In re R.L. ( 2023 )

FILED
February 7, 2023
STATE OF WEST VIRGINIA EDYTHE NASH GAISER, CLERK
SUPREME COURT OF APPEALS SUPREME COURT OF APPEALS
OF WEST VIRGINIA
In re R.L.
No. 22-0310 (Preston County 21-JA-75)
MEMORANDUM DECISION
Petitioner Mother L.K. 1 appeals the Circuit Court of Preston County’s March 24, 2022,
order terminating her parental rights to R.L. 2 Upon our review, we determine that oral argument
is unnecessary and that a memorandum decision affirming the circuit court’s order is appropriate.
See W. Va. R. App. P. 21.
In July of 2021, the Department of Health and Human Resources (“DHHR”) filed a
petition alleging that petitioner gave birth to R.L. at her home to conceal the birth and her
continued substance abuse from the DHHR. The DHHR alleged that petitioner’s home was a
“small, pull behind camper” that was filthy. Petitioner admitted that she had no prenatal care
during her pregnancy and neither she nor R.L. received any medical care after the birth. The
DHHR further alleged that petitioner’s parental rights to six other children had been previously
terminated, including her rights to one child who was born at petitioner’s home in an attempt to
conceal the birth from the DHHR. The DHHR alleged that the prior terminations of petitioner’s
parental rights were based on substance abuse and her failure to acknowledge her addiction to
illicit substances.
The circuit court held a preliminary hearing in July of 2021, ratified R.L.’s removal, and
ordered petitioner to participate in random drug screening, including a hair follicle test. After a
period of noncompliance with that order, petitioner was drug screened in August of 2021, and
tested positive for methamphetamine. Thereafter, the DHHR amended the petition to allege that
petitioner continued to abuse controlled substances.
1
Petitioner appears by counsel Kristen D. Antolini. The West Virginia Department of
Health and Human Resources appears by counsel Attorney General Patrick Morrisey and
Assistant Attorney General Lee A. Niezgoda. Hilary M. Bright appears as the child’s guardian ad
litem.
2
We use initials where necessary to protect the identities of those involved in this case.
See W. Va. R. App. P. 40(e).
1
The circuit court held an adjudicatory hearing in December of 2021. The circuit court
heard testimony from seven witnesses, including petitioner, and took judicial notice of
petitioner’s prior abuse and neglect proceedings that resulted in the termination of her parental
rights to her six other children. The parties presented evidence that petitioner was generally
noncompliant with random drug screening, tested positive for methamphetamine on the
occasions she did submit to screening, and denied substance abuse when confronted with her
positive drug screen results. The evidence further established that petitioner failed to keep in
contact with the DHHR, did not attend multidisciplinary treatment team meetings, and had no
visitation scheduled with R.L. Accordingly, the circuit court adjudicated petitioner as an abusing
parent. Additionally, the court found that although aggravated circumstance existed based on
petitioner’s prior termination of parental rights, the DHHR had continued to make reasonable
efforts to reunify the family.
The circuit court held dispositional hearings in January and February of 2022 and heard
evidence from the DHHR in support of its motion to terminate petitioner’s parental rights.
Petitioner moved for a post-adjudicatory improvement period but presented no evidence in
support of her motion, and she did not testify. The circuit court found that petitioner was not
participating in random drug screening, tested positive when administered drug screens prior to
court hearings, had had no contact with the child or the DHHR, and “voiced a lack of trust of
[Child Protective Services].” According to petitioner’s DHHR case manager, petitioner
continued to deny any substance abuse problem, despite her positive drug screen results. The
court found that petitioner “failed to show. . . that [she had] any desire to change to correct these
deficiencies and problems.” In sum, the court found that “[n]ot one thing has changed since the
prior [child abuse and neglect] case.” It concluded that there was no reasonable likelihood that
petitioner could substantially correct the conditions of neglect or abuse in the near future and that
termination of petitioner’s parental rights was necessary for the welfare of the child.
