In Re: M.B. ( 2016 )

STATE OF WEST VIRGINIA
SUPREME COURT OF APPEALS
FILED
In re: M.B.
November 14, 2016
RORY L. PERRY II, CLERK
No. 16-0512 (Kanawha County 15-JA-257) SUPREME COURT OF APPEALS
OF WEST VIRGINIA
MEMORANDUM DECISION
Petitioner Mother J.C., by counsel Matthew A. Victor, appeals the Circuit Court of
Kanawha County’s May 16, 2016, order terminating her parental rights to three-year-old M.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, Sandra K.
Bullman, 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 abused its discretion 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.
In August of 2015, the DHHR filed an abuse and neglect petition and alleged that
petitioner abused her child because she failed to provide the child with food, clothing, diapers
and a safe and stable home. The DHHR also alleged that petitioner’s substance abuse issues
prevented her from being an appropriate parent. According to the petition, after petitioner left the
child in the maternal grandmother’s care for a period of time, she returned to retrieve the child
and physically attacked the grandmother. As a result of the attack, the grandmother filed a
domestic violence petition against petitioner. Petitioner was subsequently arrested on unrelated
charges of breaking and entering and resisting arrest. The DHHR further alleged that, at the time
of petitioner’s arrest, the child was wearing the same clothes he had been wearing when
petitioner retrieved him from the grandmother approximately two days earlier. The DHHR noted
that the child, his clothes, and his car seat were soaked in urine. The DHHR further noted that
“[i]t seemed as if she had never taken him out of the car seat the whole time.” The DHHR also
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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alleged that, while in petitioner’s care, the child walked across a road and onto another person’s
property at a mobile home park. According to the DHHR, the child fell into a fish pond on the
property and a disabled resident used her cane to hold the child’s head above the water. The
disabled resident called for help for a period of time before petitioner arrived at the fish pond.
Petitioner pulled the child out of the pond and spanked him. The DHHR further alleged that the
child was observed putting a loaded handgun into his mouth. Petitioner was also observed
shaking the child to get him to stop crying.
In September of 2015, petitioner waived her right to a preliminary hearing and moved to
receive services from the DHHR. The circuit court granted her motion and ordered that the
DHHR provide petitioner with adult life skills and parental education classes. Petitioner also
moved the circuit court to return the child to her custody immediately, despite testing positive for
drugs at the hearing. The circuit court found that returning the child to petitioner’s custody was
contrary to his best interests and ordered that petitioner submit to random drug screens. The
circuit court also ordered supervised visitation between petitioner and the child.
In January of 2016, petitioner failed to appear in person or by counsel for a previously
scheduled adjudicatory hearing, as such, the hearing was continued. In March of 2016, the circuit
court held an adjudicatory hearing wherein petitioner failed to appear in person but appeared by
counsel. Petitioner’s counsel moved the circuit court to continue the hearing but the motion was
denied. The DHHR presented evidence that petitioner was non-complaint with services, did not
visit the child, and failed random drug screens. After hearing the evidence presented and the
argument of the parties, the circuit court found, by clear and convincing evidence, that petitioner
abused the child.
In May of 2016, the circuit court held a dispositional hearing wherein petitioner failed to
appear in person but was represented by counsel. The DHHR moved the circuit court to consider
all prior evidence submitted and the motion was granted. A DHHR worker testified that
petitioner initially participated in services but her attendance was irregular, and at the time of the
hearing, she had stopped attending supervised visits with the child, stopped participating in
parenting skills classes, and failed to report for random drug screening. The circuit court found
that petitioner had not visited the child since approximately Thanksgiving of 2015 and that she
abandoned the child and the abuse and neglect proceedings. 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 the termination of petitioner’s parental
rights was in the child’s best interests. The circuit court terminated petitioner’s parental rights by
order dated May 16, 2016. It is from this order that petitioner 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,
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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 argues that
the circuit court abused its discretion in terminating her parental rights because her abuse of the
child was limited to her drug abuse, that she participated in services, and that she was a “good
candidate” for an improvement period. While petitioner contends that terminating her parental
rights was “overly harsh and unjustified,” the record is clear that she was unwilling and unable to
properly parent her child. Specifically, the circuit court found that that there was no reasonable
likelihood that petitioner could substantially correct the conditions of abuse and neglect in the
near future. 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.
It is clear from the record that petitioner continued to abuse drugs throughout the
proceedings, failed drug screens. It is also clear that petitioner failed to follow through with
services, visit the child, and attend scheduled hearings. Based upon petitioner’s conduct, the
circuit court found that petitioner abandoned the child and the proceedings. As such, petitioner’s
continued drug abuse and failure to participate in services provided the circuit court with
sufficient grounds for its finding that the conditions of neglect or abuse could not be substantially
corrected and that termination was necessary for the child’s welfare. Pursuant to West Virginia
Code § 49-4-604(b)(6), the circuit courts are directed to terminate parental rights upon these
findings.
Petitioner also contends that the circuit court erred in terminating her parental rights to
the child without granting her an improvement period. We disagree. Pursuant to West Virginia
Code § 49-4-610
the court may grant an improvement period not to exceed six months as a
disposition pursuant to section six hundred four of this article when (A) the
respondent moves in writing for the improvement period, [and] when (B) the
respondent demonstrates, by clear and convincing evidence, that the respondent is
likely to fully participate in the improvement period and the court further makes a
finding, on the record, of the terms of the improvement period.
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(Emphasis added.) We have often noted that the decision to grant or deny an improvement period
rests in the sound discretion of the circuit court. See In re: M.M., 236 W.Va. 108, 778 S.E.2d 338
(2015) (stating that “West Virginia law allows the circuit court discretion in deciding whether to
grant a parent an improvement period”); Syl. Pt. 6, in part, In re Katie S., 198 W.Va. 79, 479
S.E.2d 589 (1996) (holding that “[i]t is within the court’s discretion to grant an improvement
period within the applicable statutory requirements”). We have also held that a parent’s
“entitlement to an improvement period is conditioned upon the ability of the parent/respondent to
demonstrate ‘by clear and convincing evidence, that the respondent is likely to fully participate
in the improvement period . . . .’” In re: Charity H., 215 W.Va. 208, 215, 599 S.E.2d 631, 638
(2004).
Here, the record does not support petitioner’s assertion that she filed a written motion
requesting an improvement period. Nonetheless, petitioner failed to meet her burden of proof of
her likelihood to fully comply. Although the circuit court granted petitioner supervised visitation
with the child, the circuit court heard testimony that she failed to regularly attend visits during
the underlying proceedings. The circuit court also heard evidence that petitioner failed to
participate in services and failed random drug screens. According to the record, petitioner
presented no evidence that she was likely to fully participate in an improvement period. On the
contrary, petitioner demonstrated that she was unwilling or unable to correct the conditions of
abuse and neglect. As such, we find no error in this regard.
For the foregoing reasons, we find no error in the decision of the circuit court, and its
May 16, 2016, order is hereby affirmed.
Affirmed.
ISSUED: November 14, 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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