In re A.F. and E.F.

FILED
November 8, 2021
STATE OF WEST VIRGINIA EDYTHE NASH GAISER, CLERK
SUPREME COURT OF APPEALS
SUPREME COURT OF APPEALS OF WEST VIRGINIA
In re A.F. and E.F.
No. 21-0236 (Monongalia County 19-JA-206 and 19-JA-207)
MEMORANDUM DECISION
Petitioner Mother B.W., by counsel Elizabeth B. Warnick, appeals the Circuit Court of
Monongalia County’s March 3, 2021, order terminating her parental rights to A.F. and E.F. 1 The
West Virginia Department of Health and Human Resources (“DHHR”), by counsel Patrick
Morrisey and Lee Niezgoda, filed a response in support of the circuit court’s order. The guardian
ad litem (“guardian”), Natalie J. Sal, filed a response on behalf of the children in support of the
circuit court’s order and a supplemental appendix. On appeal, petitioner argues that the circuit
court erred in denying her motion for a post-dispositional improvement period. 2
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 November of 2019, the DHHR filed a child abuse and neglect petition alleging that
petitioner engaged in criminal activity and abused drugs, which impaired her ability to parent then-
five-year-old twins E.F. and A.F. When interviewed by a Child Protective Services (“CPS”)
worker, petitioner stated that she was arrested and charged with possession of cocaine in October
of 2019, and further admitted to abusing marijuana and cocaine prior to her arrest. The children
disclosed being locked in the attic when petitioner had friends over to “do grown up stuff.” The
CPS worker interviewed the Drug Task Force Officer who was investigating petitioner’s criminal
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
Petitioner does not assign as error the termination of her parental rights, and, therefore,
the circuit court’s ruling terminating her parental rights will not be addressed on appeal.
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case, and he explained that petitioner was not charged with possession of a controlled substance.
Rather, petitioner was charged with the felonies of conspiracy and possession with the intent to
distribute a controlled substance after law enforcement officers discovered over fifty grams of
cocaine, scales, packaging materials, and multiple loaded firearms in petitioner’s home.
Afterwards, the worker questioned petitioner about her criminal charges, and petitioner admitted
to stealing large amounts of cocaine to sell. When the worker told petitioner that the children were
being removed from her custody and placed with the nonabusing father, petitioner responded that
she was not going to cooperate with services, did not care that the children were taken, and was
going “to use every day now.” Finally, petitioner refused to give the worker an address so the
worker could start services. The DHHR concluded that petitioner’s substance abuse negatively
impacted her ability to parent and that she failed to provide a safe and suitable living environment
for the children.
The DHHR submitted a court summary in December of 2019 stating that petitioner had
been exercising supervised visitations with the children and attending parenting and adult life skills
sessions. The circuit court held an adjudicatory hearing on December 9, 2019, during which
petitioner stipulated that her substance abuse negatively impacted her ability to parent the children.
Petitioner submitted to a drug screen after the hearing and tested positive for cocaine and
marijuana. On December 10, 2019, petitioner entered a twenty-eight-day drug rehabilitation
program and completed the program in January of 2020. Thereafter, the DHHR submitted a court
summary stating that petitioner presented her completion of drug treatment certificate to the
DHHR worker and demanded that the children be returned to her care. The DHHR worker
explained that “this is a process,” that the children were in their father’s care, and that any future
parenting arrangement would be shared parenting plans between petitioner and the father.
Petitioner became irate and claimed that another woman was raising the children, referring to the
father’s wife, and that she should have never stipulated at the adjudicatory hearing. Petitioner also
denied that the children were abused because she never abused drugs in their presence. The
summary also indicated that petitioner had moved to Ohio and had failed to submit to drug screens
five times since completing the drug rehabilitation program.
In February of 2020, the circuit court granted petitioner a post-adjudicatory improvement
period, the terms of which required petitioner to cooperate in developing the family case plan;
complete adult life skills and parenting education classes; attend supervised visits, hearings, and
multidisciplinary team (“MDT”) meetings; maintain sobriety; and submit to regular drug screens.
The court also ordered that the children undergo counseling. Also, in February of 2020, petitioner
tested positive for cocaine, alcohol, and marijuana. In March of 2020, petitioner failed to submit
to most drug screens and tested positive for marijuana on one drug screen.
