In re B.J., K.E., and L.G. ( 2022 )

FILED
May 12, 2022
EDYTHE NASH GAISER, CLERK
STATE OF WEST VIRGINIA SUPREME COURT OF APPEALS
SUPREME COURT OF APPEALS
OF WEST VIRGINIA
In re B.J., K.E., and L.G.
No. 22-0021 (McDowell County 21-JA-1, 21-JA-2, and 21-JA-3)
MEMORANDUM DECISION
Petitioner Mother A.G., by counsel Patricia Kinder Beaver, appeals the Circuit Court of
McDowell County’s December 15, 2021, order terminating her parental rights to B.J, K.E., and
L.G. 1 The West Virginia Department of Health and Human Resources (“DHHR”), by counsel
Patrick Morrisey and Brittany Ryers-Hindbaugh, filed a response in support of the circuit court’s
order. The guardian ad litem (“guardian”), William O. Huffman, 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.
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.
The DHHR filed a child abuse and neglect petition against petitioner and L.G.’s father in
January of 2021. The DHHR alleged that it received a referral indicating that the parents abused
and sold drugs and that their home was in deplorable condition. Following the referral, a Child
Protective Services (“CPS”) worker visited the home and found it to be in a deplorable and unsafe
condition. The worker presented at the home and took pictures of the poor conditions and later
spoke to one of the children, who reported that petitioner uses a needle, and that petitioner helps
the father smoke green leaves. The worker returned to the home four days later and very little
progress had been made towards achieving safe home conditions. Accordingly, the DHHR alleged
that the children would be in imminent danger if allowed to remain in the custody of the parents.
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
The court held a contested adjudicatory hearing in April of 2021. The CPS worker testified
that the DHHR received a referral that petitioner and the father abused drugs and that their home
was in deplorable condition. The worker testified that the yard contained several holes at least two
feet deep, lumber with nails protruding out, and two saw blades next to the children’s toys. Further,
the home was filled with trash and debris such that there was “hardly any walkway,” including
trash on the children’s beds and trash lying next to portable space heaters. A container with a
crystalized white substance and two torch lighters was discovered by the worker on the parents’
bathroom sink. During her testimony, the worker introduced photographs she had taken of the
home and noted that the children were not present in the home during her initial visit because they
were visiting other family members. In fact, L.G. was at a relative’s home next door, K.E. was at
a different relative’s home just down the street, and B.J. was visiting his father. 2
Following testimony, petitioner’s counsel argued that the DHHR failed to establish that the
children lived in the home and were subject to any alleged poor conditions. At the conclusion of
the hearing, the court found that the evidence supported the conclusion that the children lived in
the home. Specifically, the court noted that the photographs of the home established that saw
blades were found next to a child’s toy, a swing set was present in the yard, toys were in the home,
that the children had a bedroom with bunkbeds, and that the children had a bathroom with their
drawings present. As such, the court found that there was “plenty of evidence of occupancy in this
house by children.” The court further found that the images depicted deplorable and inadequate
home conditions and that petitioner failed to provide the children with safe and secure shelter.
Accordingly, the court adjudicated petitioner as an abusing parent and directed her to comply with
services provided by the DHHR. In its adjudicatory order, the court noticed a multidisciplinary
team (“MDT”) meeting for the following month.
Petitioner failed to appear for the MDT meeting held in May of 2021. The DHHR filed the
family case plan in June of 2021 and indicated that petitioner was noncompliant with drug screens
and parenting services and that petitioner refused to allow CPS workers access to her home in
order to assess any progress in the home. There were no objections to the family case plan. By
order entered on July 2, 2021, the court scheduled the matter for disposition.
The court held a dispositional hearing in September of 2021, during which petitioner
moved the court for an improvement period. The court took judicial notice of a prior criminal
matter in 2020 wherein petitioner pled guilty to a drug-related offense in magistrate court.
Corporal Donnie Perry of the McDowell County Sheriff’s Department testified that he
accompanied a CPS worker to petitioner’s home approximately seven days prior to the
dispositional hearing for the purpose of assessing the home’s condition. Cpl. Perry testified that
he spoke to petitioner’s husband, who denied him access to the home, and that another adult in the
home informed him that petitioner was present in the home at that time. According to Cpl. Perry,
the immediate vicinity outside the home was “very unsafe” for children and was in deplorable
condition, with trash and building supplies scattered throughout the yard. Cpl. Perry testified that
2
At the time of the petition’s filing, B.J. was approximately thirteen years old, K.E. was
approximately nine years old, and L.G. was approximately six years old. Both B.J.’s father and
K.E.’s father were deemed nonabusing parents.
