In re B.B. ( 2022 )

FILED
March 9, 2022
EDYTHE NASH GAISER, CLERK
STATE OF WEST VIRGINIA SUPREME COURT OF APPEALS
OF WEST VIRGINIA
SUPREME COURT OF APPEALS
In re B.B.
No. 21-0623 (Kanawha County 20-JA-561)
MEMORANDUM DECISION
Petitioner Father R.B., by counsel Jason S. Lord, appeals the Circuit Court of Kanawha
County’s July 7, 2021, order terminating his parental rights to B.B. 1 The West Virginia Department
of Health and Human Resources (“DHHR”), by counsel Patrick Morrisey and Katherine A.
Campbell, filed a response in support of the circuit court’s order. The guardian ad litem, J. Rudy
Martin, filed a response on behalf of the child also in support of the circuit court’s order. 2 On
appeal, petitioner argues that the circuit court erred in terminating his 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.
In October of 2020, the DHHR filed a child abuse and neglect petition against petitioner
and the mother based upon allegations of the mother’s alcohol abuse as well as domestic violence
such as petitioner smashing televisions and fighting with the mother. Following referrals of the
mother being found unconscious while the children were in her care, Child Protective Services
(“CPS”) workers intervened in August and September of 2020, and the mother attended alcohol
abuse treatment. During her interview, the mother admitted that law enforcement officers had been
to the home twice regarding domestic violence incidents with petitioner and stated that petitioner
lacked appropriate housing as he lived in a motel. On October 19, 2020, law enforcement officers
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).
2
J. Rudy Martin was substituted as counsel in place of Elizabeth G. Kavitz.
1
found the mother unconscious and the children unable to wake her. 3 A worker interviewed the
mother’s health care provider, who opined that the mother suffered from alcohol-induced
psychosis as the mother admitted to hearing and seeing things that were not real. At the preliminary
hearing, the court ordered the DHHR to provide petitioner with remedial and reunification services
such as parenting and adult life skills classes, domestic violence classes, random drug screens, and
bus passes. In November of 2020, the DHHR filed an amended petition alleging that petitioner’s
parental rights to another child were previously involuntarily terminated.
The circuit court held an adjudicatory hearing in February of 2021 and, after hearing
testimony, adjudicated petitioner as an abusing parent, specifically relying on then-eight-year-old
B.B. and another child’s statements that they witnessed domestic violence between petitioner and
the mother.
In June of 2021, the circuit court held a dispositional hearing. The ongoing CPS worker
testified that the DHHR recommended that petitioner’s parental rights be terminated. The CPS
worker testified that petitioner was required to submit to random drug screens and participate in
supervised visitation, adult life skills and parenting classes, and domestic violence classes.
Although petitioner participated in drug screening, the worker stated that petitioner continued to
test positive for marijuana. As such, petitioner was never granted supervised visits with B.B. Also,
the worker stated that petitioner attended only three parenting and adult life skills classes and,
therefore, was not compliant with services. The provider testified that petitioner attended only two
parenting classes before he refused to meet with her, citing that her services were “inadequate,” so
he was transferred to another provider for those classes. The provider also explained that petitioner
refused to attend domestic violence classes with her, and the court ordered him to seek out his own
domestic violence counseling.
Petitioner testified that he did not complete classes due to communication issues with his
assigned CPS worker and service providers, especially regarding scheduling with his unstable
work schedule. Petitioner testified that he was living with a friend but had full-time employment,
which conflicted with his ability to participate in classes. Petitioner also admitted to using
marijuana and stated that he needed it like medicine. However, petitioner explained that the amount
of tetrahydrocannabinol in his drug screens had been decreasing.
