In Re: A.F., K.F. and M.M. ( 2014 )

STATE OF WEST VIRGINIA
SUPREME COURT OF APPEALS
FILED
In Re: A.F., K.F., and M.M.
June 16, 2014
RORY L. PERRY II, CLERK
No. 14-0098 (Braxton County 13-JA-28, 13-JA-29, and 13-JA-30) SUPREME COURT OF APPEALS
OF WEST VIRGINIA
MEMORANDUM DECISION
Petitioner Mother filed this appeal by her counsel, Daniel K. Armstrong, from an order
entered on January 27, 2014, in the Circuit Court of Braxton County, which terminated her
parental rights to twelve-year-old A.F., eleven-year-old K.F., and seven-year-old M.M. The
guardian ad litem for the children, David Karickhoff, filed a response in support of the circuit
court’s order. The Department of Health and Human Resources (“DHHR”), by its attorney, S.L.
Evans, also filed a response in support of the circuit court’s order. On appeal, petitioner argues
that the circuit court erred when it denied her motion for an improvement period and terminated
her parental rights based, in part, on her failure to separate from her boyfriend.
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 May of 2013, the DHHR filed an abuse and neglect petition against petitioner and her
boyfriend B.M., who lived with the family.1 The petition alleged that the children’s welfare was
threatened by both adult respondents’ failure to supply them with necessary food, clothing,
supervision, and medical care. For instance, the children disclosed that they usually only ate
dinner on the weekends because their parents would be asleep and that they were not provided
with any other supervision. The petition also alleged that B.M. sexually abused A.F., and that
both petitioner and B.M. abused drugs in the children’s presence. Petitioner and B.M. waived
their rights to a preliminary hearing.
At the adjudicatory hearing in June of 2013, the two older children, A.F., and K.F.,
testified about the parents’ drug abuse. A.F. testified that she saw her mother and B.M. snort
“beans” through a dollar or a pen after crushing the beans with a lighter on a clipboard. A.F.
testified that after her mother and B.M. crushed and snorted the beans, they acted “kind of
mean.” She also testified that other adults came into the home nearly every day and would snort
these beans, smoke, or go into closed rooms where she thought they might have been watching
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Until only recently, it was thought that B.M. was the biological father of M.M. In his response
brief, however, the guardian ad litem explains that this is not the case. B.M. is likewise not the
biological father of either A.F. or K.F.
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“bad movies.” A.F. further testified about B.M.’s sexual abuse against her. She described, for
instance, times B.M. touched her “where [she] pee[s]” and how he “would sit [her] on top of
him” while rubbing against her. A.F. testified that whenever she told petitioner about these
incidents, petitioner would never do anything about it. Petitioner testified and denied any illegal
drug use in the home by herself, B.M., or anybody else, and denied that A.F. ever told her about
B.M.’s sexual abuse. Petitioner also testified that she has never had any concerns about B.M.
inappropriately touching any of her children. In its August of 2013 adjudicatory order, the circuit
court found that both parents abused and neglected the children after finding that B.M. sexually
abused A.F., that petitioner failed to protect the children by failing to take action after she was
informed of the sexual abuse, and that the parents’ drug abuse affected the welfare of the
children.
At the dispositional hearing in August of 2013, the family’s caseworker testified that
neither parent rectified any of the problems identified in the home. She testified that although
petitioner yielded negative drug screens for those in which she participated, she also missed
several of her required drug screens. The caseworker also testified that petitioner had expressed
intentions of separating from B.M., but had yet to do so, and that petitioner continued to express
that her children were lying and making up stories to get her in trouble. The caseworker further
testified that whenever she first spoke to petitioner about separating from B.M., petitioner
became upset and did not understand why separation was necessary. The caseworker also
explained that petitioner was not willing to take ownership of her current or past problems and
had not shown that she has the ability to use the resources available to her to prevent a drug
relapse. In its termination order entered in January of 2014, the circuit court found that both
parents failed to recognize or acknowledge any substance abuse problems and that petitioner was
not willing to accept that any sexual abuse occurred in the home. The circuit court terminated
both parents’ parental rights to the children. Petitioner now appeals.
This 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).