The DHHR submitted a court summary in September of 2020 stating that the MDT agreed
that petitioner would move into a sober living facility in Morgantown, West Virginia, but petitioner
instead obtained housing in Cleveland, Ohio. The summary also indicated that petitioner became
noncompliant with parenting and adult life skills sessions in February of 2020; tested positive for
cocaine and marijuana in June and July of 2020; and contacted a DHHR worker at the end of July
of 2020, stating that she no longer wished to participate in any services. The summary listed
multiple instances of petitioner missing or cancelling appointments and not staying in contact with
providers. That same month, petitioner moved for an extension to her post-adjudicatory
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improvement period, citing her purchase of a home in Ohio and stable employment. Petitioner also
stated that she was seeking out “educational opportunities, counseling, and substance abuse
treatment services” in Ohio.
At the review hearing held in September of 2020, the DHHR and the guardian opposed
petitioner’s motion for an extension to her improvement period, citing her noncompliance with
drug screening since March of 2020 and that other services had been terminated due to lack of
participation. Petitioner testified that she lived in Ohio and wanted more time to “get her life
sorted.” The court denied the extension finding that petitioner had not “demonstrated any
likelihood of compliance” and stated that the “improvement period ha[d] technically been
terminated.” However, the court encouraged petitioner to make progress and present proof of that
progress at the dispositional hearing. After the hearing, petitioner tested positive for cocaine,
marijuana, and alcohol.
In December of 2020, the guardian submitted a comprehensive report recommending the
termination of petitioner’s parental rights. According to the guardian, petitioner blamed the father
and expressed anger at MDT meetings because her visitations were supervised. Also, petitioner
told the MDT members that she was attending therapy in Ohio but merely gave contact information
for several different providers without providing evidence of any confirmed treatment. The
guardian reported that in January of 2020, petitioner was charged with breaking and entering and
grand larceny, and that those charges were pending along with the charges for conspiracy and
possession with the intent to distribute a controlled substance from October of 2019. The guardian
further expressed concerns that the children had divulged instances of trauma during therapy.
According to the guardian, the children did not wish to see petitioner again and referred to their
stepmother as “mom.”
Thereafter, counsel for the father filed discovery containing a criminal complaint showing
that on January 8, 2021, petitioner was charged with destruction of property, battery, obstructing
an officer, trespass, and disorderly conduct after attacking a friend in Morgantown. The complaint
further stated that petitioner attempted to kick out the windows of the police officer’s cruiser and
the officer sprayed her with mace.
In February of 2021, petitioner filed a motion for a post-dispositional improvement period,
citing her recent enrollment in a long-term inpatient drug rehabilitation program, as a term of her
criminal bond. That same month, the circuit court held final dispositional hearings. The court first
denied petitioner’s motion for a post-dispositional improvement period, finding that while
petitioner was to be commended for obtaining inpatient drug treatment, she had only done so a
few days before the final dispositional hearing. The court recalled that it encouraged petitioner to
follow the MDT’s recommendations, which included inpatient drug treatment at the September of
2020 hearing, yet petitioner waited nearly five months before enrolling. In light of this, the court
found that petitioner had failed to prove the “necessary elements to verify that she would be
successful” in another improvement period.
Next, the guardian presented the testimony of a licensed clinical psychologist and therapist
who had been treating the children with trauma therapy since May of 2020. The therapist stated
that E.F. disclosed witnessing domestic violence, adults using drugs, physical fights, arguments,
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and guns, and that he remembered being locked in a room and worrying that he would not have
food. E.F. also disclosed a specific instance where petitioner choked and slammed him into a couch
and called him a “little bitch.” A.F. made similar disclosures and when asked about guns, he stated
that he did not want to talk about it because “it brings up all the bad stuff.” The therapist explained
that this disassociation is uncommon and only seen in children who have experienced higher levels
of trauma. Both children disclosed seeing petitioner attempt to stab someone with a pair of scissors.
The therapist diagnosed the children with post-traumatic stress disorder (“PTSD”), and opined that
they would need specialized parenting and a very stable home. When asked about the effect
exposing them to petitioner would have, she stated that both children were very scared of petitioner
and did not see petitioner as a safe and protective parent. They each individually begged not to
have any in-person visits with petitioner. The therapist also noted that when petitioner previously
exercised visits, the children experienced increased nightmares and other disruptive behaviors,
such as bedwetting. In her professional opinion, any future contact with petitioner would be
detrimental to the children and the children should remain completely in the safe and stable
environment of the father’s home. She stated that allowing petitioner the ability to come in and out
of their lives would hold a “fear of what if over their head[s]” and disturb their stability.
