In re A.J., K.J., and C.J. ( 2022 )

FILED
May 12, 2022
EDYTHE NASH GAISER, CLERK
STATE OF WEST VIRGINIA SUPREME COURT OF APPEALS
OF WEST VIRGINIA
SUPREME COURT OF APPEALS
In re A.J., K.J., and C.J.
No. 21-1009 (Kanawha County 21-JA-1, 21-JA-2, and 21-JA-3)
MEMORANDUM DECISION
Petitioner Grandmother S.J., by counsel Rebecca Stollar Johnson, appeals the Circuit Court
of Kanawha County’s November 18, 2021, order denying her motion to reconsider the termination
of her guardianship rights to A.J., K.J., and C.J. 1 The West Virginia Department of Health and
Human Resources (“DHHR”), by counsel Patrick Morrisey and Mindy M. Parsley, filed a response
in support of the circuit court’s order. The guardian ad litem, Jennifer N. Taylor, 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 finding that she had not successfully completed her post-adjudicatory
improvement period and in terminating her guardianship 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 January of 2021, the DHHR filed a child abuse and neglect petition against the children’s
parents and petitioner, the children’s legal guardian, citing substance abuse, a lack of stable
housing, and educational neglect. The DHHR alleged that petitioner had a history of drug abuse
and that the children had been living in hotels because they lacked a permanent home. According
to the petition, the children spent the night in a vehicle on at least one occasion. The DHHR further
alleged that the children were truant from school on multiple occasions.
Later that month, the circuit court held a preliminary hearing during which a Child
Protective Services (“CPS”) worker testified as to the children’s disclosures regarding substance
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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abuse, truancy, lack of adequate food, and a transient lifestyle that the children experienced in
petitioner’s care. Petitioner testified on her own behalf and noted that she had custody of the
children because “all four of the parents were really bad drug users.” Petitioner further admitted
that she lacked a permanent residence for the children and acknowledged that the children did not
attend school because she had vehicle troubles and she did not understand how to access their
classes remotely using technology. She objected to the removal of the children from her custody
and requested services be provided to her. The court found probable cause that the children were
abused or neglected because petitioner placed the children in a “transient lifestyle without adequate
food or permanent shelter and caused them to be truant from school and exposed to substance
abuse.” However, the court did order the DHHR to provide petitioner with services, including
parenting and adult life skills classes, bus passes, and random drug screens. The court also granted
petitioner visitation with the children contingent on negative drug screens.
In February of 2021, the guardian ad litem filed a report indicating that petitioner tested
positive for methamphetamine earlier that month, despite her participation in services. Later that
month, the circuit court held an adjudicatory hearing wherein the DHHR moved the court to take
judicial notice of the CPS worker’s testimony at the preliminary hearing. The court granted the
DHHR’s motion, and no other party offered any testimony or evidence disputing the allegations
in the petition. As a result, the court found clear and convincing evidence that petitioner was an
abusing and neglectful guardian.
The court held an adjudicatory hearing regarding the children’s parents in April of 2021.
At the hearing, petitioner motioned for a post-adjudicatory improvement period, requested that the
court change her service providers, and sought increased visitation with the children. The court
found that petitioner was complying with her services and granted her motion for an improvement
period. The court further granted the DHHR and guardian ad litem discretion to increase
petitioner’s visitation.
The DHHR filed a court summary in May of 2021 indicating that petitioner had been
largely compliant in services and that petitioner had tested negative on all her recent random drug
screens. However, the DHHR noted that petitioner had ended some of her visits with the children
early and had failed to provide adequate food or sustenance for the children during the four-hour
visits. The DHHR also noted that petitioner had not yet secured housing or employment. Petitioner
reported to service providers that she had been staying with “a new guy” that she had only known
for a matter of days. Petitioner was also relying on a service provider for transportation to and
from her services, despite receiving a bus pass. Ultimately, however, the DHHR recommended
that petitioner’s improvement period continue.
The DHHR filed another court summary in August of 2021 indicating that petitioner had
been participating in drug screens and noted that petitioner tested positive for methamphetamine
and amphetamine on one screen in June of 2021 and methamphetamine on another screen in July
of 2021. Further, the DHHR noted that petitioner’s phone appeared to be off in June of 2021 and
petitioner was not participating in adult life skills or individualized parenting classes. The DHHR
explained that petitioner had been participating in some visits with the children but continued to
end visits prematurely. In fact, only one visit occurred in June of 2021 due to petitioner’s
noncompliance in services that month, and that petitioner cancelled a visit in late July of 2021 due
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to alleged illness. While petitioner secured adequate housing and employment, the DHHR reported
an incident in July of 2021 wherein a CPS worker went to petitioner’s residence to deliver a bus
pass and observed petitioner’s boyfriend, his two children, and two other unidentified persons
leaving the apartment, as well as another two unidentified people inside the apartment. The DHHR
reported that the unidentified people inside the apartment allegedly attempted to attack petitioner’s
boyfriend as he was leaving, causing the worker to enter the apartment to intervene. The
unidentified individuals then seemed to calm down, gathered their things, and prepared to leave.
