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

STATE OF WEST VIRGINIA
SUPREME COURT OF APPEALS
FILED
In re B.J. and A.A. December 10, 2020
EDYTHE NASH GAISER, CLERK
No. 20-0431 (Randolph County 19-JA-88 and 19-JA-89) SUPREME COURT OF APPEALS
OF WEST VIRGINIA
MEMORANDUM DECISION
Petitioner Mother J.Y., by counsel Gregory R. Tingler, appeals the Circuit Court of
Randolph County’s February 25, 2020, order terminating her parental rights to B.J. and A.A. 1
The West Virginia Department of Health and Human Resources (“DHHR”), by counsel
Brandolyn N. Felton-Ernest, filed a response in support of the circuit court’s order. The guardian
ad litem, Heather M. Weese, 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 terminating her parental
rights without first granting her an improvement period and in denying her post-termination
visitation.
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 July of 2019, the DHHR filed an abuse and neglect petition alleging that law
enforcement, while executing a search warrant on her home, witnessed petitioner attempt to hide
a bag under B.J. Officers searched the bag and found methamphetamine, half of an unidentified
pill, and drug paraphernalia. During law enforcement’s search, they contacted the DHHR to
respond to the home. According to the DHHR, the home smelled of raw sewage that had backed
up into the residence. The DHHR also found razor blades and a large jug of bug killer on the
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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floor that were both easily accessible to the children. Petitioner asserted that the home was clean
before law enforcement arrived, as she accused them of “ma[king] the mess.” This was
contradicted by statements from A.A., then fifteen years old, who described the residence as
“gross” and reported that petitioner never cleaned the house. According to A.A., she was
required to clean and prepare food for herself and B.J. A.A. also indicated that petitioner sold
food stamps to buy drugs, described petitioner having taken her along when petitioner traded
stolen goods for drugs, and confirmed that she witnessed petitioner abusing drugs. Petitioner was
arrested as a result of law enforcement’s search and denied that the drugs in the home were hers,
although she admitted to illegally purchasing Suboxone. Petitioner also admitted to a substance
abuse problem that began when she was sixteen years old. After her arrest, petitioner was
released on bond and required to report to community corrections, at which point she tested
positive for methamphetamine and Suboxone. Following the petition’s filing, petitioner waived
her preliminary hearing.
At the time of the adjudicatory hearing in September of 2019, petitioner was again
incarcerated. During the hearing, the circuit court accepted petitioner’s written stipulation to
abusing and neglecting the children due to her substance abuse and found her to be an abusing
and neglecting parent. The same day as the hearing, petitioner filed a motion for an improvement
period. In December of 2019, the circuit court held a hearing on petitioner’s motion for an
improvement period, during which it found that petitioner failed to satisfy her burden of
establishing that she was likely to fully comply with the terms thereof. According to the circuit
court, which also presided over her ongoing criminal case, petitioner violated the terms of her
bond and probation, which resulted in her being incarcerated until November 7, 2019. The court
also noted that petitioner was required to submit to drug screens which involved “a daily
obligation and a[] simple procedure.” Despite this order, petitioner failed to participate in that
program. Although petitioner testified that she would participate in an improvement period, the
court found that her demonstrated refusal to follow court orders established that she was unlikely
to fully participate in an improvement period. Accordingly, the court denied petitioner’s motion.
In February of 2020, the circuit court held a dispositional hearing, during which it found
that A.A. expressed a desire not to see petitioner. The court also addressed petitioner’s request to
transfer legal guardianship of B.J. to his foster parent, finding that such an arrangement was not
in the child’s best interests because it did not provide permanency. Instead, the court found that
adoption would best serve B.J.’s need for an assured maternal presence. Based on the evidence,
the court found that there was no reasonable likelihood that petitioner could substantially correct
the conditions of abuse and neglect in the near future and that termination of her parental rights
was necessary for the children’s welfare. Accordingly, the court terminated petitioner’s parental
rights and denied her request for post-termination visitation.2 It is from the dispositional order
that petitioner appeals.
2
B.J.’s father’s parental rights were also terminated below, and the permanency plan for
that child is adoption in the current foster home. According to respondents, A.A.’s father
successfully completed an improvement period, the child was returned to his custody, and the
matter against him was dismissed.
