In re L.C. ( 2020 )

STATE OF WEST VIRGINIA
SUPREME COURT OF APPEALS
FILED
In re L.C. October 9, 2020
released at 3:00 p.m.
EDYTHE NASH GAISER, CLERK
No. 19-1184 (Monongalia County 17-JA-73) SUPREME COURT OF APPEALS
OF WEST VIRGINIA
MEMORANDUM DECISION
In this child abuse and neglect proceeding, Petitioner Mother, A.T., appeals the Circuit
Court of Monongalia County’s November 20, 2019 order terminating her parental rights to her
son, L.C. 1 Petitioner argues that the circuit court erred in terminating her parental rights without
imposing a less-restrictive dispositional alternative, among other things.
This Court has considered the parties’ briefs, oral arguments, and the record on appeal. 2
We find 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 West Virginia Rules
of Appellate Procedure. We conclude that the circuit court did not err because Petitioner failed to
correct her substance abuse and lack of suitable housing, even when afforded extended
opportunities to do so.
I. Factual and Procedural History
In June 2017, the DHHR filed a child abuse and neglect petition alleging that Petitioner
exposed her child to domestic violence and substance abuse, and that her home was filthy. The
DHHR reported that Petitioner consistently tested positive for cocaine after services were
instituted in April 2017.
By written stipulation, Petitioner admitted that she abused her child (who was then four
years old) because of her substance abuse, which affected her ability to properly parent, and that
the condition of her home was inappropriate. In September 2017, the circuit court accepted the
stipulation, adjudicated Petitioner as an abusing parent, and granted her a post-adjudicatory
improvement period. Petitioner was required to attend and fully participate in multidisciplinary
team (MDT) meetings, assist in the development of a case plan, submit to random drug screening,
undergo a psychological evaluation with a substance abuse assessment to address
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, 256 n.1, 773 S.E.2d 20, 22 n.1 (2015).
2
Petitioner is represented by counsel Amanda J. Ray. 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. The guardian ad litem (GAL), Scott A. Shough, filed a response on behalf
of the child, also in support of the circuit court’s order.
1
recommendations to treat and manage her mental health issues, participate in parenting and adult
life skills services, and maintain suitable and stable housing. The circuit court later extended
Petitioner’s post-adjudicatory improvement period.
Following two foster care placements, the child was admitted to Highland Hospital in
December 2017 for evaluation and treatment for inappropriate sexual behaviors, aggression and
suicidal/homicidal thinking. He was diagnosed with post-traumatic stress disorder and attention-
deficit/hyperactivity disorder. The child reported that he was sexually abused by his father and
while in a foster placement. In June 2018, the child was released from Highland. The DHHR
agreed with the hospital’s recommendation to place the child in Petitioner’s custody so long as she
continued with his therapy, her own substance abuse treatment, and remained compliant with the
terms of her improvement period.
At a status hearing held in July 2018, the DHHR raised concerns that the child was missing
therapy sessions and Petitioner was not participating with drug screening consistently. Petitioner
had missed five drug screens and was on probation from her drug treatment program at Chestnut
Ridge Hospital because of positive drug screens. Petitioner had also tested positive for cocaine on
May 29, 2018, and positive for methamphetamines on June 27, 2018. The GAL stated that he
visited Petitioner’s home after the child was released from the hospital; while he believed the child
was receiving appropriate care, he also had concerns about Petitioner’s positive drug screens.
Nevertheless, the GAL believed that it would be a “step backwards” to remove the child and place
him in a strange environment. The GAL stated that despite Petitioner’s “stumbles,” she was still
in the drug treatment program and he believed it would be in the child’s best interest to stay with
Petitioner, “at least now[.]” The circuit court ruled that the child would remain in Petitioner’s
custody.
