In re L.T., R.L., and I.C. ( 2022 )

FILED
May 12, 2022
STATE OF WEST VIRGINIA EDYTHE NASH GAISER, CLERK
SUPREME COURT OF APPEALS SUPREME COURT OF APPEALS
OF WEST VIRGINIA
In re L.T., R.L., and I.C.
No. 21-0772 (Harrison County 20-JA-243, 20-JA-244, and 20-JA-245)
MEMORANDUM DECISION
Petitioner Mother M.L., by counsel Julie N. Garvin, appeals the Circuit Court of Harrison
County’s July 29, 2021, order terminating her parental rights to L.T., R.L., and I.C. 1 The West
Virginia Department of Health and Human Resources (“DHHR”), by counsel Patrick Morrisey
and Lee Niezgoda, filed a response in support of the circuit court’s order. The guardian ad litem,
Jenna L. Robey, filed a response on behalf of the children also in support of the circuit court’s
order. On appeal, petitioner argues that the circuit court erred in denying her an improvement
period and terminating her parental rights.
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.
Petitioner has a history of Child Protective Services (“CPS”) interventions dating back to
at least 2016 due to her issues with substance abuse, domestic violence, and inability to provide
adequately for the children’s needs. In 2016, the DHHR filed a child abuse and neglect petition
against petitioner, alleging that she abused drugs in L.T.’s presence, left the child with an
inappropriate caregiver, and engaged in domestic violence in the child’s presence. Petitioner was
adjudicated as an abusing parent, and the circuit court granted her a post-adjudicatory
improvement period. Petitioner successfully completed her improvement period, and L.T. was
reunified with her.
1
Consistent with our long-standing practice in cases with sensitive facts, we use initials
where necessary to protect the identities of those involved in this case. See In re K.H., 235 W. Va.
254, 773 S.E.2d 20 (2015); Melinda H. v. William R. II, 230 W. Va. 731, 742 S.E.2d 419 (2013);
State v. Brandon B., 218 W. Va. 324, 624 S.E.2d 761 (2005); State v. Edward Charles L., 183 W.
Va. 641, 398 S.E.2d 123 (1990).
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Although the DHHR received a few referrals regarding the family over the years, the
instant petition was not filed until November of 2020. The DHHR alleged that petitioner subjected
her children to unsanitary living conditions, domestic violence, and substance abuse. Specifically,
the DHHR alleged that CPS received a referral after petitioner and K.C., one of the children’s
fathers, engaged in domestic violence. According to the referral, K.C. slapped petitioner and left
the residence, and petitioner screamed at him that she needed her pain pills. The children were
observed to be crying and screaming during the altercation and, at one point, K.C. attempted to
grab I.C. and leave with her. K.C. also “stiff armed” petitioner, causing her to fall. Law
enforcement officers responded to the home and arrested K.C.
CPS workers investigated the situation and learned that domestic violence between K.C.
and petitioner had been ongoing for several months. The workers discovered that, in June of 2020,
K.C. jumped up and down on petitioner, causing a broken rib and a dislocated shoulder, and that
K.C. was arrested for domestic battery against petitioner in September of 2020 after causing a
laceration to petitioner’s head. K.C. also allegedly repeatedly kicked petitioner in the pelvic region
on another occasion. Many of these instances of domestic violence occurred in the children’s
presence.
The CPS workers then spoke to petitioner, who appeared to be under the influence of drugs.
The workers observed petitioner’s home to be in poor condition, with trash and other random items
littered throughout the home and only a small path to walk through. Petitioner claimed she did not
know why law enforcement officers came to her home and that she and K.C. were only verbally
arguing. When asked why petitioner had allowed K.C. back into the home after the September of
2020 incident, petitioner claimed she did not know he was not allowed back in the home. Petitioner
denied any substance abuse and, during the course of the interview, became emotional, screamed,
and cursed at the workers. Petitioner further claimed that she did not have time to obtain a domestic
violence protective order (“DVPO”) against K.C. CPS workers asked petitioner to submit to a drug
screen, and the following day petitioner screened and tested positive for methamphetamine and
amphetamine. In sum, the DHHR alleged that petitioner subjected the children to domestic
violence, unsanitary living conditions, and a drug-endangered environment, thereby abusing and
neglecting the children.
