In re T.C., T.C. and T.C.

FILED
February 1, 2022
EDYTHE NASH GAISER, CLERK
STATE OF WEST VIRGINIA SUPREME COURT OF APPEALS
SUPREME COURT OF APPEALS OF WEST VIRGINIA
In re T.C.-1, T.C.-2, and T.C.-3
No. 21-0582 (Marion County 19-JA-192, 19-JA-193, and 19-JA-194)
MEMORANDUM DECISION
Petitioner Mother J.R., by counsel Jason T. Gain, appeals the Circuit Court of Marion
County’s June 25, 2021, order terminating her parental rights to T.C.-1, T.C.-2, and T.C.-3. 1 The
West Virginia Department of Health and Human Resources (“DHHR”), by counsel Patrick
Morrisey and Mindy M. Parsley, filed a response in support of the circuit court’s order. The
guardian ad litem, Heidi M. George Sturm, 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 affording her a meaningful improvement period. Petitioner further argues
that her counsel below provided ineffective assistance.
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 December of 2019, the DHHR filed an abuse and neglect petition alleging that it received
a series of referrals indicating that petitioner abused and neglected the children. According to the
petition, petitioner’s home lacked running water and electricity, and the children were unkempt
with soiled skin, did not regularly bathe, and were seen wearing the same clothes for multiple days
in a row. After a second referral, the DHHR alleged that the family was evicted due to nonpayment
of rent, the electricity had been off for a month, and water services had ceased for the prior two
months. The DHHR further alleged that T.C.-3 was born in the home, and it was unclear if there
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 share the same initials, they
will be referred to as T.C.-1, T.C.-2, and T.C.-3, respectively, throughout this memorandum
decision.
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was birth certificate or other documents for the child. According to the petition, petitioner refused
to go to the hospital after T.C.-3 was born, and the child was “shaking and red” for days after birth.
The DHHR alleged that the parents would sleep during the day, allowing six-year-old T.C.-1 and
four-year-old T.C.-2 to sneak out of windows in the home unattended.
The DHHR further alleged that petitioner was located in a hotel room with
methamphetamine and drug paraphernalia in reach of the children. Child Protective Services
(“CPS”) workers arrived on the scene as law enforcement was arresting petitioner and observed
the room to be extremely cluttered with clothing and garbage. A CPS worker alleged that she spoke
with petitioner, who stated they had been living in the hotel for a week after being evicted from
their prior residence. Petitioner stated she would move in with her mother but did not know when
she would be moving. According to the petition, petitioner claimed she was scared of the children’s
father and that he had previously assaulted her. However, petitioner acknowledged that the father
had been staying with her and the children periodically during their weeklong hotel stay. Petitioner
further claimed that the drugs in the room belonged to the father. During the conversation with the
CPS worker, petitioner disclosed that the children did not have a pediatrician, that T.C.-3 was born
at home, and had not seen a doctor since his birth. Petitioner further acknowledged that T.C.-1 was
not enrolled in school, and stated the child was not enrolled because she was uncertain where they
would permanently live. According to the petition, the parents were arrested and incarcerated for
child neglect creating risk of injury, and the father was arrested for possession with intent to deliver
a controlled substance on December 3, 2019. The DHHR alleged that the parents were released a
week later but neither parent contacted it to inquire about the children’s wellbeing or to request
visitation.
The circuit court held a series of adjudicatory hearings beginning in January of 2020. At
the first hearing, the matter was continued pending paternity and maternity testing with respect to
T.C.-3. The parents were ordered to participate in a drug screen following the hearing. Following
the first adjudicatory hearing, the multidisciplinary team (“MDT”) advised the parents that if they
drug screened each day for the next two weeks, supervised visitation with the children could be
arranged. The parents were also advised that if they tested positive for controlled substances, those
levels would need to decrease over time to be granted visitation with the children. Petitioner
participated in several drug screens over the two weeks, many of which were positive for
methamphetamine and amphetamine.
According to a DHHR summary report, petitioner failed to participate in any drug screens
from February 6, 2020, through February 18, 2020. The summary further indicated that petitioner
and the father last appeared for drug screening on February 6, 2020, at the Marion County Day
Report Center during which petitioner appeared to be “visibly[,] physically[,] and emotionally
distraught.” Petitioner advised the staff that she could not leave with the father, stating that he
would try to kill her.
In March of 2020, the DHHR filed an amended petition alleging similar circumstances of
abuse as previous alleged, adding that the children “appear to be in a situation where there is
imminent danger due to pervasive substance abuse by both parents.” The circuit court held an
adjudicatory hearing in June of 2020 during which the parents stipulated to abusing and neglecting
the children. They were both granted post-adjudicatory improvement periods.
