In Re: D.W. ( 2013 )

STATE OF WEST VIRGINIA
SUPREME COURT OF APPEALS
FILED
In Re: D.W. February 11, 2013
RORY L. PERRY II, CLERK
SUPREME COURT OF APPEALS
No. 12-1013 (Hardy County 11-JA-20) OF WEST VIRGINIA
MEMORANDUM DECISION
Petitioner Mother filed this appeal, by counsel Jonathan G. Brill, from the Circuit Court
of Hardy County, which terminated her parental rights to child D.W. by order entered on August
3, 2012. The guardian ad litem for the child, Marla Zelene Harman, has filed a response
supporting the circuit court’s order. The Department of Health and Human Resources
(“DHHR”), by its attorney Lee Niezgoda, also filed a response in support of the circuit court’s
order.
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 is appropriate under Rule 21 of the Rules of Appellate
Procedure.
In August of 2011, DHHR filed a petition against Petitioner Mother and the child’s father
alleging unsafe and unsanitary living conditions in the home. On one visit, for instance, there
was canine fecal matter, both dried and fresh, strewn about the floor; the toilet was filled with
human feces with an overwhelming odor; and dirty dishes, trash, and clothing were scattered
through the home. At another time, the family’s Child Protective Services (“CPS”) worker
reported that the family was homeless. Petitioner Mother was granted a six-month post­
adjudicatory improvement period with services. At the end of Petitioner Mother’s improvement
period, the circuit court heard the case for disposition in July of 2012. Ultimately, the circuit
court terminated Petitioner Mother’s parental rights to D.W. by its order entered in August of
2012. Petitioner Mother appeals.
On appeal, Petitioner Mother argues that the circuit court abused its discretion in
terminating her parental rights when termination was not the least restrictive alternative and
when petitioner made substantial progress to remedy the allegations of abuse and neglect in the
petition. Although petitioner’s attempts to obtain employment were not fruitful, she argues that
she acquired Social Security income to secure steady financial income for her child. Petitioner
also asserts that she actively participated in visitations with D.W., actively participated in
services, and made substantial efforts to procure stable housing.
The child’s guardian ad litem and DHHR respond in support of the circuit court’s
termination order. They argue that Petitioner Mother failed to show that she would substantially
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comply with an improvement period. Petitioner Mother failed to obtain employment or housing
and was inconsistent with visiting D.W. Rather, they argue that Petitioner Mother engaged most
of her time on the internet meeting men, and that anything Petitioner Mother may have learned
from her adult life skills training or parenting services were not applied. Respondents argue that
the circuit court correctly considered Petitioner Mother’s lack of sufficient progress in her
improvement period and, consequently, it did not err in finding that this insufficient progress
would be unsafe for the child. Similarly, the circuit court did not err in terminating Petitioner
Mother’s parental rights to D.W. instead of using an alternative disposition.
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’s termination of petitioner’s
parental rights. Under West Virginia Code § 49-6-12, circuit courts have the discretion to grant,
deny, or terminate an improvement period. The Court finds that the circuit court considered
petitioner’s participation in her improvement period and was presented with sufficient evidence
upon which it based findings that there was no reasonable likelihood that the 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 these findings.
For the foregoing reasons, we affirm the circuit court’s order terminating Petitioner
Mother’s parental rights to D.W.
Affirmed.
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ISSUED: February 11, 2013
CONCURRED IN BY:
Chief Justice Brent D. Benjamin
Justice Robin Jean Davis
Justice Margaret L. Workman
Justice Menis E. Ketchum
Justice Allen H. Loughry II
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