After hearing testimony, the circuit court found that petitioner continued to use marijuana
despite knowing that his drug use would preclude supervised visits with B.B. and that he was non-
complaint with court-ordered services. The court further noted that petitioner lacked suitable
housing. Accordingly, the circuit court terminated petitioner’s parental rights upon finding that
there was no reasonable likelihood that he could correct the conditions of abuse and neglect in the
near future and that termination was necessary for the child’s welfare. Petitioner appeals the circuit
court’s July 7, 2021, dispositional order terminating his parental rights. 4
3
The mother’s other child is not at issue in this appeal.
4
The mother’s parental rights were also terminated below. The permanency plan for the
child is adoption by a foster family.
2
The Court has previously established the following standard of review in cases such as this:
“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 argues that the circuit court erred in terminating his parental rights.
According to petitioner, he needed more time to show that he would comply with services. He
testified at the dispositional hearing that he had met with the parenting and adult life skills provider
at least three times, including the previous day. Petitioner further testified that his initial troubles
with attending those classes were due to the uncertainty of his work schedule and inability to turn
down hours. Petitioner contends that he submitted to numerous drug screens throughout the
proceedings and only tested positive for marijuana, a substance that he could quit using in a
“reasonable time frame.” As such, petitioner argues, he should have been permitted more time to
comply with services. 5
West Virginia Code § 49-4-604(c)(6) provides that circuit courts are to terminate 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 is necessary for the child’s
welfare. West Virginia Code § 49-4-604(d)(3) provides that a circuit court may find that there is
no reasonable likelihood that the conditions of abuse and neglect can be substantially corrected
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, as
5
Petitioner appears to argue that the circuit court erred in failing to grant him an
improvement period, which would have given him “more time,” while also conceding that he never
moved for an improvement period. We note that “[a] circuit court may not grant a post-
adjudicatory improvement period under W. Va. Code § 49-4-610(2) (eff. 2015) unless the
respondent to the abuse and neglect petition files a written motion requesting the improvement
period.” Syl. Pt. 4, State ex rel. P.G.-1 v. Wilson, -- W. Va. --, -- S.E.2d --, 2021WL 5355634
(2021). As there was no such motion filed, the circuit court could not have erred in failing to grant
petitioner an improvement period. Accordingly, petitioner is entitled to no relief in this regard.
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evidenced by the continuation or insubstantial diminution of conditions which
threatened the health, welfare, or life of the child.
The record establishes that petitioner failed to follow through with services designed to
reduce or prevent the abuse or neglect of the child. While petitioner participated in some services
for a portion of the proceedings below, he knowingly continued to use marijuana and, thus, failed
to exercise supervised visitations. “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). Petitioner testified that he needed the marijuana and knew that
his use would preclude visitation and, consequently, reunification. Petitioner downplays the
severity of his marijuana use by stating that he could have quit using it in a “reasonable time frame”
but fails to explain why he did not cease use during the eight months of proceedings.
Further, petitioner admitted during his testimony at the dispositional hearing that he did
not complete parenting or adult life skills classes or domestic violence classes and that he had not
attained appropriate housing for the child as he was living with a friend. Accordingly, the circuit
court found that petitioner failed to prioritize visits with the child and was otherwise non-compliant
with services. Under these circumstances, there was sufficient support for the circuit court’s
determination that there was no reasonable likelihood that petitioner could correct the conditions
of abuse and neglect in the near future.
To the extent petitioner argues that he should have been given more time to comply with
services, we have previously held that “[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.” Cecil T., 228 W. Va. at 91, 717 S.E.2d at 875, Syl. Pt. 4, in part (citation
omitted). Further, we have 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 foregoing, it is
clear that petitioner failed to remedy the conditions of abuse and neglect and, thus, termination of
his parental rights was not erroneous.
For the foregoing reasons, we find no error in the decision of the circuit court, and its July
7, 2021, order is hereby affirmed.
Affirmed.
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ISSUED: March 9, 2022
CONCURRED IN BY:
Chief Justice John A. Hutchison
Justice Elizabeth D. Walker
Justice Tim Armstead
Justice William R. Wooton
Justice Alan D. Moats sitting by temporary assignment
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