The worker noted that the persons appeared to be under the influence of drugs. When the worker
asked petitioner who the people were, she responded that they were people from “around the area.”
The worker further noticed that the smoke alarm had been disconnected inside the apartment and
informed petitioner that if visits were to resume in the apartment, those individuals could not be
around the children and that all safety devices in the home must be properly connected. The DHHR
concluded its report by recommending that a dispositional hearing be set, and that petitioner submit
to in-home drug screening.
The DHHR filed a further summary report in October of 2021 indicating that petitioner
was compliant with services but noted that she tested positive for methamphetamine in late August
of 2021. Petitioner claimed that “the methamphetamine result was from her consumption of Red
bull.” A CPS worker noted that food and drinks will not alter drug screen results. Nevertheless,
petitioner told the CPS worker that she had never abused drugs, calling the drugs “some crazy
stuff.” The DHHR further noted that petitioner was not present for a multidisciplinary team
meeting in September of 2021. As a result, the DHHR was recommending termination of
petitioner’s guardianship rights due to her drug abuse and denial of the same.
Later that month, the circuit court held a final dispositional hearing wherein petitioner
moved for a brief continuance “pending [the] results of a hair follicle test” she had taken the same
morning that she intended to introduce as evidence. The court denied the motion based upon
petitioner’s “repeated positive drug screens through these proceedings, and noted her objection.”
A CPS worker then testified that petitioner had submitted three positive drug screens over the prior
months but denied any substance abuse. As a result, the CPS worker explained that she
recommended that petitioner’s guardianship rights be terminated. Next, petitioner testified that she
attributed her positive drug screens to Red Bull consumption and stated that she had stopped
consuming the energy drink. She also testified that she had employment and had been maintaining
a home and was compliant with all other remedial and reunification services. After hearing
testimony, the DHHR moved to terminate petitioner’s guardianship rights while petitioner
objected and moved for a post-dispositional improvement period. The guardian ad litem joined in
the DHHR’s motion for termination and objected to petitioner’s motion for an improvement
period.
After hearing the evidence, the court found that petitioner’s “substance abuse and
continued denial of same prevents her from being an appropriate guardian for the [] children.” The
court found that the DHHR “cannot provide any additional services to remedy the conditions of
abuse and neglect” and that there was no reasonable likelihood that petitioner could substantially
correct the conditions of abuse or neglect in the foreseeable future. As a result, the court denied
petitioner’s motion for a post-dispositional improvement period and terminated her guardianship
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rights by its October 13, 2021, order. 2 Petitioner further filed a “motion for reconsideration,” which
the circuit court denied by its November 18, 2021, order. It is from this order that petitioner
appeals.
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).
In her argument on appeal, petitioner contends that the circuit court erred in denying her
motion for reconsideration without holding a hearing. According to petitioner, “[e]ven after being
provided with the negative hair follicle test, the [circuit c]ourt made no effort to resolve the issue
of drug use and simply denied the [p]etitioner’s [m]otion for reconsideration without a hearing.”
First, petitioner states earlier in her brief that she had taken the hair follicle test on the morning of
the dispositional hearing and moved to continue the matter to allow for the results of that test,
which the court denied. As such, petitioner’s hair follicle test was not made part of the record
below or considered as evidence by the circuit court. Further, we find that petitioner is entitled to
no relief because there is no provision for a motion to reconsider in the West Virginia Rules of
Procedure for Child Abuse and Neglect Proceedings, Chapter 49 of the West Virginia Code, or the
applicable West Virginia Rules of Civil Procedure. Accordingly, any alleged violation of due
process based upon the lack of a hearing on such a motion is misplaced given that the court had
no duty to hold a hearing upon a motion for which the law does not provide. Indeed, on appeal to
this Court, petitioner cites to no authority that required the court to hold a hearing on her motion
for reconsideration, nor does she cite to any authority allowing for the filing of such motion.
Therefore, petitioner is entitled to no relief in this regard.
