In Re: B.S.

STATE OF WEST VIRGINIA
SUPREME COURT OF APPEALS
FILED
In re: B.S. May 23, 2016
RORY L. PERRY II, CLERK
SUPREME COURT OF APPEALS
No. 15-1115 (Kanawha County 11-JA-225) OF WEST VIRGINIA
MEMORANDUM DECISION
Petitioner Mother A.C., by counsel Sandra K. Bullman, appeals the Circuit Court of
Kanawha County’s July 27, 2015, order terminating her parental rights to B.S. The West
Virginia Department of Health and Human Resources (“DHHR”), by counsel S.L. Evans, filed
its response in support of the circuit court’s order. The guardian ad litem (“guardian”), Sharon K.
Childers, filed a response on behalf of the child supporting the circuit court’s order. On appeal,
petitioner argues that the circuit court erred in terminating her parental rights because she
successfully completed her improvement period and there were less restrictive alternatives
available.1
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 October of 2013, the DHHR filed an abuse and neglect petition alleging that petitioner
and the father continually exposed B.S. to domestic violence and drug use and distribution in the
home; failed to protect B.S. from domestic violence and drug activity; and failed to provide B.S.
with proper food, clothing, supervision, and housing. The DHHR also alleged that petitioner and
the father were unemployed and unable to provide for B.S. without help from others, and failed
to provide B.S. with a safe and stable home. The DHHR further alleged that petitioner failed to
protect B.S. from abuse and continued to choose her relationship with the father over B.S.’s
welfare. The circuit court entered an order filing the petition and placing temporary custody of
B.S. with the DHHR.
In November of 2013, the circuit court held a preliminary hearing. Neither petitioner nor
the father attended the hearing in person, but were represented by counsel. At the close of the
hearing, the circuit court found that B.S. was in imminent physical danger; there was no
1
We note that West Virginia Code §§ 49-1-1 through 49-11-10 were repealed and
recodified during the 2015 Regular Session of the West Virginia Legislature. The new
enactment, West Virginia Code §§ 49-1-101 through 49-7-304, has minor stylistic changes and
became effective ninety days after the February 19, 2015, approval date. In this memorandum
decision, we apply the statutes as they existed during the pendency of the proceedings below.
1
reasonably available alternative to B.S.’s removal from the home; and continuation in the home
was contrary to B.S.’s best interests. B.S. was later placed with her maternal grandmother.
In March of 2013, the circuit court held an adjudicatory hearing wherein petitioner
stipulated to the domestic violence in the home and in B.S.’s presence. The circuit court accepted
her stipulation and adjudicated petitioner an abusing parent. The circuit court granted the
guardian’s motion to have petitioner drug screened before she left the courthouse. Petitioner was
ordered to attend parenting classes, adult life skills classes, domestic violence counseling, and
submit to random drug screening. The circuit court also ordered that petitioner’s services be
provided separately because of the domestic violence between the parents. The circuit court
granted the DHHR’s motion that the child’s placement remain with the maternal grandmother.
In May of 2014, the circuit court held a hearing and granted petitioner a post-adjudicatory
improvement period and supervised visitation with B.S. The circuit court also granted the DHHR
discretion to increase supervised visitation and/or institute unsupervised visitation.
In December of 2014, the circuit court held a review hearing on petitioner’s post­
adjudicatory improvement period. The circuit court noted that petitioner continued to comply
with the terms and conditions of her improvement period. After the hearing, the DHHR
submitted a circuit court summary which indicated that petitioner was complaint with services
but that she had submitted several “diluted” drug screens and tested positive for oxycodone,
oxymorphone, and alcohol. In May of 2015, the circuit court conducted another review of
petitioner’s improvement period. Petitioner did not appear in person but was represented by
counsel. At the review, the DHHR provided the circuit court with a summary that indicated that
there was an incident in April of 2015 between petitioner and the father during an unsupervised
visit with B.S. According to the summary, the father struck petitioner, screamed at her, and killed
the family’s small dog, all in B.S.’s presence. At the close of the review, petitioner, through her
counsel, made an oral motion for supervised visitation. The DHHR and the guardian objected to
the motion and the circuit court denied the motion. Subsequent to the review hearing, the DHHR
and the guardian recommended the termination of petitioner’s improvement period, visits with
B.S., and parental rights.