2
he was familiar with the condition of the home at the initiation of the proceedings and that, in his
opinion, the condition of the home had worsened.
A service provider then testified that, as of the dispositional hearing, petitioner failed to
maintain contact with him or participate in any services. The provider testified that petitioner’s
phone number was disconnected but that he visited her home and attempted to drug screen her no
less than six times during the proceedings to no avail. On several of those occasions, a vehicle was
located in the driveway of the home and a television could be heard from outside the home, but no
one answered the door. The provider stated that, on one attempted visit, he left a card in the door
with his contact information, but that petitioner never contacted him.
A CPS worker testified that drug screening, adult life skills and parenting classes, and
supervised visits were offered to petitioner but that she was entirely uncooperative with the DHHR.
The worker noted that petitioner failed to undergo a single drug screen or participate in any
parenting or adult life skills classes. The worker testified that she attempted to visit petitioner’s
home in May of 2021, but petitioner’s husband asked her to leave. She also testified that she
accompanied Cpl. Perry to the home seven days prior to the dispositional hearing but was denied
access. The DHHR introduced pictures of the outside of petitioner’s home that were taken by the
CPS worker when she accompanied Cpl. Perry to the home. According to the CPS worker, the
outside of the home was in the same condition as when the case was initiated and there had been
no meaningful improvement.
Petitioner testified that she recently obtained new housing and moved into the home her
mother had vacated, which was in good condition. Petitioner claimed that the CPS worker had
contacted her on only one occasion. Petitioner denied that she had a drug problem and stated that
she “used to” have a problem with pain medication but that she overcame her addiction by seeking
treatment at a Suboxone clinic in Virginia; however, petitioner was unable to recall her doctor’s
name at the clinic. Petitioner also denied that she was home on the six instances the service
provider came to her home to drug screen her and claimed she was “taking a nap” when Cpl. Perry
and the CPS worker visited her home.
By order entered on December 15, 2021, the court denied petitioner’s motion for an
improvement period and terminated her parental rights. The court found that it was undisputed that
petitioner failed to participate in any drug screens, parenting classes, or adult life skills classes
notwithstanding the many attempts made by the service provider. The court found that petitioner
was entirely noncompliant with services and had not cooperated with the DHHR in any meaningful
way. The court noted that Cpl. Perry and the CPS worker provided credible testimony that no
improvements to the outside of the home had been made and that they were denied access to the
home by petitioner’s husband. The court further found that petitioner’s testimony that she did not
have a drug problem was not credible given that she entered a guilty plea in 2020 to knowingly
and intentionally possessing a controlled substance without a valid prescription. Based upon the
foregoing, the court concluded that there was no reasonable likelihood that petitioner could correct
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the conditions of abuse and neglect in the near future and that termination was necessary for the
children’s welfare. Petitioner appeals the court’s December 15, 2021, dispositional order. 3
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 raises two assignments of error regarding the termination of her
parental rights. First, petitioner claims that the circuit court erred in terminating her parental rights
rather than employing a less restrictive alternative disposition. Petitioner claims that the children
were not living in the home at the time of the petition’s filing and, thus, were not in danger of
anything taking place at the home. As such, she asserts her parental rights should not have been
terminated. Second, petitioner argues that the circuit court erred in terminating her parental rights
when she was not involved in the formulation of the family case plan and when she did not receive
notice of the MDT meeting wherein the family case plan was discussed. Petitioner claims that the
family case plan that was drafted without her input did not address any alleged substance abuse
issues and there was “no indication that rehabilitation services were offered to [petitioner] or
outpatient services for her alleged substance abuse.” Further, no party filed a motion to terminate
petitioner’s parental rights and the guardian failed to file a written report. Accordingly, petitioner
avers that the circuit court erred in terminating her parental rights. We find petitioner’s arguments
to be meritless.
At the outset, we dispense with petitioner’s claim that the circuit court erred in terminating
her parental rights when the children did not live in the home at the time of the petition’s filing.
While petitioner couches her argument in terms of the termination of her parental rights, her
argument actually attacks her adjudication. We have held that
3
L.G.’s father’s parental rights were terminated during the proceedings below. The
permanency plan for L.G. is adoption by the paternal grandparents. The parental rights of the
fathers of B.J. and K.E. remain intact. The permanency plan is either reunification with the fathers
or adoption or permanent legal guardianship with the paternal grandparents or other relatives.
4
[a]t the conclusion of the adjudicatory hearing, the 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. . . . The findings must be based upon
conditions existing at the time of the filing of the petition and proven by clear and
convincing evidence.
