In re K.H. and G.H. ( 2022 )

FILED
August 31, 2022
EDYTHE NASH GAISER, CLERK
STATE OF WEST VIRGINIA SUPREME COURT OF APPEALS
OF WEST VIRGINIA
SUPREME COURT OF APPEALS
In re K.H. and G.H.
No. 22-0125 (Harrison County 21-JA-151 and 21-JA-152)
MEMORANDUM DECISION
Petitioner Mother M.D., by counsel Allison S. McClure, appeals the Circuit Court of
Harrison County’s January 28, 2022, order terminating her parental rights to K.H. and G.H. 1 The
West Virginia Department of Health and Human Resources (“DHHR”), by counsel Patrick
Morrisey and Katica Ribel, filed a response in support of the circuit court’s order. The guardian
ad litem, Jonathan Fittro, 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 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.
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). Additionally, petitioner’s counsel notes that she is filing
petitioner’s brief in accordance with Rule 10(c)(10)(a) of the West Virginia Rules of Appellate
Procedure, which provides as follows:
Counsel must engage in a candid discussion with the client regarding the merits of
the appeal. If, after consultation with the client, the client insists on proceeding with
the appeal, counsel must file a notice of appeal and perfect the appeal on the
petitioner's behalf. The petitioner’s brief should raise any arguable points of error
advanced by the client. Counsel need not espouse unsupportable contentions
insisted on by the client, but should present a brief containing appropriate citations
to the appendix and any case law that supports the assignments of error.
1
The DHHR filed a child abuse and neglect petition against petitioner in April of 2021.
Specifically, the DHHR alleged that it began an investigation into petitioner after receiving a
referral that the family lacked suitable housing. A Child Protective Services (“CPS”) worker
located the children at school, and they reported that they had just moved into a new apartment the
night before. The children denied observing petitioner abuse drugs but admitted that they did not
attend school often and that they sometimes went hungry at home. Following her interview with
the children, the CPS worker spoke with petitioner, who confirmed that they had moved into a new
apartment the night before. Petitioner admitted that there were no utilities hooked up in the home
yet, that there were no beds, and that there was no food but stated she planned to address those
issues that day. The CPS worker implemented a temporary protection plan due to the lack of
resources and placed the children with petitioner’s boyfriend’s mother while petitioner addressed
the issues in the home. Approximately one week later, the children were returned to petitioner’s
care after she had obtained utilities, food, and beds for the home, and an in-home safety plan was
implemented.
The DHHR alleged that, approximately three days after the children were returned,
petitioner was evicted from her apartment and left the children in the care of their aunt and uncle.
The CPS worker investigated the matter and spoke to the children’s aunt, who reported that
petitioner had seen the children only twice since she left them in the aunt’s home approximately
one week prior. The aunt and uncle voiced concerns that petitioner was abusing drugs. The CPS
worker changed the safety plan to an out-of-home safety plan and asked petitioner to submit to a
drug screen. Petitioner agreed, and thereafter submitted to three drug screens between May 4, 2021,
and June 1, 2021, all of which were positive for methamphetamine and amphetamine. Accordingly,
the DHHR alleged that petitioner neglected the educational needs of the children, failed to provide
them with a stable home and necessary food, and had a substance abuse problem.
The circuit court held an initial adjudicatory hearing in July of 2021. However, petitioner’s
counsel requested that the matter be continued due to concerns that petitioner was under the
influence of drugs. The circuit court continued the hearing and suspended visits between petitioner
and the children as she had not been attending scheduled visitations with the children, which upset
them. The circuit court reconvened the adjudicatory hearing later in July of 2021. Petitioner did
not appear at the hearing, but her counsel was present and represented her at the hearing. The
DHHR filed records of petitioner’s drug screens and presented the testimony of an attendance
director from the children’s school, a CPS worker, and the children’s aunt. At the close of evidence,
the circuit court adjudicated petitioner as an abusing parent.
Subsequently, petitioner completed a detoxification program and entered an inpatient
substance abuse treatment program. Petitioner filed a motion for a post-adjudicatory improvement
period, citing to her progress, and indicated that she would participate in services. At a hearing
held in August of 2021, the circuit court granted petitioner’s motion for a post-adjudicatory
improvement period, the terms of which required her to submit to drug screening, participate in
parenting and adult life skills classes, participate in visits with the children, complete a parental
fitness evaluation, obtain housing and employment, and maintain contact with the DHHR.
2
The day after petitioner was granted an improvement period, she checked herself out of her
inpatient treatment program against medical advice and, thereafter, ceased submitting to drug
screens. In October of 2021, the DHHR filed a motion to terminate petitioner’s improvement
period, and the circuit court held a hearing on the motion in November of 2021. Petitioner was not
present for the hearing, but her counsel was present and represented her. The DHHR presented
evidence that petitioner had missed thirteen drug screens, and her counsel admitted that she had
not heard from petitioner “for quite some time.” As such, the circuit court terminated petitioner’s
improvement period and set the matter for disposition.
In January of 2022, the circuit court held a dispositional hearing. Petitioner once again
failed to appear but was represented by her counsel, who was present at the hearing. The DHHR
presented the testimony of a CPS worker and the children’s aunt, and submitted petitioner’s drug
screen report into evidence. The circuit court took judicial notice of the adjudicatory hearing and
the hearing on the DHHR’s motion to terminate petitioner’s improvement period. At the close of
the hearing, the circuit court found that petitioner had been offered services through the DHHR
but that she did not comply with the services. The circuit court also found that petitioner had left
her substance abuse treatment program after an “extremely” short stay and that she had not
submitted to a drug screen since August 13, 2021. The circuit court found that petitioner had not
maintained contact with the DHHR or the kinship placement of the children, nor had she seen the
children or provided anything for them. 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 January 28, 2022, dispositional order terminating her parental rights. 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
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 terminating her parental rights to
the children. According to petitioner, there was a reasonable likelihood that she could improve the
2
The children’s father is deceased. The permanency plan for the children is adoption by
relatives.
3
conditions of neglect in the near future and that termination was not necessary for the children’s
welfare. Petitioner argues she “participated enough” such that a less restrictive disposition should
have been employed. Petitioner points out that the children were in a stable relative placement and
were “not of tender years” and that termination of her parental rights was not necessary.
We disagree. West Virginia Code § 49-4-604(c)(6) provides that circuit courts are to
terminate parental 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 completed a detoxification program and
entered inpatient treatment, she left treatment against medical advice only one day after she had
been granted an improvement period. Thereafter, petitioner completely absented herself from the
proceedings and failed to attend several hearings, including her dispositional hearing. Evidence
presented at the dispositional hearing established that petitioner had missed at least thirteen drug
screens and had not had contact with her counsel or the DHHR for quite some time. The evidence
also established that petitioner had not visited with or provided for the children. “We have
previously pointed out that the level of interest demonstrated by a parent in visiting his or her
children while they are out of the parent’s custody is a significant factor in determining the parent’s
potential to improve sufficiently and achieve minimum standards to parent the child.” In re Katie
S., 198 W. Va. 79, 90 n.14, 479 S.E.2d 589, 600 n.14 (1996) (citations omitted). Petitioner was
also reportedly unemployed and homeless. 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
January 28, 2022, order is hereby affirmed.
4
Affirmed.
ISSUED: August 31, 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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