In Re: J.H., B.C., J.J. and J.J. ( 2015 )

STATE OF WEST VIRGINIA
SUPREME COURT OF APPEALS
In Re: J.H., B.C., J.J., & J.J. FILED
March 16, 2015
No. 14-0991 (Mingo County 13-JA-54 through 13-JA-57) RORY L. PERRY II, CLERK
SUPREME COURT OF APPEALS
OF WEST VIRGINIA
MEMORANDUM DECISION
Petitioner Mother, H.H., by counsel Susan J. Van Zant, appeals the Circuit Court of
Mingo County’s September 10, 2014, order terminating her parental rights to J.H., B.C., J.J.-1,
and J.J.-2.1 The Department of Health and Human Resources (“DHHR”), by counsel, S.L. Evans,
filed a response in support of the circuit court’s order. The guardian ad litem, Diana Carter
Wiedel, filed a response on behalf of the children also supporting the circuit court’s order. On
appeal, petitioner argues that the circuit court erred in terminating her parental rights because she
improved the conditions that led to the abuse and neglect; termination was not in the children’s
best interests; and termination was not the least restrictive dispositional alternative.
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 July of 2013, the DHHR filed an abuse and neglect petition against petitioner and the
father of J.H. and B.C. alleging domestic violence in the children’s presence, failure to protect
the children, unsanitary conditions in the home, and substance abuse. In approximately June or
July of 2013, the biological father of J.J.-1 and J.J.-2, who was at that time petitioner’s husband,
passed away.2 According to the evidence presented at the preliminary hearing held on July 25,
2013, and the adjudicatory hearing held on August 26, 2013, Child Protective Services (“CPS”)
received a referral in November of 2012 that petitioner’s infant child was found wandering alone
near a school while petitioner was asleep at her residence. After securing the child, a CPS worker
went to petitioner’s residence and found it filled with “clutter” and smelling overwhelmingly of
dog feces, urine, and trash. According to the CPS worker’s testimony, petitioner’s dogs
defecated and urinated in portions of the residence, and petitioner failed to remove or otherwise
clean it. A “foul smell” emanated from the refrigerator, which had what appeared to that CPS
worker to be mold growing around it. The CPS worker also deemed petitioner’s beds unsuitable
1
Because two children share the same initials, the Court will refer to the children as J.J.-1
and J.J.-2. The circuit court case numbers also serve to distinguish these children.
2
The record on appeal does not provide exact dates for many of the relevant events
discussed herein.
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for habitation. With petitioner’s agreement, CPS instituted a temporary protection plan under
which petitioner would participate in parental services to correct the problems at issue. The CPS
worker admitted that petitioner initially “made great improvements.” However, petitioner’s
service provider requested to be taken off the case when one of petitioner’s dogs bit her and
continued thereafter to show aggressive behavior toward her. The new service provider had
difficulty contacting petitioner, and, ultimately, that service provider deemed petitioner to be
non-compliant.
Shortly thereafter, following her then-husband’s death in approximately June or July of
2013, the CPS worker again went to petitioner’s residence. She again found it in deplorable
conditions. Petitioner had many dogs that entered/exited the residence through a window in the
living room, which damaged the furniture in that room and kept the home dirty. Dog feces and
urine were again present on the front porch of and inside the residence. During the CPS worker’s
visit to the home, and in the CPS worker’s presence, petitioner kicked one of the dogs due to its
aggressive behavior. At the CPS worker’s request, petitioner agreed to permit relatives to take
the children at that time, and CPS instituted an in-home safety plan to, again, provide petitioner
an opportunity to correct the problems at issue. The DHHR filed the instant petition soon
thereafter. Based on the evidence presented, the circuit court found that the children were abused
and neglected. The circuit court granted petitioner a six-month, post-adjudicatory improvement
period.
During her improvement period, petitioner was evicted from her residence for failure to
pay rent despite receiving financial assistance from the DHHR for that residence. In January of
2014, petitioner tested positive on a drug screen for hydrocodone and opiates. In April of 2014,
domestic violence occurred between petitioner and her then-husband3 that led petitioner to file
for an emergency protective order against him. She later withdrew that protective order request.
It appears that she filed for divorce after the domestic violence incident but continued to reside
with him even after filing for divorce.
