In re: H.R. and M.R. ( 2020 )

STATE OF WEST VIRGINIA
SUPREME COURT OF APPEALS
FILED
In re H.R. and M.R. December 10, 2020
EDYTHE NASH GAISER, CLERK
SUPREME COURT OF APPEALS
No. 20-0434 (Harrison County 18-JA-46-1 and 18-JA-47-1) OF WEST VIRGINIA
MEMORANDUM DECISION
Petitioner Mother C.A., by counsel Dean Morgan, appeals the Circuit Court of Harrison
County’s February 18, 2020, order terminating her parental, custodial, and guardianship rights to
H.R. and M.R. 1 The West Virginia Department of Health and Human Resources (“DHHR”), by
counsel Lee A. Niezgoda, filed a response in support of the circuit court’s order. The guardian ad
litem (“guardian”), Jenna L. Robey, filed a response on the children’s behalf in support of the
circuit court’s order. On appeal, petitioner argues that the circuit court erred in finding that she
failed to make substantial improvement during her improvement periods, in finding that there was
no reasonable likelihood that the conditions of neglect and abuse could be substantially corrected
in the near future, and in terminating her parental, custodial, and guardianship 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 May of 2018, the DHHR filed a child abuse and neglect petition alleging that petitioner
and the father abused controlled substances and that M.R. tested positive for methamphetamine
when she was born in December of 2017. The DHHR alleged that a safety plan was implemented
following the child’s birth due to the father’s aggressive behaviors toward the DHHR workers who
conducted the investigation. However, the parents later violated the safety plan when petitioner
allowed the father unsupervised contact with the children while he was uncooperative with safety
plan services and, therefore, not allowed to see the children. Further, after the initiation of the
safety plan, petitioner was found “slumped over the wheel of a vehicle” at a gas pump in April of
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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2018. Two days later, both petitioner and the father were found “passed out in a car”. Petitioner
waived her preliminary hearing.
In July of 2018, petitioner stipulated that she had a history of substance abuse that led to
the neglect of her children. Petitioner admitted that she abused methamphetamine and Subutex,
which was unprescribed and purchased “off the street,” and that she exposed both children to her
substance abuse. Accordingly, the circuit court adjudicated petitioner as an abusing parent. As part
of her stipulation, petitioner agreed to address her parenting deficiencies and her substance abuse.
She agreed to “intensive drug and alcohol treatment,” random blood and urine testing, attend
individual therapy, participate in parenting classes, maintain a clean and suitable residence, and to
cease contact with “known felons, drug abusers[,] or persons with a [child protective services]
history.” In August of 2018, the circuit court granted petitioner a post-adjudicatory improvement
period with those terms.
The guardian filed a motion to revoke petitioner’s post-adjudicatory improvement period
in December of 2018, and the circuit court held a hearing on the motion. The guardian presented
testimony from petitioner’s psychological evaluator, her DHHR case worker, and three service
providers. Upon this testimony, the circuit court found petitioner “had done little to nothing
towards completing her improvement period.” The circuit court further found that petitioner was
“not doing what she needs to do:” she continued to engage in inappropriate relationships and failed
to maintain appropriate housing; she attended parenting and adult life skills classes “about half of
the time, but could not apply what she was learning;” and she continued using controlled
substances. Therefore, the circuit court revoked petitioner’s post-adjudicatory improvement
period. Nevertheless, the circuit court granted petitioner a three-month extension of her post-
adjudicatory improvement period in February of 2019 and a six-month post-dispositional
improvement period in July of 2019.
