In re P.P. ( 2022 )

FILED
September 20, 2022
EDYTHE NASH GAISER, CLERK
SUPREME COURT OF APPEALS
STATE OF WEST VIRGINIA OF WEST VIRGINIA
SUPREME COURT OF APPEALS
In re P.P.
No. 22-0171 (Cabell County 21-JA-43)
MEMORANDUM DECISION
Petitioner Mother K.S., by counsel Sara Chapman, appeals the Circuit Court of Cabell
County’s February 2, 2022, order terminating her parental rights to P.P. 1 The West Virginia
Department of Health and Human Resources (“DHHR”), by counsel Patrick Morrisey and
Andrew T. Waight, filed a response in support of the circuit court’s order. The guardian ad litem
(“guardian”), Sarah Dixon, also filed a response on the child’s behalf in support of the circuit
court’s order. Petitioner filed a reply.
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 April of 2021, the DHHR filed a petition alleging that petitioner abused and neglected
the child as a result of her substance abuse and altercations with the father in the hospital shortly
after the child was born drug affected. Thereafter, the circuit court accepted petitioner’s
stipulation to the allegations in the petition and adjudicated her as an abusing parent. The court
also granted petitioner a post-adjudicatory improvement period, which the DHHR moved to
terminate shortly thereafter because of petitioner’s continued positive drug screens. By
November of 2021, the circuit court denied petitioner’s motion to extend her improvement
period due to her noncompliance, including her participation in domestic altercations with the
father.
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).
1
The court held a dispositional hearing in January of 2022. The DHHR presented evidence
that petitioner had enrolled in several drug treatment programs but failed to complete a single
one. The DHHR also showed that petitioner had missed thirty-one drug screens, missed two
scheduled psychological evaluations, and continuously tested positive for illicit substances when
she did submit to screens. Notably, the DHHR worker testified that petitioner reported that she
did not have a substance abuse problem and that she only enrolled in drug treatment to avoid the
termination of her parental rights. The worker stated that petitioner was likely to be removed
from her current program and explained that considering petitioner’s failure to utilize existing
services, there were no additional services that could help her. Petitioner did not testify or
otherwise present evidence. Ultimately, the circuit court determined that there was no reasonable
likelihood that the conditions of neglect or abuse could be substantially corrected in the near
future and that it was necessary for P.P.’s welfare to terminate petitioner’s parental rights.
Petitioner now appeals the February 2, 2022, dispositional order terminating her parental rights. 2
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).
Petitioner first argues that the circuit erred by disallowing her from presenting evidence
at the final dispositional hearing, thus depriving her of “a meaningful opportunity to be heard,
including the opportunity to testify and to present and cross-examine witnesses” as required by
West Virginia Code § 49-4-601(h). However, petitioner mischaracterizes the record. Contrary to
her assertion that it was “evident” that she planned to testify, the transcript of the final
dispositional hearing makes no mention of this intent to testify. The DHHR presented its case in
chief, and petitioner’s counsel vigoriously cross-examined these witnesses. At the close of the
DHHR’s evidence, petitioner did not advise the court that she had evidence to present to rebut
the DHHR’s evidence. Rather, petitioner remained silent. Although petitioner states in her brief
2
The father’s parental rights were also terminated below. According to the parties, the
permanency plan for the child is adoption by the foster family.
2
that she subpoenaed witnesses, the court was unaware whether those witnesses would, in fact, be
called by petitioner to testify. When petitioner failed to come forward and respond that she had
evidence to present at the close of the DHHR’s case-in-chief, the court naturally moved forward
with a ruling. Petitioner was present and represented by counsel at the hearing, and petitioner
needed only to alert the court that she had evidence to present. According to the record,
petitioner failed to do so. As such, we find that petitioner is entitled to no relief in this regard.
Next, petitioner argues that the DHHR failed to make reasonable efforts to reunify the
family. However, petitioner’s arguments are belied by the record which shows that the DHHR
provided numerous services to petitioner throughout her improvement period. Petitioner was
provided drug screening but missed them or continued to test positive for illicit substances and
missed two scheduled parental fitness evaluations. Petitioner was assisted with enrolling in
several drug treatment programs, which she did not complete. Although petitioner was enrolled
in an inpatient treatment program at the dispositional hearing, the DHHR presented evidence that
petitioner was very likely to be removed from the program. Petitioner attended only a few
parenting education and adult life skills classes and could not exercise visits with the child due to
her constant fighting and altercations with the father. Petitioner ignores West Virginia Code
§ 49-4-610(4)(A), which provides, “[w]hen any improvement period is granted to a respondent
pursuant to this section, the respondent shall be responsible for the initiation and completion of
all terms of the improvement period.” Most importantly, the DHHR worker testified that
petitioner told her she did not have a drug problem and was only attending inpatient drug
rehabilitation to close the case against her. We have explained, “[i]n order to remedy the abuse
and/or neglect problem, the problem must first be acknowledged.” In re Timber M., 231 W. Va.
44, 55, 743 S.E.2d 352, 363 (2013) (citation omitted).
Although we are concerned with the DHHR’s untimely filing of the case plan, under the
specific circumstances of this case, we believe that petitioner was fully aware that achieving and
maintaining sobriety was required of her. In short, petitioner completely failed to respond to the
DHHR’s reasonable efforts to reunify the family and, as such, cannot dispute the circuit court’s
findings that there was no reasonable likelihood that she could correct the conditions of abuse
and neglect in the near future and that termination was necessary for the child’s welfare. See W.
Va. Code § 49-4-604(d)(3). 3
For the foregoing reasons, we find no error in the decision of the circuit court, and its
February 2, 2022, order is hereby affirmed.
Affirmed.
3
Petitioner also alleges that she was not properly served with the case plan. However,
petitioner did not raise the alleged lack of service of the case plan prior to or during the
dispositional hearing, thereby waiving the issue. Noble v. W. Va. Dep’t of Motor Vehicles, 223
W. Va. 818, 821, 679 S.E.2d 650, 653 (2009) (“Our general rule is that nonjurisdictional
questions . . . raised for the first time on appeal, will not be considered.”) (citation omitted).
3
ISSUED: September 20, 2022
CONCURRED IN BY:
Chief Justice John A. Hutchison
Justice Elizabeth D. Walker
Justice Tim Armstead
Justice William R. Wooton
Justice C. Haley Bunn
4