In July of 2015, the circuit court held a dispositional hearing. A Child Protective Service
(“CPS”) worker testified that he responded to petitioner’s call regarding the April of 2015
domestic violence incident. The CPS worker testified that petitioner reported to him that the
father had killed the dog in front of her and B.S. He also testified that he observed petitioner with
scratches on her neck and face, and that some of the scratches were “red and probably bleeding
from before.” He testified that petitioner told him that she was “scared and needed help.”
Petitioner testified that she and the father got into a verbal argument and she did not know what
happened to the dog. She also testified that she learned from her months of services and believed
that she handled the April of 2015 incident appropriately. Petitioner testified that B.S. had
“always been safe” in the home and she requested that the circuit court dismiss the case and
return custody of B.S. to her and the father. Petitioner admitted that she resumed living with the
father and it was her desire to remain a couple. At the close of the evidence, the circuit court
found that there was no reasonable likelihood that the conditions of abuse and neglect could
substantially be corrected in the near future because petitioner failed to take the appropriate steps
2
to remedy the circumstances which led to the petition’s filing. The circuit court further found that
termination of petitioner’s parental rights was in B.S.’s best interest. By order entered on July 27,
2015, the circuit court terminated petitioner’s parental rights to B.S. It is from this order
petitioner now 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 terminating her parental rights because she successfully completed her
improvement period.
Regarding the successful completion of an improvement period, we have 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 re Carlita B., 185 W.Va. 613, 408 S.E.2d 365 (1991). According to the record on
appeal, the circuit court did not find that petitioner successfully completed her improvement
period. Despite petitioner’s argument that she participated in all services and completed domestic
violence treatment, the evidence supports the circuit court’s finding that during her improvement
period she repeatedly exposed B.S. to domestic violence, chose her relationship with the father
over B.S.’s safety and well-being, and could not implement any of the education or tools she
received through services. Based on the evidence before it, the circuit court correctly determined
that petitioner did not successfully complete her improvement period.
Additionally, the circuit court found that there was no reasonable likelihood that
petitioner could substantially correct the conditions of abuse and neglect in the near future.
3
Pursuant to West Virginia Code § 49-4-604(c)(3), there is no reasonable likelihood that the
conditions of neglect or abuse can be substantially corrected when
[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.
The record demonstrates that the domestic violence incident in April of 2015 occurred
after petitioner participated in services. Initially, petitioner left the father after the incident but
reunited with him shortly thereafter, despite having the opportunity to live at her parents’
residence with B.S. As such, the evidence supports the circuit court’s findings that the domestic
violence between petitioner and the father continued throughout the course of her improvement
period and, despite completing a domestic violence program, petitioner continued to engage in a
domestic violence relationship. The evidence also supports the circuit court’s determination that
petitioner could not implement any of the education or tools she received through services and
continued to knowingly expose B.S. to a dangerous living environment.
Moreover, the circuit court correctly terminated petitioner’s parental rights upon its
finding that that there was no reasonable likelihood that she could substantially correct the
conditions of abuse and neglect and that termination was in B.S.’s best interest. In accordance
with West Virginia Code § 49-4-604(b)(6), upon such a finding, the circuit court is directed to
terminate petitioner’s parental rights.
Petitioner also argues that the circuit court erred in terminating her parental rights
because there were less restrictive alternatives available. Petitioner contends that it makes “the
most sense” to order B.S.’s permanent placement with the grandmother without terminating
petitioner’s parental rights. We disagree. Regarding less restrictive alternatives, we have held
that
courts are not required to exhaust every speculative possibility of parental
improvement before terminating parental rights where it appears that the welfare
of the child will be seriously threatened, and this is particularly applicable to
children under the age of three years who are more susceptible to illness, need
consistent close interaction with fully committed adults, and are likely to have
their emotional and physical development retarded by numerous placements.
Syl. Pt. 1, in part, In re R.J.M., 164 W.Va. 496, 266 S.E.2d 114 (1980).
Here, the circuit court was presented with sufficient evidence to make this finding.
Simply put, petitioner continued to engage in an abusive relationship with the father, failed to
protect B.S. from domestic violence, failed to implement any of her services, failed to participate
in random drug screens, and failed to participate in all the circuit court proceedings. Thus,
considering the evidence before it, the circuit court correctly terminated petitioner’s parental
rights.
4
For the foregoing reasons, we find no error in the decision of the circuit court, and its
July 27, 2015, order is hereby affirmed.
Affirmed.
ISSUED: May 23, 2016
CONCURRED IN BY:
Chief Justice Menis E. Ketchum
Justice Robin Jean Davis
Justice Brent D. Benjamin
Justice Margaret L. Workman
Justice Allen H. Loughry II
5