The dispositional hearing set for August 2018 was continued at the request of the DHHR
due to a family emergency involving the Child Protective Services (CPS) worker. At the continued
hearing held September 11, 2018, the DHHR recommended that the child be removed from
Petitioner’s custody because of his escalating behavioral problems during the first three weeks of
school. The DHHR presented testimony from Jennifer Cox, principal of the school, who stated
that the child was in “crisis mode” nearly every day. Ms. Cox stated that he hit other students,
threw things from shelves, spit on children, and would scream, curse, and undress at school.
Danielle Lindsay with the Monongalia County Child Advocacy Center (CAC) testified and
expressed concerns that the child was not receiving his medications based on his behaviors; a July
31, 2018 drug screen confirmed there was no evidence of his prescription medications. Ms.
Lindsay testified that Dr. Capage, a psychologist with CAC, recommended that he be removed
from Petitioner’s care due to these escalating behaviors. The circuit court ruled that the DHHR
could transfer temporary custody of the child from Petitioner so that he could be evaluated further.
The parties agreed that the child would be treated at the United Summit Center before this change
in placement occurred.
Petitioner filed a Motion for Relief seeking a hearing to address the recommendations from
the United Summit Center and the opportunity to call witnesses in support of her motion for a post-
dispositional improvement period. The circuit court denied her request for an additional hearing
and granted her request for a post-dispositional improvement period.
2
Following his ten-day outpatient treatment program with the United Summit Center, the
child was transferred from Petitioner’s custody to a foster home on September 21, 2018. He
continued to display serious behavioral issues that resulted in another stay at Highland Hospital.
In December 2018, he was enrolled in Mountain Youth Academy, a facility in Tennessee, to
receive intensive in-patient treatment. After over one year of treatment there, he was discharged
from Mountain Youth Academy in January 2020.
Meanwhile, the next hearing was held in August 2019, nearly a year after the continued
dispositional hearing. The parties discussed Petitioner’s declining compliance with services.
Beginning in February 2019, Petitioner missed numerous drug screens, and her attendance at MDT
meetings had been sporadic. Felicia Bacorn with the DHHR testified that she visited the child
multiple times at Mountain Youth Academy and that he was doing remarkably well with treatment.
Ms. Bacorn stated that “it breaks my heart” that Petitioner had not kept in regular contact with the
child. She stated that “these parents have regressed to the point that they don’t care . . . . they have
just put him to the side. It’s like out of sight, out of mind.” Petitioner made a motion to extend
her post-dispositional improvement period. The GAL opposed the motion, citing Petitioner’s poor
cooperation with the DHHR and positive drug screens. The circuit court denied Petitioner’s motion
and set the matter for disposition.
The circuit court held a dispositional hearing in September 2019, which was continued to
accommodate witnesses. The DHHR filed its family case plan prior to disposition. 3 Petitioner
filed an objection to the eighteen-page family case plan as she believed it failed to include certain
details. But Petitioner acknowledged “that due to a number of factors, she does not currently have
a safe and stable home for the minor child to return to[.]” Petitioner requested that the circuit court
approve funds for an expert witness to review the file, evaluate the child, and address the issue of
his best interest moving toward permanent placement, and possible post-termination visitation.
The circuit court did not rule on Petitioner’s motion for an expert witness, noting that it may have
been premature.
In November 2019, the circuit court held a dispositional hearing over the course of two
days. Petitioner tested positive for methamphetamine and buprenorphine (for which she did not
have a prescription) immediately before the hearing. The child’s therapist from Mountain Youth
Academy, Jolene Reed, testified that Petitioner visited the child only twice while he was at the
facility and established telephone contact with him less than ten times, even though Petitioner
could have called him every day. Ms. Reed testified that the child no longer had a strong emotional
bond with Petitioner and that “the last time that he spoke with [Petitioner], he was very
disinterested in speaking with her.” Ms. Reed stated that Petitioner would not be an appropriate
placement for the child. Ms. Bacorn, CPS worker, testified that he had made remarkable progress
over the last year and noted that in that time he had very limited contact with Petitioner. Ms.
Bacorn stated that Petitioner relapsed in 2019 and had not been participating with drug screening
like she had or maintaining regular contact with the service providers since April 2019. Ms.