In January of 2021, the circuit court held an adjudicatory hearing. Petitioner failed to
appear but was represented by counsel. The DHHR presented the testimony of two law
enforcement officers, an employee of the Harrison County Board of Education, petitioner’s
landlord, and a CPS worker. At the conclusion of the hearing, the circuit court found that, in
September of 2020, K.C. perpetrated domestic violence against petitioner in the children’s
presence. The circuit court noted that K.C. was arrested as a result of the domestic violence and
that, pursuant to that criminal action, a bond restriction was placed upon K.C. that precluded him
from having contact with petitioner. Nevertheless, K.C. and petitioner engaged in domestic
violence in the home in November of 2020, and the children were, once again, present in the home
and witnessed the altercation. Petitioner failed to seek a DVPO against K.C. Further, the circuit
court found that petitioner was observed to be under the influence of drugs at the time of the
November of 2020 domestic violence incident and tested positive for amphetamine and
methamphetamine the day after the incident. The circuit court found that the home was in poor
condition with trash piled such that only a narrow walkway was available. Lastly, the circuit court
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found that petitioner failed to ensure that L.T. properly attended school and failed to attend to the
child’s special needs. Based on these findings, the circuit court adjudicated petitioner as a
neglecting parent. In April of 2021, petitioner filed a motion for a post-adjudicatory improvement
period.
The circuit court held an initial dispositional hearing in May of 2021. Petitioner testified
that the children were removed because she and K.C. argued in front of the children. Petitioner
denied that she and K.C. engaged in physical violence and further denied her substance abuse
problem, claiming that she abused drugs only on the night the children were removed. Despite
stating that she did not have a substance abuse problem, petitioner testified “if you guys
recommend, I will go into a rehab facility. It doesn’t matter to me.” When asked what aspects of
her parenting she needed to work on, petitioner stated that the only aspect she needed to work on
was “not giving in all the time.” Further, when confronted with her recent positive drug screens,
petitioner denied abusing drugs. Nevertheless, petitioner requested a post-adjudicatory
improvement period and noted that she was currently participating in services. Petitioner admitted
that there was a period of time that she had not participated in services and that the services had
been briefly closed for noncompliance. Petitioner also acknowledged that she missed her
scheduled parental fitness evaluation and missed several drug screens. However, petitioner stated
that she would comply with services in order to regain custody of her children. Following
testimony, the circuit court continued the hearing.
The circuit court held the final dispositional hearing in June of 2021. The DHHR presented
the expert testimony of Kenneth Lewis, the laboratory director of OpAns, a laboratory testing
facility located in North Carolina. Mr. Lewis testified that he analyzed four blood spot samples
collected from petitioner throughout April, May, and June of 2021, two of which showed evidence
of low-level methamphetamine abuse. The other two tests showed evidence of methamphetamine
use, but the levels were below the reporting cutoff and, thus, were treated as negative. Based on
the levels of the two positive tests, Mr. Lewis testified that petitioner could have abused
methamphetamine or could have tested positive for the substance due to secondhand smoke or by
touching the substance. He further suggested that the typical levels of low-level habitual
methamphetamine users were slightly higher than petitioner’s levels. However, on cross-
examination, Mr. Lewis explained that despite the low levels, petitioner either abused the
substance or would have known of her secondhand exposure. He stated,
[t]hat’s a significant exposure such that, you know, it doesn’t come off of clothes
of somebody who is smoking methamphetamine . . . somewhere else, smoked it
two hours ago, came home, and she came into contact with them. It doesn’t come
from that. It would be being in the presence particularly in a close environment . . .
with someone who is . . . actively smoking it or coming in contact with the powder
material.
Next, the DHHR presented the testimony of a service provider, who stated that petitioner
mostly complied with parenting classes. However, the service provider closed out adult life skills
classes as petitioner refused to identify deficits in that area. According to the service provider,
petitioner did not want to obtain a job and informed the service provider that she would work only
part-time if required by the DHHR. The service provider further testified that petitioner did not
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have transportation and was living rent-free in a friend’s home. The provider opined that petitioner
could have benefited from adult life skills classes and needed to work on becoming independent
in order to maintain stability for her children and meet their needs without relying on others, but
that she was not willing to do so. According to the provider, while petitioner engaged in the
parenting classes, she failed to acknowledge the incidents of physical violence leading to the
petition’s filing and characterized them as verbal arguments only. The provider opined that
petitioner did not have any understanding of how her actions affected the children. Regarding
substance abuse, the provider stated that petitioner never appeared intoxicated during their sessions
but that she did present with sores all over her body, which could be indicative of substance abuse.