The circuit court held the final dispositional hearing in January of 2020. The DHHR
presented petitioner’s second forensic evaluation, the record of her drug screening results, the
testimony of multiple service providers, and called petitioner to testify. Petitioner presented
multiple exhibits related to her failed attempts to obtain appropriate housing as well as a letter
from her current therapist. Ultimately, the circuit court found that petitioner failed to complete the
terms of her improvement period. The court noted that, although petitioner participated in and
completed parenting and adult life skills classes twice over the course of the proceedings, she “was
not able to make substantial progress” in improving her parenting skills. The court further found
that petitioner failed to obtain appropriate housing, despite being provided resources to do so for
over a year. According to the circuit court, the DHHR provided petitioner thirty-eight Housing and
Urban Development (“HUD”) housing listings, yet she contacted only seventeen of the listings
and did not “seriously start looking for appropriate housing until June” of 2019.
More concerning, the court found that petitioner began consuming alcohol during the
course of the proceedings in violation of the terms of her improvement period. Although petitioner
testified that she had a “glass of wine with dinner” on one occasion and denied other use, a dried
blood spot test revealed petitioner’s level of Phosphatidyethanol signified “binge drinking or
frequent drinking.” The circuit court further found that petitioner had not attended any substance
abuse recovery programs, “such as Celebrate Recovery or NA/AA meetings in months,” as
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recommended in her parental fitness evaluation and had “essentially substituted her drug addiction
for alcohol.” Additionally, the court determined that petitioner failed to make progress in her
supervised visitations with the children due, at least, in part, because she “refused additional
visitations with her children that could have occurred on weekends due to her personal schedule.”
Petitioner also failed to provide the children with equal attention during the visitations, which
“caused behavior outbursts and aggression by [H.R.]” and “fostered [his] resentment towards his
sister [M.R.]” Finally, the circuit court noted that the DHHR also offered petitioner services
focused on domestic violence. The court found that during meetings with the provider, petitioner
acknowledged “some situations of domestic violence, which occurred in front of the children, but
was unable to acknowledge the impact that witnessing the domestic violence had on her children.”
Further, at the dispositional hearing, petitioner “denied the existence of any domestic violence in
her relationship with [the father].”
The circuit court concluded that “[d]espite the [DHHR] offering every available service to
[petitioner], she failed to make substantial improvements” and, therefore, found that there was no
reasonable likelihood that the conditions of neglect and abuse could be substantially corrected in
the near future and that termination of petitioner’s parental rights was necessary for the welfare of
the children. Accordingly, the circuit court terminated petitioner’s parental, custodial, and
guardianship rights by its February 18, 2020, order. Petitioner now appeals that order. 2
The Court has previously held:
“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).
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The father’s parental rights were also terminated below. According to the parties, the
permanency plan for the children is adoption in their current placement.
3
On appeal, petitioner argues that the circuit court erred in finding that she failed to make
significant progress in her improvement periods. 3 According to petitioner, the circuit court focused
solely on “minor issues” and failed to consider petitioner’s “ongoing compliance and success with
the terms of the case plan.” Petitioner emphasizes that she successfully completed parenting and
adult life skills twice, attended counseling and therapy sessions, obtained appropriate housing, and
severed ties to the children’s abusive father. Petitioner argues that the circuit court overemphasized
two minor issues from late 2018, when she missed two visitations with the children and made
“inappropriate” comments regarding this case to them. Finally, petitioner asserts that she was not
afforded an opportunity to “present evidence of her progress and improvements during the
dispositional hearing.” We find petitioner’s argument on appeal misrepresents the record, and that
she is entitled to no relief on appeal.
This Court has held that
[a]t the conclusion of the improvement period, the court shall review the
performance of the parents in attempting to attain the goals of the improvement
period and shall, in the court’s discretion, determine whether the conditions of the
improvement period have been satisfied and whether sufficient improvement has
been made in the context of all the circumstances of the case to justify the return of
the child.
Syl. Pt. 6, In Interest of Carlita B., 185 W. Va. 613, 408 S.E.2d 365 (1991). Contrary to petitioner’s
argument that “the record lacks evidence to support [a finding that p]etitioner failed to make
significant progress” in her improvement periods, the record on appeal clearly supports the circuit
court’s ultimate conclusion. The record contains the circuit court’s orders and exhibits from the
dispositional hearing, and none of these documents undermine the circuit court’s factual findings.
