In re: A.K. and E.H. ( 2020 )

STATE OF WEST VIRGINIA
SUPREME COURT OF APPEALS
FILED
In re A.K. and E.H. December 10, 2020
EDYTHE NASH GAISER, CLERK
No. 20-0424 (Monongalia County 19-JA-238 and 19-JA-240) SUPREME COURT OF APPEALS
OF WEST VIRGINIA
MEMORANDUM DECISION
Petitioner Mother B.K., by counsel Kristen D. Antolini, appeals the Circuit Court of
Monongalia County’s May 1, 2020, order terminating her parental rights to A.K., and E.H. 1 The
West Virginia Department of Health and Human Resources (“DHHR”), by counsel Chaelyn W.
Casteel, filed a response in support of the circuit court’s order. The guardian ad litem (“guardian”),
Frances C. Whiteman, 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 denying her request for an
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.
Prior to the filing of the instant petition, the DHHR filed an abuse and neglect petition
against petitioner and the father of E.H. alleging that he was operating a mobile methamphetamine
laboratory. Petitioner and the father of E.H. admitted to methamphetamine usage and completed
improvement periods, and the children were returned to their custody in 2018. The DHHR filed
the instant child abuse and neglect petition against petitioner and the father of E.H. in December
of 2019 alleging substance abuse that affected their abilities to parent E.H. and her half-sibling,
petitioner’s child A.K., failure to provide a safe and suitable home, and a history of domestic
violence. At the preliminary hearing, a Child Protective Services (“CPS”) caseworker testified
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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regarding the allegations in the current petition, as well as the 2018 proceedings. After testimony
from several witnesses, the circuit court found probable cause for the children’s removal.
In January of 2020, the circuit court held an adjudicatory hearing. Petitioner did not appear
until mid-way through the hearing but was represented by counsel. A DHHR caseworker testified
to the allegations in the petition, including that petitioner and E.H.’s father admitted to substance
abuse and that there were items in the home consistent with substance abuse. The caseworker also
testified that since the preliminary hearing, petitioner and the father failed to attend a
multidisciplinary team meeting (“MDT”). The caseworker further indicated that the parents missed
a Christmas phone call with the children, failed to participate in drug screens, and did not stay in
contact with the DHHR. At the conclusion of the DHHR’s case-in-chief, petitioner consulted with
counsel and chose not to testify or present any witnesses on her behalf. The circuit court
adjudicated petitioner as an abusing and neglecting parent, ordered her to submit to a drug test
after the hearing, and ordered that she participate in future drug screens and MDT meetings. After
the hearing, petitioner tested positive for amphetamine, methamphetamine, buprenorphine, and
norbuprenorphine. She also filed a written motion for a post-adjudicatory improvement period.
The circuit court held an initial dispositional hearing in February of 2020. Petitioner did
not appear at the hearing but was represented by counsel. Petitioner’s counsel requested that the
circuit court hold the motion for an improvement period in abeyance. The DHHR presented
evidence that petitioner tested positive for multiple controlled substances at a drug screen on
January 17, 2020, and stopped attending screens after that. Additionally, petitioner’s counsel
admitted that petitioner failed to maintain contact with her and was not answering letters or phone
calls, stating that she was “in the depths of addiction.” The circuit court opined that it did not
“appear that the biological parents have any interest. They [are] so far addicted that they do [not]
know what to do with the children.” The DHHR and guardian requested that the case be set for
final disposition due to petitioner’s lack of compliance with drug screening.
The next month, the circuit court held a final dispositional hearing. Prior to the hearing,
petitioner participated in a drug screen where she tested positive for multiple substances. The
circuit court heard testimony on petitioner’s motion for an improvement period while the DHHR
and guardian moved for the termination of petitioner’s parental rights. A CPS caseworker testified
that since February of 2020 she had only spoken with petitioner on one occasion, when petitioner
asked to speak with the children on the phone. The caseworker testified that the children’s foster
parents had attempted to call petitioner on multiple occasions but could not reach her. The
caseworker also testified that petitioner abused controlled substances in a prior abuse and neglect
case, making her addiction a known issue. Despite this, the caseworker testified that petitioner had
participated in only three drug screens over the course of three months and missed several others.
The caseworker further testified that petitioner did not seek drug treatment or request additional
services, such as parenting or adult life skills. On cross-examination, petitioner testified that
because the case had been pending for a short time, the DHHR was not mandated to seek
termination of her parental rights. Petitioner also argued that termination of her rights was
inappropriate, given that she appeared at the dispositional hearing, participated in a drug screen
before the hearing, and admitted to domestic violence. Petitioner also admitted to struggling with
substance abuse and indicated that she would attend a drug treatment program if granted an
improvement period.
