In re Z.G. and J.G. ( 2021 )

STATE OF WEST VIRGINIA
SUPREME COURT OF APPEALS
In re Z.G. and J.G. FILED
February 2, 2021
No. 20-0186 (Pocahontas County 19-JA-8 and 19-JA-9) EDYTHE NASH GAISER, CLERK
SUPREME COURT OF APPEALS
OF WEST VIRGINIA
MEMORANDUM DECISION
Petitioner Mother C.G., by counsel Teresa W. Helmick, appeals the Circuit Court of
Pocahontas County’s January 21, 2020, order terminating her parental rights to Z.G. and J.G. 1 The
West Virginia Department of Health and Human Resources (“DHHR”), by counsel Michael L.
Jackson, filed a response in support of the circuit court’s order and a supplemental appendix. The
guardian ad litem, Joshua P. Hardy, filed a response on behalf of the children in support of the
circuit court’s order. On appeal, petitioner argues that the circuit court erred in failing to order the
DHHR to develop a family case plan, terminating her post-adjudicatory 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.
In October of 2018, the DHHR received a referral that four-year-old Z.G. shot another
child with a pellet gun, causing life-threatening injuries. As part of the shooting investigation, a
Child Protective Services (“CPS”) worker observed Z.G. and J.G. at home playing barefoot on top
of a handsaw lying in the yard. The CPS worker also found a “needle[] and Subutex” inside of
petitioner’s home. The parties entered into a safety plan in December of 2018, with petitioner
agreeing to participate in services ensuring the safety of the children. The DHHR alleged that, as
part of the safety plan, petitioner agreed to submit to random drug screenings, participate in
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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parenting and life skills classes, and participate in multidisciplinary team (“MDT”) meetings. The
DHHR further alleged that over the following months, petitioner fell into noncompliance with the
safety plan by failing to report for drug screens, testing positive for controlled substances when
she did participate, refusing drug treatment, and lying about obtaining medical care for her
children. As a result, the DHHR filed a child abuse and neglect petition against petitioner in June
of 2019. In addition to her noncompliance with the safety plan, the DHHR also alleged that
petitioner’s parental rights to two older children had been involuntarily terminated due to substance
abuse. Petitioner waived her preliminary hearing.
The circuit court held an adjudicatory hearing in August of 2019 wherein petitioner
stipulated to abusing and neglecting the children due to her substance abuse and requested a post-
adjudicatory improvement period. Petitioner testified that she participated in an MDT meeting the
prior month and they developed the proposed terms and conditions of an improvement period.
Petitioner acknowledged that she needed to maintain housing, provide financial support for the
children, and complete and follow the recommendations of a psychological evaluation. Petitioner
also acknowledged her substance abuse and testified that it was the biggest problem she needed to
address. After additional assurances that she would attend substance abuse treatment, the circuit
court granted petitioner a three-month post-adjudicatory improvement period. The circuit court
reiterated that the terms and conditions of the improvement period would be the same as those
recommended during her most recent MDT meeting. The circuit court reaffirmed those terms in
its adjudicatory hearing order entered on October 2, 2019.
Two weeks after the circuit court issued its adjudicatory hearing order, the DHHR filed a
case plan. The case plan outlined the issues petitioner needed to address including obtaining proper
housing and employment, participating in random drug screens, attending adult life skills and
parenting classes, and completing a psychological and substance abuse evaluation. Just days after
the DHHR filed its case plan, another MDT meeting was held. At that meeting, service providers
indicated that petitioner had missed parenting and life skills classes and failed to participate in
some drug screens. In fact, service providers reported that petitioner was participating in services
less than thirty percent of the time. The DHHR recommended that petitioner attend an in-patient
drug treatment program and that her improvement period be extended despite her noncompliance.
In November of 2019, the circuit court held a review hearing wherein it declined to extend
petitioner’s improvement period but indicated it would consider a motion on the issue at the
dispositional hearing. The circuit court also ordered that petitioner participate in a drug screen after
the hearing. Petitioner participated in a test after the hearing which returned inconclusive. The next
month, an MDT meeting was held wherein service providers reported that petitioner was still
missing meetings and not calling in for drug screens. Petitioner claimed that she misplaced a list
of in-patient drug treatment programs and another copy was provided to her. The DHHR suggested
that petitioner speak with the Day Report Center to enter a drug treatment program and that she
may be able to begin the same day. At the end of the meeting, the service provider also offered to
help petitioner submit referrals or applications for treatment if she needed technical assistance.
2
The circuit court held a dispositional hearing in December of 2019. Petitioner did not
appear but was represented by counsel. Petitioner’s counsel proffered that petitioner found a drug
treatment program and that she was awaiting transportation to attend the program. A service
provider testified that she had provided parenting and adult life skills classes to petitioner since
October of 2018. The service provider testified that she gave petitioner a list of drug treatment
programs in March of 2019 and offered to assist her with applying to those programs again in July
of 2019 but witnessed no progress in petitioner’s drug treatment. The service provider also testified
that petitioner had missed parenting sessions multiple times each month since the beginning of her
improvement period and attended no more than half of the sessions. Next, a day report center
employee testified that he conducted random drug screenings of petitioner. The employee testified
that petitioner tested positive for methamphetamine in October of 2019 and provided an
inconclusive screening the following month. The employee testified further that petitioner never
acknowledged that she had a drug problem and did not indicate she would test positive for
methamphetamine at the October screening despite being asked prior to providing the sample. The
employee also testified that petitioner failed to call in daily, as required, to determine the dates of
her random screenings.