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Petitioner’s sole assignment of error on appeal is that the circuit court erred in denying
her motion for an improvement period and in terminating her parental rights based, in part, on
her failure to separate from B.M. Petitioner asserts that she was only given limited notice of this
requirement to live separate and apart from him.
Upon our review of the record, we find no error by the circuit court in denying
petitioner’s motion for an improvement period or in terminating her parental rights. “‘Although
parents have substantial rights that must be protected, the primary goal in cases involving abuse
and neglect, as in all family law matters, must be the health and welfare of the children.’ Syl. Pt.
3, In re Katie S., 198 W.Va. 79, 479 S.E.2d 589 (1996).” Syl. Pt. 2, In re Timber M., 231 W.Va.
44, 743 S.E.2d 352 (2013). We have previously explained:
[I]n order to remedy the abuse and/or neglect problem, the problem must first be
acknowledged. Failure to acknowledge the existence of the problem, i.e., the truth
of the basic allegation pertaining to the alleged abuse and neglect or the
perpetrator of said abuse and neglect, results in making the problem untreatable
and in making an improvement period an exercise in futility at the child’s
expense.
W.Va. Dept. of Health and Human Res. ex rel. Wright v. Doris S., 197 W.Va. 489, 498, 475
S.E.2d 865, 874 (1996). The record reveals the family’s caseworker recommended separation
from B.M. to petitioner at least one month before the dispositional hearing. Petitioner never
acknowledged the drug abuse and sexual abuse that occurred in the home. Petitioner’s lack of
acknowledgement, coupled with her missed drug screens, supports the circuit court’s finding that
she failed to provide evidence that she would participate in a plan to correct the conditions of
abuse and neglect. Under West Virginia Code § 49-6-12, when a parent has failed to demonstrate
by clear and convincing evidence that he or she will fully participate in an improvement period,
the circuit court has the discretion to deny a motion requesting such. This evidence was also
sufficient to support the circuit court’s findings and conclusions that there was no reasonable
likelihood that conditions of abuse and neglect could be substantially corrected in the near future,
and that termination was necessary for the children’s welfare. Pursuant to West Virginia Code §
49-6-5(a)(6), circuit courts are directed to terminate parental rights upon such findings.
This Court reminds the circuit court of its duty to establish permanency for the children.
Rule 39(b) of the Rules of Procedure for Child Abuse and Neglect Proceedings requires the
following:
At least once every three months until permanent placement is achieved as
defined in Rule 6, the court shall conduct a permanent placement review
conference, requiring the multidisciplinary treatment team to attend and report as
to progress and development in the case, for the purpose of reviewing the progress
in the permanent placement of the child.
Further, this Court reminds the circuit court of its duty pursuant to Rule 43 of the Rules of
Procedure for Child Abuse and Neglect Proceedings to find permanent placement for the
children within twelve months of the date of the disposition order. As this Court has stated,
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[t]he [twelve]-month period provided in Rule 43 of the West Virginia Rules of
Procedures for Child Abuse and Neglect Proceedings for permanent placement of
an abused and neglected child following the final dispositional order must be
strictly followed except in the most extraordinary circumstances which are fully
substantiated in the record.
Syl. Pt. 6, In re Cecil T., 228 W.Va. 89, 717 S.E.2d 873 (2011). Moreover, this Court has stated
that
[i]n determining the appropriate permanent out-of-home placement of a child
under W.Va.Code § 49-6-5(a)(6) [1996], the circuit court shall give priority to
securing a suitable adoptive home for the child and shall consider other placement
alternatives, including permanent foster care, only where the court finds that
adoption would not provide custody, care, commitment, nurturing and discipline
consistent with the child’s best interests or where a suitable adoptive home can
not be found.
Syl. Pt. 3, State v. Michael M., 202 W.Va. 350, 504 S.E.2d 177 (1998). Finally, “[t]he guardian
ad litem’s role in abuse and neglect proceedings does not actually cease until such time as the
child is placed in a permanent home.” Syl. Pt. 5, James M. v. Maynard, 185 W.Va. 648, 408
S.E.2d 400 (1991).
For the foregoing reasons, we affirm.
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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