Moreover, petitioner provides no citations to many of her factual assertions. For example, she
asserts that she attended Narcotics Anonymous and Alcoholics Anonymous meetings, but she
provides no citation in opposition to the circuit court’s finding that she had not attended those
programs “in [the] months” prior to the dispositional hearing. Likewise, petitioner asserts that she
3
At the outset, it should be noted that petitioner’s brief fails to comply with our Rules of
Appellate Procedure. Specifically, petitioner’s brief contains numerous factual assertions without
citations to the record on appeal in contravention of Rule 10(c)(7), which requires that
[t]he brief must contain an argument exhibiting clearly the points of fact and law
presented, the standard of review applicable, and citing the authorities relied on . .
. [and] must contain appropriate and specific citations to the record on appeal . . . .
The Court may disregard errors that are not adequately supported by specific
references to the record on appeal.
Additionally, in an Administrative Order entered December 10, 2012, Re: Filings That Do Not
Comply With the Rules of Appellate Procedure, the Court specifically noted that “[b]riefs with
arguments that . . . do not ‘contain appropriate and specific citations to the record on appeal . . .’
as required by rule 10(c)(7)” are not in compliance with this Court’s rules. Petitioner’s failure to
provide adequate citations to the record are more fully detailed herein.
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obtained housing, but provides no citation to the record in support. Most importantly, petitioner
asserts that she “remains sober,” which is in clear contradiction to the record. The circuit court
found that petitioner’s dried blood spot test indicated that she engaged in “binge drinking or
frequent drinking,” which she denied, and further found that petitioner “essentially substituted her
drug addiction for alcohol.” Upon our review, we find the circuit court correctly determined that
the petitioner failed to satisfy the conditions of her improvement periods and failed to make
sufficient improvement in the context of all the circumstances to justify the return of her children.
Further, while petitioner contends that she was not afforded an opportunity to “present
evidence of her progress and improvements during the dispositional hearing,” the record reveals
she was afforded a meaningful opportunity to be heard. Pursuant to West Virginia Code § 49-4-
60(h), “the party or parties having custodial or other parental rights or responsibilities to the child
shall be afforded a meaningful opportunity to be heard, including the opportunity to testify and to
present and cross-examine witnesses.” The circuit court’s final dispositional order includes
references that petitioner testified and submitted multiple exhibits as evidence. Additionally, the
circuit court noted that “[a]ll counsel were given the opportunity to present evidence and cross-
examine witnesses.” Accordingly, petitioner received the procedural due process to which she was
entitled, and no evidence in the record suggests otherwise.
Petitioner also argues that the circuit court erred in finding that there was no reasonable
likelihood that the conditions of neglect or abuse could be substantially corrected in the near future
and in terminating her parental, custodial, and guardianship rights. According to petitioner, she
“took advantage of the services offered to her and is fully equipped to properly parent her
children.” However, petitioner again provides no factual support for her argument, and we find
she is entitled to no relief.
West Virginia Code § 49-4-604(c)(6) provides that a circuit court may terminate a parent’s
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 of parental rights is
necessary for the welfare of the children. Pursuant to West Virginia Code § 49-4-604(d)(2), a
circuit court may determine that there is no reasonable likelihood that the conditions of neglect or
abuse can be substantially corrected when
[t]he abusing parent or parents have 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[ren].
Here, the record supports a finding that there was no reasonable likelihood that the
conditions of neglect or abuse could be substantially corrected in the near future as petitioner failed
to respond to a reasonable family case plan. Petitioner was offered and participated in a litany of
services over an aggregate of fifteen months of improvement periods, but, as the circuit court
found, she “failed to make substantial improvements” to her parenting, even after completing the
parenting and adult life skills classes twice. She also failed to obtain adequate housing, despite
agreeing to do so as a term of her improvement periods. Although petitioner made some headway
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on her substance abuse issues, she consumed alcohol in violation of the terms of her improvement
period and “essentially substituted her drug addiction for alcohol.” Finally, petitioner made little
progress in visits with the children, in part, because she “refused additional visitations with her
children that could have occurred on weekends due to her personal schedule.” “We have previously
pointed out that the level of interest demonstrated by a parent in visiting his or her children while
they are out of the parent’s custody is a significant factor in determining the parent’s potential to
improve sufficiently and achieve minimum standards to parent the child.” In re Katie S., 198 W.
