In re T.L., J.L., and B.J. ( 2018 )

STATE OF WEST VIRGINIA
SUPREME COURT OF APPEALS
FILED
In re T.L., J.L., and B.J. November 21, 2018
EDYTHE NASH GAISER, CLERK
SUPREME COURT OF APPEALS
No. 18-0695 (Kanawha County 17-JA-445, 17-JA-446, and 17-JA-447) OF WEST VIRGINIA
MEMORANDUM DECISION
Petitioner Mother C.W., by counsel Jason S. Lord, appeals the Circuit Court of Kanawha
County’s June 22, 2018, order terminating her parental rights to T.L., J.L., and B.J.1 The West
Virginia Department of Health and Human Resources (“DHHR”), by counsel Mindy M. Parsley,
filed a response in support of the circuit court’s order. The guardian ad litem (“guardian”),
Timbera C. Wilcox, 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 not providing her more time to
improve her parenting.2
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 October of 2017, the DHHR filed a petition alleging that T.L. was born in August of
2017 and tested positive for amphetamines, methamphetamines, buprenorphine and cotinine.
According to the DHHR, petitioner admitted that she relapsed “during the beginning of her
pregnancy.” The DHHR instituted an in-home safety plan and provided petitioner with services.
The DHHR also alleged that the father perpetrated domestic violence on petitioner while the
children were present. Additionally, the DHHR alleged that petitioner threatened to kill herself
and was placed in treatment following the filing of a mental hygiene petition. The DHHR further
alleged that petitioner was homeless. The DHHR alleged that petitioner’s substance abuse and
mental health issues prevented her from parenting and providing suitable housing for the
children.
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
Petitioner does not allege an assignment of error regarding the termination of her
parental rights.
1
The circuit court held an adjudicatory hearing in December of 2017, and petitioner
stipulated to the allegations of substance abuse, mental health issues, and homelessness as
contained in the petition. Petitioner was granted a post-adjudicatory improvement period. The
terms of the improvement period required petitioner to participate in adult life skills and
parenting classes, supervised visitations, random drug screening, and a parental fitness
evaluation.
In March of 2018, the circuit court terminated petitioner’s improvement period.3 The
circuit court held a dispositional hearing in April of 2018 and noted that petitioner was not
consistently compliant with the terms of the post-adjudicatory improvement period. However,
based upon petitioner’s representation that she was enrolled in outpatient substance abuse
treatment and participating in that treatment, the circuit court continued the dispositional hearing
to afford her the opportunity to resolve her substance abuse problem.
In June of 2018, the circuit court held the final dispositional hearing, and the DHHR
moved to terminate petitioner’s parental rights. The DHHR’s evidence showed that petitioner
continued to test positive for methamphetamines during the proceedings and failed to complete a
substance abuse treatment program. According to the DHHR, petitioner entered into multiple
substance abuse treatment programs, but left against advice after three days or less. Petitioner
testified that she was currently participating in an outpatient substance abuse treatment and
would receive a Vivitrol shot the next day. Petitioner asserted that she had not used any
controlled substances for “almost two weeks now.” Ultimately, the circuit court found that there
was no reasonable likelihood that the conditions of abuse and neglect could be substantially
corrected due to petitioner’s substance abuse addiction and her failure to follow through with the
appropriate treatment. Further, the circuit court found that the best interests of the children
require termination of petitioner’s parental rights. Accordingly, the circuit court terminated
petitioner’s parental rights in its June 22, 2018, order. Petitioner now appeals that order.4
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,
3
The record on appeal does not contain an order terminating petitioner’s improvement
period; however, petitioner admits in her brief that her improvement period was terminated on
March 13, 2018.
4
T.L. and J.L.’s father’s parental rights were terminated below. B.L. remains in the
custody of her non-abusing father. According to the parties, T.L. and J.L. are in a relative foster
placement and their permanency plan is adoption in that home.
2
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 not providing her additional
time to improve her parenting. Petitioner asserts that when a parent demonstrates that she is
likely to participate in an improvement period, she should be granted an improvement period.
Further, petitioner argues that she was not afforded an opportunity to improve before her parental
rights were terminated. We find no merit to petitioner’s argument.
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] to demonstrate ‘by clear and convincing evidence,
that the [parent] 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).
Petitioner did not demonstrate that she was likely to fully participate in an additional
improvement period. Petitioner did not fully comply with services during her post-adjudicatory
improvement period. Further, petitioner did not present any evidence, other than her testimony,
that she participated in any substance abuse treatment. The circuit court provided petitioner with
multiple opportunities since the initiation of the proceedings and petitioner frequently indicated
that she would enter into a substance abuse treatment. However, the evidence shows that
petitioner’s attempted compliance with substance abuse treatments were all short-lived and
ineffective in remedying her substance abuse. On appeal, petitioner admits that “there is little
dispute that [petitioner] did not fully participate in each and every service while in her
improvement period.” Petitioner’s assertion that she was not given an opportunity to improve
misstates the proceedings. Petitioner was granted an improvement period and failed to comply by
continuing to abuse illicit substances. Therefore, we find no error in the circuit court denying
petitioner additional time to comply with services as she did not demonstrate a likelihood that
she would comply.
For the foregoing reasons, we find no error in the decision of the circuit court, and its
June 22, 2018, order is hereby affirmed.
Affirmed.
3
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
4