In re: K.J.A.B. ( 2020 )

STATE OF WEST VIRGINIA
SUPREME COURT OF APPEALS
FILED
In re K.J.A.B. December 10, 2020
EDYTHE NASH GAISER, CLERK
No. 20-0572 (Cabell County 20-JA-5) SUPREME COURT OF APPEALS
OF WEST VIRGINIA
MEMORANDUM DECISION
Petitioner Mother K.R., by counsel Paula L. Harbour, appeals the Circuit Court of Cabell
County’s July 23, 2020, order terminating her parental rights to K.J.A.B. 1 The West Virginia
Department of Health and Human Resources (“DHHR”), by counsel Mindy M. Parsley, filed a
response in support of the circuit court’s order. The guardian ad litem, David R. Tyson, filed a
response on behalf of the child in support of the circuit court’s order. On appeal, petitioner
argues that the circuit court erred in terminating her parental rights upon conditions of neglect
that were correctable.
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 January of 2020, the DHHR filed a petition alleging that petitioner abused and
neglected the child at issue. According to the DHHR, petitioner’s parental rights to two older
children were terminated in November of 2019 due to petitioner’s substance abuse, her
involvement in domestic violence, and her incarceration. Specifically, petitioner tested positive
for cocaine upon the birth of one of the older children at issue in the prior matter, continued to
test positive for drugs while on probation for federal criminal charges, and refused to cooperate
with the DHHR so that remedial services could be implemented. The DHHR alleged that,
following the prior termination, petitioner gave birth to K.J.A.B. while incarcerated.
Additionally, the month prior to the child’s birth, petitioner attempted to escape from
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
incarceration. Based on petitioner’s failure to correct the conditions of abuse and neglect from
the prior proceeding, which resulted in her termination of parental rights to the older children,
the DHHR filed the instant petition.
Following the petition’s filing, petitioner waived her right to a preliminary hearing. Then,
in March of 2020, petitioner stipulated to neglecting the child due to her incarceration and the
prior involuntary termination of her parental rights to the older children.
At a dispositional hearing in June of 2020, the DHHR presented testimony from a Child
Protective Services worker who indicated that petitioner did not comply with the improvement
period granted in her prior abuse and neglect proceeding. According to the witness, petitioner did
not participate in substance abuse treatment, mental health treatment, or any other services the
DHHR offered. In fact, the witness testified that there were several months during the prior
proceeding where petitioner failed to contact anyone or come to court and that the only reason
petitioner was located was due to her arrest and incarceration. Because petitioner completely
failed to comply with the services in the prior case in which her parental rights to two older
children were terminated just two months prior to the initiation of the instant matter, the DHHR
recommended termination of petitioner’s parental rights. Based on petitioner’s lengthy history of
noncompliance in her prior case, the court found that there was no reasonable likelihood that
petitioner could substantially correct the conditions of abuse and neglect at issue. Finding that it
was in the child’s best interests, the court then terminated petitioner’s parental rights. 2 It is from
the 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).
2
According to the DHHR, the father’s parental rights were also terminated below. The
permanency plan for the child is adoption in the current foster home.
2
On appeal, petitioner argues that she will be released from jail, which necessitated the
removal of her child, and, upon her release, the conditions of abuse and neglect will be corrected.
This constitutes the entirety of petitioner’s factual argument on appeal. 3 In support of this
argument, petitioner does not indicate when, exactly, she expects to be released from
incarceration or how being released will correct the conditions of abuse and neglect that have
persisted across two separate proceedings, including her issues with domestic violence and
substance abuse. In short, petitioner’s unsupported assertion that her eventual release from
incarceration will remedy all issues of abuse and neglect at issue is entirely unavailing.
Petitioner similarly asserts, without any supporting argument, that the evidence below
was insufficient to support the circuit court’s termination of her parental rights. This argument,
however, ignores the fact that the DHHR presented evidence of petitioner’s total noncompliance
in her prior abuse and neglect proceeding, including a failure to participate in substance abuse
treatment, mental health treatment, or any other services designed to remedy the conditions of
abuse and neglect. Contrary to petitioner’s bald assertion that this evidence is insufficient to
terminate her parental rights, it clearly supports a finding that there is no reasonable likelihood
that the conditions of abuse and neglect can be substantially corrected in the near future. W. Va.
Code § 49-4-604(d)(3) (providing that a circumstance in which there is no reasonable likelihood
that the conditions of abuse and neglect can be substantially corrected in the near future includes
when the abusing 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”). Further, the court
found that termination of petitioner’s parental rights was necessary for the child’s welfare, which
was overwhelmingly supported by evidence of petitioner’s total noncompliance with remedial
services in two abuse and neglect proceedings.
Pursuant to West Virginia Code § 49-4-604(c)(6), a circuit court may terminate parental
rights upon these findings. Further, 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). Accordingly, we find that
petitioner is entitled to no relief.
3
In one section of her brief, petitioner sets forth her assignment of error in a manner that
asserts that termination was in error “because she is clean and sober now.” However, petitioner
fails to include any argument in support of her assignment of error in furtherance of the assertion
that she remedied her substance abuse issues and, in fact, admitted at the dispositional hearing
that she did not complete any substance abuse treatment. As such, petitioner is entitled to no
relief in regard to this brief, unsupported assertion.
3
For the foregoing reasons, we find no error in the decision of the circuit court, and its
July 23, 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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