Following a dispositional hearing held on September 3, 2014, the circuit court determined
that, although petitioner made improvements in her situation since the initial filing, petitioner’s
eviction and domestic violence issues while on her lengthy improvement period weighed against
immediate reunification and additional time to achieve reunification. The circuit court terminated
her parental rights to all four children but granted post-termination visitation at the discretion of
the children’s caretaker. This appeal followed.
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
3
Following the death of her husband in 2013, petitioner remarried.
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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 first argues that the circuit court erred in terminating her parental
rights because she improved the conditions that led to the abuse and neglect. Pursuant to West
Virginia Code § 49-6-5(b)(3), a respondent parent’s failure to respond or follow through with a
reasonable family case plan or other rehabilitative efforts constitutes circumstances in which
there is no reasonable likelihood that the conditions of abuse or neglect can be substantially
corrected. Further, West Virginia Code § 49-6-5(a)(6) expressly states that the conditions of
abuse or neglect be substantially corrected in the near future. The record clearly demonstrates
that petitioner had approximately fourteen months to substantially correct the conditions that led
to the abuse and neglect and failed to do so while on a court-ordered improvement period.
Although petitioner argues that she maintained employment, participated in services, and filed
for divorce, we cannot ignore the evidence before the circuit court that petitioner also failed a
drug screen, was evicted from her residence, and had an episode of domestic violence in her
home during those fourteen months. Therefore, we find no error in this regard.
Next, petitioner asserts that the circuit court erred in terminating her parental rights
because termination was not in the children’s best interests. Pursuant to West Virginia Code §
49-6-5(a)(6), termination is appropriate where there is a finding that there is no reasonable
likelihood that the conditions of abuse and neglect can be substantially corrected in the near
future, and termination is necessary for the child’s welfare. Further, we have held that
“‘[a]lthough 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). See also Michael K.T. v. Tina L.T., 182 W.Va.
399, 405, 387 S.E.2d 866, 872 (1989) (“[T]he best interests of the child[ren] is the polar star by
which decisions must be made which affect children.”) (citations omitted). Here, the circuit court
found that the children deserved permanency following fourteen months of uncertainty. After
reviewing the record on appeal, we find no error in the circuit court’s findings that termination
was necessary for the children’s welfare and in their best interests to achieve permanency and
stability.
Finally, petitioner claims that the circuit court erred in terminating her parental rights
because termination was not the least restrictive alternative disposition. See West Virginia Code
§ 49-6-5(a); Syl. Pt. 1, In re R.J.M., 164 W.Va. 496, 266 S.E.2d 114 (1980) (“As a general rule
the least restrictive alternative regarding parental rights to custody of a child under W.Va. Code,
49-6-5 (1977) will be employed[.]”). However, contrary to petitioner’s argument, the record
reflects that petitioner failed to demonstrate during her improvement period that she could fully
comply with services. Moreover, petitioner ignores our further directions regarding termination
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upon findings that there is no reasonable likelihood that the conditions of abuse and neglect can
be substantially corrected in the near future. This Court has held that
“[t]ermination of parental rights, the most drastic remedy under the
statutory provision covering the disposition of neglected children, W.Va. Code,
49–6–5 [1977] may be employed without the use of intervening less restrictive
alternatives when it is found that there is no reasonable likelihood under
W.Va.Code, 49–6–5(b) [1977] that conditions of neglect or abuse can be
substantially corrected.” Syl. pt. 2, In Re: R.J.M., 164 W.Va. 496, 266 S.E.2d 114(1980).
Syl. Pt. 2, In re Dejah P., 216 W.Va. 514, 607 S.E.2d 843 (2004). Here, the circuit court did not
err in finding that there was no reasonable likelihood that petitioner could substantially correct
the conditions of abuse and neglect in the near future. Therefore, the circuit court did not err in
terminating petitioner’s parental rights without the use of intervening less restrictive alternatives.
Therefore, we find no error in the circuit court’s termination of petitioner’s parental
rights. Given the facts of this case, there was no reasonable likelihood that petitioner could
substantially correct the conditions of abuse and neglect in the near future, and termination was
necessary for the children’s welfare and in the children’s best interests. Pursuant to West
Virginia Code § 49-6-5(a)(6), circuit courts are directed to terminate parental rights upon such
findings.
For the foregoing reasons, we affirm.
Affirmed.
ISSUED: March 16, 2015
CONCURRED IN BY:
Chief Justice Margaret L. Workman
Justice Robin Jean Davis
Justice Brent D. Benjamin
Justice Menis E. Ketchum
Justice Allen H. Loughry II
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