In re C.W., E.P. and L.P. ( 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 C.W., E.P., and L.P.
No. 21-0974 (Webster County 21-JA-20, 21-JA-21, and 21-JA-22)
MEMORANDUM DECISION
Petitioner Mother Z.W., by counsel Andrew B. Chattin, appeals the Circuit Court of
Webster County’s November 3, 2021, order terminating her parental rights to C.W., E.P., and L.P.1
The West Virginia Department of Health and Human Resources (“DHHR”), by counsel Patrick
Morrisey and Andrew Waight, filed a response in support of the circuit court’s order. The guardian
ad litem, Mary Elizabeth Snead, filed a response on behalf of the children also in support of the
circuit court’s order. On appeal, petitioner argues that the circuit court erred in terminating her
parental rights without first 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.
Prior to the filing of the instant petition, the DHHR filed a child abuse and neglect petition
against petitioner in April of 2015 due to substance abuse and deplorable home conditions.
Petitioner was adjudicated as an abusing parent and, eventually, chose to voluntarily relinquish her
parental rights to the older child rather than participate in an improvement period.
The DHHR filed the instant petition in June of 2021, raising nearly identical issues as the
previous petition. Specifically, the DHHR alleged that petitioner’s home was in deplorable
condition with portions of the ceiling falling down, trash and old food scattered throughout the
home, garbage and various items scattered outside of the home, cockroaches in the home, and a
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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broken ladder leading to an upstairs floor. A Child Protective Services (“CPS”) worker spoke with
petitioner, who agreed to submit to a drug screen and admitted that she would test positive for
marijuana. Upon submitting to the screen, petitioner tested positive for amphetamines,
methamphetamine, and ecstasy, in addition to marijuana. The DHHR further alleged that the CPS
worker was provided with text messages sent from petitioner to an acquaintance wherein petitioner
stated that she did not need drug treatment, that she “cho[]se” to abuse drugs, and “cho[]se” to sell
drugs. Petitioner waived her preliminary hearing.
The circuit court held an adjudicatory hearing in August of 2021. Petitioner failed to appear
but was represented by counsel. At the conclusion of the hearing, the circuit court adjudicated her
as an abusing parent upon finding that she failed to correct the conditions of abuse since the prior
case, was addicted to controlled substances, and failed to provide suitable housing for her children.
The circuit court held a dispositional hearing in October of 2021. The DHHR presented the
testimony of a service provider, who stated that she attempted to provide services to petitioner but
petitioner was noncompliant. According to the provider, petitioner attended one session in July of
2021 and thereafter failed to attend other sessions. The provider explained that petitioner had
agreed to a set schedule of weekly sessions on Tuesdays but petitioner missed at least ten of those
scheduled sessions throughout August and September of 2021.
A CPS worker testified that petitioner submitted to only one additional drug screen after
the petition’s filing, which was also positive for methamphetamine, amphetamines, and marijuana.
The CPS worker testified that a service provider attempted to contact petitioner at her home on
multiple occasions to assist petitioner in submitting to drug screens, and that petitioner was never
home and/or never responded to her attempts at contact. Due to her failure to submit to drug
screens, petitioner was prohibited from visiting the children. Petitioner also failed to maintain
contact with the CPS worker. As such, the CPS worker testified that the DHHR’s recommendation
was that petitioner’s parental rights be terminated.
Petitioner testified that she did not attend the adjudicatory hearing because she was not
aware it had been scheduled. Petitioner also claimed that she did not attend drug screens because
she did not have any transportation and that she missed a parenting class because she had been
exposed to COVID-19. Petitioner denied that she had a drug abuse issue and denied sending any
text messages indicating that she abused or sold drugs. Petitioner stated she would test negative
for all substances if screened and that she would comply with services and would attend long-term
inpatient drug treatment if required. Petitioner admitted that she was living with a convicted felon.
She further admitted that she had been employed part-time for the past two months and that she
passed by the DHHR office on her way to and from work but never stopped to talk to any CPS
workers or to submit to a drug screen. Petitioner admitted that a service provider had come to her
home on one occasion but stated the provider simply taped a note to the door and did not knock.
Following her testimony, petitioner submitted to a drug screen, which was positive for
methamphetamine, amphetamines, and marijuana.
The circuit court found that petitioner’s testimony was not credible and was, in fact, false
as she testified that she would test negative for all substances but did not. The court further found
that petitioner failed to participate in services and hearings. The court considered petitioner’s
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voluntary relinquishment of her parental rights to an older child when faced with involuntary
termination. The court further found that petitioner’s claim that she could not attend services and
drug screens due to a lack of transportation was “incredible” as her testimony established that she
was able to “do everything [else] she wants to” and sought transportation from friends and family
for other reasons. Ultimately, the circuit court terminated petitioner’s parental 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 children’s welfare. Petitioner
appeals the circuit court’s November 3, 2021, dispositional order. 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
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
without first granting her an improvement period. Petitioner argues that she was willing to correct
the conditions of abuse and neglect and testified as to her willingness to participate in an
improvement period at the dispositional hearing. Petitioner indicated that she had not fully
complied with services due to transportation issues and that, while she denied having a drug issue,
she was willing to enter long-term inpatient treatment. Petitioner avers that the circuit court erred
in employing termination, “the most drastic action,” without first considering less restrictive
alternatives. Petitioner “believe[s] there was a reasonable likelihood that [she] would have
corrected the conditions of abuse and neglect as she was willing to comply with all directives of
the [c]ourt.”
This Court has held that “a parent charged with abuse and/or neglect is not unconditionally
entitled to an improvement period.” In re Emily, 208 W. Va. 325, 336, 540 S.E.2d 542, 553 (2000).
