In re G.M. and V.B. ( 2022 )

FILED
May 12, 2022
STATE OF WEST VIRGINIA EDYTHE NASH GAISER, CLERK
SUPREME COURT OF APPEALS
SUPREME COURT OF APPEALS OF WEST VIRGINIA
In re G.M. and V.B.
No. 21-0827 (Tucker County 20-JA-11 and 20-JA-12)
MEMORANDUM DECISION
Petitioner Mother A.L., by counsel Morris C. Davis, appeals the Circuit Court of Tucker
County’s September 14, 2021, order terminating her parental rights to G.M. and V.B. 1 The West
Virginia Department of Health and Human Resources (“DHHR”), by counsel Patrick Morrisey
and Lee Niezgoda, filed a response in support of the circuit court’s order. The guardian ad litem,
Heather M. Weese, 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 denying her a post-dispositional
improvement period and terminating her parental rights.
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 July of 2020, the DHHR filed a petition alleging that petitioner abused and neglected
the children by virtue of her substance abuse. According to the petition, V.B.’s father obtained a
protective order against petitioner on the children’s behalf because of her poor decision-making
when abusing drugs. The petition also alleged that petitioner was involved in prior abuse and
neglect proceedings that concluded the year prior because of her substance abuse. Petitioner
admitted to abusing drugs but downplayed the frequency and severity of her substance abuse.
Based on the foregoing, the DHHR alleged that petitioner abused and neglected the children.
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).
1
In September of 2020, petitioner stipulated to her adjudication and admitted that her
substance abuse negatively affected her ability to parent her children. As such, the court found that
petitioner abused and neglected the children. The court also took petitioner’s motion for a post-
adjudicatory improvement period under advisement.
The following month the circuit court held a hearing on petitioner’s motion, during which
the DHHR opposed an improvement period for petitioner. In support, the DHHR presented
testimony from a Child Protective Services (“CPS”) worker concerning petitioner’s prior abuse
and neglect proceeding and her participation in an improvement period to resolve her substance
abuse issues. Petitioner also testified in support of her motion, which the circuit court ultimately
granted. The court cautioned petitioner, however, that “this is her second improvement period in
two . . . years and that her failure to fully comply will result in a termination of her parental rights.”
In November of 2020, the court held a hearing and accepted the multidisciplinary team’s
(“MDT”) terms and conditions for petitioner’s improvement period. The court also noted that
petitioner was in a relationship with an individual “who is alleged to be a drug addict and whose
family members are known to this [c]ourt as using and selling drugs.” The MDT believed
petitioner’s girlfriend was not appropriate to be around the children and that petitioner needed to
evaluate her continued relationship with the girlfriend in order to be reunified with her children.
In March of 2021, the guardian filed a motion to terminate petitioner’s improvement
period. According to the motion, petitioner was required to submit to a drug screening program
known as “Call to Test,” which required petitioner to contact this program daily, Monday through
Friday. Despite this requirement, petitioner had not checked in with the program since February
16, 2021, and had not submitted to a drug screen since February 15, 2021. Additionally, two
participants of the Tucker County Community Corrections program were caught trying to alter
their urine screens and, upon confrontation, admitted to abusing methamphetamine with petitioner.
The guardian also indicated that petitioner explained her lack of participation by providing an
“excuse” from the School Based Health Center of the St. George Clinic, dated February 19, 2021,
that contained a recommendation that petitioner “take a mental health break due to her current
emotional status. This includes obstaining [sic] from meetings, obligations, etc. if at all possible.”
The guardian indicated that petitioner provided this same document to a service provider “as the
reason why she needed two weeks before she could start the required parenting classes” as ordered
for her improvement period. According to the guardian, by relying on this document, petitioner
also missed several appointments for individual and group therapy, also required by her
improvement period. Petitioner also provided as an excuse another document from the St. George
Clinic stating that “she was off ‘work’ pending COVID-19 test results.” The guardian noted that
such results are typically returned within three to five days. Despite her purported quarantine,
various staff members from Community Corrections observed petitioner around town. Because
petitioner missed several drug screens, she also had not visited her children in over a month.
According to the guardian, CPS workers attempted to contact petitioner one month prior, but she
failed to respond to any communications or attend the most recent MDT meeting. The guardian
also indicated that petitioner provided no information about her “emotional status” and why it was
recommended she take a “mental health break,” but that these issues clearly impacted her ability
to comply with services and would also necessarily affect her ability to properly parent the
children.
