In re B.M., No. 20-0440

• Decision Date: 10 December 2020
• Docket Number: No. 20-0440
• Court: West Virginia Supreme Court
• Parties: In re B.M.

In re B.M.

No. 20-0440

STATE OF WEST VIRGINIA SUPREME COURT OF APPEALS

December 10, 2020

(Kanawha County 19-JA-619)

MEMORANDUM DECISION

Petitioner Mother E.G., by counsel Timbera C. Wilcox, appeals the Circuit Court of Kanawha County's April 8, 2020, order terminating her parental rights to B.M.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 ("guardian"), Sharon K. Childers, filed a response on behalf of the child also in support of the circuit court's order and a supplemental appendix. Petitioner filed a reply. On appeal, petitioner argues that the circuit court erred in terminating her parental rights without first granting her an improvement period.

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 2019, the DHHR filed a child abuse and neglect case against petitioner. Specifically, the DHHR alleged that petitioner was arrested after she overdosed on drugs in her driveway and was subsequently revived by first responders. At the time of the overdose, law enforcement officers found the child asleep in the home with heroin on the nightstand next to the bed where she was sleeping. The DHHR also alleged that petitioner had an extensive history of Child Protective Services ("CPS") interventions due to her drug abuse. According to the DHHR, petitioner was provided services in 2010 when B.M. was born with drugs in her system. Petitioner sufficiently complied with those services and no child abuse and neglect petition was filed against her. However, a child abuse and neglect petition was filed against petitioner regarding B.M. in 2016 due to her substance abuse. In that case, petitioner was able to successfully complete animprovement period, and the child was returned to her care.² In sum, in the most recent petition, the DHHR alleged that petitioner's substance addiction affected her ability to adequately parent the child. Petitioner waived her preliminary hearing.

The circuit court held an adjudicatory hearing in November of 2019. Petitioner stipulated to the allegations contained in the petition. Specifically, petitioner admitted that on the day of her overdose she took "two to three hits off of a blunt" and "did a line of heroin[]." Petitioner further admitted that her judgment was impaired, and that the child was under her care, custody, and control that day. The circuit court accepted petitioner's stipulation and adjudicated her as an abusing parent. The circuit court also took judicial notice of the 2016 child abuse and neglect case, as well as the criminal charges relating to that case.

The circuit court held an initial dispositional hearing in January of 2020. The DHHR presented the testimony of Barbara Nelson, a licensed psychologist. Ms. Nelson testified that she performed a psychological evaluation of petitioner, and Ms. Nelson opined that petitioner's prognosis for attaining minimally adequate parenting was "extremely poor." Ms. Nelson testified that petitioner failed to adequately accept responsibility for her actions. While petitioner claimed to acknowledge her drug abuse, she "continued that same behavior over the course of three cases and received services." Ms. Nelson further asserted that petitioner "has never benefited" from services or her opportunities to attain sobriety. Ms. Nelson stated that she asked petitioner whether she was willing to attend a long-term rehabilitation program, and that petitioner responded that she was not willing. According to Ms. Nelson, the outpatient treatment program petitioner had been attending during the proceedings had not begun tapering petitioner's methadone dosage in compliance with federal guidelines.³ Lastly, Ms. Nelson testified that petitioner was

extremely lacking in empathy for what her [child has] gone through. She considers herself to be a good parent without any apparent insight into what the [child has] gone through. She doesn't seem to have any remorse for her actions. She doesn't seem to be motivated to change.

A CPS worker testified that the DHHR recommended termination of petitioner's parental rights due to her continued drug abuse. The CPS worker noted that petitioner had been involved in a prior case due to her drug abuse, and that she refused treatment beyond an outpatient program. The CPS worker testified that, while petitioner was attending the outpatient program, her drug screens revealed that her levels of methadone were "all over the place," insinuating that petitioner was not tapering her dosage as intended. The worker further testified that petitioner failed to acknowledge the extent to which her drug abuse affected the child and that petitioner minimized the situation that led to the petition's filing. Specifically, petitioner informed the worker that shehad not overdosed, but had passed out while doing some yard work. Following this testimony, the circuit court continued the hearing.

The circuit court reconvened the dispositional hearing in February of 2020. Petitioner presented the testimony of a worker with the outpatient treatment center where she claimed to have "been going to for years." The worker acknowledged that petitioner attended the treatment center off and on over the course of several years. She noted that, since October of 2019, petitioner had been compliant with treatment. Petitioner attended group and individual counseling at the treatment center; submitted to approximately nine drug screens, all of which were negative for substances except methadone; and began tapering her dosage of methadone. The circuit court once again continued the hearing following testimony.

The circuit court held the final dispositional hearing in March of 2020. The guardian presented the testimony of the child's behavior and emotional disorder teacher, who testified to the child's behavioral improvement following her removal from petitioner's care. The teacher testified that the child was placed in her classroom due to violent outbursts. In one instance, the child attempted to stab her teacher with scissors. She further testified that, after the child was removed from petitioner's care, her behaviors improved significantly, and she was able to be moved back to a general classroom. The teacher stated that moving a child back into a general classroom happens "[v]ery rarely." According to the teacher, moving B.M. to her aunt's care "changed her for the better." The teacher opined that the child was "functioning beautifully in a [general] third grade classroom. Her academics have soared. She hasn't had one violent outburst, she hasn't dropped one curse word, hasn't been rude, mean or had a tantrum . . . for probably about four months now."

In its April 8, 2020 dispositional order, the circuit court found that petitioner received "months and months" of services from CPS at various times over the years. Further, while petitioner "successfully" completed her improvement period in the 2016 case, she "was not able to maintain sobriety or a consistent, stable home for the minor child." Indeed, petitioner "has battled her drug addiction for over 17 years and she has been unable to maintain sobriety for a significant amount of time." The circuit court noted that, although petitioner attempted to participate in numerous rehabilitation programs, she never successfully completed one. According to the circuit court, petitioner's situation had not changed since her 2016 abuse and neglect case, the "same problems and issues are still present, and the minor child continues to suffer because of [petitioner's] behavior and lifestyle." Ultimately, the circuit court terminated petitioner's parental rights upon finding that there was no reasonable likelihood that she could correct the conditions of abuse and neglect in the near future and that termination was necessary for the child's welfare. It is from the dispositional order that petitioner appeals.⁴

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 thefacts 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 without first granting her an improvement period.⁵ According to petitioner, she passed every court-ordered drug screen and every drug screen administered by her outpatient treatment program. Petitioner also attended every hearing, participated in a parental fitness evaluation, maintained employment and housing, and...