In re M.G., B.S., and T.J. ( 2020 )

STATE OF WEST VIRGINIA
SUPREME COURT OF APPEALS
FILED
February 7, 2020
EDYTHE NASH GAISER, CLERK
SUPREME COURT OF APPEALS
In re M.G., B.S., and T.J. OF WEST VIRGINIA
No. 19-0420 (Nicholas County 18-JA-74, 18-JA-75, and 18-JA-76)
MEMORANDUM DECISION
Petitioner Mother H.S., by counsel James R. Milam II, appeals the Circuit Court of
Nicholas County’s April 4, 2019, dispositional order terminating her parental rights to M.G.,
B.S., and T.J.1 The West Virginia Department of Health and Human Resources (“DHHR”), by
counsel S.L. Evans, filed a response in support of the circuit court’s order and a supplemental
appendix. The guardian ad litem, Denise N. Pettijohn, filed a response on behalf of the children
also in support of the circuit court’s order and a supplemental appendix. On appeal, petitioner
argues that the circuit court abused its discretion in denying her motion to continue the
dispositional hearing.2
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 June of 2018, the DHHR filed a child abuse and neglect petition alleging that
petitioner tested positive for oxycodone, THC, and amphetamines during the time her children
were in her care. The petition further alleged that petitioner regained custody of her children
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).
2
On appeal, petitioner does not specifically challenge the circuit court’s termination of
her parental rights.
1
approximately six months prior to the filing of the petition and had been receiving services from
the DHHR since that time. After the petition’s filing, petitioner waived her preliminary hearing.
In July of 2018, the circuit court held an adjudicatory hearing where petitioner stipulated
to the allegations of drug abuse contained in the petition. As such, the circuit court adjudicated
petitioner as an abusive and neglectful parent. Petitioner moved for a post-adjudicatory
improvement period, and the motion was granted without objection. As part of the terms and
conditions of petitioner’s improvement period, the circuit court ordered petitioner to submit to
random drug and alcohol testing, participate in and successfully complete the services provided
to her by the DHHR, obtain and maintain employment and safe and suitable housing, and remain
drug and alcohol free, among other things.
In October of 2018, the circuit court held a review hearing on the matter. Petitioner
moved for an extension of her post-adjudicatory improvement period. The circuit court granted
petitioner’s motion with the additional condition that she attend, at minimum, a twenty-eight day
substance abuse treatment program. Thereafter, the circuit court held another review hearing in
January of 2019, where petitioner moved for another ninety-day extension of her improvement
period. The guardian ad litem requested that petitioner be set for disposition because she was
kicked out of her treatment program for having a cell phone. The circuit court denied petitioner’s
motion for another extension of her post-adjudicatory improvement period and set the matter for
disposition.
In March of 2019, the circuit court held a dispositional hearing. Petitioner was not in
attendance, but was represented by counsel. Petitioner’s counsel moved for a continuance after
petitioner’s Child Protective Services (“CPS”) worker informed the circuit court that she
received a text message from petitioner stating that she lost her transportation to the hearing at
the last minute. The circuit court denied petitioner’s motion and proceeded with the hearing.
Testimony was taken from the CPS worker, petitioner’s service provider, the psychologist who
conducted petitioner’s psychological evaluation, and T.J.’s paternal grandmother. The CPS
worker described petitioner’s participation in services as noncompliant and inconsistent. The
CPS worker testified that in February of 2019, petitioner, who became pregnant during the
proceedings, tested positive for methamphetamines. The CPS worker further testified that
petitioner failed to fully participate in drug screens and was kicked out of her rehabilitation
program for having a cell phone. Additionally, petitioner was accepted into another rehabilitation
program on the condition that she provide a release letter from her obstetrician. Petitioner’s
service provider was scheduled to transport petitioner to the doctor’s appointment so that she
could receive clearance to enter the rehabilitation program, but petitioner cancelled the
appointment. The CPS worker also testified that petitioner admitted to using Suboxone that she
purchased illegally while she was pregnant. As such, the CPS worker recommended termination
of petitioner’s parental rights.
Petitioner’s service provider described petitioner’s compliance with services as evasive.
Specifically, the service provider testified that of the many parenting and life skills sessions that
were offered to petitioner, she participated in only three sessions. When petitioner did
participate, the service provider testified that petitioner was inconsistent in admitting that she had
substance abuse issues that were in need of correction. The service provider further testified that
2
he offered to assist petitioner with admission to several inpatient treatment programs, but
petitioner refused to participate in any program that was more than twenty-eight to thirty days
because she did not believe she needed long-term treatment.