Given petitioner’s attitude and failure to acknowledge her actions, the provider stated that she had
not observed legitimate progress and that the services were essentially ineffective.
A CPS worker testified that, although petitioner regularly attended supervised visits with
the children, they were chaotic and frequently needed intervention from either DHHR workers or
service providers. For example, the CPS worker told of the need to intervene and stop petitioner
from aggressively yanking on L.T.’s arm out of frustration. The worker opined that petitioner had
not made progress with the children. The worker also testified that petitioner failed to appear for
her parental fitness evaluation, which had to be rescheduled, and that she missed twenty scheduled
drug screens throughout the proceedings. In fact, the worker requested that petitioner submit to
two screens the week prior to the hearing, and petitioner failed to do so. The worker testified that
the DHHR recommended the termination of petitioner’s parental rights based upon her failure to
take responsibility for her actions, her continued denial that she engaged in domestic violence, and
her continued drug use, as well as her prior CPS history.
By order entered on July 29, 2021, the circuit court found that petitioner missed twenty
scheduled drug screens and of the screens she attended, four were positive for methamphetamine.
The circuit court found that petitioner was discharged from services in February of 2021, although
services were reinstated in April of 2021 and petitioner had attended all but two sessions since that
time. The circuit court found that petitioner did not make any legitimate progress during her
parenting classes and that her failure to acknowledge any parenting deficits presented a substantial
barrier to making progress. The circuit court found that adult life skills classes were closed due to
petitioner’s belief that she did not have any deficits, and that petitioner was not interested in
obtaining employment, transportation, or general independence. Further, petitioner denied abusing
drugs and engaging in domestic violence. Based on the foregoing, the circuit court found that there
was no reasonable likelihood that petitioner could correct the conditions of abuse and neglect in
the near future and that termination was necessary for the children’s welfare. Petitioner appeals
the circuit court’s July 29, 2021, dispositional order. 2
The Court has previously established the following standard of review in cases such as this:
“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
2
The respective fathers voluntarily relinquished their parental rights to the children. The
permanency plan for the children is adoption by their foster family.
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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).
On appeal, petitioner argues that the circuit court erred in denying her motion for a post-
adjudicatory improvement period. According to petitioner, she demonstrated her entitlement to an
improvement period by filing a written motion and establishing that she was willing to comply
with services. Petitioner argues that she needs intensive rehabilitation and could have received
such services through an improvement period. Further, she asserts she has a strong bond with the
children. As such, petitioner claims that she should have been given the opportunity to participate
in an improvement period. We disagree.
This Court has held that “a parent charged with abuse and/or neglect is not unconditionally
entitled to an improvement period.” In re Emily, 208 W. Va. 325, 336, 540 S.E.2d 542, 553 (2000).
West Virginia Code § 49-4-610(3)(B) provides that the circuit court may grant a parent an
improvement period when the parent “demonstrates, by clear and convincing evidence, that the
[parent] is likely to fully participate in the improvement period.” Further, we have stated that a
circuit court has discretion to deny an improvement period when no improvement is likely. See In
re Tonjia M., 212 W. Va. 443, 448, 573 S.E.2d 354, 359 (2002).
Here, we find that the circuit court did not abuse its discretion in denying petitioner an
improvement period. The record is clear that petitioner was offered services such as parenting and
adult life skills classes, random drug screens, and supervised visitation but failed to show any
progress. Testimony established that petitioner initially failed to comply with parenting and adult
life skills classes such that they were closed for noncompliance. Once those services were re-
established, the service provider again closed the adult life skills classes due to petitioner’s refusal
or inability to understand that she needed to implement any changes. Indeed, the service provider
testified at the dispositional hearing that petitioner had no desire to seek independence for herself
and was content to rely upon others for transportation and housing and did not want to gain
employment. Further, while petitioner participated in parenting classes, petitioner made no
legitimate progress in those services.