2
Based upon the presentation of evidence, the circuit court determined that petitioner is a
“constant” drug abuser and used controlled substances in the presence of infant children at home.
The circuit court found there was “physical violence perpetrated between the petitioner and [the
father] in front of the children.” The circuit court further found that “the parents have not done
anything of any significance to combat their addiction” and there was no reasonable likelihood
that the conditions of abuse and neglect could be corrected in the foreseeable future. Accordingly,
the circuit court terminated her parental rights to the children. 2 It is from the May 1, 2020,
dispositional order that petitioner appeals.
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 alleges that the circuit court erred in terminating her parental rights
without giving her additional time to participate in an improvement period. While petitioner
acknowledges that “the decision to grant or deny an improvement period rests in the sound
discretion of the circuit court,” she argues that she “was in a position to begin the process of
remedying the conditions of abuse and neglect as she acknowledged her own problems and
deficiencies.” Petitioner further asserts that she was only granted three months to make significant
changes in her life and additional time could have allowed her to resolve her issues of addiction
and domestic violence. In light of this, she argues that she should have been afforded the
opportunity to participate in an improvement period. We disagree.
West Virginia Code § 49-4-610(2)(B) provides that the circuit court may grant a parent a
post-adjudicatory improvement period when the parent “demonstrates, by clear and convincing
evidence, that the [parent] is likely to fully participate in the improvement period.” On appeal,
petitioner focuses her argument primarily on the timeframe and “significant burden” associated
with substance abuse. However, petitioner failed to participate in any services designed to remedy
2
The father’s parental rights to E.H. were also terminated below. The permanency plan for
the child is adoption by a foster family. A.K.’s father is deceased. The permanency plan for that
child is adoption in her kinship placement.
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her substance abuse. In fact, petitioner’s only compliance with services throughout the proceedings
was submission to three drug screens, two of which were ordered by the circuit court on the days
of adjudicatory and dispositional hearings. Despite petitioner’s argument that she would have
substantially complied with services and corrected the conditions of abuse and neglect, the record
shows that she largely failed to participate in services during the proceedings and, thus, failed to
satisfy the burden of proof necessary to obtain an improvement period.
Further, “[t]his Court has explained that ‘an improvement period in the context of abuse
and neglect proceedings is viewed as an opportunity for the miscreant parent to modify his/her
behavior so as to correct the conditions of abuse and/or neglect with which he/she has been
charged.’” In re Kaitlyn P., 225 W. Va. 123, 126, 690 S.E.2d 131, 134 (2010) (citation omitted).
However, the circuit court has discretion to deny an improvement period when no improvement is
likely. In re Tonjia M., 212 W. Va. 443, 448, 573 S.E.2d 354, 359 (2002). Given petitioner’s willful
refusal to participate in services designed to remedy the conditions of abuse and neglect, it is
disingenuous for her to assert that she would have corrected the conditions of abuse and neglect if
granted a post-adjudicatory improvement period during the proceedings below. While petitioner
did complete an improvement period in a prior abuse and neglect proceeding, her successful
completion did not deter her return to substance abuse and endangerment of the children.
Petitioner’s actions in refusing to participate in drug screenings, attend her hearings, or stay in
communication with the DHHR established that improvement was unlikely. As such, we find no
error in the circuit court’s denial of petitioner’s motion for an improvement period.
Finally, petitioner argues that the circuit court erred in terminating her parental rights
because there was insufficient evidence to find that there was no reasonable likelihood that the
conditions of abuse and neglect could not be corrected in the near future or that termination was
necessary for the children’s welfare, the two findings required for termination of parental rights
under West Virginia Code § 49-4-604(c)(6). We find, however, that the substantial evidence laid
out above supports termination, as well. Specifically, petitioner’s failure to participate in even the
meager requirement of submitting to drug screens establishes that she failed to follow through with
or respond to the reasonable family case plan in this matter, which constitutes a situation in which
there is no reasonable likelihood the conditions of abuse and neglect can be substantially corrected
under West Virginia Code § 49-4-604(d)(3). Additionally, given petitioner’s repeated abuse of
substances across two abuse and neglect proceedings, it is clear that the children’s welfare required
termination of her rights. Finally, this Court has held 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(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). As such, it is clear that the
circuit court did not err in terminating petitioner’s parental rights.
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For the foregoing reasons, we find no error in the decision of the circuit court and its May
1, 2020, order is hereby affirmed.
Affirmed.
ISSUED: December 10, 2020
CONCURRED IN BY:
Chief Justice Tim Armstead
Justice Margaret L. Workman
Justice Elizabeth D. Walker
Justice Evan H. Jenkins
Justice John A. Hutchison
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