2
At a status reviewing hearing in November of 2020, the DHHR reported that the parents
did not participate in any drug screenings from July 17, 2020 through the end of September of
2020. The DHHR indicated that the parents entered into treatment programs at the end of August
of 2020, and consistently participated in and tested negative on drug screens during the month of
October. However, the DHHR demonstrated that the parents failed to participate in any screens
from October 21, 2020, through the end of November of 2020. At a review hearing in February of
2021, the circuit court found that the parents had sporadically participated in individualized
parenting and adult life skills classes and were still failing to consistently participate in drug
screens.
The circuit court held dispositional hearings in April and June of 2021 during which the
DHHR demonstrated that petitioner had tested negative on six drug screens performed in April
and May of 2021. However, after missing several additional screens due to exposure to COVID-
19, a CPS worker requested that petitioner participate in a drug screen following an MDT meeting
in May of 2021. During the meeting, petitioner inquired “if it would make any difference at this
point” by continuing to comply with drug screens. According to a court summary, a CPS worker
explained to petitioner that the circuit court ordered petitioner to participate in the drug screens
and that petitioner should continue to participate. Petitioner stated that she would continue to
participate in screenings but failed to participate in the ordered screen after the meeting.
Next, the children’s therapist testified that T.C.-1 and T.C.-2 exhibited angry and
aggressive behavior toward each other and when discussing their parents. The therapist explained
that the children suffered from childhood trauma and that T.C.-1 exhibited sexualized behaviors
because she witnessed the parents having sexual intercourse.
Petitioner testified that she did not allow the children to watch adult television
programming, nor did she expose them to sexual situations. Petitioner acknowledged that the
proceedings began after she was found living in a motel where she abused drugs. Under
questioning, petitioner noted that she was “conscientious of what her children were exposed [to]
and she cannot explain why her children would make such ‘horrible’ statements about their life.”
Petitioner testified that she had no explanation for the children’s memories, but they were “untrue,”
and claimed that she had a very close relationship with the children and that the family “traveled
the country” while the father worked as a welding assistant on pipelines. Under questioning about
drug screening, petitioner claimed that she missed several drug screens in January and February
of 2021 because it was a hectic time and she had transportation issues. Petitioner further explained
that she later made paying her bills a priority, and that is why she did not participate in screens in
April of 2021. Finally, petitioner testified that she failed to participate in screens in May of 2021
because she had “lost hope” during the proceedings.
Based upon this evidence, the circuit court found that the primary reason for the removal
of the children from the parents’ care was substance abuse. The court further found that the parents
were granted improvement periods, and each were provided three referrals for individualized
parenting and adult life skills education classes. However, the court found that petitioner’s services
were closed in August of 2020 due to her noncompliance. The court found that petitioner
eventually completed adult life skills and individualized parenting education classes in January of
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2021, following a third referral. The court noted that petitioner was placed on probation as a
condition of her deferred adjudication stemming from her criminal charge in January of 2021. As
part of her probation, petitioner was required to participate in random drug screens, complete
monthly check-ins, and comply with the terms of companion confidential cases. The court found
that petitioner tested positive for methamphetamine and amphetamine in January of 2021 but did
not inform the MDT of her positive screen, leaving CPS workers to learn about it through the
probation office. The court further found that petitioner missed multiple drug screens in March of
2021 and was late to some hearings.
As a result, the court found that petitioner had not shown a significant desire to correct the
conditions of abuse and neglect, that the matter had been pending for approximately eighteen
months, and that petitioner made it clear that substance abuse is more important than the children.
Accordingly, the court found that there was no reasonable likelihood 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. As such, the circuit court terminated petitioner’s
parental rights. 2 It is from the June 25, 2021, dispositional order that petitioner appeals.
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 termination of her parental rights was inappropriate
because she was not afforded a meaningful improvement period. According to petitioner, the
DHHR’s failure to allow her to visit her children during the improvement period “manifestly
harmed the children and did nothing to ‘foster an improved relationship between parent and child,’
the very purpose of an improvement period.” In support, petitioner argues that nothing required
the circuit court to mandate compliance with drug screening or other services before granting
petitioner visitation with the children. Finally, petitioner argues that the DHHR failed to “properly
construct[] an improvement period and reunification plan” during the proceedings. We find,
2
The father’s parental rights were also terminated below. According to respondents, the
permanency plan for the children is adoption in their specialized foster home.
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however, that this assertion is simply insufficient to establish an error by the circuit court in regard
to disposition, given petitioner’s failure to fully comply with the services offered below.
