In re D.P.-1, J.P.-1, J.P.-2, and D.P.-2.

STATE OF WEST VIRGINIA
SUPREME COURT OF APPEALS
FILED
In re D.P.-1, J.P.-1, J.P.-2, and D.P.-2
June 15, 2018
EDYTHE NASH GAISER, CLERK
No. 18-0170 (Wood County 16-JA-56, 57, 58, and 59) SUPREME COURT OF APPEALS
OF WEST VIRGINIA
MEMORANDUM DECISION
Petitioner Mother J.P.-3, by counsel Jeffrey O. Dye II, appeals the Circuit Court of Wood
County’s December 20, 2017, order terminating her parental rights to D.P.-1, J.P.-1, J.P.-2, and
D.P.-2.1 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 (“guardian”), Debra Steed, 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 finding that
there was no reasonable likelihood that she could correct the conditions of abuse and neglect in
the near future, terminating her parental rights when less-restrictive alternatives were available,
and 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 May of 2016, the DHHR filed a child abuse and neglect petition against petitioner and
the father. Thereafter, in August of 2016, an amended petition was filed alleging that, in May of
2016, J.P.-1 was observed to have bruising and redness to her eye and reported that she was
punched in the face by her father. The child reported that her father instructed her to say that
petitioner caused the injury with a hairbrush. The petition also indicated that the parents had a
history of domestic violence in the home. The DHHR alleged that, after having been removed
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 two of the children and petitioner
share the same initials, we will refer to them as J.P.-1, J.P.-2, and J.P.-3, respectively, throughout
this memorandum decision. Further, because two other children share the same initials, we will
refer to them as D.P.-1 and D.P.-2, respectively.
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from the home, the children were taken to the hospital where several additional injuries were
discovered by the physician. All of the children were observed to have substantial bruising and
scratches over their bodies. J.P.-2 was observed to have two black eyes and a hematoma on his
forehead. D.P.-1 was also observed to have a hematoma on his scalp. The physician reported that
many of the injuries were caused by blunt force trauma and grabbing the children with such force
that bruises, finger marks, and restraint marks were left on the skin.
The circuit court held an adjudicatory hearing in November of 2016, wherein petitioner
stipulated to the allegations contained in the petition. The circuit court accepted petitioner’s
stipulation, adjudicated her as an abusing parent, and granted her a post-adjudicatory
improvement period.
A second amended petition was filed in May of 2017. The DHHR alleged that petitioner
admitted to abusing heroin and other drugs throughout her improvement period, arrived to visits
with the children under the influence of drugs, and failed to enter a drug rehabilitation treatment
program. Shortly thereafter, the guardian filed a motion to terminate petitioner’s improvement
period. A hearing was held in June of 2017 and, after hearing evidence, the circuit court
terminated petitioner’s post-adjudicatory improvement period.
In July of 2017, the circuit court held a dispositional hearing wherein it heard the
testimony of several witnesses regarding petitioner’s noncompliance with her post-adjudicatory
improvement period. A service provider testified that since January of 2017, petitioner provided
nine positive drug screens and missed forty-three drug screens. The service provider also noted
that petitioner was scheduled for two drug-abuse evaluations but failed to attend either
appointment. Another service provider testified that, after two months of parenting and adult life
skills services, petitioner began missing classes and appeared under the influence of drugs. The
service provider also testified regarding petitioner’s supervised visitation, stating that petitioner
would “nod off” during her time with the children. The service provider testified that she
questioned petitioner regarding her behavior and that petitioner admitted to abusing drugs. The
service provider urged petitioner to enter a treatment program and offered to assist her, but
petitioner failed to follow through with the recommendation. Petitioner’s classes and supervised
visitation were suspended in May of 2017 due to her failure to participate and her continued drug
abuse.
Petitioner testified that she failed to attend her parenting and adult life skills classes, in
part, due to her drug addiction and stated that she missed her drug-abuse evaluations due to
oversleeping. When asked why she missed her drug screens, petitioner responded “[i]t’s either I
couldn’t wake up or I was too high. But, I mean, I was on meth and I just didn’t have – it just
took over. It just didn’t matter really anymore.” Petitioner also testified that, at the time of the
dispositional hearing, she was incarcerated for reckless driving, which arose from an incident
wherein petitioner was driving her friend’s car without a license and wrecked, killing another
person. Petitioner stated that she had to serve forty-five more days before she would be released
from incarceration. Ultimately, the circuit court found that petitioner was unable or unwilling to
care for the children, continued to abuse methamphetamine, failed to participate in several
aspects of her improvement period, and failed to make a reasonable effort to correct the
conditions of abuse that led to the filing of the petition. As such, the circuit court found that there
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was no reasonable likelihood that petitioner could correct the conditions of abuse in the near
future and that termination was necessary for the children’s welfare. The circuit court denied
petitioner post-termination visitation and terminated her parental rights. It is from the December
20, 2017, order that petitioner appeals.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 finding that there was no
reasonable likelihood that petitioner could correct the conditions of abuse. Specifically,
petitioner alleges that the conditions of abuse to which she stipulated were corrected by ending
her relationship with the father.3 We disagree. According to West Virginia Code § 49-4-
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The father is currently participating in an improvement period and the permanency plan
is for the children to return to his care pending his successful completion of the improvement
period. The concurrent permanency plan is adoption by the foster parents.