Bacorn recommended that Petitioner’s parental rights be terminated; she noted that the child was
removed from Petitioner’s home in June 2017 and he had been in foster care or placement for
twenty-five of the last twenty-eight months. Petitioner testified that throughout 2019 she had
3
See W. Va. Code § 49-4-408(a).
3
problems with transportation and her telephone; Petitioner also stated that she had changed
addresses frequently.
Ultimately, the circuit court concluded that Petitioner failed to remedy the conditions of
abuse and neglect, 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 interest of the child
to terminate Petitioner’s parental rights. 4
II. Standard of Review
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). 5
III. Discussion
On appeal, Petitioner raises several assignments of error. Petitioner argues that the circuit
court erred in terminating her parental rights when she had shown that she could remedy the
conditions of abuse and neglect, including cleaning up her home and remaining drug free for at
least two extended periods of time. She contends a less-restrictive dispositional alternative was
appropriate since the child remained in a facility with no foster home in place at the time of
disposition. 6 Petitioner urges this Court to regard her earlier “improvement” as more indicative of
her potential parenting abilities than the behaviors she demonstrated throughout 2019.
4
The child’s father’s parental rights were also terminated during the proceedings below.
The DHHR is seeking an appropriate foster-to-adopt placement for the child.
5
Syl. Pt. 1, In re Cecil T., 228 W. Va. 89, 717 S.E.2d 873 (2011).
6
See W. Va. Code § 49-4-604(b)(5) (“[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, [a
circuit court may] commit the child temporarily to the care, custody, and control of the state
department, a licensed private child welfare agency, or a suitable person who may be appointed
guardian by the court.”).
4
We begin by reiterating our holding that
“[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(c)] 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). 7
West Virginia Code § 49-4-604(b)(6) provides that circuit courts are to terminate parental
rights upon findings 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 child’s
welfare. According to West Virginia Code § 49-4-604(c)(3), a situation in which there is “[n]o
reasonable likelihood that conditions of neglect or abuse can be substantially corrected” includes
one in which the parent has
not responded to or followed through with a reasonable family case plan or other
rehabilitative efforts of social, medical, mental health or other rehabilitative
agencies designed to reduce or prevent the abuse or neglect of the child, as
evidenced by the continuation or insubstantial diminution of conditions which
threatened the health, welfare or life of the child.
Despite positive drug screens and sporadic attendance at MDT meetings and adult life skills
classes, Petitioner was granted not only a post-adjudicatory improvement period but also an
extension of that improvement period. And Petitioner was granted a post-dispositional
improvement period. While Petitioner initially complied with services and made progress in 2018,
she eventually ceased regular drug screening and regular contact with the DHHR in 2019. Her
compliance with the terms of her improvement plan throughout 2019 was abysmal. Petitioner
tested positive for methamphetamines at the dispositional hearing and lacked suitable housing for
the child at that time. Given this evidence, we agree with the circuit court’s findings that there
was no reasonable likelihood that Petitioner could correct the conditions of abuse or neglect in the
near future and that termination of her parental rights was necessary for the child’s welfare. Courts
“are not required to exhaust every speculative possibility of parental improvement before
terminating parental rights where it appears that the welfare of the child will be seriously
threatened[.]’” 8
7
Syl. Pt. 5, In re Kristin Y., 227 W. Va. 558, 712 S.E.2d 55 (2011).
8
Syl. Pt. 7, in part, In re Carlita B., 185 W. Va. 613, 408 S.E.2d 365 (1991); see also In re
Isaiah A., 228 W. Va. 176, 185, 718 S.E.2d 775, 784 (2010) (finding “glimmer of hope” standard
inconsistent with the criteria expressly provided by statute).