Finally, the CPS caseworker testified that petitioner had not complied with the terms and
conditions of her improvement period since August of 2019. The CPS worker testified that a key
requirement of the improvement period was to complete a psychological evaluation and follow the
recommendations. The caseworker testified that petitioner completed the evaluation but failed to
follow through on the recommendation for drug treatment. The caseworker testified that she did
not know if petitioner was entering treatment the day of the hearing. However, she noted that
petitioner was required to maintain contact with her but had not contacted her since the last MDT
meeting, other than through her attorney to say she allegedly had been accepted into a drug
treatment program. The caseworker also testified that petitioner had a substance abuse problem,
lacked housing and financial stability, and was unlikely to further comply with an extension of her
improvement period given her failure to address her drug addiction. The CPS worker reiterated
that petitioner had been given multiple opportunities to enter drug treatment and was unwilling to
follow through with treatment. The CPS worker also indicated that petitioner had successful visits
with the children but that she had recently missed several visits, which was traumatic for the young
children. After the end of the caseworker’s testimony, the circuit court announced that it was “quite
reluctant” to terminate parental rights if a parent was entering a drug treatment program. The circuit
court continued the hearing to allow petitioner to demonstrate that she entered a treatment program.
Later that month, the circuit court resumed the dispositional hearing and petitioner
appeared in person. Petitioner testified that a bed had been available for her at a drug treatment
program but that she could not secure transportation from the day report center. The circuit court
inquired whether petitioner had contacted her attorney or the DHHR for transportation. Petitioner
said she did not but that she secured other transportation there until the car broke down on the way
there. The circuit court remarked that if petitioner “had contacted the [DHHR] at any point during
the pendency of this action . . . the Department would have provided transportation.” As a result,
the circuit court found that petitioner had been offered significant assistance, including
transportation to a drug treatment program, but had essentially turned down that assistance. The
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circuit court further found that this included the DHHR’s reasonable efforts to remedy the
fundamental problem in petitioner’s case—her drug addiction. The circuit court found clear and
convincing evidence that petitioner failed to avail herself of services that could assist her in
addressing the conditions of abuse and neglect. The circuit court further found that petitioner
demonstrated an unwillingness and inability to comply with services to attain minimally adequate
parenting. Based upon these findings, the circuit court concluded there was no reasonable
likelihood that the conditions of abuse and neglect could be substantially corrected in the near
future and that it was in the best interests of the children to terminate petitioner’s parental rights. 2
The circuit court entered an order reflecting its decision on January 21, 2020. Petitioner appeals
from this order.
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).
On appeal, petitioner argues that the circuit court erred in failing to order the DHHR to
develop a family case plan and that the case plan was not filed within thirty days of the inception
of the improvement period as required. Further, petitioner argues that the case plan that was
ultimately submitted was not developed by the MDT and petitioner was not allowed to provide
input. We find petitioner’s arguments unavailing.
First, we find no issue with the timing of the case plan’s filing. Pursuant to West Virginia
Code § 49-4-408(a), “[t]he case plan must be filed within sixty days of the child coming into foster
care or within thirty days of the inception of the improvement period, whichever occurs first.” It
is uncontroverted that the case plan was filed on October 16, 2019. On appeal, petitioner does not
assert that this was more than sixty days from the date the children were placed into foster care.
She does argue, however, that it was more than thirty days after the inception of her improvement
2
The father’s parental rights also were terminated during the proceedings below, and no
appeal has been filed. According to the parties, the permanency plan for the children is adoption
in their current foster home.
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period. What petitioner fails to recognize, however, is that “[i]t is a paramount principle of
jurisprudence that a court speaks only through its orders.” Legg v. Felinton, 219 W. Va. 478, 483,
637 S.E.2d 576, 581 (2006) (citation omitted). The circuit court entered its order granting
petitioner an improvement period on October 2, 2019, and two weeks after the entry of that order
the DHHR filed the case plan—well within the time requirements of West Virginia Code § 49-4-
408(a). 3
Next, we find no evidence to support petitioner’s assertion that the case plan that was
submitted was not developed by the MDT or that she was excluded from its formulation. In fact,
petitioner’s position on appeal is entirely untenable, given that she does not dispute that she
attended an MDT meeting where the terms of the family case plan were agreed upon. As the record
shows, the court and the parties had an extensive discussion at the hearing in August of 2019 about
the plan’s creation; this included extensive testimony from petitioner about her participation in the
MDT meeting, during which the plan was created, and her understanding of the terms set forth
therein. To the extent petitioner argues that she was present at this meeting but in some way
precluded from providing input on the plan’s terms, this issue has been waived by her failure to
raise an objection to the plan at any point in the proceedings. 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.’ Shaffer
v. Acme Limestone Co., Inc., 206 W.Va. 333, 349 n.20, 524 S.E.2d 688, 704 n.20 (1999).”).