The psychologist testified to the results of petitioner’s evaluation, which revealed that she
has longstanding mental health and substance abuse issues that were intertwined and drove
petitioner to seek out abusive relationships. Moreover, the psychologist testified that petitioner
struggles with accepting responsibility for her actions and is unable or refuses to acknowledge
the impact of her actions on herself and her children. The psychologist further testified that
petitioner’s prognosis was “very poor” because petitioner lacked insight into her problems,
which made them difficult for petitioner to overcome.
T.J.’s grandmother testified that petitioner sent her a text message at 4:00 am and asked
her what time the hearing was, and if she could have a ride. T.J.’s grandmother testified that she
informed petitioner that she would not provide her transportation to the hearing. T.J.’s
grandmother further testified that while she believed petitioner was a good mother, she believed
petitioner needed psychological help and did not presently possess the capabilities to care for her
children. Based on the evidence presented, the circuit court found that there was no reasonable
likelihood that petitioner could substantially correct the conditions of abuse and neglect in the
near future and terminated her parental rights to the children. It is from the April 4, 2019,
dispositional order that petitioner appeals.3
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).
3
The parental rights of T.J.’s father were also terminated below. According to
respondents, the parental rights of M.G. and B.S.’s respective unknown fathers were also
terminated below. The children currently reside in the same foster home with the permanency
plan of adoption therein.
3
Syl. Pt. 1, In re Cecil T., 228 W. Va. 89, 717 S.E.2d 873 (2011).
On appeal, petitioner’s sole argument is that the circuit court abused its discretion in
denying her motion to continue the dispositional hearing when she was unable to obtain
transportation to the hearing.4 Specifically, petitioner asserts that granting her a continuance to
appear and fully participate in the dispositional hearing would not have compromised the best
interests of her children. We find petitioner’s argument to be meritless. We have previously held
that “[w]hether a party should be granted a continuance for fairness reasons is a matter left to the
discretion of the circuit court, and a reviewing court plays a limited and restricted role in
overseeing the circuit court’s exercise of that discretion.” Tiffany Marie S., 196 W.Va. at 235,
470 S.E.2d at 189 (citing State v. Judy, 179 W. Va. 734, 739, 372 S.E.2d 796, 801 (1988)). Here,
the circuit court found that petitioner failed to appear for the dispositional hearing without
showing good cause. Despite petitioner’s awareness that her service provider would provide her
transportation to scheduled hearings, petitioner did not contact her service provider to inquire
about transportation to the dispositional hearing and did not respond to the service provider’s
voicemail regarding the same. Moreover, petitioner was represented by counsel throughout the
proceedings below and failed to successfully complete her post-adjudicatory improvement
period, despite being provided with an extension. Specifically, at the time of the dispositional
hearing, petitioner was again pregnant and continued to abuse controlled substances, did not
have a job or safe and suitable housing, and failed to complete a twenty-eight-day drug
rehabilitation program. While petitioner asserts that granting her a continuance to fully
participate in the dispositional hearing would not have been contrary to her children’s best
interests, this assertion fails to take into consideration the children’s needs for permanency and
stability. Accordingly, we find that the circuit court did not abuse its discretion in denying
petitioner’s motion to continue the dispositional hearing.
For the foregoing reasons, we find no error in the decision of the circuit court, and its
April 4, 2019, order is hereby affirmed.5
4
Although unclear from petitioner’s brief, it appears that petitioner attempts to argue in
support of this assignment of error that the circuit court also violated her due process rights by
denying her motion to continue. Specifically, petitioner asserts that she was not afforded a
meaningful opportunity to cross-examine witnesses at the dispositional hearing as required by
West Virginia Code § 49-4-601(h). However, while petitioner was absent from the hearing, she
was represented by counsel, who conducted the cross-examination of the DHHR’s witnesses at
the dispositional hearing. Moreover, petitioner does not assert that she was not provided with
notice of the dispositional hearing. While it is true that parents are afforded an opportunity to be
heard, including the opportunity to cross-examine witnesses, petitioner’s absence at the
dispositional hearing did not violate these requirements.
5
Additionally, the Court directs the DHHR to undertake an investigation, if one has not
already been undertaken, into petitioner’s continued substance abuse while pregnant with an
additional child during the underlying proceedings. If the DHHR determines that petitioner’s
conduct in regard to any subsequently born child constitutes abuse and/or neglect, we further
(continued . . . )
4
Affirmed.
ISSUED: February 7, 2020
CONCURRED IN BY:
Chief Justice Tim Armstead
Justice Margaret L. Workman
Justice Elizabeth D. Walker
Justice Evan H. Jenkins
Justice John A. Hutchison
instruct the DHHR to file any necessary petition alleging such abuse and/or neglect and to
proceed in accordance with the applicable statutes and rules governing child abuse and neglect
proceedings and in furtherance of such child’s best interests.
5