5
We further note that a parent’s rights are “necessarily limited” as to improvement periods
“because the pre-eminent concern in abuse and neglect proceedings is the best interest of the child
subject thereto.” 9 And, we have recognized that
the statutory limits on improvement periods (as well as our case law limiting the
right to improvement periods) dictate that there comes a time for decision, because
a child deserves resolution and permanency in his or her life, and because part of
that permanency must include at minimum a right to rely on his or her caretakers
to be there to provide the basic nurturance of life. 10
Petitioner argues that the circuit court failed to even consider delaying the final hearing
until the child was released from Mountain Youth Academy so that she could have the opportunity
to display the ability to take proper care of him. But she cites no authority for the proposition that
improvement periods should be extended well beyond statutory timeframes simply because a child
is receiving in-patient treatment. The proceedings below were protracted, lasting over two years,
and Petitioner failed to demonstrate that she could correct the conditions of abuse of neglect. So,
we decline to find that the circuit court erred. 11
Petitioner also contends that the circuit court erred by not ensuring the DHHR filed a child
and/or family case plan in a timely manner at the onset of these proceedings as required by the
West Virginia Rules of Procedure for Child Abuse and Neglect Proceedings (Rules). But
Petitioner is not entitled to this relief when she did not complain about the lack of a formal case
plan in 2018 and can show no prejudice. Petitioner was clearly aware of the terms of her
improvement period set forth in the initial dispositional order entered in September 2017. In fact,
Petitioner recounts the positive steps she made in 2018. Petitioner also complains that the circuit
court erred by not ensuring that the DHHR was providing services as she saw fit such as assisting
her with transportation/communication when the child was in Tennessee. But Petitioner’s
complaints ring hollow because she did not maintain regular contact with the DHHR during that
time.
9
In re J. G., 240 W. Va. 194, 204, 809 S.E.2d 453, 463 (2018) (quoting In re Emily, 208
W. Va. 325, 336, 540 S.E.2d 542, 553 (2000)).
10
State ex rel. Amy M. v. Kaufman, 196 W. Va. 251, 260, 470 S.E.2d 205, 214 (1996).
11
Because we affirm the circuit court’s disposition order, we find no merit to Petitioner’s
assignment of error alleging that it erred by failing to hold a hearing to address her objections to
the family case plan. With regard to any procedural errors that occurred in these proceedings, we
find that none were to the degree that substantially frustrated the overall proceedings to warrant
reversal. See In re Edward B., 210 W. Va. 621, 634, 558 S.E.2d 620, 633 (2001).
6
In her remaining assignments of error, Petitioner criticizes the circuit court’s management
of the case, the GAL’s representation of the child, and the DHHR’s services. 12 Petitioner reaches
back to events that transpired a year before the final disposition hearing and argues that the circuit
court erred by allowing the removal of the child from her home following the September 11, 2018
hearing. Petitioner states that the hearing was a “two hour long parade of witnesses from the State
who advocated removal, after which the [c]ourt agreed with the removal without allowing
[Petitioner] to object, present witnesses, or set forth any defense[.]” The record does not support
these serious allegations. Petitioner was afforded procedural due process at this hearing; she heard
the evidence presented against her and her counsel conducted thorough cross-examination of all
witnesses. Petitioner neither offered evidence on her behalf nor objected to the circuit court’s
ruling. Because Petitioner did not preserve the issue she raises now, there is no accompanying
ruling by the circuit court for our review. As this Court previously has explained:
[t]o preserve an issue for appellate review, a party must articulate it with such
sufficient distinctiveness to alert a circuit court to the nature of the claimed defect.
The rule in West Virginia is that parties must speak clearly in the circuit court, on
pain that, if they forget their lines, they will likely be bound forever to hold their
peace. The forfeiture rule . . . fosters worthwhile systemic ends and courts will be
the losers if we permit the rule to be easily evaded. It must be emphasized that the
contours for appeal are shaped at the circuit court level by setting forth with
particularity and at the appropriate time the legal ground upon which the parties
intend to rely. 13
We also reject Petitioner’s related argument that the circuit court erred in allowing the
DHHR to remove the child from her care on September 21, 2018, without complying with the
procedural requirements of West Virginia Code § 49-4-602. 14 As explained above, there was a
12
Petitioner does not assign as error the circuit court’s decision to deny her post-
termination visitation. We therefore find no merit to her assignment of error alleging that it erred
by not addressing her motion to approve fees for an expert witness to offer an opinion on that issue.