In re F.S., 233 W. Va. 538, 544, 759 S.E.2d 769, 775 (2014). The record establishes that the circuit
court specifically considered this argument below and found it to be without merit. The CPS
worker’s testimony demonstrated that the children were only temporarily out of the home visiting
relatives—most of whom resided in close proximity to petitioner. Moreover, the court considered
photographs introduced into the record, which depicted evidence of children living in the home.
Based on the totality of this evidence, the circuit court did not err in determining that the children
were abused children and that petitioner was an abusing parent. Thus, petitioner’s argument that
she was entitled to a less restrictive alternative disposition must necessarily fail.
Next, we find no error by the circuit court regarding petitioner’s claims that she was not
noticed of or included in the formulation of the family case plan. Petitioner’s claim that she was
not noticed to the MDT meeting wherein the family case plan was discussed is simply false. The
adjudicatory order clearly sets forth the date of the MDT meeting in question, which was entered
nearly a month in advance of the meeting. Moreover, petitioner failed to produce any evidence
that the circuit court clerk did not send the order to petitioner or her counsel. To the extent
petitioner claims that the family case plan was somehow deficient, we find no error. The record is
clear that the DHHR attempted to provide services to petitioner but that she evaded the service
providers’ various efforts at contacting her and failed to maintain contact with the DHHR.
We likewise find that petitioner is not entitled to relief based upon the lack of a written
motion to terminate her parental rights. In support of her argument, petitioner cites West Virginia
Code § 49-4-114(c)(1), which provides:
Upon the filing of the verified petition seeking to have the parental rights
terminated, the court shall set a hearing on the petition. A copy of the petition and
notice of the date, time and place of the hearing on the petition shall be personally
served on any respondent at least twenty days prior to the date set for the hearing.
Petitioner’s reliance upon this code section is misplaced as it does not require the filing of a written
motion to terminate a respondent parent’s parental rights prior to the dispositional hearing. Rather,
this code section speaks to the filing of a petition and the notice requirements for the same.
Moreover, aside from simply stating that there was no motion filed and citing to the
aforementioned statute, petitioner provides no argument as to how she was prejudiced by the lack
of written motion or why it was error. The record demonstrates that a notice of the dispositional
hearing was timely filed and, at the dispositional hearing, both the guardian and the DHHR orally
moved to terminate petitioner’s parental rights. Petitioner did not object, nor did she argue that she
was surprised by the guardian and DHHR’s position. She also did not request a continuance.
Accordingly, based on these facts, we find no error.
5
While petitioner also argues that the circuit court erred in terminating her parental rights
when the guardian failed to file a report, she fails to provide any argument as to how she was
prejudiced or how the lack of a guardian’s report constitutes reversible error. Although the docket
sheet is devoid of any entry for a guardian’s report, both the transcript and the order for the
adjudicatory hearing reference a guardian’s report. Moreover, petitioner failed to object to any
alleged lack of a report at the dispositional hearing and did not alert the circuit court that she was
prejudiced in any way by the guardian’s alleged failure to file a report. “‘Our general rule is that
nonjurisdictional questions . . . raised for the first time on appeal, will not be considered.’ Shaffer
v. Acme Limestone Co., Inc., 206 W.Va. 333, 349 n. 20, 524 S.E.2d 688, 704 n. 20 (1999).” Noble
v. W. Va. Dep’t of Motor Vehicles, 223 W. Va. 818, 821, 679 S.E.2d 650, 653 (2009). Therefore,
we find no error in this regard.
We further find that there was sufficient evidence upon which to terminate petitioner’s
parental rights. West Virginia Code § 49-4-604(c)(6) provides that circuit courts are to terminate
parental 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.”
Testimony introduced by the DHHR indicated that petitioner failed to participate in any
services—drug screens and parenting and adult life skill classes—offered by the DHHR, despite
being provided with numerous opportunities to do so. Further, while the CPS worker and Cpl.
Perry were not permitted to view the inside of the home, they were able to observe the outside of
the home, and Cpl. Perry indicated that the condition of the home had worsened since the initiation
of the proceedings. Although petitioner claimed that the other witnesses’ testimony was untruthful,
the circuit court found that her testimony was not credible, and we decline to disturb this
determination on appeal. 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.”). Based on the abovementioned evidence, the circuit court
found 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, and
we agree. We have held that
“[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). Given the evidence as set forth
above, we find that the circuit court did not err in terminating petitioner’s parental rights.
6
Finally, because the DHHR continues to assess the suitability of the homes of the
nonabusing fathers, this Court reminds the circuit court of its duty to establish permanency for the
children. 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
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
December 15, 2021, order is hereby affirmed.
Affirmed.
ISSUED: May 12, 2022
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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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