In re B.J.
| Decision Date | 12 May 2022 |
| Docket Number | 22-0021 |
| Parties | In re B.J., K.E., and L.G. |
| Court | West Virginia Supreme Court |
(McDowell County 21-JA-1, 21-JA-2, and 21-JA-3)
Petitioner Mother A.G., by counsel Patricia Kinder Beaver, appeals the Circuit Court of McDowell County's December 15, 2021 order terminating her parental rights to B.J, K.E., and L.G.[1] The West Virginia Department of Health and Human Resources ("DHHR"), by counsel Patrick Morrisey and Brittany Ryers-Hindbaugh, filed a response in support of the circuit court's order. The guardian ad litem ("guardian"), William O. Huffman, 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 terminating her parental rights.
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.
The DHHR filed a child abuse and neglect petition against petitioner and L.G.'s father in January of 2021. The DHHR alleged that it received a referral indicating that the parents abused and sold drugs and that their home was in deplorable condition. Following the referral, a Child Protective Services ("CPS") worker visited the home and found it to be in a deplorable and unsafe condition. The worker presented at the home and took pictures of the poor conditions and later spoke to one of the children, who reported that petitioner uses a needle, and that petitioner helps the father smoke green leaves. The worker returned to the home four days later and very little progress had been made towards achieving safe home conditions. Accordingly, the DHHR alleged that the children would be in imminent danger if allowed to remain in the custody of the parents.
The court held a contested adjudicatory hearing in April of 2021. The CPS worker testified that the DHHR received a referral that petitioner and the father abused drugs and that their home was in deplorable condition. The worker testified that the yard contained several holes at least two feet deep lumber with nails protruding out, and two saw blades next to the children's toys. Further, the home was filled with trash and debris such that there was "hardly any walkway," including trash on the children's beds and trash lying next to portable space heaters. A container with a crystalized white substance and two torch lighters was discovered by the worker on the parents' bathroom sink. During her testimony, the worker introduced photographs she had taken of the home and noted that the children were not present in the home during her initial visit because they were visiting other family members. In fact, L.G. was at a relative's home next door, K.E. was at a different relative's home just down the street, and B.J. was visiting his father.[2]
Following testimony, petitioner's counsel argued that the DHHR failed to establish that the children lived in the home and were subject to any alleged poor conditions. At the conclusion of the hearing, the court found that the evidence supported the conclusion that the children lived in the home. Specifically, the court noted that the photographs of the home established that saw blades were found next to a child's toy, a swing set was present in the yard, toys were in the home, that the children had a bedroom with bunkbeds, and that the children had a bathroom with their drawings present. As such, the court found that there was "plenty of evidence of occupancy in this house by children." The court further found that the images depicted deplorable and inadequate home conditions and that petitioner failed to provide the children with safe and secure shelter. Accordingly, the court adjudicated petitioner as an abusing parent and directed her to comply with services provided by the DHHR. In its adjudicatory order, the court noticed a multidisciplinary team ("MDT") meeting for the following month.
Petitioner failed to appear for the MDT meeting held in May of 2021. The DHHR filed the family case plan in June of 2021 and indicated that petitioner was noncompliant with drug screens and parenting services and that petitioner refused to allow CPS workers access to her home in order to assess any progress in the home. There were no objections to the family case plan. By order entered on July 2, 2021, the court scheduled the matter for disposition.
The court held a dispositional hearing in September of 2021, during which petitioner moved the court for an improvement period. The court took judicial notice of a prior criminal matter in 2020 wherein petitioner pled guilty to a drug-related offense in magistrate court. Corporal Donnie Perry of the McDowell County Sheriff's Department testified that he accompanied a CPS worker to petitioner's home approximately seven days prior to the dispositional hearing for the purpose of assessing the home's condition. Cpl. Perry testified that he spoke to petitioner's husband, who denied him access to the home, and that another adult in the home informed him that petitioner was present in the home at that time. According to Cpl. Perry, the immediate vicinity outside the home was "very unsafe" for children and was in deplorable condition, with trash and building supplies scattered throughout the yard. Cpl. Perry testified that he was familiar with the condition of the home at the initiation of the proceedings and that, in his opinion, the condition of the home had worsened.
A service provider then testified that, as of the dispositional hearing, petitioner failed to maintain contact with him or participate in any services. The provider testified that petitioner's phone number was disconnected but that he visited her home and attempted to drug screen her no less than six times during the proceedings to no avail. On several of those occasions, a vehicle was located in the driveway of the home and a television could be heard from outside the home, but no one answered the door. The provider stated that, on one attempted visit, he left a card in the door with his contact information, but that petitioner never contacted him.
A CPS worker testified that drug screening, adult life skills and parenting classes, and supervised visits were offered to petitioner but that she was entirely uncooperative with the DHHR. The worker noted that petitioner failed to undergo a single drug screen or participate in any parenting or adult life skills classes. The worker testified that she attempted to visit petitioner's home in May of 2021, but petitioner's husband asked her to leave. She also testified that she accompanied Cpl. Perry to the home seven days prior to the dispositional hearing but was denied access. The DHHR introduced pictures of the outside of petitioner's home that were taken by the CPS worker when she accompanied Cpl. Perry to the home. According to the CPS worker, the outside of the home was in the same condition as when the case was initiated and there had been no meaningful improvement.
Petitioner testified that she recently obtained new housing and moved into the home her mother had vacated, which was in good condition. Petitioner claimed that the CPS worker had contacted her on only one occasion. Petitioner denied that she had a drug problem and stated that she "used to" have a problem with pain medication but that she overcame her addiction by seeking treatment at a Suboxone clinic in Virginia; however, petitioner was unable to recall her doctor's name at the clinic. Petitioner also denied that she was home on the six instances the service provider came to her home to drug screen her and claimed she was "taking a nap" when Cpl. Perry and the CPS worker visited her home.
By order entered on December 15, 2021, the court denied petitioner's motion for an improvement period and terminated her parental rights. The court found that it was undisputed that petitioner failed to participate in any drug screens, parenting classes, or adult life skills classes notwithstanding the many attempts made by the service provider. The court found that petitioner was entirely noncompliant with services and had not cooperated with the DHHR in any meaningful way. The court noted that Cpl. Perry and the CPS worker provided credible testimony that no improvements to the outside of the home had been made and that they were denied access to the home by petitioner's husband. The court further found that petitioner's testimony that she did not have a drug problem was not credible given that she entered a guilty plea in 2020 to knowingly and intentionally possessing a controlled substance without a valid prescription. Based upon the foregoing, the court concluded that there was no reasonable likelihood that petitioner could correct the conditions of abuse and neglect in the near future and that termination was necessary for the children's welfare. Petitioner appeals the court's December 15, 2021, dispositional order.[3]
The Court has previously established the following standard of review in cases such as this:
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