2
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 first argues that she should have been entitled to an improvement
period because she established that she was likely to fully comply with the terms and conditions
thereof. Petitioner is correct that, in order to obtain an improvement period, a parent must
“demonstrate[], by clear and convincing evidence, that the [parent] is likely to fully participate in
the improvement period.” W. Va. Code § 49-4-610(2)(B). According to petitioner, she satisfied
this burden by repeatedly acknowledging her abuse and neglect of the children and taking steps
to correct it. We note, however, that acknowledgement of the conditions of abuse and neglect at
issue is not determinative of whether a parent has satisfied the applicable burden. Although a
failure to acknowledge such conditions can disqualify a parent from obtaining an improvement
period, petitioner’s acknowledgment certainly did not establish that she was entitled to an
improvement period. In re Timber M., 231 W. Va. 44, 55, 743 S.E.2d 352, 363 (2013) (citation
omitted) (“Failure to acknowledge the . . . truth of the basic allegation pertaining to the alleged
abuse and neglect . . . results in making . . . an improvement period an exercise in futility at the
child’s expense.”).
In further support of this assignment of error, petitioner cites to her self-serving testimony
at the September of 2019 adjudicatory hearing, a time when she was incarcerated, to establish
that she saw a substance abuse counselor while incarcerated and intended to submit to drug
rehabilitation treatment upon her release. What petitioner fails to acknowledge, however, is that
this evidence does not speak to the likelihood that she would substantially comply with an
improvement period. Instead, this evidence clearly demonstrated that she was unlikely to
comply, given that after her release from incarceration in September of 2019 she was later
reincarcerated for violating the conditions of her bond by using drugs. Petitioner further cites to
her testimony from the hearing in December of 2019 to establish that she was submitting to drug
screens, participating in community service, obtained housing with her mother, and sought
substance abuse treatment. According to the record, several of these activities were required by
petitioner’s probation. Further, while it may be true that petitioner was submitting to drug
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screens as a term of her probation, an individual from community corrections testified that
petitioner was not calling in daily to submit to the screens ordered in the abuse and neglect
matter. On appeal, petitioner argues that the circuit court “ignored the fact that it was impossible
for [her] to call while incarcerated,” but this assertion is belied by the record. The transcript from
the hearing on petitioner’s motion contains multiple references to the timeline of petitioner’s
various arrests and incarcerations, and the DHHR was clear in questioning witnesses about
petitioner’s failure to call for drug screens during periods when she was released from
incarceration. Further, a witness testified that petitioner missed four check-ins and two screens in
the brief period between her most recent release from incarceration on November 7, 2019, and
the hearing on the motion for an improvement period on December 2, 2020.
Based on the foregoing, we find no abuse of discretion in the circuit court’s denial of
petitioner’s motion for an improvement period. In re M.M., 236 W. Va. 108, 115, 778 S.E.2d
338, 345 (2015) (“West Virginia law allows the circuit court discretion in deciding whether to
grant a parent an improvement period.”); Syl. Pt. 6, in part, In re Katie S., 198 W. Va. 79, 479
S.E.2d 589 (1996) (“It is within the court’s discretion to grant an improvement period within the
applicable statutory requirements . . . .”). Indeed, the circuit court was presented with petitioner’s
testimony as to her brief compliance with the terms of her probation upon her most recent
release, her other efforts to undergo services designed to remedy the conditions of abuse and
neglect at issue, and her willingness to participate in an improvement period and found this
testimony lacking. We decline to disturb this credibility determination on appeal. Michael D.C.
v. Wanda L.C., 201 W. Va. 381, 388, 497 S.E.2d 531, 538 (1997) (“A reviewing court cannot
assess witness credibility through a record. The trier of fact is uniquely situated to make such
determinations and this Court is not in a position to, and will not, second guess such
determinations.”). This is especially true in light of the circuit court’s explicit weighing of
petitioner’s testimony against her prior noncompliance with its orders, including her failure to
participate in drug screens as ordered as recently as the weeks leading up to the hearing on
petitioner’s motion. As such, we find petitioner is entitled to no relief.
Petitioner relies on this same evidence to argue that it was error to find that there was no
reasonable likelihood that she could substantially correct the conditions of abuse and neglect and
to use this finding as a basis to deny her request to place the children in a legal guardianship.
According to petitioner, this less-restrictive dispositional alternative was in the children’s best
interests. We find, however, that the record does not support this assertion.
