonable efforts to achieve reunification, and the DHHR was not required to return the
child to her care against his best interests. Further, petitioner ignores the fact that her own refusal
to acknowledge the conditions of abuse and neglect made the child’s return impossible. As such,
petitioner is simply incorrect that the DHHR did not establish that returning the child to her home
was contrary to his welfare.
In support of this argument, petitioner asserts that she passed all of her drug screens,
participated in services as requested, and completed a substance abuse treatment program. She also
relies heavily on her prior work with special needs children. It is important to note, however, that
this evidence was considered in conjunction with her history of substance abuse and CPS
intervention, including substantiated alcohol abuse in regard to her daughter. The court also
considered evidence of petitioner’s past participation in an alcohol treatment program to no avail.
Petitioner would have this Court focus solely on the evidence that supports her position while
ignoring relevant, probative evidence that the conditions for which petitioner was adjudicated have
continued for years. Further, the evidence to which petitioner cites does nothing to alter the fact
that a provider testified that petitioner did not seem to understand the severity of the child’s issues
and was unable to properly care for the child’s extensive needs, as further evidenced by her
inability to properly supervise the child during visits.
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As this Court has explained
“‘it is possible for an individual to show “compliance with specific aspects of the
case plan” while failing “to improve . . . [the] overall attitude and approach to
parenting.” W.Va. Dept. of Human Serv. v. Peggy F., 184 W.Va. 60, 64, 399 S.E.2d
460, 464 (1990).’” In re Jonathan Michael D., 194 W.Va. 20, 27, 459 S.E.2d 131,
138 (1995). Moreover, “‘[t]he assessment of the overall success of the improvement
period lies within the discretion of the circuit court . . . “regardless of whether . . .
the individual has completed all suggestions or goals set forth in family case
plans.”’ In Interest of Carlita B., 185 W.Va. 613, 626, 408 S.E.2d 365, 378 (1991).”
In re Jonathan Michael D., 194 W.Va. at 27, 459 S.E.2d at 138.
In re B.H., 233 W. Va. 57, 65, 754 S.E.2d 743, 751 (2014). The evidence here shows that while
petitioner may have complied with the terms of her improvement period, she failed to
fundamentally improve her overall attitude and approach to parenting by virtue of her repeated
refusal to acknowledge the conditions of abuse and neglect at issue. Further, “[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). Because petitioner failed to fundamentally
change her attitude and approach to parenting, it was clearly not in the child’s best interests to
return to the home.
This is further underscored by petitioner’s disregard for the child’s well-being below, as
demonstrated by her repeated attempts to subject the child to several hours of travel so that her
wishes for visitation in her home could be met. It is important to note that, on appeal, petitioner
provides no citation to the record to establish why she could not bear the burden of travel to
supervised visitations after the court found that asking the child to continue enduring the stress of
travel had a negative effect on his behavior and was, in fact, dangerous, given his repeated attempts
to exit his safety restraints and the vehicle. The record shows that petitioner indicated that she
could not attend visits because of her employment, but on appeal petitioner asserts, without citation
to the record, that she lacked transportation. In short, there is nothing in the record to support
petitioner’s repeated attempts to subject the child to this extended transportation, and the record
further shows that the DHHR made attempts to facilitate petitioner’s requested accommodations
for visits, to no avail. What is most telling, however, is petitioner’s repeated insistence that the
DHHR cater to her needs regardless of its impact on the child. In advancing this position, both
below and on appeal, petitioner totally abdicates responsibility for the child’s removal by asserting
that “[i]t was DHHR’s decision to place the child so far away from [petitioner].” This argument
ignores the reality that it was petitioner’s conduct that required the child’s removal and that the
DHHR was presented with limited options for his foster care given his extensive special needs.
Further, petitioner’s counsel only underscored the total disregard of the child’s well-being by
arguing that the child should have been repeatedly forced to travel to petitioner’s residence for
visits because the DHHR was willing to transport him on one occasion for a psychological
evaluation. Petitioner’s counsel argued that “the DHHR’s full willingness to transport the child for
a forensic evaluation” demonstrated “[t]he hypocrisy of requiring [petitioner] to travel to
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Middlebourne.” This argument lacks consideration for the fact that the psychological evaluation
was a single event and that no other options were available, while petitioner willfully refused to
put the child’s needs ahead of her own by demanding that he travel repeatedly for visits. In
response to the child’s transportation to the psychological evaluation, petitioner’s counsel
callously retorted that “[h]e survived it, didn’t he?” This demonstrates a total lack of interest in the
child’s well-being, as the fact that the child did not die during one isolated trip for a necessary
evaluation in no way undermined the substantial evidence that repeated travel to petitioner’s
residence was not only unnecessary, had petitioner simply made the effort to visit the child, but
also detrimental to the child’s wellbeing.
Ultimately, the circuit court’s termination of petitioner’s guardianship and custodial rights
was not in error. According to West Virginia Code § 49-4-604(c)(6), a circuit court may terminate
parental rights upon a finding that there is no reasonable likelihood that the conditions of abuse
and neglect can be substantially corrected in the near future and when necessary for the child’s
welfare. As set forth above, the court had ample evidence upon which to base 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). Based on the overwhelming
evidence in support of these determinations, we find no error in the circuit court’s termination of
petitioner’s parental rights.
Further, it is important to note that allowing petitioner’s reinstated improvement period to
continue would have been inappropriate. According to West Virginia Code § 49-4-610(9),
no combination of any improvement periods or extensions thereto may cause a
child to be in foster care more than fifteen months of the most recent twenty-two
months, unless the court finds compelling circumstances by clear and convincing
evidence that it is in the child’s best interests to extend the time limits contained in
this paragraph.
While it is true that the proceedings below were, at times, delayed by the DHHR’s failure to
quickly implement services and the COVID-19 pandemic, the record also shows that petitioner is
responsible for significant delays. This includes her failure to attend her psychological evaluation,
a critical component for establishing recommendations to remedy conditions of abuse and neglect,
because she simply forgot to attend. Further, petitioner waited until the child had been in foster
care for approximately eighteen months to finally indicate to the court that she recognized that her
conduct was problematic and needed correcting. By waiting until the last possible opportunity to
make this admission, petitioner unnecessarily delayed the proceedings and the child’s permanency.
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Because granting petitioner an additional period of improvement would have extended the child’s
placement in foster care well beyond the fifteen month limit, and because the court recognized that
no good cause existed for such delay, we find that it was appropriate for the circuit court to rescind
its prior decision to reinstate petitioner’s improvement period and terminate her guardianship and
custodial rights.
For the foregoing reasons, we find no error in the decision of the circuit court, and its
November 30, 2020, order is hereby affirmed.
Affirmed.
ISSUED: June 22, 2021
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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