Importantly, petitioner’s argument fails to address how visitation with her children would
have affected her failure to comply with multiple requirements of her improvement period, such
as her failure to submit to drug screens, maintain contact with (“MDT”) members and service
providers, or failure to remain drug free. Moreover, there is nothing in the record to indicate that,
absent her participation in these remedial services, petitioner’s visitation with the children would
have been in their best interests. Indeed, both of the older children exhibited angry and aggressive
behavior toward each other when discussing the parents. The children’s therapist testified this
stemmed from childhood trauma. “‘In 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). Given that petitioner’s conduct had a profoundly negative impact upon
the children, and the evidence established that petitioner was unsuccessful in complying with
services designed to remedy the conditions of abuse, we find no error in petitioner’s lack of
visitation with the children during the proceedings.
We similarly find no error in the termination of petitioner’s parental rights, given that West
Virginia Code § 49-4-604(c)(6) permits termination of parental rights when there is no reasonable
likelihood that the conditions of abuse can be substantially corrected in the near future and when
termination of parental rights is necessary for the children’s welfare. 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 in the near future includes when “[t]he abusing
parent . . . ha[s] 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.” Here, the evidence overwhelmingly supports
this finding, as set forth above. Further, as addressed above, the children’s welfare required
termination of petitioner’s parental rights due, in part, to the extremely negative impact her abuse
had on their wellbeing, particularly in light of her failure to correct her behavior. Moreover, 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). As such, we find that the circuit
court did not err in terminating petitioner’s parental rights.
Finally, petitioner argues that this Court should “use this case to determine the justiciability
of ineffective assistance of counsel claims in child abuse and neglect cases.” Petitioner
acknowledges that this Court has declined to find ineffective assistance of counsel in prior abuse
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and neglect proceedings but contends that this issue should be addressed in abuse and neglect
proceedings in the same manner as other cases with the same constitutional standing and due
process concerns.
Petitioner is correct that this Court has never recognized a claim of ineffective assistance
of counsel in an abuse and neglect proceeding, and we decline to do so here, especially in light of
the fact that, under the limited circumstances of this case, petitioner’s counsel provided her with
effective representation below. Petitioner first asserts that counsel below failed to object to a
“concrete” family case plan. However, there is ample evidence in the record that petitioner was
well aware of the requirements of her improvement period and was given many chances to comply
with its terms and conditions. As such, counsel’s failure to object to these case plans does not
constitute ineffective assistance of counsel. Petitioner also argues that her counsel “waited until
after [petitioner] had sent a pro se letter to the judge prior to filing a motion for visitation.”
However, the circuit court made clear from the onset of the proceedings that visitation would only
be granted once petitioner was in compliance with the terms and conditions of her improvement
period. Because petitioner was failing to maintain compliance throughout the proceedings, it was
reasonable for petitioner’s counsel to initially refrain from requesting visitation.
Further, petitioner contends that once the circuit court granted petitioner visitation, counsel
below was deficient in accepting video visitation with the children—during the COVID-19
pandemic—instead of in-person visitation. First, petitioner does not dispute that counsel below
filed a motion for visitation with the children, which was ultimately granted by the circuit court.
While petitioner contends that virtual visitation was an insufficient substitute for in-person
visitation, petitioner’s lack of participation in the proceedings and compliance with the terms and
conditions of her improvement period was the barrier to in-person visitation. Petitioner further
does not dispute that the children were living in a foster home in Kanawha County, West Virginia,
while petitioner lived in Marion and Harrison County during the proceedings. As such, the video
visitations were arranged to allow petitioner to visit with the children in a safe and controlled
setting, where both the guardian and CPS workers could supervise.
Moreover, upon a review of the record, there is no evidence that petitioner brought any of
the issues regarding counsel’s alleged ineffective assistance to the attention of the circuit court.
“‘Our general rule is that nonjurisdictional questions . . . raised for the first time on appeal, will
not be considered.’ Shaffer v. Acme Limestone Co., Inc., 206 W.Va. 333, 349 n. 20, 524 S.E.2d
688, 704 n. 20 (1999).” Noble v. W. Va. Dep’t of Motor Vehicles, 223 W. Va 818, 679 S.E.2d 650(2009). Therefore, we find petitioner is not entitled to relief in this regard.
For the foregoing reasons, we find no error in the decision of the circuit court, and its June
25, 2021, order is hereby affirmed.
Affirmed.
ISSUED: February 1, 2022
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CONCURRED IN BY:
Chief Justice John A. Hutchison
Justice Elizabeth D. Walker
Justice Tim Armstead
Justice Evan H. Jenkins
Justice William R. Wooton
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