Next, petitioner argues that the circuit court erred in finding that she had not successfully
completed her post-adjudicatory improvement period. Petitioner contends that she successfully
completed her improvement period by maintaining suitable housing, obtaining employment, and
participating in drug screens. Petitioner acknowledges her three failed drug screens but avers that
she “was compliant in each and every aspect of her improvement period.” Further, petitioner
2
The parents’ parental rights were also terminated below. The permanency plan for the
children is adoption in their respective foster homes.
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maintains that she did not abuse controlled substances, such as methamphetamine, and continues
to cite energy drinks as the cause of the positive screens. We disagree and find no merit to
petitioner’s arguments.
This Court has held that
[a]t the conclusion of the improvement period, the court shall review the
performance of the parents in attempting to attain the goals of the improvement
period and shall, in the court’s discretion, determine whether the conditions of the
improvement period have been satisfied and whether sufficient improvement has
been made in the context of all the circumstances of the case to justify the return of
the child.
Syl. Pt. 6, In re Carlita B., 185 W. Va. 613, 408 S.E.2d 365 (1991). 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); see also In re Frances J.A.S., 213
W. Va. 636, 646, 584 S.E.2d 492, 502 (2003) (“The question at the dispositional phase of a child
abuse and neglect proceeding is not simply whether the parent has successfully completed his or
her assigned tasks during the improvement period. Rather, the pivotal question is what disposition
is consistent with the best interests of the child.”). Lastly, we note that West Virginia Code § 49-
4-604(c)(6) provides that circuit courts are to terminate guardianship rights upon finding that there
is “no reasonable likelihood that the conditions of neglect or abuse can be substantially corrected
in the near future” and that termination is necessary for the child’s welfare. West Virginia Code §
49-4-604(d) provides that a 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 their own or
with help.”
In this case, the court did not err in finding that petitioner failed to successfully complete
her improvement period. Although petitioner made some initial progress by securing housing and
employment and visiting with the children, she continued to test positive for controlled substances
and to deny her drug abuse despite positive drug screens. Additionally, despite having failed to
abide by the terms and conditions of her improvement period, petitioner was granted several
opportunities to continue the improvement period to correct the conditions of abuse and neglect
but eventually stopped complying with parenting and adult life skills classes and cut short her
visits with the children. Indeed, the circuit court stated at disposition that the DHHR could not
“provide any additional services to remedy the conditions of abuse and neglect” and that
petitioner’s “substance abuse and continued denial of same prevents her from being an appropriate
guardian for the [] children.”
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It is also evident that the petitioner failed to fully acknowledge the conditions of abuse and
neglect. While petitioner produced many negative drug screens throughout the proceedings, she
tested positive for methamphetamine in February of 2021, June of 2021, July of 2021, and August
of 2021. Yet, rather than acknowledging her substance abuse and seeking out treatment services,
petitioner denied any substance abuse and continues to do so on appeal. Petitioner blamed the
consumption of energy drinks as causing her to falsely screen positive, despite providing no
evidence of the same. Further, petitioner failed to acknowledge other issues that affected her ability
to safely parent the children. Upon a CPS worker arriving at petitioner’s home in July of 2021 in
order to deliver her bus passes, the worker observed several unidentified individuals attacking
petitioner’s boyfriend before leaving her home. According to a DHHR court summary, the worker
noted that the individuals appeared to be under the influence of drugs. However, the worker noted
that petitioner downplayed the significance of the incident and did not identify the individuals.
Accordingly, we find no error in the circuit court’s finding that she had not successfully completed
her post-adjudicatory improvement period.
In sum, while petitioner made some changes in order to comply with the requirements of
her improvement period, she did not modify her behavior or make sufficient improvement to
justify the return of the children to the home. “[W]e have recognized that 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.” In re B.H., 233 W. Va. at 65, 754 S.E.2d at 751
(additional quotations and citations omitted). Such is the case here. While petitioner completed
some aspects of her improvement period and complied for some time with service providers,
“courts are not required to exhaust every speculative possibility of parental improvement before
terminating [guardianship] rights where it appears that the welfare of the child will be seriously
threatened.” Syl. Pt. 1, in part, In re R.J.M., 164 W. Va. 496, 266 S.E.2d 114 (1980). Despite
petitioner’s participation in an improvement period and her completion of certain requirements,
we find that sufficient evidence existed to support the court’s 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 in the children’s best interests. Accordingly, for the reasons set forth above,
we find no error in the circuit court’s termination of petitioner’s guardianship rights to the children.
For the foregoing reasons, we find no error in the decision of the circuit court, and its
November 18, 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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