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The father of E.P. and L.P. voluntarily relinquished his parental rights to E.P. and L.P.
The permanency plan for E.P. and L.P. is adoption by their foster family. Paternity for C.W. was
not established until sometime after petitioner’s parental rights were terminated. According to the
guardian, C.W.’s father’s parental rights remain intact, although the father is now the subject of
abuse and neglect proceedings. Should reunification with the father not occur, C.W.’s permanency
plan is adoption in the same home as his siblings.
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West Virginia Code § 49-4-610(3)(B) provides that the circuit court may grant a parent an
improvement period when the parent “demonstrates, by clear and convincing evidence, that the
[parent] is likely to fully participate in the improvement period.” Further, we have stated that a
circuit court has discretion to deny an improvement period when no improvement is likely. See In
re Tonjia M., 212 W. Va. 443, 448, 573 S.E.2d 354, 359 (2002).
Here, we find that the circuit court did not abuse its discretion in denying petitioner an
improvement period. The record is clear that petitioner was offered services such as parenting and
adult life skills classes, random drug screens, and supervised visitation but she failed to
consistently avail herself of any such services. Petitioner attended only one parenting and adult
life skills class with her service provider and blamed her lack of participation thereafter on
transportation issues. However, petitioner was able to obtain rides to go other places and the
DHHR attempted to provide transportation to petitioner multiple times but could not reach her
either in person or by telephone. In light of this evidence, we decline to disturb the circuit court’s
determination that petitioner’s testimony was not credible. See 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.”).
Moreover, the record establishes that petitioner failed to submit to nearly all scheduled
drug screens and claimed that she did not have a drug abuse problem. Petitioner submitted to only
three screens during the proceedings and tested positive for numerous drugs on each occasion yet
continued to deny that she had a drug abuse problem. This Court has previously 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). Accordingly,
given petitioner’s willful failure to participate in services and her failure to acknowledge her drug
abuse issue, we cannot find that the circuit court abused its discretion in denying petitioner an
improvement period. Petitioner is entitled to no relief in this regard.
We likewise find no error in the termination of petitioner’s parental 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 children’s welfare. West Virginia Code § 49-4-604(d) provides that a circuit court may find
that there is no reasonable likelihood that the conditions of abuse and neglect can be substantially
corrected 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.”
Here, petitioner demonstrated an inadequate capacity to solve the problems of abuse and
neglect on her own or with help. Petitioner failed to maintain contact with either her CPS workers
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or her service providers throughout the proceedings. Service providers attempted to locate
petitioner at her home and left messages taped to her door asking petitioner to call them, but
petitioner never made contact. Further, both CPS workers and service providers attempted to
contact petitioner at the telephone number she provided to them to no avail. Petitioner failed to
participate in services or submit to drug screens and, on the few occasions she did submit to a drug
screen, she tested positive for drugs. Nevertheless, petitioner denied having a drug abuse problem
throughout the proceedings. Moreover, petitioner’s failure to comply with drug screens resulted in
her inability to visit the children. “We have previously pointed out that the level of interest
demonstrated by a parent in visiting his or her children while they are out of the parent’s custody
is a significant factor in determining the parent’s potential to improve sufficiently and achieve
minimum standards to parent the child.” In re Katie S., 198 W. Va. 79, 90 n.14, 479 S.E.2d 589,
600 n.14 (1996) (citations omitted). Accordingly, there was sufficient evidence for the circuit court
to find 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 children’s welfare.
While petitioner argues that the circuit court should have granted her an improvement
period prior to the termination of her parental rights, this Court has held:
“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
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 foregoing, we find
no error in the circuit court terminating petitioner’s parental rights to the children.
Lastly, because the proceedings regarding C.W.’s father remain ongoing, this Court
reminds the circuit court of its duty to establish permanency for the child. Rule 39(b) of the Rules
of Procedure for Child Abuse and Neglect Proceedings requires:
At least once every three months until permanent placement is achieved as defined
in Rule 6, the court shall conduct a permanent placement review conference,
requiring the multidisciplinary treatment team to attend and report as to progress
and development in the case, for the purpose of reviewing the progress in the
permanent placement of the child.
Further, this Court reminds the circuit court of its duty pursuant to Rule 43 of the Rules of
Procedure for Child Abuse and Neglect Proceedings to find permanent placement for the child
within twelve months of the date of the dispositional order. As this Court has stated,
[t]he [twelve]-month period provided in Rule 43 of the West Virginia Rules
of Procedure[] for Child Abuse and Neglect Proceedings for permanent placement
of an abused and neglected child following the final dispositional order must be
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strictly followed except in the most extraordinary circumstances which are fully
substantiated in the record.
Cecil T., 228 W. Va. at 91, 717 S.E.2d at 875, syl. pt. 6. Moreover, this Court has stated that
[i]n determining the appropriate permanent out-of-home placement of a
child under [West Virginia Code § 49-4-604(b)(6)], the circuit court shall give
priority to securing a suitable adoptive home for the child and shall consider other
placement alternatives, including permanent foster care, only where the court finds
that adoption would not provide custody, care, commitment, nurturing and
discipline consistent with the child’s best interests or where a suitable adoptive
home [cannot] be found.
Syl. Pt. 3, State v. Michael M., 202 W. Va. 350, 504 S.E.2d 177 (1998). Finally, “[t]he guardian
ad litem’s role in abuse and neglect proceedings does not actually cease until such time as the child
is placed in a permanent home.” Syl. Pt. 5, James M. v. Maynard, 185 W. Va. 648, 408 S.E.2d 400(1991).
For the foregoing reasons, we find no error in the decision of the circuit court, and its
November 3, 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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