2
Also in March of 2021, the circuit court held a hearing on the guardian’s motion to
terminate petitioner’s improvement period, during which the guardian presented testimony from
the director of the Tucker County Community Corrections and a CPS worker, both of whom
testified consistently with the guardian’s motion. Petitioner also testified and admitted that if she
submitted to a screen she would be positive for THC. Based on the evidence, the court found that
petitioner was not compliant with drug screens and other services and terminated her improvement
period. Following the termination of her improvement period, petitioner tested positive for
benzodiazepines, buprenorphine, and THC twice—once in May and once in June of 2021.
After two continued dispositional hearings, the matter came on for a final dispositional
hearing in August of 2021. During the hearing, petitioner’s counsel made an oral motion for a post-
dispositional improvement period. Petitioner also testified that she was enrolled in a medication-
assisted substance abuse treatment program in Maryland. The DHHR also presented a witness who
testified about petitioner’s failure to comply with services or correct the conditions of abuse and
neglect. The court, although encouraged by her enrollment in treatment, nonetheless found that
this was petitioner’s second abuse and neglect proceeding in three years due to substance abuse
and that she failed to seek treatment until after the termination of her post-adjudicatory
improvement period, which was her second improvement period across the two proceedings.
According to the court, petitioner’s “last-minute efforts to seek treatment” were outweighed by
concern over her “involvement in and out of the abuse and neglect system since 2018 for issues
surrounding her substance abuse and its negative impact on her ability to parent her children.”
Based on the evidence, the court found that there was no reasonable likelihood that petitioner could
substantially correct the conditions of abuse and neglect in the near future due to her failure to
fully comply with the terms and conditions of her improvement period. The court also found that
termination of petitioner’s parental rights was in the children’s best interests and necessary for
them to achieve stability. 2 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
2
According to respondents, the permanency plan for V.B. is placement in the nonabusing
father’s custody, while the permanency plan for G.M. is adoption by V.B.’s father. The concurrent
permanency plan for the children is adoption by relatives.
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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 failing to place her on a post-
dispositional improvement period. Despite acknowledging that West Virginia Code § 49-4-
610(3)(A) requires a parent to file a written motion for a post-dispositional improvement period,
petitioner fails to cite to any portion of the record where she filed such a motion. Our review
reveals that petitioner made an oral motion for an improvement period at the dispositional hearing,
meaning that she cannot be entitled to relief on appeal. As this Court recently held, “[a] circuit
court may not grant a[n] . . . improvement period under W. Va. Code § 49-4-610 . . . unless the
respondent to the abuse and neglect petition files a written motion requesting the improvement
period.” Syl. Pt. 5, State ex rel. P.G.-1 v. Wilson, -- W. Va. --, -- S.E.2d --, 2021 WL 5355634(2021). As petitioner has failed to cite to the record to show that she moved, in writing, for a post-
dispositional improvement period, in violation of Rule 10(c)(7) of the Rules of Appellate
Procedure, she cannot be entitled to relief in this regard.
Finally, petitioner argues that it was error to terminate her parental rights because
“[o]utright termination . . . is the least favored disposition.” Petitioner again correctly points to the
appropriate standard at issue, noting that a “court cannot terminate the parental rights of a [parent]
. . . unless the court makes a find[ing] that there is no reasonable likelihood that the conditions
leading to the abuse and neglect can be substantially corrected in the near future.” The circuit court
made this exact finding. While petitioner argues that the record shows that she was taking actions
to correct her substance abuse, we find that the circuit court’s determination that there was no
reasonable likelihood that petitioner could substantially correct the conditions of abuse and neglect
was supported by substantial evidence.
As set forth above, the court noted petitioner’s minimal, late attempt to address her
substance abuse but found that it was outweighed by the fact that she had been participating, off
and on, in abuse and neglect proceedings for several years to address this issue with no success.
The court also highlighted petitioner’s failure to comply with services throughout the majority of
the instant case as supportive of this finding. We agree. According to West Virginia Code § 49-4-
604(d)(3), a circumstance in which there is no reasonable likelihood that the conditions of abuse
and neglect can be substantially corrected includes one in which “[t]he abusing parent . . . [has]
not responded to or followed through with a reasonable family case plan or other rehabilitative
efforts of social, medical, mental health, or other rehabilitative agencies designed to reduce or
prevent the abuse or neglect of the child.” As the court found, petitioner received services to
address her substance abuse during two proceedings over several years, yet the conditions
persisted. As such, the evidence overwhelmingly supported this finding.
Finally, we have explained as follows:
“Termination 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
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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). As such, we find no error in the
termination of petitioner’s parental rights.
For the foregoing reasons, we find no error in the decision of the circuit court, and its
September 14, 2021, order is hereby affirmed.
Affirmed.
ISSUED: May 12, 2022
CONCURRED IN BY:
Chief Justice John A. Hutchison
Justice Elizabeth D. Walker
Justice Tim Armstead
Justice William R. Wooton
Justice C. Haley Bunn
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