The CPS worker testified that the DHHR’s case plan recommended the termination of
petitioner’s parental rights, but in her personal opinion, in light of petitioner’s recent admission
into an inpatient drug program, the court should grant a post-dispositional improvement period.
On cross-examination by the guardian, the worker explained that she was newly assigned to the
case and admitted that two days prior, she had stated that the DHHR’s position was that petitioner’s
parental rights should be terminated. Later in the hearing, counsel for the DHHR proffered that it
did not oppose a short post-dispositional improvement period.
Petitioner testified that prior to the petition’s filing, she and the father exercised shared
parenting since October of 2018, where she only had physical custody of the children every other
weekend. She stated that after she completed the first twenty-eight-day inpatient drug
rehabilitation program, she failed to take advantage of support services such as narcotics
anonymous meetings and therapy, and immediately relapsed. She explained that after her first
arrest in October of 2019, she moved to Ohio. While living there, she sought out therapy and
mental health services, and completed some therapy sessions and outpatient treatment. Petitioner
stated that she came back to Morgantown on January 8, 2021, and was arrested after a night of
drinking heavily with friends. She also stated that she had failed to take her prescriptions for
anxiety, depression, and bipolar disorder at that time. After the arrest, petitioner was released on
bond on January 26, 2021, and entered into an inpatient drug rehabilitation program. She stated
that upon completion of that program, she would enter a sober living facility. Petitioner took full
responsibility for her failures during her improvement period and stated that she was in a better
position to address her addiction. On cross-examination, petitioner denied locking the children in
a room, but conceded that she could not remember if the other violent situations occurred. She
further admitted that she had not provided a single clean drug screen during the pendency of the
case and had missed most drug screens.
Finally, a service provider testified that petitioner had been largely noncompliant with
services and explained the difficulties of providing services to petitioner while she lived in Ohio.
The provider discussed housing options and other resources in the Morgantown area with
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petitioner, but petitioner remained in Ohio until January of 2021. Additionally, she stated that
petitioner consistently told her that she was sober and did not need addiction services. Further, she
explained that despite many sessions being moved to online platforms during COVID-19
lockdowns, petitioner still failed to attend most sessions.
Based on the evidence, the circuit court found that petitioner’s improvement period was
unsuccessful and, thus, a post-dispositional improvement period was not warranted. In support,
the court cited petitioner’s failure to comply with drug screening and her continued drug abuse.
The court noted that petitioner’s violent behaviors reported by the children were exhibited less
than a month prior to the hearing, resulting in petitioner’s arrest and four new criminal charges.
The court recognized that petitioner “said all of the right things” but was skeptical of her intentions.
The court addressed the children’s need for permanency and that although they were not in foster
care, the case had been pending for nearly fifteen months and petitioner’s improvement period had
lasted more than a year without substantial progress. Accordingly, the circuit court found 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 necessary for the children’s welfare.
The circuit court terminated petitioner’s parental rights by order entered on March 3, 2021. 3 It is
from the 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 argues that the circuit court erred in denying her a post-dispositional
improvement period. 4 According to petitioner, evidence of her “participation, motivation, and
aftercare plans for her substance abuse treatment and mental health treatment was abundant.”
Also, petitioner relies on the fact that the DHHR did not oppose her motion. Petitioner contends
that in denying her motion, the circuit court failed to analyze and give weight to petitioner’s change
3
The father was nonabusing, and the children have achieved permanency in his care.
4
In her brief to this Court, petitioner lists two separate, but closely related, assignments of
error. In addressing this appeal, we have combined these assignments into a single discussion.
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in circumstances and instead focused only on whether the conditions of abuse and neglect had been
adequately improved during petitioner’s post-adjudicatory improvement period. Petitioner
contends that the evidence presented at the dispositional hearing proved that she was likely to fully
participate in the terms and conditions of another improvement period. Finally, petitioner argues
that the granting of a post-dispositional improvement period would not have delayed the children’s
permanency as they were living with their father.
