In Re: J.K., C.K. and O.F. ( 2014 )

STATE OF WEST VIRGINIA
SUPREME COURT OF APPEALS
FILED
March 31, 2014
In Re: J.K., C.K., and O.F. RORY L. PERRY II, CLERK
SUPREME COURT OF APPEALS
No. 13-1030 (Mingo County 12-JA-67, 12-JA-68, and 12-JA-82) OF WEST VIRGINIA
MEMORANDUM DECISION
Petitioner Mother filed this appeal by her counsel, Kathryn Cisco-Sturgell. Her appeal
arises from the Circuit Court of Mingo County, which terminated her parental rights to the
subject children by order entered on September 13, 2013. The guardian ad litem for the children,
Lauren Thompson, filed a response in support of the circuit court’s order. The Department of
Health and Human Resources (“DHHR”), by its attorney, William P. Jones, also filed a response
in support of the circuit court’s order. Petitioner argues that the circuit court abused its discretion
by terminating her parental rights, and by denying her post-termination visitation and an
improvement period at disposition. Petitioner asserts that the evidence upon which these rulings
were based was not clear and convincing.
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.
The DHHR filed an abuse and neglect petition in this case in September of 2012 after it
received a referral from the Tug Valley Recovery Center, where petitioner and the children were
residing. The DHHR’s investigation provided that petitioner was having hallucinations and
delusions that three-year-old C.K. was possessed and that there was someone in a tree outside
throwing blood at her. The DHHR also discovered that petitioner once left one-year-old J.K. on a
shaky table by herself; that on another occasion, petitioner and J.K. went missing from the center
for about twenty-five minutes; that petitioner suffers from a bipolar condition for which she has
refused treatment; that she has left the children unsupervised; and, that she once gave child C.K.
a double dose of medicine because she had forgotten to give him a dose the prior day. At the
preliminary hearing on this matter, the circuit court found probable cause for the abuse and
neglect petition to proceed.
At the adjudicatory hearing in October of 2012, the circuit court found that petitioner’s
mental illness significantly impaired her ability to adequately parent her children and that, due to
this impairment, petitioner neglected and failed to protect her children. At the dispositional
hearing in March of 2013, the family’s Child Protective Services (“CPS”) worker testified about
her concerns with petitioner’s unstable mental health and unstable housing. Petitioner had been
living with her mother, who had an extensive CPS history herself, and her brother, who sexually
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abused petitioner when they were children. Petitioner testified and admitted to missing some of
her scheduled appointments with in-home services. Petitioner’s psychological evaluation
indicates that she was noncompliant with services and treatment and that she admitted that once
after she “got scared,” she left for five to six days from the Tug Valley center and “ran” to
Tennessee by walking and hitchhiking. The circuit court entered a termination order on
September 13, 2013. From this order, petitioner appeals.
This 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).
Petitioner first argues that the circuit court abused its discretion in terminating her
parental rights because the evidence upon which the termination was based was not clear and
convincing. Petitioner asserts that she followed through with recommended rehabilitative efforts
and worked adamantly on acquiring a separate home away from her mother. Upon our review of
the record, we find no error in the circuit court’s findings. “‘Although parents have substantial
rights that must be protected, the primary goal in cases involving abuse and neglect, as in all
family law matters, must be the health and welfare of the children.’ Syl. Pt. 3, In re Katie S., 198
W.Va. 79, 479 S.E.2d 589 (1996).” Syl. Pt. 2, In re Timber M., 231 W.Va. 44, 743 S.E.2d 352
(2013). Under West Virginia Code § 49-6-5(b)(3), a parent failing to respond to rehabilitative
efforts is considered a circumstance in which there is no reasonable likelihood that the conditions
of neglect or abuse can be substantially corrected. The record reveals that petitioner failed to
keep all of her psychiatric appointments or diligently maintain treatment for her bipolar
condition. This evidence was sufficient to support the circuit court’s findings and conclusions
that there was no reasonable likelihood to believe that conditions of abuse and neglect could be
substantially corrected in the near future, and that termination was necessary for the children’s
welfare. Pursuant to West Virginia Code § 49-6-5(a)(6), circuit courts are directed to terminate
parental rights upon such findings.
Next, petitioner argues that the circuit court abused its discretion by not granting her
post-termination visitation because termination of visitation was not based upon clear and
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convincing evidence. Petitioner asserts that there was no evidence that supervised visitation
would be harmful to the children. This Court has held the following:
When parental rights are terminated due to neglect or abuse, the circuit
court may nevertheless in appropriate cases consider whether continued visitation
or other contact with the abusing parent is in the best interest of the child. Among
other things, the circuit court should consider whether a close emotional bond has
been established between parent and child and the child's wishes, if he or she is of
appropriate maturity to make such request. The evidence must indicate that such
visitation or continued contact would not be detrimental to the child's well being
and would be in the child's best interest.
Syl. Pt. 5, In re Christine L., 194 W.Va. 446, 460 S.E.2d. 692 (1995). Our review of the record
reveals that the circuit court found that the combination of petitioner’s failure to benefit from
services and the children’s needs for permanency indicate that post-termination visitation would
be contrary to the children’s best interests. We find no error in these findings and conclusions.
Lastly, petitioner argues that the circuit court abused its discretion by denying her a post-
dispositional improvement period. Petitioner reiterates that she had been working on acquiring a
home separate and apart from her mother throughout the case. Petitioner asserts that she testified
at the dispositional hearing that she would have such a home within the following five days. Our
review of the record indicates no error by the circuit court. Pursuant to West Virginia Code § 49­
6-12, a parent who moves for an improvement period bears the burden of showing by clear and
convincing evidence that he or she would substantially comply with the terms of the
improvement period. Under this statute, the circuit court has the discretion to grant or deny such
a motion. The record provides that throughout the duration of this case, petitioner failed to
acquire an appropriate home for her and her children, despite being provided access to housing.
Petitioner was also not diligent in keeping all of her appointments with psychiatric services. We
find no error with the circuit court’s denial of an improvement period at disposition.
For the foregoing reasons, we affirm.
Affirmed.
ISSUED: March 31, 2014
CONCURRED IN BY:
Chief Justice Robin Jean Davis
Justice Brent D. Benjamin
Justice Margaret L. Workman
Justice Menis E. Ketchum
Justice Allen H. Loughry II
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