In re K.C. and A.C. ( 2019 )

STATE OF WEST VIRGINIA
SUPREME COURT OF APPEALS
In re K.C. and A.C. FILED
April 19, 2019
No. 18-1008 (Hampshire County 18-JA-7 and 18-JA-8) EDYTHE NASH GAISER, CLERK
SUPREME COURT OF APPEALS
OF WEST VIRGINIA
MEMORANDUM DECISION
Petitioner Mother G.C., by counsel David C. Fuellhart, III, appeals the Circuit Court of
Hampshire County’s September 9, 2018, order terminating her parental rights to K.C. and A.C.1
The West Virginia Department of Health and Human Resources (“DHHR”), by counsel Lee
Niezgoda, filed a response in support of the circuit court’s order. The guardian ad litem
(“guardian”), Joyce E. Stewart, filed a response on behalf of the children in support of the circuit
court’s order. On appeal, petitioner argues that the circuit court erred in failing to transport her to
the dispositional hearing, denying her motion for an improvement period, terminating her parental
rights, and denying her post-termination visitation with the children.
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 that alleged police served a warrant at
petitioner’s home and observed “feces throughout the house.” Despite the fact that petitioner was
on probation for animal cruelty and prohibited from possessing animals, police found “rabbits
being stored in a closet and chickens . . . being kept in a bath tub.” According to a Child Protective
Services (“CPS”) worker, the home had “a strong odor of ammonia, animal feces, and animal
urine” which caused the worker difficulty breathing. As a result, petitioner was charged criminally
with being a person prohibited from possessing an animal and animal cruelty. Police also found
the children home from school, both exhibiting signs of lice and one with a virus. In fact, 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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DHHR alleged that one child’s hair was so matted that CPS was “unable to get a brush through it
to treat the lice.” The petition further alleged that petitioner had a history of child abuse and/or
neglect, including a criminal conviction of child neglect creating risk of bodily injury and a prior
removal of the children from the home. Specifically, a prior abuse and neglect proceeding
involving petitioner and the children concerned the same issues present in this matter. In that prior
case, law enforcement removed twenty-nine animals from the residence, which was subsequently
condemned, and found the children “hiding in the attic in their underwear.” Later that month, the
DHHR filed an amended petition related to other adult respondents. Petitioner waived her right to
a preliminary hearing.
Beginning in March of 2018, the circuit court held a series of adjudicatory hearings. After
the circuit court took extensive evidence in support of adjudication, petitioner ultimately entered
a stipulation in June of 2018 whereby she admitted to a prior CPS history, including a prior finding
of neglect; that she subjected the children to unsanitary conditions in the home; that she was a
person prohibited from possessing animals, although she was in possession of animals at the time
the petition was filed; that she was previously convicted criminally of child neglect creating risk
of injury; that she had a prior criminal history, despite having denied any such history to CPS; and
that she had a history of mental health issues. Moreover, the circuit court made findings related to
the prior abuse and neglect proceeding involving petitioner that was based on the uninhabitable
conditions of the home due to “a multitude of animals,” the same conditions underlying the current
proceedings. According to the circuit court, in the prior proceeding the children were reunited with
petitioner in December of 2016, only to be removed a little over a year later upon the initiation of
the current matter. As such, petitioner was adjudicated as having neglected the children herein.
The circuit court held dispositional hearings in July of 2018 and August of 2018. Petitioner
attended the first hearing but did not attend the second due to her incarceration.2 She was
represented by counsel throughout both hearings. According to the record, the circuit court heard
evidence related to petitioner’s incarceration for a period of one to five years “with an unknown
release date.” Petitioner also moved for a post-dispositional improvement period. Based upon the
evidence, the circuit court found that petitioner “attempted to thwart any effort by the [DHHR] to
assist her minor children” because, when the children were removed, she told them “that the
[DHHR] was here to hurt you, not help you.” In denying petitioner’s motion for an improvement
period, the circuit court found that it would be futile given the fact that she was “previously
provided services . . . for nearly identical allegations.” Ultimately, the circuit court terminated
2
Petitioner was held in a regional jail throughout the pendency of this matter and the circuit
court secured her transfer to several hearings. However, at the first dispositional hearing in July of
2018, petitioner assured the circuit court that she would be released prior to the continued
dispositional hearing. When the parties convened for the continued hearing in August of 2018, the
circuit court was informed, for the first time, that petitioner had not only not been released, but
had been transferred to Lakin Correctional Center.
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petitioner’s parental rights to the children and denied her post-termination visitation. It is from the
dispositional order that petitioner appeals.3
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 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 review, the Court finds no
error in the proceedings below.