3
As part of her argument, petitioner notes that the second amended petition contained
allegations of substance abuse, but states that she was never adjudicated upon these allegations,
nor did she stipulate to them. As such, petitioner argues that they should not be the basis for
finding that there was no reasonable likelihood that she could correct the conditions of abuse
and/or neglect and terminating her parental rights. We have previously held that
“[w]here it appears from the record that the process established by the
Rules of Procedure for Child Abuse and Neglect Proceedings and related statutes
for the disposition of cases involving children [alleged] to be abused or neglected
has been substantially disregarded or frustrated, the resulting order . . . will be
vacated and the case remanded for compliance with that process and entry of an
(continued . . .)
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604(c)(3), a situation in which there is no reasonable likelihood the conditions of abuse and
neglect can be substantially corrected includes one in which
[t]he abusing parent or parents have 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[.]
Here, the record demonstrates that petitioner was granted a post-adjudicatory improvement
period in November of 2016. Petitioner was offered several services but failed to take advantage
of them. Testimony at the dispositional hearing established that petitioner failed to participate in
her parenting and adult life skills classes such that she was discharged from the program.
Further, supervised visitation with the children was also terminated due to petitioner’s
noncompliance. Petitioner was ordered to submit to a drug-abuse evaluation, a psychological
evaluation, and group sessions to address her issues with domestic violence, but failed to follow
through with any of these services. As such, we find that that the circuit court did not err in
finding that there was no reasonable likelihood that petitioner could correct the conditions of
abuse and neglect in the near future as she clearly did not follow through with the family case
plan.
appropriate . . . order.” Syllabus point 5, in part, In re Edward B., 210 W.Va. 621,
558 S.E.2d 620 (2001).
Syl. Pt. 3, In re Emily G., 224 W.Va. 390, 686 S.E.2d 41 (2009). While the record is unclear as
to whether petitioner was adjudicated following the second amended petition, we find that this
alleged error does not warrant reversal of the dispositional order under the limited circumstances
of this case. Specifically, petitioner testified below that her substance abuse was the root cause of
her failure to comply with the terms and conditions of her improvement period. According to
petitioner, she failed to attend parenting and adult life skills education and drug screens because
of her substance abuse. Accordingly, it is clear that, regardless of whether petitioner was
adjudicated upon her substance abuse, the effects of the same were relevant to her inability to
complete services designed to correct the conditions of abuse and neglect upon which she was
properly adjudicated. Moreover, “a mere procedural technicality does not take precedence over
the best interests of the children.” In re Tyler D., 213 W.Va. 149, 160, 578 S.E.2d 343, 354
(2003). As this Court has held on numerous occasions, “the best interests of the child is the polar
star by which decisions must be made which affect children.” Michael K.T. v. Tina L.T., 182
W.Va. 399, 405, 387 S.E.2d 866, 872 (1989). Syl. Pt. 1, State ex rel. Cash v. Lively, 155 W.Va.
801, 187 S.E.2d 601 (1972) (“‘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.’ Point 2, Syllabus, State
ex rel. Lipscomb v. Joplin, 131 W.Va. 302, [47 S.E.2d 221].”). Accordingly, we find that
petitioner is entitled to no relief in this regard.
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Petitioner also argues that the circuit court erred in terminating her parental rights when
less-restrictive alternatives were available. Specifically, petitioner argues that an alternative
disposition would have been appropriate because she “may have been able to correct the
deficiencies” in her parenting following her release from incarceration. We find petitioner’s
argument to be without merit. West Virginia Code § 49-4-604(b)(6) provides that circuit courts
are 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. As discussed above, the circuit court correctly
found that there was no reasonable likelihood that petitioner could correct the conditions of
abuse and neglect due to her complete failure to follow through with any aspect of her
improvement period. In fact, several services were terminated during petitioner’s post-
adjudicatory improvement period due to her noncompliance. Despite its impact on her inability
to comply with services, testimony at the dispositional hearing established that petitioner
continued to have a substance abuse problem and remained incarcerated at the time of the
dispositional hearing due to her conviction for driving on a suspended license, a situation which
resulted in a wreck that killed another person. Further, termination of petitioner’s parental rights
was necessary for the children’s welfare as evidence established that petitioner lacked a bond
with the children.