Moreover, petitioner failed to acknowledge the conditions of abuse and neglect or accept
responsibility for her actions. At the dispositional hearing, petitioner denied that she and K.C.
engaged in physical violence and characterized their encounters as verbal arguments. Petitioner
also denied that she had a drug problem in the face of laboratory confirmations indicating that she
tested positive for methamphetamine during the course of the case, and she missed twenty drug
screens. This Court has previously held that
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[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.
In re Timber M., 231 W. Va. 44, 55, 743 S.E.2d 352, 363 (2013) (citation omitted). Accordingly,
given petitioner’s failure to progress in services and her failure to acknowledge her drug abuse and
domestic violence issues, we cannot find that the circuit court abused its discretion in denying
petitioner an improvement period. Petitioner is entitled to no relief in this regard.
Petitioner next argues that the circuit court erred in terminating her parental rights upon
finding that termination was necessary for the children’s welfare. Petitioner contends that the
circuit court could have adequately protected the children from petitioner by imposing disposition
pursuant to West Virginia Code § 49-4-604(c)(5). 3 Under this disposition, petitioner would not be
able to regain any rights to the children until she was able to successfully demonstrate that she no
longer presented a danger to the children and possessed the ability to properly care for them.
According to petitioner, this less restrictive disposition provides the same protection to the
children, and the circuit court could have modified disposition at a later date if the permanency
plan required adoption. As such, petitioner argues that termination of her parental rights was error.
However, we find no error in the termination of petitioner’s parental rights. West Virginia
Code § 49-4-604(c)(6) provides that circuit courts are to terminate parental, custodial, and
guardianship rights upon finding that there is “no reasonable likelihood that the conditions of
neglect or abuse can be substantially corrected in the near future” and that termination is necessary
for the children’s welfare. West Virginia Code § 49-4-604(d) provides that a circuit court may find
that there is no reasonable likelihood that the conditions of abuse and neglect can be substantially
corrected when the abusing parent has “demonstrated an inadequate capacity to solve the problems
of abuse or neglect on [his or her] own or with help.”
Here, petitioner demonstrated an inadequate capacity to solve the problems of abuse and
neglect on her own or with help. Although petitioner participated in some services, the
overwhelming evidence demonstrates that she failed to adequately progress in those services or,
ultimately, remedy the conditions of abuse and neglect. Petitioner showed no legitimate progress
in her parenting classes and her adult life services classes were discontinued due to her lack of
motivation to work towards independence. Moreover, petitioner denied that she had a substance
abuse problem and missed twenty drug screens during the proceedings below. On at least two of
3
West Virginia Code § 49-4-604(c)(5) provides as follows:
Upon a finding that the abusing parent or battered parent or parents are
presently unwilling or unable to provide adequately for the child’s needs, commit
the child temporarily to the care, custody, and control of the department, a licensed
private child welfare agency, or a suitable person who may be appointed guardian
by the court.
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the occasions that she submitted to screens, she tested positive for methamphetamine, and on two
other occasions she tested positive but below the reporting cutoff. Based on the foregoing, the
circuit court found that there was no reasonable likelihood that petitioner could correct the
conditions of abuse and neglect in the near future and that termination was necessary for the
children’s welfare. Such findings are sufficient to support the termination of her parental rights.
While petitioner argues that the circuit court should have imposed a less restrictive alternative to
the termination of her parental rights, this Court has held,
“[t]ermination of parental rights, the most drastic remedy under the
statutory provision covering the disposition of neglected children, [West Virginia
Code § 49-4-604] . . . may be employed without the use of intervening less
restrictive alternatives when it is found that there is no reasonable likelihood under
[West Virginia Code § 49-4-604(d)] . . . that conditions of neglect or abuse can be
substantially corrected.” Syllabus point 2, In re R.J.M., 164 W.Va. 496, 266 S.E.2d
114 (1980).
Syl. Pt. 5, In re Kristin Y., 227 W. Va. 558, 712 S.E.2d 55 (2011). Based on the foregoing, we find
no error in the circuit court terminating petitioner’s parental rights to the children.
For the foregoing reasons, we find no error in the decision of the circuit court, and its July
29, 2021, order is hereby affirmed.
Affirmed.
ISSUED: May 12, 2022
CONCURRED IN BY:
Chief Justice John A. Hutchison
Justice Elizabeth D. Walker
Justice Tim Armstead
Justice William R. Wooton
Justice C. Haley Bunn
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