According to West Virginia Code § 49-4-610(3)(D), in order to obtain a post-dispositional
improvement period after having already been granted an improvement period, a parent must first
“demonstrate[] that since the initial improvement period, [she] has experienced a substantial
change in circumstances” and “that due to that change in circumstances, [she] is likely to fully
participate in the improvement period.” Therefore, the circuit court correctly considered
petitioner’s progress and compliance during her nearly one year of a post-adjudicatory
improvement period to see if petitioner would comply with another improvement period. This
Court has held that
[a]t the conclusion of the improvement period, the court shall review the
performance of the parents in attempting to attain the goals of the improvement
period and shall, in the court’s discretion, determine whether the conditions of the
improvement period have been satisfied and whether sufficient improvement has
been made in the context of all the circumstances of the case to justify the return of
the child.
Syl. Pt. 6, In Interest of Carlita B., 185 W. Va. 613, 408 S.E.2d 365 (1991). Here, the record shows
that the circuit court made this determination when it denied petitioner’s motion for an extension
to her post-adjudicatory improvement period during the September of 2020 hearing as it found that
petitioner had not substantially complied with its terms and conditions. Notably, at that hearing,
the court encouraged petitioner to follow the MDT’s recommendations, which included inpatient
drug treatment, so that she could present evidence of compliance and progress at the dispositional
hearing. Despite several continuances resulting in a de facto extension of her improvement period,
petitioner failed to obtain inpatient drug treatment for nearly five months and only did so when
faced with the termination of her parental rights. Furthermore, the record shows that the catalyst
for petitioner’s enrollment in the inpatient drug treatment was a third arrest and resultant criminal
bond. While it is true that petitioner was initially compliant with the terms and conditions of her
improvement period prior to her first relapse around January of 2020, petitioner ignores the fact
that she was largely noncompliant for the remainder of the proceedings. Ample evidence supports
this finding as she failed to regularly drug screen and when she did submit a screen, it was positive
for cocaine and marijuana. Further, although petitioner cooperated initially with parenting and
adult life skills classes, she never completed the courses despite the ability to attend remotely.
Here, we find no abuse of discretion in the circuit court’s determination that petitioner was
unsuccessful in sufficiently improving the conditions of abuse and neglect as well as being unlikely
to comply with the terms and conditions of another improvement period.
Further, the record is abundantly clear that petitioner did not experience a substantial
change in circumstances. Petitioner argues that her recent admission in inpatient drug treatment as
required by her criminal bond constituted a change in circumstances, but the circuit court did not
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believe that petitioner would remain compliant with the program and was not genuine. This is a
determination we decline to disturb on appeal. Michael D.C. v. Wanda L.C., 201 W. Va. 381, 388,
497 S.E.2d 531, 538 (1997) (“A reviewing court cannot assess witness credibility through a record.
The trier of fact is uniquely situated to make such determinations and this Court is not in a position
to, and will not, second guess such determinations.”). Furthermore, the circuit court considered
petitioner’s multiple pending criminal charges, the possibility of her incarceration, and her
resultant inability to participate in drug treatment and other services.
Finally, regarding petitioner’s argument that the children’s permanency would not be
delayed or impacted by the granting of a post-dispositional improvement period, we find that
petitioner fails to consider the best interest of the children. The children’s therapist testified in
depth about the impact petitioner’s violent behaviors and drug abuse had on them, and that the
children now suffered from PTSD as a result. The children, although young, both expressed a fear
of petitioner and wished not to have contact with her. Finally, the therapist opined that future
contact with petitioner would be detrimental and that allowing petitioner the ability to come back
into their lives was a perceived threat hanging over the children’s heads. Despite petitioner’s
argument that the children had achieved permanency with the father, the children had not achieved
stability as the children’s future relationship and contact with petitioner remained uncertain. “‘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). Below, the
circuit court clearly considered the children’s best interest when denying petitioner’s motion for a
post-dispositional improvement period, and we find not error in this regard. Upon review of the
record, it is clear that the circuit court was presented with sufficient evidence upon which to deny
petitioner a post-dispositional improvement period and proceed with the termination of her
parental rights.
For the foregoing reasons, we find no error in the decision of the circuit court, and its March
3, 2021, order is hereby affirmed.
Affirmed.
ISSUED: November 8, 2021
CONCURRED IN BY:
Chief Justice Evan H. Jenkins
Justice Elizabeth D. Walker
Justice Tim Armstead
Justice John A. Hutchison
Justice William R. Wooton
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