In re K.B. ( 2018 )

STATE OF WEST VIRGINIA
SUPREME COURT OF APPEALS
FILED
In re K.B. November 21, 2018
EDYTHE NASH GAISER, CLERK
SUPREME COURT OF APPEALS
No. 18-0443 (Mingo County 17-JA-37)
OF WEST VIRGINIA
MEMORANDUM DECISION
Petitioner Mother A.B., by counsel Marsha Webb-Rumora, appeals the Circuit Court of
Mingo County’s April 17, 2018, order terminating her parental rights to K.B.1 The West Virginia
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 (“guardian”), Cullen C. Younger,
filed a response on behalf of the child in support of the circuit court’s order.2 On appeal,
petitioner argues that the circuit court erred in terminating her parental rights rather than granting
her a post-dispositional improvement period.
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 April of 2017, the DHHR filed a petition alleging that K.B. was born prematurely and
that his umbilical cord tested positive for multiple illegal substances. The DHHR alleged that
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).
2
The guardian’s response to this Court failed to include an argument responsive to
petitioner’s assignments of error. He also failed to cite to any authority in support of his
argument or the record on appeal. We refer the guardian to Rules 10(d), 10(e), and 11(i) of the
Rules of Appellate Procedure, which require briefs in abuse and neglect appeals to contain a
section on the status of the children and require all respondents’ briefs and summary responses to
contain responses to each assignment of error and appropriate citations to both relevant authority
and the record on appeal. We caution the guardian that Rule 10(j) provides for the imposition of
sanctions where a party’s brief does not comport with the Rules.
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petitioner admitted that she used heroin, methamphetamine, cocaine, “benzos”, and marijuana
approximately two weeks before the child was born. Moreover, the DHHR alleged that
petitioner’s urine screen was positive for cocaine and benzodiazepine. According to the DHHR,
petitioner stated that she went into labor prematurely when attempting to save the father from an
attempted suicide. Petitioner waived her preliminary hearing.
The circuit court held an adjudicatory hearing in June of 2017 and, following the
presentation of evidence, found that petitioner had abused and neglected K.B. by using
controlled substances during her pregnancy. Accordingly, the circuit court adjudicated petitioner
as an abusing parent. Petitioner moved for a post-adjudicatory improvement period and, without
objection, the circuit court granted that motion. Petitioner was already admitted to an inpatient
substance abuse treatment facility at this time. While at the facility, petitioner was diagnosed
with “[s]evere opioid use disorder, [s]evere cocaine stimulant use disorder, [s]evere cannabis use
disorder, and [g]eneralized anxiety disorder” and a “fair” prognosis for improvement.
In August of 2017, the circuit court held a review hearing for petitioner. Evidence
established that petitioner completed her inpatient treatment program. Although another long-
term program was recommended, no programs were immediately available. The parties agreed
there were no issues with petitioner’s progress. The circuit court held three review hearings in
October of 2017, November of 2017, and December of 2017, and petitioner continued to perform
well in her improvement period. However, in February of 2018, the circuit court held a review
hearing and learned that petitioner failed several drug screens since December of 2017. Petitioner
failed three drug screens for alcohol and did not appear to drug screen on one occasion.
Petitioner also failed one drug screen for cocaine in early February of 2018. The circuit court
scheduled a dispositional hearing.
The circuit court held the final dispositional hearing in March of 2018. The DHHR called
petitioner’s case worker who testified that the DHHR was seeking termination of petitioner’s
parental rights. The case worker testified that petitioner initially performed well in her
improvement period and completed an inpatient substance abuse program. However, in
December of 2017, the DHHR moved the child from his foster placement in Kentucky to a
placement closer to petitioner in order to increase visitation. According to the case worker, the
date that the child was moved was the first day of three consecutive drug screens in which
petitioner tested positive for alcohol. The case worker called for a multidisciplinary treatment
team meeting (“MDT”) and the team agreed that petitioner should re-enter inpatient treatment.
Petitioner did not agree to inpatient treatment, but did indicate that she would seek outpatient
treatment. Following the MDT, the case worker explained that petitioner lost contact with the
DHHR. Petitioner tested positive for cocaine and another MDT was called. The MDT again
recommended that petitioner enter into long-term treatment and petitioner agreed to attend a
program in Kentucky. However, the case worker never received documentation that petitioner
entered treatment.
Petitioner testified that she completed an inpatient treatment program, obtained housing,
and was currently employed, as required by her understanding of the case plan. Petitioner
admitted to using alcohol, stating “[t]here’s absolutely no excuse for that. I can’t give you an
explanation for – I mean, that’s addiction.” Subsequently, petitioner testified that she began
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outpatient treatment. However, petitioner explained that she sought inpatient treatment after she
tested positive for cocaine in February of 2018. At the time of her testimony, petitioner was
twenty-seven days into her second inpatient treatment. On cross-examination, petitioner admitted
she became “complacent” in her recovery and that she did not believe she needed treatment until
she tested positive for cocaine in February of 2018.