Accordingly, the circuit court terminated petitioner’s parental and custodial rights to R.L. by its
March 24, 2022, order. Petitioner now appeals that order. 3
On appeal from a final order in an abuse and neglect proceeding, this Court reviews the
circuit court’s findings of fact for clear error and its conclusions of law de novo. Syl. Pt. 1, In re
Cecil T., 228 W. Va. 89, 717 S.E.2d 873 (2011). Petitioner argues that the DHHR failed to make
reasonable efforts to reunify the family, and the circuit court erred in terminating her parental
rights prior to the provision of services. Indeed, West Virginia Code § 49-4-601(d) requires the
DHHR to “provide supportive services in an effort to remedy circumstances detrimental to a
child” immediately upon the filing of the petition, and the circuit court must consider “whether
or not the [DHHR] made reasonable efforts . . . to preserve the family” prior to terminating a
parent’s parental rights. See id. § 49-4-604(c)(6)(C)(iii). Petitioner acknowledges that the circuit
court found that the case presented “aggravated circumstances” at the adjudicatory hearing in
December of 2021, which absolved the DHHR from making reasonable efforts. See id. § 49-4-
3
The father’s parental rights were also terminated below. According to the parties, the
permanency plan for the child is adoption by a foster family.
2
604(7) (setting forth conditions where the DHHR is relieved of its duty to make reasonable
efforts for reunification, including when “[t]he parental rights of the parent to another child have
been terminated involuntarily”). However, petitioner asserts that the DHHR should have made
reasonable efforts prior to the circuit court’s findings in accordance with West Virginia Code §
49-4-601(d). Upon our review of the record, we note the circuit court’s orders in July, August,
and September of 2021 provide that the DHHR was making reasonable efforts to reunify the
family, and petitioner cites to no place in the record undermining those findings. The record also
provides that petitioner was offered random drug screening and visitation with the child, and that
she did not avail herself of either service. Accordingly, we find her argument to be without merit.
Petitioner also argues that the circuit court erred in denying her motion for a post-
adjudicatory improvement period. Petitioner’s failure to acknowledge her substance abuse issue
is fatal to this assignment of error. This Court has long 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 . . . 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). Here, the evidence clearly showed that
petitioner failed to acknowledge that she had a substance abuse issue and, according to the circuit
court, she gave “every excuse imaginable as to why [she was] testing positive” for controlled
substances. Based on petitioner’s failure to acknowledge her substance abuse issue, we find no
error in the circuit court’s decision to deny her motion for a post-adjudicatory improvement
period.
Finally, petitioner argues that the circuit court erred in terminating her parental rights.
That argument is wholly based on the DHHR’s alleged failure to provide remedial services.
However, as we found above, that argument is meritless. Notably, petitioner does not challenge
the circuit court’s findings that there was no reasonable likelihood that the conditions of neglect
and abuse could be substantially corrected in the near future and that termination of her parental
rights was necessary for the child’s welfare. See W. Va. Code § 49-4-604(c)(6) (authorizing the
termination of parental rights upon said findings). The evidence of petitioner’s continued
substance abuse and her failure to acknowledge the same clearly supports the circuit court’s
conclusions. See id. § 49-4-604(d)(1) (providing that there is no reasonable likelihood that the
conditions of neglect and abuse can be substantially corrected when the parent has “habitually
abused . . . controlled substances or drugs, to the extent that proper parenting skills have been
seriously impaired and the person . . . [has] not followed through with” a family case plan).
Accordingly, we find no error in the circuit court’s decision to terminate petitioner’s parental
rights to the child. See also Syl. Pt. 5, In re Kristin Y., 227 W. Va. 558, 712 S.E.2d 55 (2011)
(holding that “[t]ermination of parental rights . . . may be employed . . . when it is found that
there is no reasonable likelihood . . . that the conditions of neglect or abuse can be substantially
corrected”).
For the foregoing reasons, we find no error in the decision of the circuit court, and its
March 24, 2022, order is hereby affirmed.
Affirmed.
3
ISSUED: February 7, 2023
CONCURRED IN BY:
Chief Justice Elizabeth D. Walker
Justice Tim Armstead
Justice John A. Hutchison
Justice William R. Wooton
Justice C. Haley Bunn
4