At the outset, we note that petitioner is entitled to no relief as to her assignment of error
regarding the circuit court’s failure to transport her to the dispositional hearing, or any other
assignment of error in which she relies on the failure to transport for support. The record is clear
that petitioner did not request to be transported to the hearing in question and, accordingly, she is
not entitled to relief for the circuit court’s failure to secure her presence. Petitioner is correct that
this Court has set forth procedural protections for incarcerated parents by establishing several
factors to be considered in determining whether to permit an incarcerated parent to attend a
dispositional hearing. See syl. pt. 11, State ex rel. Jeanette H. v. Pancake, 207 W. Va. 154, 529
S.E.2d 865 (2000). However, petitioner fails to recognize that this Court has additionally held as
follows:
In order to activate the procedural protections enunciated in Syllabus points
10 and 11 of State ex rel. Jeanette H. v. Pancake, 207 W.Va. 154, 529 S.E.2d 865
(2000), an incarcerated parent who is a respondent to an abuse and neglect
proceeding must inform the circuit court in which such case is pending that he/she
is incarcerated and request the court’s permission to attend the hearing(s)
scheduled therein. Once the circuit court has been so notified, by the respondent
parent individually or by the respondent parent’s counsel, the determination of
whether to permit the incarcerated parent to attend such hearing(s) rests in the
court’s sound discretion.
All parents’ parental rights to the children have been terminated, in addition to the
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termination of the custodial rights of the children’s custodian. The permanency plan is adoption
by the children’s current foster family.
3
Syl. Pt. 4, In re: Stephen Tyler R., 213 W. Va. 725, 584 S.E.2d 581 (2003) (emphasis added).
Petitioner fails to provide any citation to the record that she informed the circuit court she
was incarcerated and/or that she sought permission to attend the dispositional hearing. On appeal
to this Court, petitioner asserts only that she “informed the lower court at the first [dispositional]
hearing that she wished to testify at the second hearing.” Indeed, the record indicates that petitioner
expressed her desire to testify at the continued dispositional hearing. However, the record also
shows that petitioner and her counsel informed the circuit court at the first dispositional hearing
that petitioner would be released by the time the continued hearing was held. When the parties
appeared for the continued hearing in August of 2018, petitioner’s counsel informed the circuit
court that instead of being released, petitioner had been sentenced and transferred to Lakin
Correctional Center. The record is also clear that at the dispositional hearing in August of 2018,
petitioner’s counsel did not request a continuance or otherwise move to secure petitioner’s
presence at the hearing and did not object to the circuit court holding the dispositional hearing in
her absence. As such, we find that the circuit court was not required to consider the factors outlined
in Pancake given that petitioner did not inform the circuit court of her incarceration prior to the
August of 2018 dispositional hearing or request permission to attend.
Next, petitioner argues that it was error to deny her motion for an improvement period. In
support, petitioner argues that she acknowledged the conditions of neglect by stipulating to
adjudication and further testified that “she would place her children above all other concerns.”
Further, petitioner argues that her successful completion of an improvement period in her prior
abuse and neglect proceeding clearly showed that she was likely to fully comply with an
improvement period in this matter. Upon review, we find no error in the circuit court’s denial of
petitioner’s motion. While petitioner argues that her prior compliance with services supports the
granting of an additional improvement period, the circuit court found that granting petitioner a
new improvement period would be futile, given the fact that she was “previously . . . provided
services . . . for nearly identical allegations as set forth in the instant case.” We agree with the
circuit court’s reasoning. While it is true that petitioner completed an improvement period and
regained custody of her children in a prior proceeding, the conditions that necessitated their
removal in both cases were practically identical. Thus, the issues of neglect central to petitioner’s
first case, although mitigated for a short period, were never truly resolved.
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, 115, 778 S.E.2d 338, 345 (2015) (“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) (“It 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, we find that petitioner has not established an abuse
of discretion in the circuit court’s denial of her motion for an improvement period. While petitioner
cites to her testimony regarding her acknowledgement of the conditions of neglect and her
willingness to comply with services, we find that the circuit court was correct that an additional
improvement period would be futile, given the persistence of the issues necessitating the children’s
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removal across two separate proceedings. As such, we find that petitioner is entitled to no relief in
this regard.
Next, petitioner argues that the circuit court erred in terminating her parental rights
“because there were alternative dispositions that were appropriate.” According to petitioner, a less-
restrictive disposition, such as placing the children in a legal guardianship pending her release
from incarceration, would have been more appropriate and in keeping with the children’s best
interests. Further, petitioner argues that the circuit court’s finding that there was no reasonable
likelihood the conditions of neglect could be substantially corrected was not supported by the
evidence. We disagree.
