In re A.B.-1 and A.B.-2 ( 2022 )

FILED
April 14, 2022
EDYTHE NASH GAISER, CLERK
STATE OF WEST VIRGINIA SUPREME COURT OF APPEALS
OF WEST VIRGINIA
SUPREME COURT OF APPEALS
In re A.B.-1 and A.B.-2
No. 21-0859 (Mercer County 20-JA-30 and 20-JA-31)
MEMORANDUM DECISION
Petitioner Mother A.B.-3, by counsel John G. Byrd, appeals the Circuit Court of Mercer
County’s September 21, 2021, order terminating her parental rights to A.B.-1 and A.B.-2. 1 The
West Virginia Department of Health and Human Resources (“DHHR”), by counsel Patrick
Morrisey and Brittany Ryers-Hindbaugh, filed a response in support of the circuit court’s order.
The guardian ad litem, Patricia Kinder Beavers, filed a response on behalf of the children also in
support of the circuit court’s order. On appeal, petitioner argues that the circuit court erred in
terminating her parental rights instead of employing a less restrictive dispositional alternative.
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.
The DHHR filed an abuse and neglect petition against petitioner, the father, and petitioner’s
boyfriend in February of 2020, raising allegations of drug abuse. Specifically, the DHHR alleged
that petitioner, her boyfriend, and the children were living in a hotel room, and that petitioner and
her boyfriend were trafficking methamphetamine out of said hotel room. A Child Protective
Services (“CPS”) worker spoke to A.B.-1’s teacher, who reported that petitioner’s behavior had
changed recently, that she had developed sores on her face, and that she left the children with the
grandmother for weeks at a time without providing the necessary documentation for their care,
such as medical appointments and educational decisions. The CPS worker and law enforcement
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). Additionally, because the children and petitioner share the same
initials, we will refer to them as A.B.-1, A.B.-2, and A.B.-3, respectively, throughout this
memorandum decision.
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officers located petitioner in a hotel room with her boyfriend, a convicted felon, and a friend, who
was also a convicted felon. Law enforcement officers found a gun in the room, which was
confiscated due to petitioner’s boyfriend and friend being persons prohibited from possessing a
firearm. The DHHR further alleged that petitioner admitted to abusing controlled substances, and
that her drug screen was positive for methamphetamine. A temporary protection plan was
implemented, and the children were placed with their grandmother. Petitioner waived her
preliminary hearing.
In June of 2020, the circuit court held an adjudicatory hearing. Petitioner stipulated that
she neglected the children due to her substance abuse. The circuit court accepted petitioner’s
stipulation, adjudicated her as a neglecting parent, and granted her a post-adjudicatory
improvement period. At a review hearing held in September of 2020, the circuit court was advised
that petitioner completed a drug detoxification program but left the follow-up rehabilitation
program prior to completion. A second review hearing was held in February of 2021. Petitioner
failed to attend but was represented by counsel, who informed the circuit court that petitioner had
not maintained contact with him. Per the circuit court’s order, the DHHR proffered that petitioner
was not participating in visits with the children and was not cooperating with drug screens.
The circuit court held a dispositional hearing in August of 2021. A CPS worker testified
that petitioner’s case plan required that she obtain stable housing and employment and seek
treatment for her substance abuse. The worker stated that petitioner had not successfully completed
a drug treatment program. While the worker indicated that petitioner recently expressed interest in
obtaining treatment and did, in fact, enter treatment prior to the dispositional hearing, the DHHR’s
opinion was that it was too late in the proceedings. A service provider testified that petitioner had
not visited with the children in over one year. The provider described her efforts to contact
petitioner via text messages and phone calls but stated that petitioner was inconsistent in
maintaining contact with her. In fact, the last time the service provider had contact with petitioner
was February of 2021.
Petitioner testified that she entered an inpatient treatment program four days prior and had
submitted to one drug screen thus far, which was negative. Petitioner admitted that she had not
visited with the children in a long time and could not remember when her last visit occurred.
Petitioner admitted to frequently moving throughout 2020 and to frequently changing her phone
number during the proceedings. She further admitted that she had not consistently maintained
employment.
