In Re: K.M. ( 2015 )

STATE OF WEST VIRGINIA
SUPREME COURT OF APPEALS
FILED
In Re: K.M. March 16, 2015
RORY L. PERRY II, CLERK
SUPREME COURT OF APPEALS
No. 14-1050 (Taylor County 12-JA-12) OF WEST VIRGINIA
MEMORANDUM DECISION
Petitioner Mother, by counsel Chaelyn Casteel, appeals the Circuit Court of Taylor
County’s September 19, 2014, order terminating her parental rights to two-year-old K.M. The
West Virginia Department of Health and Human Resources (“DHHR”), by counsel Lee
Niezgoda, filed its response in support of the circuit court’s order. The guardian ad litem
(“guardian”), Mary Nelson, filed a response on behalf of K.M. that supports the circuit court’s
order. On appeal, Petitioner Mother argues that the circuit court erred in terminating her parental
rights. Petitioner also argues that the DHHR failed to make reasonable efforts to reunify the
family.
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 2012, the DHHR filed an abuse and neglect proceeding against petitioner and
K.M.’s biological father alleging a prior involuntary termination based upon domestic violence
in the home and drug abuse. The circuit court held an adjudicatory hearing during which
petitioner admitted that she abused drugs, that K.M. was born with amphetamines in her system,
and that there was domestic violence in the home. Accordingly, the circuit court adjudicated
petitioner as an abusive and neglectful parent. The circuit court ordered that petitioner submit to
drug testing.
Thereafter, the circuit court granted petitioner a six-month, post-adjudicatory
improvement period. The circuit court directed petitioner to attend relationship counseling, drug
and alcohol counseling, Alcohol Anonymous (“AA”) meetings, and to be honest with the
multidisciplinary team and the circuit court. On March 18, 2013, a review hearing was held
during which the circuit court heard testimony that petitioner tested positive for OxyContin and
Suboxen. However, the circuit court granted petitioner a three-month extension of her post­
adjudicatory improvement period.
On September 16, 2013, the circuit court held another review hearing during which the
circuit court heard testimony that petitioner failed to submit to drug testing and failed to attend
relationship counseling as previously ordered by the circuit court. As a result, the DHHR
suspended petitioner’s visitation rights with K.M. However, the following month, CPS informed
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the circuit court that the service worker who testified during the September 16, 2013, review
hearing provided the circuit court with incorrect information with respect to petitioner failing to
submit to drug tests and failing to attend relationship counseling. Several days later, the circuit
court held a dispositional hearing. At the conclusion of the hearing, the circuit court found that
petitioner substantially complied with the terms of her post-adjudicatory improvement period in
light of the clarifications of the CPS worker’s prior testimony. Accordingly, the circuit court
granted petitioner a six-month, dispositional improvement period.
In March of 2014, the circuit court held a review hearing during which the circuit court
directed petitioner to provide verification that she attended AA meetings and therapy services.
Several months later, the circuit court held another dispositional hearing. At the conclusion of the
hearing, the circuit court found that petitioner tested positive for Suboxen and OxyContin and
failed to attend therapy and AA meetings. The circuit court then terminated petitioner’s parental
rights. It is from this order that petitioner appeals.
The Court has previously established the following standard of review in such cases:
“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, the Court finds
no error in the circuit court’s termination of petitioner’s parental rights. While petitioner argues
that the circuit court failed to employ the least restrictive alternative pursuant to West Virginia
Code § 49-6-5(a), petitioner’s argument ignores our further directions regarding termination
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 repeatedly stated as follows:
“Termination 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
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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). In this case, the circuit court
found that there was no reasonable likelihood that petitioner could substantially correct the
conditions of abuse and neglect in the near future and that petitioner “demonstrated a complete
lack of improvement over a two year period.” The record on appeal also supports that petitioner
failed to complete her improvement period. Specifically, petitioner tested positive for OxyContin
and Suboxen, failed to attend AA meetings, failed to complete substance abuse counseling, and
other therapeutic services.
Pursuant to West Virginia Code § 49-6-5(b)(3), a situation in which there is no
reasonable likelihood that the parent can substantially correct the conditions of abuse and neglect
includes one where “[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 . . . .” The evidence shows that petitioner, over a two year period,
failed to follow through with services designed to remedy the conditions of abuse and neglect.
Pursuant to West Virginia Code § 49-6-5(a)(6), circuit courts are directed to terminate parental
rights upon these findings.
Petitioner also argues that the DHHR failed to make reasonable efforts to reunify the
family. This Court disagrees. Specifically, petitioner contends that the DHHR failed to reunify
the family when they suspended her visitation rights upon the false testimony of a CPS worker
during the September 16, 2013, review hearing. While this Court acknowledges that petitioner’s
visitation rights were temporarily suspended based upon false information, the circuit court
continued to offer petitioner services to reunify the family. By order entered November 25, 2013,
the circuit court granted petitioner an additional six-month, dispositional improvement period
with terms consistent with her post-adjudicatory improvement periods. During this additional
improvement period, petitioner failed to follow through with services aimed at correcting the
underlying issues of abuse and neglect. Accordingly, we find that the circuit court made
reasonable efforts to reunify the family.
For the forgoing 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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