In Re: D.H. and J.W. ( 2016 )

STATE OF WEST VIRGINIA
SUPREME COURT OF APPEALS
In re: D.H. and J.W. FILED
November 21, 2016
No. 16-0448 (Wood County 15-JA-106 & 15-JA-175) RORY L. PERRY II, CLERK
SUPREME COURT OF APPEALS
OF WEST VIRGINIA
MEMORANDUM DECISION
Petitioner Mother B.W., by counsel Debra L. Steed, appeals the Circuit Court of Wood
County’s March 3, 2016, order terminating her parental rights to three-year-old D.H. and five­
month-old J.W.1 The West Virginia Department of Health and Human Resources (“DHHR”), by
counsel Lee Niezgoda, filed its response in support of the circuit court’s order. The guardian ad
litem, Robin S. Bonovitch, 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 post­
adjudicatory improvement period and 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.
In June of 2015, the DHHR filed an abuse and neglect petition against petitioner alleging
that she abused D.H. According to the petition, D.H.’s biological father picked the child up for
visitation and observed that the child had facial and ear bruising, a tongue injury, an injury on his
buttocks, an ankle abrasion, and superficial bruising on his stomach. The father took the child to
the emergency room where the injuries were determined to be non-accidental.2
In July of 2015, the circuit court held an adjudicatory hearing wherein petitioner
stipulated to the following: she left D.H. alone with her live-in boyfriend, D.H. disclosed to her
that the boyfriend spanked him and bit his arm and face, D.H. suffered previous injuries while in
the boyfriend‘s custody, and she left D.H. in the boyfriend’s continued care. Based on the
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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Subsequently, the father filed a domestic violence petition against petitioner and
obtained emergency custody of D.H.
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stipulations, the circuit court found that petitioner and the boyfriend abused D.W. By order
entered on August 10, 2015, the circuit court granted petitioner a post-adjudicatory improvement
period. Subsequently, a case plan was created to address the conditions of abuse and neglect. As
part of the case plan, petitioner was prohibited from having contact with the boyfriend.
In November of 2015, petitioner gave birth to J.W. and the DHHR filed an amended
petition.3 In December of 2015, petitioner stipulated to the allegations contained in the amended
petition, which were based on the previous adjudication in D.H.’s case.
In January of 2016, the circuit court held an initial dispositional hearing during which the
guardian moved for the termination of petitioner’s post-adjudicatory improvement period for
non-compliance with the terms and conditions of said improvement period. According to a
DHHR worker’s testimony, petitioner maintained contact with the boyfriend, repeatedly visited
him during his incarceration, and lied about maintaining the relationship. The circuit court
denied the guardian’s motion and continued the dispositional hearing in order to allow petitioner
to continue receiving services pending the final dispositional hearing.
In February of 2016, the circuit court held a final dispositional hearing wherein it again
heard testimony that petitioner continued to contact the boyfriend. A DHHR worker testified that
petitioner lived in a home owned by the boyfriend’s mother, maintained a relationship with the
boyfriend, and lied about the on-going relationship. The children’s step-mother testified that
petitioner communicated to her that she did not “see any problem” in continuing the relationship.
At the close of the testimony, the circuit court found that petitioner repeatedly violated the terms
of her improvement period and failed to understand the need to terminate her relationship with
the boyfriend. The circuit court also found that petitioner failed to benefit from the services
provided to her and failed to protect the children from abuse. Based upon its findings, the circuit
court determined that there was no reasonable likelihood that the conditions of abuse and neglect
could be substantially corrected in the near future and termination of petitioner’s parental rights
was in the children’s best interests. By order entered on March 3, 2016, the circuit court
terminated petitioner’s improvement period and terminated her parental rights to the children. 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
3
The boyfriend, P.J., is J.W’s biological father.
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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, the Court finds
no error in the proceedings below.
On appeal, petitioner argues that the circuit court erred in terminating her post­
adjudicatory improvement period because she was not afforded sufficient time to demonstrate to
the circuit court that she ended her relationship with the boyfriend. West Virginia Code § 49-4­
610 sets forth when a circuit court may grant, extend, or terminate an improvement period.
Further, West Virginia Code § 49-4-610(7) requires the termination of an improvement period
“when the court finds that [a parent] has failed to fully participate in the terms of the
improvement period.” Additionally, we have long held that “[i]t is within the court’s discretion
to grant an improvement period . . . [and] it is also within the court’s discretion to terminate the
improvement period . . . if the court is not satisfied that the [parent] is making the necessary
progress.” Syl. Pt. 2, In re Lacey P., 189 W.Va. 580, 433 S.E.2d 518 (1993).
In the present case, petitioner failed to fully participate in her post-adjudicatory
improvement period. It is clear from the record that the terms and conditions of her post­
adjudicatory improvement period required her to have no contact with the boyfriend. The circuit
court heard testimony that petitioner made approximately 222 telephone calls to the boyfriend
while he was incarcerated and lived in a home owned by one of the boyfriend’s relatives.
Petitioner also admitted to visiting the boyfriend weekly while he was incarcerated and
misrepresented the extent of the contact to the circuit court. The circuit court also heard
testimony that petitioner joked to D.H.’s step-mother that the boyfriend “can’t beat the child in
jail.” As such, it is clear that petitioner failed to fully participate in her improvement period or
make sufficient progress. For these reasons, we find no error.
Petitioner also argues that the circuit court erred in terminating her parental rights
because she was “largely compliant” with the terms and conditions of her improvement period.
However, petitioner’s argument ignores the statutes that required the circuit court to terminate
her parental rights upon a finding that there is no reasonable likelihood that the conditions of
neglect or abuse can be substantially corrected. Pursuant to West Virginia Code § 49-4­
604(c)(3), there is no reasonable likelihood that the conditions of neglect or abuse can be
substantially corrected when
[t]he abusing parent or parents have not responded to or followed through with a
reasonable family case plan or other rehabilitative efforts of social, medical,
mental health or other rehabilitative agencies designed to reduce or prevent the
abuse or neglect of the child, as evidenced by the continuation or insubstantial
diminution of conditions which threatened the health, welfare or life of the child.
At disposition, the circuit court found that there was no reasonable likelihood petitioner
could substantially correct the conditions of abuse or neglect because she “failed to learn from
the services provided to stay away from people who will abuse her children.” This finding was
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based on the fact that petitioner continued to maintain contact with the boyfriend who abused her
children and lied to the circuit court about the communication and ongoing relationship. The
circuit court also found that termination of petitioner’s parental rights was necessary for the
children’s welfare. Pursuant to West Virginia Code § 49-6-5(a)(6), circuit courts are required to
terminate a parent’s parental rights upon these findings.
For the foregoing reasons, we find no error in the decision of the circuit court, and its
March 3, 2016, order is hereby affirmed.
Affirmed.
ISSUED: November 21, 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
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