In finding there was no reasonable likelihood petitioner could substantially correct the
conditions of neglect, the circuit court relied on the fact that petitioner “already participated in
services with the [DHHR] and counseling through Potomac Highlands Guild, but it is clear her
circumstances have not changed, nor has she apparently benefited from said services and resources
in remedying the ongoing conditions of neglect and/or abuse.” Further, the circuit court found that
petitioner actively “attempted to thwart any effort by the [DHHR] to assist her minor children” by
instructing them upon their removal that the DHHR intended to harm them, as opposed to help
them. Based upon this evidence, the circuit court found that petitioner “demonstrated an inadequate
capacity to solve or remedy the conditions and circumstances constituting neglect and/or abuse of
her children on her own or with the aid of services implemented through a reasonable case plan
previously.” According to West Virginia Code § 49-4-604(c), “‘no reasonable likelihood that
conditions of neglect or abuse can be substantially corrected’ means that, based upon the evidence
before the court, the abusing adult or adults have demonstrated an inadequate capacity to solve the
problems of abuse or neglect on their own or with help.” Based on the substantial evidence of the
continued conditions in petitioner’s home, it is clear that the circuit court did not err in making this
finding.
West Virginia Code § 49-4-604(b)(6) permits a circuit court to terminate parental rights
upon findings that “there is no reasonable likelihood that the conditions of neglect or abuse can be
substantially corrected in the near future” and that termination is necessary for the welfare of the
child. As set forth above, the circuit court had ample evidence upon which to base its finding that
there was no reasonable likelihood the conditions of neglect could be substantially corrected.
Similarly, there was ample evidence to support the circuit court’s finding that termination of
petitioner’s parental rights was necessary for the children’s welfare. This evidence included the
children’s “ages and current status,” in addition to the nature of the criminal offense which resulted
in petitioner’s incarceration during these proceedings, and the children’s “paramount need of
safety, security, stability, continuity and permanency.”
This Court has held as follows:
“Termination of parental rights, the most drastic remedy under the statutory
provision covering the disposition of neglected children, [West Virginia Code § 49-
4-604] may be employed without the use of intervening less restrictive alternatives
when it is found that there is no reasonable likelihood under [West Virginia Code
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§ 49-4-604(c)] that conditions of neglect or abuse can be substantially corrected.”
Syllabus point 2, In re R.J.M., 164 W.Va. 496, 266 S.E.2d 114 (1980).
Syl. Pt. 5, In re Kristin Y., 227 W. Va. 558, 712 S.E.2d 55 (2011). Further, “[c]ourts are not
required to exhaust every speculative possibility of parental improvement . . . where it appears that
the welfare of the child will be seriously threatened.” Cecil T., 228 W. Va. at 91, 717 S.E.2d at
875, syl. pt. 4 (quoting syl. pt. 1, in part, In re R.J.M., 164 W. Va. 496, 266 S.E.2d 114 (1980)).
Based on the foregoing, it is clear that substantial evidence existed to support these findings.
Accordingly, we find no error in the circuit court’s termination of petitioner’s parental rights.
Finally, petitioner argues that the circuit court erred in denying her request for post-
termination visitation with the children. According to petitioner, the children, ages ten and twelve,
were of appropriate maturity to express their desires to have continued contact with petitioner. In
support of this assignment of error, petitioner cites to correspondence from therapists for the
children who indicated that K.C. “expressed primarily wanting to live with her . . . mother,” while
A.C. “would like contact with her mother.” As such, petitioner argues that “the lower court should
have looked at whether . . . the children had a close emotional bond with [petitioner] and . . . what
their wishes were regarding visitation.”
While petitioner is correct that the children’s therapists indicated that they were of
sufficient maturity to express opinions on this issue, petitioner fails to recognize that the circuit
court was not bound to follow their opinions. Indeed, this Court has held that
“[w]hen 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 Christina L., 194 W.Va.
446, 460 S.E.2d 692 (1995).
Syl. Pt. 11, In re Daniel D., 211 W. Va. 79, 562 S.E.2d 147 (2002). As this Court has made clear,
circuit courts must consider the wishes of a child, where appropriate, but, ultimately, “‘[i]n a
contest involving the custody of an infant the welfare of the child is the polar star by which the
discretion of the court will be guided.’ Syl. Pt. 2, State ex rel. Lipscomb v. Joplin, 131 W. Va. 302,
47 S.E.2d 221 (1948).” Syl. Pt. 3, In re S.W., 233 W. Va. 91, 755 S.E.2d 8 (2014). While both
children may have desired continued contact with petitioner, the circuit court considered their
wishes and found that such contact would be detrimental to their well-being. This decision was
based upon findings that petitioner permitted the same conditions of neglect to persist across two
proceedings, which necessitated the children’s removal on two occasions. As such, the circuit court
found that “it is not in the minor children’s best interests for their placement to [be] continually
disrupt[ed].” Because the children need “safety, stability, security, continuity, and permanency,”
the circuit court denied petitioner’s request for post-termination visitation, and we find no error in
this ruling.
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For the foregoing reasons, we find no error in the decision of the circuit court, and its
September 9, 2018, order is hereby affirmed.
Affirmed.
ISSUED: April 19, 2019
CONCURRED IN BY:
Chief Justice Elizabeth D. Walker
Justice Margaret L. Workman
Justice Tim Armstead
Justice Evan H. Jenkins
Justice John A. Hutchison
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