In Re: A.J. ( 2014 )

STATE OF WEST VIRGINIA
SUPREME COURT OF APPEALS
FILED
In Re: A.J. June 2, 2014
RORY L. PERRY II, CLERK
SUPREME COURT OF APPEALS
No. 13-1166 (Barbour County 12-JA-18) OF WEST VIRGINIA
MEMORANDUM DECISION
Petitioner Mother, by counsel Roger Curry, appeals the Circuit Court of Barbour
County’s October 21, 2013, order terminating her parental rights to A.J. The West Virginia
Department of Health and Human Resources (“DHHR”), by counsel Katherine Bond, filed its
response in support of the circuit court’s order. The guardian ad litem (“GAL”), Karen Johnson,
filed a response on behalf of the child that also supports the circuit court’s order. On appeal,
Petitioner Mother alleges that the circuit court erred in terminating her parental rights to A.J.
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 decision is appropriate under Rule
21 of the Rules of Appellate Procedure.
In 2012, a Child Protective Services (“CPS”) worker conducted a wellness check at
Petitioner Mother’s residence. The worker observed Petitioner Mother acting in an erratic
manner. The worker believed that Petitioner Mother was under the influence of an unknown
substance that prevented her from being able to properly care for A.J. Ultimately, Petitioner
Mother was arrested for assault and misdemeanor child neglect of A.J.1 As a result, the DHHR
filed a petition for immediate custody of A.J. The petition alleged that Petitioner Mother’s
substance abuse affected her ability to appropriately care for her child.
Following a preliminary hearing, the circuit court directed Petitioner Mother to submit to
random drug tests and to undergo a psychological evaluation.2 In November of 2012, Petitioner
Mother stipulated that she was a drug addict and that her drug problem affected her ability to
properly care for A.J. As such, the circuit court adjudicated Petitioner Mother as an abusive and
neglectful parent and granted her a six-month post-adjudicatory improvement period. As part of
her improvement period, Petitioner Mother was directed to participate in mental health
counseling, substance abuse counseling, self-awareness classes, and supervised visitation.
1
The record is devoid of any information regarding the disposition of these alleged
crimes.
2
The circuit court placed the child with her maternal aunt and granted Petitioner Mother
supervised visitation.
1
The circuit court held a review hearing on December 12, 2012. The GAL filed a report
for the review hearing stating that Petitioner Mother had tested positive for Oxycodone on
November 30, 2012.3 Despite Petitioner Mother’s positive drug test, the circuit court continued
her improvement period and scheduled another review hearing.
Prior to the next review hearing the GAL moved to terminate Petitioner Mother’s post­
adjudicatory improvement period because she had failed three more drug tests, denied
consuming alcohol4, missed an unknown number of drug tests, and was caught with a container
of urine during a random drug screen that she presumably intended to substitute for her own
drug-tainted urine. Following a hearing on the GAL’s motion, the circuit court terminated
Petitioner Mother’s improvement period. Thereafter, the circuit court held a dispositional hearing
and terminated Petitioner Mother’s parental rights.5 It is from this order that Petitioner Mother
now 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
that the circuit court did not err in terminating Petitioner Mother’s parental rights to A.J.
Petitioner Mother argues that her drug addiction is a serious and perpetual problem that cannot
be resolved within the time limits of our laws in child abuse and neglect cases which were
created with the child’s need for permanence in mind. Petitioner Mother also argues that the
circuit court should have ordered additional terms of supervision pursuant to West Virginia Code
§§ 49-6-5(a)(4) or (5), to allow her to address her drug addiction and achieve reunification. The
Court does not find this argument persuasive.
3
At the hearing, Petitioner Mother denied using Oxycodone.
4
The GAL witnessed Petitioner Mother order alcoholic beverages at sports bar.
5
The circuit court granted Petitioner Mother post-termination visitation at the discretion
of the multidisciplinary team appointed to the case.
2
The record shows that Petitioner Mother continued to use drugs after she was granted a
post-adjudicatory improvement period, continued to deny using drugs or drinking alcohol, and
attempted to falsify a drug screen by bringing a container of urine into the testing area. Based
upon this evidence, the circuit court found that there was no reasonable likelihood that Petitioner
Mother could correct the conditions of abuse and neglect in the foreseeable future. The circuit
court specifically found that Petitioner Mother “has never overcome her drug addiction” and
“fail[ed] to appear for drug testing.” Pursuant to West Virginia Code § 49-6-5(b)(1) these
conditions constitute a situation in which there is no reasonable likelihood that the parent can
substantially correct the conditions of abuse or neglect in the near future. Additionally, the circuit
court found that the child is “entitled to permanency” especially in light of the fact that the child
has been in the care of her maternal aunt for more than one year. Pursuant to West Virginia Code
§ 49-6-5(a)(6), a circuit court is directed to terminate parental rights upon such findings. We
have previously held that “‘courts are not required to exhaust every speculative possibility of
parental improvement before terminating parental rights where it appears that the welfare of the
child will be seriously threatened . . . .’ Syllabus point 1, In re R.J.M., 164 W.Va. 496, 266
S.E.2d 114 (1980).” Syl. Pt. 4, in part, In re Kristin Y., 227 W.Va. 558, 712 S.E.2d 55 (2011).
Thus, for the foregoing reasons, the Court finds no error in the circuit court’s decision to
terminate Petitioner Mother’s parental rights.
The Court also finds no merit in Petitioner Mother’s argument that the circuit court erred
in permanently severing her parental bond with her child. We have previously held that “[w]hen
parental rights are terminated due to neglect or abuse, the circuit court may nevertheless in
appropriate cases consider whether continued visitation or other contact with the abusing parent
is in the best interest of the child.” Syl. Pt. 5, in part, In re Christina L., 194 W.Va. 446, 460
S.E.2d 692 (1995). While the circuit court terminated Petitioner Mother’s parental rights, the
circuit court allowed Petitioner Mother the opportunity to continue to have a role in A.J.’s life.
The circuit court specifically directed the multidisciplinary team to determine whether continued
visitations between Petitioner Mother and A.J. were in the best interest of the child. For this
reason, the Court finds no merit in Petitioner Mother’s argument that the circuit court
permanently severed the bond with the child.
For the foregoing reasons, we find no error in the decision of the circuit court and the
October 21, 2013, order is hereby affirmed.
Affirmed.
ISSUED: June 2, 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
3