According to petitioner, there was no evidence offered to establish that continuing the
children in a legal guardianship would be detrimental to their best interests. We find, however,
that this assertion is factually inaccurate. Based on extensive evidence concerning the children,
including testimony from B.J.’s foster parent, the circuit court specifically found, with respect to
B.J., that “[l]egal guardianship does not provide assurance in permanency” and that the child and
his foster mother needed such assurance. The court further found that adoption best protected the
child’s best interests because it would provide stability for the child. This is in keeping with this
Court’s directive that,
[i]n determining the appropriate permanent out-of-home placement of a
child under [West Virginia Code § 49-4-604(c)(6)], the circuit court shall give
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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.
Syl. Pt. 3, State v. Michael M., 202 W. Va. 350, 504 S.E.2d 177 (1998). Further, in regard to
child A.A., petitioner asserts that termination of her parental rights was overly restrictive, given
that the child was placed with her father. However, petitioner ignores this Court’s prior direction
that “simply because one parent has been found to be a fit and proper caretaker for [the] child
does not automatically entitle the child’s other parent to retain his/her parental rights if his/her
conduct has endangered the child and such conditions of abuse and/or neglect are not expected to
improve.” In re Emily, 208 W. Va. 325, 344, 540 S.E.2d 542, 561 (2000). In short, petitioner’s
arguments regarding a less-restrictive dispositional alternative are unavailing, given the court’s
findings.
While petitioner argues that the circuit court lacked sufficient evidence to find that there
was no reasonable likelihood that she could substantially correct the conditions of abuse and
neglect in the near future, we find no error. As the record shows, petitioner failed to take the
meager step of complying with a simple process of submitting to drug screens during the
proceedings and, in fact, was incarcerated for conduct directly related to the issues for which she
was adjudicated. According to West Virginia Code § 49-4-604(d)(3), a situation in which there is
no reasonable likelihood that the conditions of abuse and neglect can be substantially corrected
includes when 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.” Therefore, we find that
petitioner’s assertion that the court erred in making this finding is without merit.
Finally, West Virginia Code § 49-4-604(c)(6) permits a circuit court to terminate a
parent’s parental rights upon finding that there is no reasonable likelihood that the conditions of
abuse and neglect can be substantially corrected in the near future and that termination is
necessary for the child’s welfare. As set forth above, the court made these findings upon
substantial evidence. 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). Based on the detailed findings
set forth above, we find that petitioner is entitled to no relief in regard to her assignment of error
concerning the circuit court’s termination of her parental rights.
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In support of this assignment of error, petitioner also asserts, without citation to the
controlling authority, that the DHHR was required to present evidence clearly demonstrating that
the children at issue requested termination of her parental rights in order for the court to impose
this disposition. This argument is flawed for several reasons. First, the DHHR is not required to
present evidence in all cases that each individual child wishes for a parent’s rights to be
terminated in order for a court to order such termination. Rather, according to West Virginia
Code § 49-4-604(c)(6)(C), in terminating a parent’s parental rights, “the court shall give
consideration to the wishes of a child 14 years of age or older or otherwise of an age of
discretion as determined by the court regarding the permanent termination of parental rights.”
This statute simply requires that a court consider the children’s wishes when they are of
appropriate maturity, which the circuit court here did. While petitioner argues that the DHHR
and guardian’s discussion of A.A.’s wishes was “woefully short in providing the information
necessary to deny [p]etitioner[’s] request for a less[-]restrictive alternative” to termination, we
find that the child could not have been more explicit about her desire to end her relationship with
petitioner. As the court specifically found, A.A., then fifteen years old, expressed that she “does
not wish to see her mother.” Petitioner additionally cites to testimony concerning B.J.’s desire to
see her, but ignores the fact that the child was only eight years old at the time—far below the
threshold age for consideration of his wishes as contemplated by the statute at issue. As such,
petitioner is entitled to no relief on appeal for any argument based on her vague assertions that
the children’s wishes were somehow insufficient to allow for termination of her parental rights.
Petitioner relies on these same factual arguments about the children’s wishes to assert
that the circuit court erred in denying her post-termination visitation with the children. As this
Court has held,
“[w]hen 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). Obviously, A.A.’s express
desire not to see petitioner evidences a lack of a close emotional bond such that post-termination
visitation with her would not have been appropriate. As to B.J., while it may be true that the
child asked his foster mother about petitioner and requested to see her, the foster mother also
testified to the child’s negative feelings toward petitioner because he perceived that she
neglected him. The foster mother also raised concerns that continued contact with petitioner
could harm B.J., given his past of having been moved from home to home. Essentially, the foster
mother testified that stability was important for B.J., and the circuit court agreed. As such, we
find no error in the denial of post-termination visitation.
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For the foregoing reasons, we find no error in the decision of the circuit court, and its
February 25, 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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