In re J.G.

STATE OF WEST VIRGINIA
SUPREME COURT OF APPEALS
In re J.G. FILED
April 28, 2020
No. 19-0837 (Berkeley County 18-JA-165) EDYTHE NASH GAISER, CLERK
SUPREME COURT OF APPEALS
OF WEST VIRGINIA
MEMORANDUM DECISION
Petitioner Mother A.H., by counsel Dylan Batten, appeals the Circuit Court of Berkeley
County’s August 8, 2019, order terminating her parental rights to J.G. 1 The West Virginia
Department of Health and Human Resources (“DHHR”), by counsel Mindy M. Parsley, filed a
response in support of the circuit court’s order. The guardian ad litem, Tracey Weese, filed a
response on behalf of the child in support of the circuit court’s order. On appeal, petitioner argues
that the circuit court erred in denying her an extension of her post-adjudicatory improvement
period and in denying her request 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 October of 2018, the DHHR filed an abuse and neglect petition against the parents
alleging that their chronic substance abuse issues negatively impacted their ability to parent the
child, J.G. The DHHR alleged that the parents abused substances, trafficked drugs, and engaged
in domestic violence in the child’s presence. Upon further investigation, the DHHR learned that
petitioner lied about her address to Child Protective Services (“CPS”) in West Virginia and
Maryland in an attempt to evade intervention after the child was born drug-exposed in Maryland.
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 circuit court’s termination of her parental rights. As
such, we will not address the termination of her parental rights on appeal.
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Petitioner admitted to abusing substances while pregnant with the child and that she had abused
substances for approximately seventeen years. Lastly, the DHHR alleged that petitioner had an
extensive history with CPS interventions, one of which resulted in her voluntarily relinquishing
her parental rights to a child in 2005.
At an adjudicatory hearing held in December of 2018, petitioner stipulated to the
allegations of her drug abuse as contained in the petition, and the circuit court adjudicated her as
an abusing parent. Petitioner moved for a post-adjudicatory improvement period, and the circuit
court granted the motion. The terms of petitioner’s improvement period included participation in
Narcotics Anonymous (“NA”) meetings, regular drug screening, parenting and adult life skills
classes, and substance abuse counseling.
On March 5, 2019, the circuit court held a status hearing on petitioner’s improvement
period and found that she was not substantially complying with its terms and conditions. At the
next status hearing in April of 2019, the circuit court found that petitioner had made some efforts
to comply with the terms and conditions of her improvement period, but had not completed or
addressed other terms. The following month, the circuit court found that petitioner was
substantially complying with the terms and conditions of her improvement period. At a review
hearing held on June 25, 2019, petitioner moved for an extension of her post-adjudicatory
improvement period. However, petitioner tested positive for cocaine and methadone during a drug
screen prior to the hearing. The circuit court denied the motion and set the matter for disposition.
The dispositional hearing was held in August of 2019. The DHHR presented evidence that
petitioner stopped complying with her case plan after she tested positive for cocaine on June 25,
2019, and argued in favor of terminating petitioner’s parental rights. Specifically, petitioner
stopped submitting to drug testing, resulting in eighteen missed screens; stopped attending her NA
meetings; and failed to stay in regular contact with the DHHR to reinstate her visitations with the
child. Petitioner testified that she lost all motivation to follow through with the case plan after her
visitations with the child were stopped. Despite admitting that she would test positive for cocaine
and heroin if tested that day, petitioner testified that she did not need to complete long-term drug
treatment. Petitioner moved for a post-dispositional improvement period and testified in support
of her motion. The circuit court denied the motion, finding that petitioner’s failure to acknowledge
her need for long-term treatment made it unlikely that she would be able to address her drug
addiction in the near future and be successful in another improvement period. The circuit court
further found that petitioner failed to provide proof that she could financially support the child or
that she left the abusive relationship with the father who remained addicted to drugs. Ultimately,
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 petitioner’s parental
rights was necessary for the child’s welfare. The circuit court terminated petitioner’s parental
rights by order entered on August 8, 2019.3 It is from the dispositional order that petitioner appeals.
