In Re: E.M. ( 2017 )

STATE OF WEST VIRGINIA
SUPREME COURT OF APPEALS
FILED
In re: E.M.
November 22, 2017
No. 17-0649 (Marion County 15-JA-74) EDYTHE NASH GAISER, CLERK
SUPREME COURT OF APPEALS
OF WEST VIRGINIA
MEMORANDUM DECISION
Petitioner Mother D.M., by counsel Scott A. Shough, appeals the Circuit Court of Marion
County’s June 22, 2017, order terminating her parental rights to E.M.1 The West Virginia
Department of Health and Human Resources (“DHHR”), by counsel S.L. Evans, filed a response
in support of the circuit court’s order. The guardian ad litem (“guardian”), Terri L. Tichenor,
filed a response on behalf of the child also in support of the circuit court’s order. On appeal,
petitioner argues that the circuit court erred in terminating her 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 July of 2016, the DHHR filed an abuse and neglect petition against petitioner alleging
that she abused alcohol and drugs and that her substance abuse interfered with her ability to
parent the child. According to the petition, on one occasion, petitioner ingested a combination of
alcohol, amphetamines, and opiates while she was caring for the child. The child found petitioner
unresponsive and believed that she was deceased. The child sought help from a neighbor and
petitioner was transported by ambulance to Fairmont General Hospital for medical treatment.
In September of 2016, the circuit court held an adjudicatory hearing at which petitioner
stipulated to a history of drug and alcohol abuse and that she abused substances to the point of
unconsciousness, which placed the child in imminent danger. Based on her stipulations, the
circuit court adjudicated petitioner as an abusing parent.
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
In May of 2017, the circuit court held a dispositional hearing wherein petitioner did not
appear but was represented by counsel. According to petitioner’s counsel, one week before the
dispositional hearing, petitioner entered into a long-term substance abuse treatment program.2 A
DHHR caseworker then presented the court with an updated court summary, which indicated that
the DHHR has received approximately twenty-seven referrals involving petitioner and her family
from 1998 through 2016. According to the summary, the DHHR received approximately one
referral per year from 1998 through 2016, and the referrals were based on incidents involving
substance abuse and/or domestic violence between petitioner and the child’s father. Additionally,
due to multiple removals, the child has been in numerous placements throughout her life.
According to the DHHR, petitioner has over these many years participated in individual
counseling, in-home family crisis services, out-patient substance abuse treatment, parenting
classes, psychological evaluations, in-patient substance abuse treatment, Alcoholics Anonymous
meetings, New Beginnings After Care (an early intervention program), supervised visitation,
random drug and alcohol screenings, life skills counseling, and home safety services. Based on
the evidence presented, the circuit court found that, while petitioner admits her substance abuse
issues and makes attempts to remedy those issues, “she remains unable to do so for the long
term.” The circuit court also found that there was no reasonable likelihood that petitioner could
substantially correct the conditions of abuse and neglect in the near future, noting her long
history of substance abuse and the child’s continued exposure to substance abuse and domestic
violence. The circuit court also found that because of the “extent of her recurring relapses, [there
was] no guarantee that the current [long-term] treatment sought will be completed or be any
more effective than treatment previously sought.” On June 22, 2017, the circuit court entered an
order terminating her parental rights to the child.3
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).
2
According to the record, petitioner was unable to complete substance abuse treatment
due to unexplained medical issues.
3
Petitioner’s parental rights to the child were terminated below. The parental rights of the
child’s biological father were also terminated below. According to the guardian, the child was
placed in a foster home and the permanency plan is adoption into that home.
2
Syl. Pt. 1, In re Cecil T., 228 W.Va. 89, 717 S.E.2d 873 (2011). Upon our review, the Court finds
no error in the circuit court’s order terminating petitioner’s parental rights.
On appeal, petitioner argues that the circuit court erred in terminating her parental rights
to the child because she “has had extensive periods of sobriety” and “is committed to
controlling” her history of substance abuse. We disagree. West Virginia Code § 49-4-604(b)(6)
directs circuit courts to terminate parental rights upon findings 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(c)(3) provides that “no reasonable likelihood that conditions of neglect or abuse can be
substantially corrected” exists when “[t]he abusing parent . . . ha[s] not responded to or followed
through with a reasonable family case plan or other rehabilitative efforts[.]”
In this case, the circuit court specifically found that petitioner was unable to maintain her
sobriety for the long term. The circuit court was presented with evidence that, despite the
extensive list of services offered to petitioner, she continued to relapse and abuse drugs and
alcohol. Given that petitioner failed to complete long-term treatment or remedy her substance
abuse issues, we find no error in the circuit court’s termination order. The circuit court properly
found that petitioner was not reasonably likely to substantially correct the conditions of abuse
and neglect in the near future, and it is clear from the record that the child’s welfare necessitated
the termination of petitioner’s parental rights.
For the foregoing reasons, we find no error in the decision of the circuit court, and its
June 22, 2017, order is hereby affirmed.
Affirmed.
ISSUED: November 22, 2017
CONCURRED IN BY:
Chief Justice Allen H. Loughry II
Justice Robin Jean Davis
Justice Margaret L. Workman
Justice Menis E. Ketchum
Justice Elizabeth D. Walker
3