Va. 79, 90 n.14, 479 S.E.2d 589, 600 n.14 (1996) (citations omitted). Based on petitioner’s failure
to make any substantial change after an extensive improvement period, we find no error in the
circuit court’s finding that there was no reasonable likelihood that the conditions of neglect or
abuse could be substantially corrected in the near future.
Finally, petitioner argues that the circuit court erred in terminating her parental, custodial,
and guardianship rights. She asserts that the circuit court’s disposition required H.R. “to reside in
the strange environment of foster care after being raised by [p]etitioner in a loving home with
family the majority of his life.” Likewise, she argues that the circuit court “depriv[ed] [M.R.] of
the opportunity to grow up with her natural mother,” which would “destroy[] the potential future
benefit of the natural relationship between mother and daughter.” Indeed, petitioner’s argument
centers on preserving the children’s “potential for a relationship” with her. However, as there is
no evidence that such a relationship would be in the children’s best interest, we find no merit to
petitioner’s argument.
This Court has held that “‘[i]n a contest involving the custody of an infant the welfare of
the child is the polar star by which the discretion of the court will be guided.’ Syl. Pt. 2, State ex
rel. Lipscomb v. Joplin, 131 W.Va. 302, 47 S.E.2d 221 (1948).” Syl. Pt. 3, In re S.W., 233 W. Va.
91, 755 S.E.2d 8 (2014). Further,
“[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). Here, the circuit court found
that there was no reasonable likelihood that the conditions of neglect or abuse could be
substantially corrected in the near future, which we found to be fully supported by the record.
Thus, for the near future, there is no reason to believe that petitioner’s parenting would be anything
less than abusive and neglectful. It is axiomatic that subjecting a child to further abuse and neglect
would not be in the child’s best interest. Furthermore,
“[c]ourts are not required to exhaust every speculative possibility of parental
improvement . . . where it appears that the welfare of the child will be seriously
threatened, and this is particularly applicable to children under the age of three
years who are more susceptible to illness, need consistent close interaction with
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fully committed adults, and are likely to have their emotional and physical
development retarded by numerous placements.” Syl. Pt. 1, in part, In re R.J.M.,
164 W.Va. 496, 266 S.E.2d 114 (1980).
Cecil T., 228 W. Va. at 91, 717 S.E.2d at 875, syl. pt. 4. Accordingly, we find no error in the
termination of petitioner’s parental, custodial, and guardianship rights based on the circuit court’s
findings below.
To the extent that petitioner argues that the circuit court should have granted her post-
termination visitation, we have held that
“When parental rights are terminated due to neglect or abuse, the circuit
court may nevertheless in appropriate cases consider whether continued visitation
or other contact with the abusing parent is in the best interest of the child. Among
other things, the circuit court should consider whether a close emotional bond has
been established between parent and child and the child’s wishes, if he or she is of
appropriate maturity to make such request. The evidence must indicate that such
visitation or continued contact would not be detrimental to the child’s well being
and would be in the child’s best interest.” Syl. Pt. 5, In re Christina L., 194 W.Va.
446, 460 S.E.2d 692 (1995).
Syl. Pt. 11, In re Daniel D., 211 W. Va. 79, 562 S.E.2d 147 (2002). As with her other arguments,
petitioner fails to provide any factual support that the children shared a close emotional bond with
her, or that continued visitation would be in the children’s best interests. Accordingly, we find
petitioner is entitled to no relief on appeal.
For the foregoing reasons, we find no error in the decision of the circuit court, and its
February 18, 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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