3
The father voluntarily relinquished his parental rights to the child below. According to the
DHHR, the permanency plan for the child is adoption in his relative foster placement.
2
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 asserts that the circuit court erred in denying her request for an
extension of her post-adjudicatory improvement period in light of “the marked and prolonged
progress she had made in her case.” Petitioner argues that the circuit court abused its discretion
when it denied petitioner’s request on the sole basis of petitioner’s relapse on June 25, 2019.
Petitioner also argues that the circuit court abused its discretion when it denied her request for a
post-dispositional improvement period. We disagree.
Pursuant to West Virginia Code § 49-4-610(6), “[a] court may extend any improvement
period . . . when the court finds that the respondent has substantially complied with the terms of
the improvement period.” (Emphasis added). As outlined above, the circuit court specifically found
that petitioner was noncompliant with the terms of her case plan, which clearly supports the denial
of an extension, especially in light of the fact that West Virginia Code § 49-4-610 provides circuit
courts discretion to extend or terminate an improvement period. While it is true that petitioner was
found to be substantially compliant with her case plan at the May of 2019 status hearing, she fails
to recognize that her post-adjudicatory improvement period expired as of the June of 2019 hearing,
and that the circuit court, having learned of her relapse, reasonably believed that she was unlikely
to comply with an extension of her improvement period. We have 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.” Cecil T., 228 W. Va. at 91, 717 S.E.2d at 875,
syl. pt. 4, in part. The circuit court granted petitioner a post-adjudicatory improvement period and
found that she had failed to remain drug free by the end of its term. The circuit court was not
required to wait and see if petitioner would finally address her seventeen-year-long substance
addiction. As we have previously noted
the early, most formative years of a child’s life are crucial to his or her development.
There would be no adequate remedy at law for these children were they permitted
to continue in this abyss of uncertainty. We have repeatedly emphasized that
children have a right to resolution of their life situations, to a basic level of
nurturance, protection, and security, and to a permanent placement. The legislature
3
has recognized this by limiting the extent and duration of improvement periods a
court may grant in an abuse and neglect case.
State ex rel. Amy M. v. Kaufman, 196 W. Va. 251, 257–58, 470 S.E.2d 205, 211–12 (1996).
Moreover, after June 25, 2019, petitioner ceased regularly submitting to drug screens,
staying in contact with the DHHR, attending her NA meetings, and failed to reinstate her visitation
with the child—all evidence that she was unlikely to comply with the terms and conditions of a
post-dispositional improvement period. Most importantly, despite admitting that she would test
positive for cocaine and heroin if tested on the date of the dispositional hearing, petitioner testified
that she did not need to complete long-term drug treatment. We have previously held
[i]n order to remedy the abuse and/or neglect problem, the problem must first be
acknowledged. Failure to acknowledge the existence of the problem, i.e., the truth
of the basic allegation pertaining to the alleged abuse and neglect or the perpetrator
of said abuse and neglect, results in making the problem untreatable and in making
an improvement period an exercise in futility at the child’s expense.
In re Timber M., 231 W. Va. 44, 55, 743 S.E.2d 352, 363 (2013) (citation omitted). As such,
petitioner’s failure to acknowledge her need for long-term drug treatment made it unlikely that she
would be able to address her drug addiction in the near future and be successful in another
improvement period. Based on the foregoing, we find no error in the circuit court’s denial of an
extension of petitioner’s post-adjudicatory improvement period and denial of her request for a
post-dispositional improvement period.
For the foregoing reasons, we find no error in the decision of the circuit court, and its
August 8, 2019, order is hereby affirmed.
Affirmed.
ISSUED: April 28, 2020
CONCURRED IN BY:
Chief Justice Tim Armstead
Justice Margaret L. Workman
Justice Elizabeth D. Walker
Justice Evan H. Jenkins
Justice John A. Hutchison
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