In Re: L.B. ( 2016 )

STATE OF WEST VIRGINIA
SUPREME COURT OF APPEALS
FILED
In re: L.B. October 11, 2016
RORY L. PERRY II, CLERK
No. 16-0471 (Kanawha County 15-JA-205) SUPREME COURT OF APPEALS
OF WEST VIRGINIA
MEMORANDUM DECISION
Petitioner Mother S.S., by counsel Matthew A. Victor, appeals the Circuit Court of
Kanawha County’s May 4, 2016, order terminating her parental rights to nine-year-old L.B.1 The
West Virginia Department of Health and Human Resources (“DHHR”), by counsel S.L. Evans,
filed its response in support of the circuit court’s order. The guardian ad litem, W. Jesse Forbes,
filed a response on behalf of the child also in support of the circuit court’s order. On appeal,
petitioner argues that the circuit court erred in terminating her parental rights.2
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 April of 2008, the DHHR filed an abuse and neglect petition that alleged that petitioner
abused drugs during her pregnancy with the child, who tested positive for cocaine at birth.
Thereafter, petitioner waived her right to a preliminary hearing. The circuit court then granted
petitioner an improvement period that required her to complete treatment at an inpatient drug
treatment facility. After petitioner completed treatment, the circuit court returned the child to
petitioner’s care. In December of 2009, the circuit court dismissed the abuse and neglect
proceeding against petitioner.
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).
2
We note that West Virginia Code §§ 49-1-1 through 49-11-10 were repealed and
recodified during the 2015 Regular Session of the West Virginia Legislature. The new
enactment, West Virginia Code §§ 49-1-101 through 49-7-304, has minor stylistic changes and
became effective on May 20, 2015. In this memorandum decision, we apply the statutes as they
existed during the pendency of the proceedings below.
1
In July of 2015, the DHHR filed a second abuse and neglect petition that alleged
petitioner continued to abuse drugs. According to that petition, the DHHR received a referral
reporting that petitioner overdosed on drugs in a hotel room and the child, now seven years old,
found petitioner unconscious and tried to wake her. The DHHR further alleged that petitioner
exposed the child to domestic violence in the home, neglected the child’s education, and failed to
provide the child with necessary food, clothing, supervision, and housing. The circuit court
removed the child from petitioner’s care and placed her in foster care.
In August of 2015, the circuit court held a preliminary hearing. A Child Protective
Services (“CPS”) worker testified that police advised her that petitioner had overdosed on heroin
in a motel room and was transported to the hospital. She testified that the police also advised her
that they found the child wondering around the motel and called CPS. The worker also testified
that when she tried to contact petitioner at the hospital, she learned that petitioner checked
herself out of the hospital, against medical advice, without receiving treatment. The worker
further testified that police located petitioner a week after leaving the hospital, living in a motel
under an assumed name. According to the worker, petitioner left the child in CPS custody during
this time. The police later arrested petitioner for violating her probation imposed in an unrelated
criminal proceeding.3 According to the worker, she visited petitioner in jail and petitioner
admitted that she “struggled off and on with drugs” and believed she would have to stay in a
drug rehabilitation treatment facility “her entire life to stay clean.” After hearing testimony and
argument, the circuit court found probable cause that petitioner abused the child and that
imminent danger threatened the child’s well-being.
Later in August of 2015, the circuit court scheduled an adjudicatory hearing but petitioner
did not appear because she was incarcerated. She requested and was granted a forty-day
continuance so that she could appear for the rescheduled adjudicatory hearing. In October of
2015, the circuit court held an adjudicatory hearing wherein petitioner admitted that she abused
illegal drugs and her substance abuse affected her ability to parent the child. The circuit court
accepted petitioner’s stipulations and found that she abused the child.
In December of 2015, the circuit court held a dispositional hearing wherein it heard
testimony from the CPS worker and from petitioner. The worker testified that the DHHR
recommended termination of petitioner’s parental rights based on her extensive history of drug
use and her incarceration since the child’s removal in July of 2015. Petitioner testified that she
was not abusing drugs and that she was offered accelerated parole, making her eligible for early
release in July of 2016. Petitioner further testified that she was incarcerated for violating her
probation by overdosing on heroin. Petitioner admitted that she attended two different drug
rehabilitation treatment programs since the child’s birth and that the child spent four of the last
seven years in foster care due to her incarceration and drug rehabilitation. At the close of the
hearing, the circuit court found that there was no reasonable likelihood that petitioner could
substantially correct the conditions of abuse and neglect in the near future. The circuit court
further found that terminating petitioner’s parental rights was in the child’s best interests. The
3
The record on appeal indicates that petitioner was convicted of and incarcerated for
obtaining property with a worthless check and for a probation violation stemming from a
criminal conviction in Harrison County, West Virginia.
2
circuit court terminated petitioner’s parental rights to the child by order dated May 4, 2016. It is
from this order that petitioner now 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). Upon our review, we find no
error in the circuit court’s termination of petitioner’s parental rights.
On appeal, petitioner argues that the circuit court terminated her parental rights based
solely on her incarceration. We disagree. The record on appeal does not support petitioner’s
contention that her incarceration was the circuit court’s sole basis for terminating her parental
rights, as the circuit court also considered that petitioner overdosed on heroin in front of the child
and could not be located for a week. In fact, petitioner admitted to long-term drug abuse that
affected her ability to parent, and her drug abuse continued despite the fact that she completed
two different drug treatment rehabilitation programs. Even after these extensive services,
petitioner stated that she did not believe that she could correct the conditions of abuse and
neglect without lifetime drug rehabilitation treatment. Petitioner also admitted that the child
spent four years in foster care because of her incarceration and rehabilitation.
We have held that “[t]ermination . . . may be employed without the use of intervening
less restrictive alternatives when it is found that there is no reasonable likelihood . . . that
conditions of neglect or abuse can be substantially corrected.” Syl. Pt. 7, in part, In re Katie S.,
198 W.Va. 79, 479 S.E.2d 589 (1996). Furthermore, West Virginia Code § 49-4-604(c)(3)
provides that no reasonable likelihood that the conditions of abuse or neglect can be substantially
corrected exists when “[t]he abusing parent . . . ha[s] not responded to or followed through with a
reasonable family case plan or other rehabilitative efforts[.]”
Based on the circumstances of this case, we find no error in the circuit court’s termination
of petitioner’s parental rights. The evidence presented below supports the findings that there was
no reasonable likelihood that the conditions of abuse and neglect could be substantially corrected
in the near future, and that termination was necessary for the child’s welfare. Pursuant to West
3
Virginia Code § 49-4-604(b)(6), circuit courts are directed to terminate parental rights upon such
findings.
For the foregoing reasons, the circuit court’s May 4, 2016, termination order is hereby
affirmed.
Affirmed.
ISSUED: October 11, 2016
CONCURRED IN BY:
Chief Justice Menis E. Ketchum
Justice Robin Jean Davis
Justice Brent D. Benjamin
Justice Margaret L. Workman
Justice Allen H. Loughry II
4