Most importantly, we find that petitioner was in no way prejudiced by any issue
surrounding the case plan’s creation. Again, petitioner testified in August of 2019 that she
participated in the plan’s creation and agreed to the terms and conditions it set forth for her
improvement period. In her testimony, petitioner acknowledged that she needed to maintain
housing, provide financial support for the children, and complete a psychological evaluation and
follow its recommendations. Additionally, at the adjudicatory hearing, the circuit court went
through each of the proposed terms and conditions of an improvement period with the children’s
father, who was also being adjudicated, as petitioner listened. The circuit court then asked
petitioner if she understood those same terms and conditions; she confirmed her understanding.
The circuit court also asked petitioner if any of the terms and conditions seemed unfair or unduly
burdensome, and petitioner said, “No.” The circuit court further inquired if petitioner would be
3
In reviewing the appendix record, this Court notes there was a substantial delay between
the date of the adjudicatory hearing and the entry of the order resulting from that hearing. We
remind circuit courts of the rules establishing strict guidelines for the entry of abuse and neglect
orders and the need to be ever vigilant in expediting abuse and neglect matters in an effort to
promptly achieve permanency for the children involved in such proceedings. See W. Va. R. P.
Child Abuse & Neglect Proceedings 27 (requiring that an adjudicatory order must be entered
within ten days of the adjudicatory hearing) & 36 (dictating filing period for entry of dispositional
hearing order). See also W. Va. Code § 49-4-601(j) (prioritizing abuse and neglect
proceedings); Syl. Pt. 1, in part, In Interest of Carlita B., 185 W. Va. 613, 408 S.E.2d 365 (1991)
(“Child abuse and neglect cases must be recognized as being among the highest priority for the
courts’ attention. Unjustified procedural delays wreak havoc on a child’s development, stability
and security.”).
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willing to attend an in-patient drug treatment program. Petitioner responded positively and
admitted that substance abuse was her biggest issue. “The purpose of the family case plan as set
out in [W. Va. Code § 49-4-408] is to clearly set forth an organized, realistic method of identifying
family problems and the logical steps to be used in resolving or lessening these problems.” Syl.
Pt. 2, In re Desarae M., 214 W. Va. 657, 591 S.E.2d 215 (2003) (citation omitted). Based on the
record, it is clear that the purpose of the family case plan was achieved, as petitioner was aware of
the problems that needed to be addressed and the steps to resolve them well before her
improvement period began.
Petitioner also argues that the circuit court erred in terminating her parental rights rather
than granting her a less-restrictive disposition. According to petitioner, the circuit court was
required to give precedence to the dispositions as listed in West Virginia Code § 49-4-604(c) and
that it should have granted her disposition pursuant to § 49-4-604(c)(5). 4 We find no error in the
circuit court’s termination of petitioner’s parental rights.
Pursuant to West Virginia Code § 49-4-604(c)(6), circuit courts are directed 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) defines “[n]o reasonable likelihood that
[the] conditions of neglect or abuse can be substantially corrected” as follows: “the abusing
[parent] . . . ha[s] demonstrated an inadequate capacity to solve the problems of abuse or neglect
on [his] own or with help.”
Here, petitioner’s parental rights to two older children were previously terminated due to
her substance abuse. Despite the experience of those prior proceedings, petitioner continued to
abuse drugs. Clearly, petitioner failed to address the circumstances of abuse from the prior
proceedings. To the extent petitioner argues that she was willing to participate in a substance abuse
treatment program, we note that petitioner failed to attend a treatment program despite several
months of the DHHR and service providers offering to assist her in securing admission. Indeed,
the record shows that the DHHR and service providers offered to assist petitioner with drug
treatment throughout the proceedings, including providing her a list of programs and offering to
serve as references or provide technical assistance and transportation. While petitioner argues that
she should have been granted a less-restrictive alternative to termination of her parental rights, we
have previously held that
“[t]ermination of parental rights, the most drastic remedy under the
statutory provision covering the disposition of neglected children, [West Virginia
4
West Virginia Code § 49-4-604(c)(5) provides that, at disposition, a circuit court may
[u]pon 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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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). Given petitioner’s failure to
address the conditions of abuse, we find no error in the circuit court finding that there was no
reasonable likelihood that the conditions of abuse and/or neglect could be substantially corrected
in the near future and that termination was necessary for the children’s welfare. Therefore, we
likewise find no error in the termination of petitioner’s parental rights.
For the foregoing reasons, we find no error in the decision of the circuit court, and its
January 21, 2020, order is hereby affirmed.
Affirmed.
ISSUED: February 2, 2021
CONCURRED IN BY:
Chief Justice Evan H. Jenkins
Justice Elizabeth D. Walker
Justice Tim Armstead
Justice John A. Hutchison
NOT PARTICIPATING:
Justice William R. Wooton
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