13
State ex rel. Cooper v. Caperton, 196 W. Va. 208, 216, 470 S.E.2d 162, 170 (1996)
(citation omitted).
14
West Virginia Code § 49-4-602 provides:
(c) Emergency removal by department during pendency of case. -- Regardless of
whether the court has previously granted the department care and custody of a child,
if the department takes physical custody of a child during the pendency of a child
abuse and neglect case (also known as removing the child) due to a change in
circumstances and without a court order issued at the time of the removal, the
department must immediately notify the court and a hearing shall take place within
ten days to determine if there is imminent danger to the physical well-being of the
child, and there is no reasonably available alternative to removal of the child. The
court findings and order shall be consistent with subsections (a) and (b) of this
section.
7
court order issued at the time of the removal, as it ruled from the bench at the September 11, 2018
hearing.
Petitioner also argues that the GAL’s performance was inadequate, his disposition report
lacked sufficient detail, and he failed to ascertain the child’s wishes. We note that the GAL
recommended that the child remain in Petitioner’s care in July 2018 (after he was placed there
following his discharge from Highland Hospital) even though Petitioner had some positive drug
screens during that time. The GAL stated that he did not want to introduce further interruptions
to the child considering the child was close to Petitioner at that time. But Petitioner’s meager
participation with services and lack of improvement throughout 2019 supported the GAL’s
ultimate recommendation that Petitioner’s parental rights should be terminated. By that time, the
child did not express a wish to maintain contact with Petitioner. To the contrary, his therapist
testified that he had basically given up on trying to contact Petitioner and they no longer had a
strong emotional bond. The record does not support Petitioner’s claim that the GAL’s
representation of the child was deficient.
Having fully considered the issues before us, we remind the circuit court of its duty to
conduct permanency reviews until the child has a permanent placement. 15 As this Court has stated,
[t]he [twelve]-month period provided in Rule 43 of the West Virginia Rules of
Procedure[ ] for Child Abuse and Neglect Proceedings for permanent placement of
an abused and neglected child following the final dispositional order must be
strictly followed except in the most extraordinary circumstances which are fully
substantiated in the record. 16
Moreover, this Court has stated that
[i]n determining the appropriate permanent out-of-home placement of a child under
[West Virginia Code § 49-4-604(b)(6) (2019) ], the circuit court shall give priority
to securing a suitable adoptive home for the child and shall consider other
placement alternatives, including permanent foster care, only where the court finds
that adoption would not provide custody, care, commitment, nurturing and
discipline consistent with the child’s best interests or where a suitable adoptive
home [cannot] be found. 17
(Emphasis added).
15
See Rule 39(b) (“At least once every three months until permanent placement is achieved
as defined in Rule 6, the court shall conduct a permanent placement review conference, requiring
the multidisciplinary treatment team to attend and report as to progress and development in the
case, for the purpose of reviewing the progress in the permanent placement of the child.”).
16
Cecil T., 228 W. Va. at 91, 717 S.E.2d at 875, syl. pt. 6.
17
Syl. Pt. 3, State v. Michael M., 202 W. Va. 350, 504 S.E.2d 177 (1998).
8
Finally, we remind the GAL that his role in this abuse and neglect proceeding will not
cease until the child is in his permanent placement. 18
For the above reasons, we affirm the circuit court’s November 20, 2019, order.
Affirmed.
ISSUED: October 9, 2020
CONCURRED IN BY:
Chief Justice Tim Armstead
Justice Margaret L. Workman
Justice Elizabeth D. Walker
Justice Evan H. Jenkins
Justice John A. Hutchison
18
Syl. Pt. 5, James M. v. Maynard, 185 W. Va. 648, 408 S.E.2d 400 (1991).
9