Ultimately, the circuit court found that petitioner was presently unwilling or unable to
care for the child despite the services provided. The circuit court further found that there was no
reasonable likelihood that the conditions of abuse and neglect could be substantially corrected.
Accordingly, the circuit court terminated her parental rights in its April 17, 2018, order.
Petitioner now appeals that order.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 our review, this Court
finds no error in the proceedings below.
On appeal, petitioner argues that the circuit court erred in terminating her parental rights
rather than granting her motion for a post-dispositional improvement period. Petitioner asserts
that she substantially complied with the terms of her improvement period and the
recommendations made during MDTs. Therefore, petitioner argues that a post-dispositional
improvement period was appropriate. We disagree with petitioner’s assignment of error.
Although petitioner argues that she substantially complied with the terms of her post-
adjudicatory improvement period, petitioner does not meet the applicable burden for the granting
of a second improvement period. West Virginia Code § 49-4-610(3) permits a circuit court to
grant a post-dispositional improvement period when: (1) the respondent “moves in writing for
the improvement period;” (2) the respondent “demonstrates, by clear and convincing evidence,
that the respondent is likely to fully participate in the improvement period[;]” and (3) in the event
3
The father’s parental rights were also terminated in August of 2017. According to the
parties, the permanency plan for the child is adoption in his current relative foster placement.
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the respondent has previously been granted an improvement period, “the respondent
demonstrates that since the initial improvement period, the respondent has experienced a
substantial change in circumstances” and that “due to the change in circumstances, the
respondent is likely to fully participate in the improvement period[.]”
Petitioner did not demonstrate that she experienced a substantial change in circumstances.
During her testimony, petitioner agreed that her reinitiated substance abuse was not “a problem
of where [she was] located.” Rather, petitioner admitted she became “complacent” in her
recovery. Although petitioner was attending an inpatient substance abuse treatment program, she
previously participated in similar treatment during her first improvement period. Petitioner
participated in some services provided by the DHHR, however those services and her previous
inpatient treatment did not resolve her substance abuse problem. Finally, 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.”). Considering
petitioner’s failure to demonstrate a substantial change in circumstances, we find no abuse of
discretion in the circuit court’s denial of petitioner’s motion for a post-dispositional improvement
period.
The previously mentioned evidence also supports the circuit court’s termination of
petitioner’s parental rights. West Virginia Code § 49-4-604(b)(6) provides that termination of
parental rights is appropriate upon findings that “there is no reasonable likelihood that the
conditions of neglect or abuse can be substantially corrected in the near future” and the
termination is “necessary for the welfare of the child” Additionally, West Virginia Code § 49-4-
604(c)(3) provides that no reasonable likelihood that the conditions of neglect or abuse can be
substantially corrected exist when “[t]he abusing parent . . . [has] not responded to or followed
through with a reasonable family case plan or other rehabilitative efforts . . . designed to reduce
or prevent the abuse or neglect of the child.” As discussed above, petitioner submitted to
inpatient substance abuse treatment, however she ultimately failed in remaining free from illicit
substances. Importantly, the MDT recommended that petitioner seek help when she began
abusing alcohol and petitioner refused. As noted in the case worker’s testimony, alcohol is
frequently a substitute for those seeking to recover from an illicit substance addiction. In her
testimony, petitioner agreed that she did not seek any kind of treatment before she tested positive
for cocaine. It appears that petitioner only sought treatment due to the DHHR’s recommendation.
Further, the record supports a finding that it was necessary for the welfare of the child to
terminate petitioner’s parental rights. Although petitioner was attempting to control her
addiction, she relapsed back to a substance that she admitted to using during pregnancy. This
Court has previously held that
“courts are not required to exhaust every speculative possibility of parental
improvement . . . where it appears that the welfare of the child will be seriously
threatened, and this is particularly applicable to children under the age of three
years who are more susceptible to illness, need consistent close interaction with
fully committed adults, and are likely to have their emotional and physical
development retarded by numerous placements.” Syl. Pt. 1, in part, In re R.J.M.,
164 W.Va. 496, 266 S.E.2d 114 (1980).
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Cecil T., 228 W.Va. at 91, 717 S.E.2d at 875, Syl. Pt. 4 (2011). Considering petitioner’s previous
inpatient therapy and its ultimate effect, the circuit court is not required to wait and see the
effectiveness of petitioner’s new treatment. K.B. is a child under the age of three whose
development would certainly be threatened by a mother that relapses into substance abuse.
Finally,
“[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 [now 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 W. Va. Code [§] 49-6-5(b) [now West Virginia Code
§ 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). The record supports the
findings necessary for termination of parental rights. Accordingly, we find no error in the circuit
court’s termination of parental rights and conclude that petitioner is entitled to no relief.
For the foregoing reasons, we find no error in the decision of the circuit court, and its
April 17, 2018, order is hereby affirmed.
Affirmed.
ISSUED: November 21, 2018
CONCURRED IN BY:
Chief Justice Margaret L. Workman
Justice Elizabeth D. Walker
Justice Tim Armstead
Justice Evan H. Jenkins
Justice Paul T. Farrell sitting by temporary assignment
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