Moreover, petitioner’s argument that she “may” have been able to correct the conditions
of abuse and neglect is unpersuasive due to its purely speculative nature. This Court has held that
“courts are not required to exhaust every speculative possibility of parental improvement . . .
where it appears that the welfare of the child will be seriously threatened. . . .” Syl. Pt. 4, in part,
In re Kristin Y., 227 W.Va. 558, 712 S.E.2d 55 (2011)(quoting Syl. Pt. 1, in part, In re R.J.M.,
164 W.Va. 496, 266 S.E.2d 114 (1980)). While petitioner argues that the circuit court should not
have terminated her parental rights without first granting her a less-restrictive alternative
disposition, we have previously held that
“[t]ermination of parental rights, the most drastic remedy under the
statutory provision covering the disposition of neglected children, W.Va. Code [§]
49-6-5 [now 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 W. Va.Code [§] 49-6-5(b) [now West Virginia Code
§ 49-4-604(c)] . . . 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. at 558, 712 S.E.2d at 55. Based upon the evidence, we
agree with the circuit court’s decision to terminate petitioner’s parental rights upon findings that
there was no reasonable likelihood that petitioner could correct the conditions of abuse and/or
neglect and that termination was necessary for the children’s welfare. Accordingly, we find no
error.
Petitioner lastly argues that the circuit court erred in denying her post-termination
visitation with the children. According to petitioner, the circuit court erroneously found that she
failed to prove the existence of a bond with her children when testimony at the dispositional
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hearing established that “although not strong with all of the children, a bond nevertheless
existed.” We find petitioner’s argument to be unpersuasive.
“When 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). Here, petitioner failed to
establish that post-termination visitation would be in the best interests of the children. Petitioner
failed to consistently visit with the children throughout her improvement period such that
visitation was terminated. Testimony at the dispositional hearing established that petitioner paid
more attention to one child, upsetting the other children. Further, the children appeared apathetic
to their visits with the mother and were neither happy nor sad when petitioner failed to appear.
As such, we find that the circuit court did not abuse its discretion in denying petitioner post-
termination visitation as the evidence supports a finding that it would not be in the children’s
best interests.
Lastly, because the proceedings in circuit court regarding the father are still ongoing, this
Court reminds the circuit court of its duty to establish permanency for the children. Rule 39(b) of
the Rules of Procedure for Child Abuse and Neglect Proceedings requires:
At least once every three months until permanent placement is achieved as
defined in Rule 6, the court shall conduct a permanent placement review
conference, requiring the multidisciplinary treatment team to attend and report as
to progress and development in the case, for the purpose of reviewing the progress
in the permanent placement of the child.
Further, this Court reminds the circuit court of its duty pursuant to Rule 43 of the Rules
of Procedure for Child Abuse and Neglect Proceedings to find permanent placement for the
children within twelve months of the date of the disposition order. As this Court has stated,
[t]he [twelve]-month period provided in Rule 43 of the West Virginia
Rules of Procedures for Child Abuse and Neglect Proceedings for permanent
placement of an abused and neglected child following the final dispositional order
must be strictly followed except in the most extraordinary circumstances which
are fully substantiated in the record.
Cecil T., 228 W.Va. at 91, 717 S.E.2d at 875, Syl. Pt. 6. Moreover, this Court has stated that
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[i]n determining the appropriate permanent out-of-home placement of a
child under W.Va. Code § 49-6-5(a)(6) [1996] [now West Virginia Code § 49-4-
604(b)(6)], the circuit court shall give 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 can not be found.
Syl. Pt. 3, State v. Michael M., 202 W.Va. 350, 504 S.E.2d 177 (1998). Finally, “[t]he guardian
ad litem’s role in abuse and neglect proceedings does not actually cease until such time as the
child is placed in a permanent home.” Syl. Pt. 5, James M. v. Maynard, 185 W.Va. 648, 408
S.E.2d 400 (1991).
For the foregoing reasons, we find no error in the decision of the circuit court, and its
December 20, 2017, order is hereby affirmed.
Affirmed.
ISSUED: June 15, 2018
CONCURRED IN BY:
Chief Justice Margaret L. Workman
Justice Robin Jean Davis
Justice Menis E. Ketchum
Justice Elizabeth D. Walker
Justice Allen H. Loughry II, suspended and therefore not participating
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