In Re: D.J. and H.J. ( 2014 )

STATE OF WEST VIRGINIA
SUPREME COURT OF APPEALS
In Re: D.J. & H.J. FILED
June 16, 2014
No. 14-0161 (Calhoun County 13-JA-23 & 13-JA-24) RORY L. PERRY II, CLERK
SUPREME COURT OF APPEALS
OF WEST VIRGINIA
MEMORANDUM DECISION
Petitioner Mother, by counsel Justin White, appeals the Circuit Court of Calhoun
County’s January 21, 2014, order terminating her parental rights to the children, D.J. and H.J.
The West Virginia Department of Health and Human Resources (“DHHR”), by counsel Lee A.
Niezgoda, filed its response in support of the circuit court’s order. The guardian ad litem, Tony
Morgan, filed a response on behalf of the children supporting the circuit court’s order. On
appeal, petitioner alleges that the circuit court erred in denying her motion to reinstate her post­
adjudicatory improvement period and in terminating her parental rights.1
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 2013, the DHHR filed an abuse and neglect petition alleging that petitioner
failed to protect the children from the father, who was operating a clandestine drug lab and also
physically abusing the children. Further, the petition alleged that petitioner failed to properly
supervise the children, provided them tobacco products, and also allowed drug users in her
home, which amounted to abusing the children both emotionally and psychologically. Finally,
the DHHR alleged that petitioner had anger issues that manifested in threatening prior boyfriends
and resulted in at least one domestic violence protective order being filed against her.
Petitioner was initially permitted to retain physical custody of the children, but the
DHHR later filed an amended petition alleging that petitioner tested positive for
methamphetamines and was abusing drugs while caring for the children. As such, physical
custody was transferred to the DHHR. At the adjudicatory hearing in August of 2013, petitioner
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Petitioner’s assignment of error on appeal additionally alleges that the circuit court’s
decisions to deny the motion for reinstatement of the post-adjudicatory improvement period and
terminate her parental rights were based upon “clearly erroneous findings of fact and conclusions
of law.” However, petitioner fails to identify any allegedly erroneous findings and conclusions
and provides no argument in support of this allegation. As such, pursuant to Rule 10(c)(7) of the
West Virginia Rules of Appellate Procedure, the Court will disregard this error because it is “not
adequately supported by specific references to the record on appeal.”
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stipulated to allegations in the petition, including a history of substance abuse, anger
management issues, and failure to protect the children. After being adjudicated as an abusing
parent, petitioner filed a motion for a post-adjudicatory improvement period and the circuit court
granted the same.
In November of 2013, the DHHR filed a motion to terminate petitioner’s improvement
period and a notice to seek termination of her parental rights. According to the DHHR, petitioner
failed to comply with the family case plan and effectively abandoned her improvement period.
On December 2, 2013, the circuit court held a hearing on the DHHR’s motion and found that
petitioner had made no effort to comply with the improvement period since September 10, 2013,
including her failure to attend visitation with her children or complete required drug screens. As
such, the circuit court revoked petitioner’s improvement period. The circuit court then held a
dispositional hearing on December 20, 2013, during which petitioner moved to have her
improvement period reinstated. The circuit court denied that motion and terminated petitioner’s
parental rights. It is from the dispositional order that petitioner appeals.
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, the Court finds
no error in the circuit court denying petitioner’s motion to reinstate her post-adjudicatory
improvement period or in terminating petitioner’s parental rights.
Pursuant to West Virginia Code § 49-6-12, a parent seeking an improvement period has
the burden to demonstrate that they are likely to fully participate in the improvement period. In
the instant case, the circuit court had already been presented with overwhelming evidence of
petitioner’s non-compliance with the terms of her post-adjudicatory improvement period during
the hearing on the DHHR’s motion to terminate the same. This included her failure to visit with
the children since September of 2013, failure to attend mandatory drug screens, lack of
attendance for services, and lack of contact with the DHHR. Further, in denying her motion to
reinstate the improvement period, the circuit court noted that petitioner “offered no evidence to
support her motion. . . .” As such, it is clear that petitioner failed to establish that she was likely
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to fully participate in an improvement period, and the circuit court did not abuse its discretion in
denying her motion to reinstate the post-adjudicatory improvement period.
As to termination of petitioner’s parental rights, the circuit court specifically found that
there was no reasonable likelihood that the conditions of abuse and neglect could be substantially
corrected in the near future and that termination of parental rights was necessary for the
children’s welfare. Specifically, relying on the evidence outlined above, the circuit court found
that petitioner failed to respond to or follow through with the reasonable family case plan, which
is a circumstance in which there is no reasonable likelihood that the conditions of abuse and
neglect can be substantially corrected in the near future according to West Virginia Code § 49-6­
5(b)(3). It is clear that the circuit court had sufficient evidence upon which to make these
findings, and circuit courts are directed to terminate parental rights upon the same, pursuant to
West Virginia Code § 49-6-5(a)(6). As such, the Court finds no error in the circuit court’s
termination of petitioner’s parental rights.
For the foregoing reasons, we find no error in the decision of the circuit court and its
January 21, 2014, order is hereby affirmed.
Affirmed.
ISSUED: June 16, 2014
CONCURRED IN BY:
Chief Justice Robin Jean Davis
Justice Brent D. Benjamin
Justice Margaret L. Workman
Justice Menis E. Ketchum
Justice Allen H. Loughry II
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