In re B.R.

• Decision Date: 31 August 2022
• Docket Number: 22-0110
• Parties: In re B.R., M.R., C.R.-1, C.R.-2, and K.R.
• Court: Supreme Court of West Virginia

In re B.R., M.R., C.R.-1, C.R.-2, and K.R.

No. 22-0110

Supreme Court of Appeals of West Virginia

August 31, 2022

Cabell County 20-JA-63, 20-JA-64, 20-JA-65, 20-JA-66, and 21-JA-113

MEMORANDUM DECISION

Petitioner Mother A.L., by counsel Jason Goad, appeals the Circuit Court of Cabell County's January 31, 2022, order terminating her parental rights to B.R., M.R., C.R.-1, C.R.-2, and K.R.^[1] The West Virginia Department of Health and Human Resources ("DHHR"), by counsel Patrick Morrisey and Andrew Waight, filed a response in support of the circuit court's order. The guardian ad litem, Sarah E. Dixon filed a response on behalf of the children in support of the circuit court's order. On appeal, petitioner argues that the circuit court erred in terminating her parental rights to the children.

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 April of 2020, the DHHR filed a petition alleging that petitioner exposed the children to extensive domestic violence in the home and emotionally abused the children by exposing them to the father, who was extremely violent abused alcohol, and would routinely drive while intoxicated with the children in the car. The petition also alleged that petitioner abused medication without a prescription. According to the DHHR, petitioner initially attempted to leave the father, including obtaining a domestic violence protective order against him, yet she later lied to Child Protective Services ("CPS") about remaining in a relationship with him. The DHHR later filed amended petitions relating to the birth of at least one additional child.

Thereafter, petitioner failed to appear for several hearings, although she was represented by counsel. Further, petitioner was later adjudicated of neglecting the children and was granted an improvement period.

In June of 2021, the court held a hearing, during which the guardian indicated that petitioner had not been compliant with services. Specifically, petitioner refused to comply with drug screens, as ordered, including several instances in which petitioner refused to provide a sample because she did not believe she could produce urine. It was also alleged that petitioner on at least one occasion refused to attend a visit with one of the children. Further, the guardian asserted that petitioner failed to execute a release for her records so that it could be confirmed she was attending substance abuse treatment as she alleged. It was later discovered that petitioner was not undergoing substance abuse treatment and was, instead, obtaining Suboxone and Neurontin illegally. According to the guardian, the DHHR went to great lengths to assist petitioner with completing the terms and conditions of her improvement period, yet petitioner failed to do so.

Thereafter, petitioner demonstrated some compliance with her required services. However, at a hearing in November of 2021, the DHHR presented evidence that petitioner and the father were involved in two domestic violence incidents in the weeks leading up to the hearing. Petitioner identified the father as the aggressor, but admitted that she "fought back" during one incident and did not seek a domestic violence protective order as a result of either incident. The DHHR also introduced evidence that petitioner lied to a service provider about receiving a black eye during an altercation with the father, instead claiming that she received it when she was "jumped" outside a convenience store. Petitioner was also questioned about a recent drug screen that was positive for cocaine, explaining that she retrieved her boyfriend's cocaine for him and that it must have "seep[ed] through her pores." During the hearing, a CPS worker testified that she did not believe there were any additional services the DHHR could offer petitioner to assist in her reunification with the children. According to the provider, petitioner failed to remain in contact with the DHHR and tested positive for multiple substances on the occasions when she did submit to screens. Ultimately, the court terminated petitioner's improvement period.

In January of 2022, the court held a dispositional hearing, during which the DHHR introduced evidence of petitioner's noncompliance. This included her continued failure to attend visits with the children, submit to drug screens, or sign a release so that the DHHR could obtain records regarding her substance abuse treatment. Based on the evidence, the court found that petitioner failed to complete any aspect of her family case plan, failed to complete substance abuse treatment, and had not remedied any of the conditions at issue. The court also found that there was no reasonable likelihood that the conditions of neglect could be substantially corrected in the near future and that the children's welfare required termination of petitioner's parental rights. As such, the court terminated those rights.^[2] 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

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