In Re: J.J. Jr. ( 2015 )

STATE OF WEST VIRGINIA
SUPREME COURT OF APPEALS
FILED
In Re: J.J. Jr. March 16, 2015
RORY L. PERRY II, CLERK
SUPREME COURT OF APPEALS
No. 14-1042 (Mercer County 14-JA-116) OF WEST VIRGINIA
MEMORANDUM DECISION
Petitioner Father, by counsel Gerald Linkous, appeals the Circuit Court of Mercer
County’s September 23, 2014, order terminating his parental rights to one-year-old J.J. Jr. The
West Virginia Department of Health and Human Resources (“DHHR”), by counsel S.L. Evans,
filed its response in support of the circuit court’s order. The guardian ad litem (“guardian”),
Malorie Estep-Morgan, filed a response on behalf of J.J. Jr. that supports the circuit court’s
order. On appeal, Petitioner Father argues that the circuit court erred in terminating his parental
rights without an improvement period.
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 December of 2012, the DHHR received a referral alleging deplorable conditions in
petitioner’s residence, such as 1) no heat, running water, or electricity; 2) four feet of trash in the
kitchen; 3) a severe roach infestation; 4) a dead dog in the kitchen; and 5) a clogged, non­
functioinal toilet. The following month, Child Protective Services (“CPS”) provided petitioner
with individualized parenting and adult life skills classes and directed petitioner to submit to
random drug screens. In November of 2013, CPS workers investigated petitioner’s residence.
The workers observed two puppies urinating on the floor and trash, soiled diapers, and animal
feces throughout the residence. The workers also observed J.J. Jr. lying on a soiled mattress and
that he had lice and nits. Three days later, the DHHR filed a petition for abuse and neglect based
upon the above-mentioned referral and subsequent investigation.
Thereafter, the circuit court held a series of adjudicatory hearings to take evidence on the
DHHR’s allegations. Service providers testified that petitioner refused to participate in services
directed at remedying the conditions of neglect. The circuit court also heard testimony that
petitioner’s residence was in a deplorable condition and that he continuously tested positive for
marijuana from July of 2013 through April of 2014. After considering all of the testimony, the
circuit court held that J.J. Jr. was a neglected child and petitioner refused to allow services
providers into his residence. In September of 2014, the circuit court held a dispositional hearing
and terminated petitioner’s parental rights. It is from this order that petitioner appeals.
The Court has previously established the following standard of review:
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“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.
On appeal, petitioner argues that the circuit court erred in terminating his parental rights.
Petitioner’s argument is based on our prior holding that states as follows:
Where allegations of neglect are made against parents based on
intellectual incapacity of such parent(s) and their consequent inability to
adequately care for their children, termination of rights should occur only after the
social services system makes a thorough effort to determine whether the parent(s)
can adequately care for the children with intensive long-term assistance. In such
case, however, the determination of whether the parents can function with such
assistance should be made as soon as possible in order to maximize the
child(ren)'s chances for a permanent placement.
Syl. Pt. 4, In re Billy Joe M., 206 W.Va. 1, 521 S.E.2d 173 (1999). Petitioner erroneously argues
that he was not provided enough services below to sufficiently satisfy the requirement that a
thorough effort be made to determine if he could care for the child with intensive, long-term
assistance. However, the Court notes that its holding in In re Billy Joe M., does not require any
specific services be provided, but instead requires only that social services make a thorough
effort to determine if a parent can adequately care for a child with intensive long-term assistance.
Here, the DHHR provided petitioner with assistance in this matter, such as visitation,
individualized parenting and adult life skills classes, drug screens, and a psychological
evaluation in accordance with In re Billy Joe M.
Petitioner’s treating psychologist, Barbara Nelson, testified that after receiving ten
months of services petitioner did not have the ability to apply what he had learned and that
petitioner “felt that [he was] doing very well.” Ms. Nelson also testified that she was not aware
of any additional services that the DHHR has not already provided to petitioner that would
remedy the conditions of neglect. Importantly, Ms. Nelson testified that petitioner did not have
the capability of making basic decisions to protect his child and recommended that “[petitioner]
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never be left alone with his child.” Accordingly, this Court finds that the DHHR made a
thorough effort to determine petitioner’s capacity for proper care by providing petitioner with
visitation, individualized parenting and adult life skills classes, drug screens, and a psychological
evaluation as soon as they possibly could in compliance with the syllabus point above.
Further, this Court finds no merit in petitioner’s argument that he should have been
granted a post-adjudicatory improvement period. West Virginia Code § 49-6-12 grants circuit
courts discretion in granting an improvement period upon a showing, “by clear and convincing
evidence, that the [parent] is likely to fully participate in the improvement period.” Upon review
of the record, petitioner failed to show, by clear and convincing evidence, that he would have
fully complied with the terms of an improvement period if one had been granted. As noted
above, the circuit court found that petitioner refused to allow service providers into his residence,
continuously tested positive for marijuana, and failed to apply the skills that he learned. Thus, it
was not error for the circuit court to deny petitioner an improvement period.
For the foregoing reasons, we find no error in the decision of the circuit court and its
September 23, 2014, order is hereby affirmed.
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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