Following testimony, the circuit court found that petitioner “simply has not done what she
needed to do to get her drug problem resolved.” The circuit court acknowledged that petitioner
had entered into inpatient treatment but found that having been in treatment for only four days and
being unable to answer when she last visited the children lent support to its findings that there was
no reasonable likelihood that petitioner could correct the conditions of abuse and neglect in the
near future and that termination of her parental rights was in the children’s best interests. Petitioner
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appeals the circuit court’s September 21, 2021, dispositional order terminating her parental rights
to the children. 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 her parental rights
instead of employing a less restrictive dispositional alternative. According to petitioner, the circuit
court should have permitted her to retain her parental rights, terminating only her custodial and
guardianship rights instead. Petitioner claims that she had employment at various times during the
proceedings and was receiving medically assisted drug treatment, which the DHHR ignored
throughout the proceedings. She further argues that the testimony at the second review hearing,
held in February of 2021, does not indicate that she was not participating in drug screens or
treatment as a reading of the transcript regarding the same states that certain testimony was
inaudible and any resulting ruling was “basically on the mostly inaudible statements of the CPS
worker.” Petitioner states that she admitted that she had a substance abuse problem, completed a
detoxification program, began submitting to medically assisted treatment, and stated she would
submit to counseling. Accordingly, petitioner contends that the circuit court should have
terminated only her custodial and guardianship rights as it would not have threatened the welfare
of the children and would have allowed her to work on her substance abuse issues.
We find no error in the circuit court’s decision to terminate petitioner’s parental rights.
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 children’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
2
The father’s parental rights were terminated during the proceedings below. The
permanency plan for the children is adoption by a relative.
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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.
The record establishes that petitioner failed to follow through with services designed to
reduce or prevent the abuse or neglect of the children. Although petitioner completed a drug
detoxification program, she left her follow-up treatment program without completing the same.
Further, she failed to maintain contact with her service providers and failed to regularly submit to
drug screens. While petitioner claims she sought medically assisted drug treatment, the record does
not support her assertion that she continued this treatment throughout the proceedings. It is true
that petitioner initially sought medically assisted treatment after prematurely leaving her treatment
program, but subsequent testimony indicated that petitioner never successfully completed any drug
treatment program. Petitioner did not object to the testimony or present any evidence to the
contrary. Moreover, when petitioner first indicated that she would obtain medically assisted
treatment, the DHHR asserted that petitioner needed to attend inpatient drug treatment. However,
petitioner failed to enter any inpatient drug treatment until four days before the dispositional
hearing. Although petitioner takes issue with the transcript at the second review hearing, the circuit
court’s order clearly states that petitioner was not visiting with the children, a fact she admitted at
the dispositional hearing, and that she was not submitting to drug screens. While we find that there
is insufficient evidence that the circuit court’s order is contradictory to the transcript, we
nevertheless note that a court’s written order controls. See Tennant v. Marion Health Care Found.,
Inc., 194 W. Va. 97, 107 n.5, 459 S.E.2d 374, 384 n.5 (1995) (finding that “where a circuit court’s
written order conflicts with its oral statement, the written order controls”). Further, petitioner’s
counsel did not object to either the testimony or the order.
Collectively, testimony establishes that petitioner did not have consistent housing during
the proceedings; failed to maintain contact with the DHHR, her counsel, and service providers;
and failed to visit with the children. In fact, petitioner could not remember the last time she visited
with the children, and the service provider indicated that it had been over one year since petitioner
had seen the children due to her failure to maintain contact with the service provider. “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). Ultimately, the
circuit court found that petitioner had not remedied her substance abuse and could not remember
the last time she visited the children—highlighting her lack of contact with them during the
proceedings. This evidence is sufficient to support the circuit court’s finding that there was no
reasonable likelihood that petitioner could correct the conditions of abuse and neglect in the near
future and that termination was in the children’s best interests. To the extent petitioner argues that
she should have been granted a less-restrictive alternative to the termination of her parental rights,
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
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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
her parental rights was not error.
For the foregoing reasons, we find no error in the decision of the circuit court, and its
September 21, 2021, order is hereby affirmed.
Affirmed.
ISSUED: April 14, 2022
CONCURRED IN BY:
Justice Elizabeth D. Walker
Justice Tim Armstead
Justice William R. Wooton
Justice Alan D. Moats sitting by temporary assignment
DISSENTING:
Chief Justice John A. Hutchison
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