In re D.P., 20-0631

CourtSupreme Court of West Virginia
Writing for the CourtWOOTON, Justice
Citation245 W.Va. 791,865 S.E.2d 812
Parties IN RE D.P. and G.P. In re A.O., D.P., and G.P.
Docket Number No. 20-0632,No. 20-0631,20-0631
Decision Date09 November 2021

245 W.Va. 791
865 S.E.2d 812

IN RE D.P. and G.P.

In re A.O., D.P., and G.P.

No. 20-0631
No. 20-0632

Supreme Court of Appeals of West Virginia.

Submitted: September 14, 2021
Filed: November 9, 2021


Ward Morgan, Esq., Law Office of Ward Morgan, Bluefield, West Virginia, Counsel for Petitioner/Respondent T.P.

John G. Byrd, Esq., Public Defender Corporation, Princeton, West Virginia, Counsel for Petitioner/Respondent K.O.

Patrick Morrisey, Esq., Attorney General, Mindy M. Parsley, Esq., Assistant Attorney General, S. L. Evans, Esq., Assistant Attorney General, Charleston, West Virginia, Counsel for Respondent West Virginia, Department of Health and Human Resources.

Andrea Powell, Esq., Law Office of Andrea Powell, Princeton, West Virginia, Guardian ad Litem for the Minor Children.

WOOTON, Justice:

865 S.E.2d 814

In May 2017, the West Virginia Department of Health and Human Resources ("DHHR") removed the minor children A.O. and D.P.1 from the home they shared with their parents. The DHHR then filed an abuse and neglect petition against Petitioner Father T.P.2 and Petitioner Mother K.O.3 ("Petitioner Father", "Petitioner Mother", collectively "Petitioners") alleging neglect due to inadequate supervision as to A.O. and D.P.; an amended petition was filed in September 2018 to include G.P., who was born during the pendency of these proceedings. Petitioners stipulated to having neglected the children, and the circuit court granted them post-adjudicatory improvement periods. These improvement periods continued well past the statutory time limits despite Petitioners’ minimal improvement. At disposition, the circuit court found that, while Petitioners had started to improve, their progress was insufficient to regain custody of their children. The circuit court then terminated Petitioners’ parental rights.

On appeal, Petitioners argue the circuit court erred in terminating their parental rights rather than imposing a less restrictive alternative, insofar as the circuit court should have permitted them to retain custody of one or two of the children. The DHHR and the guardian ad litem (sometimes "guardian") respond that Petitioners demonstrated an overall lack of improvement in their lengthy improvement periods and the circuit court correctly determined there was no reasonable likelihood the conditions of abuse or neglect could be substantially corrected in the near future, necessitating the termination of their parental rights. Because we find that the circuit court did not err in so finding, we affirm.

I. FACTUAL AND PROCEDURAL BACKGROUND

On May 15, 2017, Mercer County law enforcement was informed that an unsupervised child had been found wandering beside a congested stretch of U.S. Route 52. The child, A.O., was then three years old and suffered from severe autism. A tenant in a nearby apartment complex retrieved A.O., and, before law enforcement could arrive, Petitioner Mother picked the child up from that tenant's apartment. A police officer arrived shortly after and spoke with Petitioner Mother, who explained that she had fallen asleep and awoken to find A.O. missing. She said this was the first time A.O. had gotten out of the house and that Petitioner Father must have left the front door unlocked when he left for work that morning. The officer

865 S.E.2d 815

advised Petitioner Mother to ensure the door was locked moving forward and suggested that she rotate the orientation of the chain lock to prevent the door from opening wide enough for a child to pass through.4

Two days later, A.O., once again, was found wandering by the road unsupervised. Law enforcement retrieved the child, contacted the DHHR, and returned to Petitioners’ apartment. Upon their arrival, the officers found Petitioners asleep, entirely unaware that A.O. had again left the home. At this time, the DHHR determined that Petitioners were unable to adequately supervise the children and implemented an emergency protection plan, thereby removing A.O. and D.P. from the home and temporarily placing them with a relative. The DHHR filed an abuse and neglect petition in the Circuit Court of Mercer County two days after the removal alleging neglect due to lack of supervision.5

At the adjudicatory hearing, Petitioners stipulated to the neglect allegation. The circuit court accepted Petitioners’ stipulations and adjudged the children as neglected. Petitioners then moved for post-adjudicatory improvement periods, and the circuit court granted those motions.

The first review hearing on the improvement periods occurred on November 20, 2017. At this time, the DHHR informed the court that the parents were "actively participating" in parenting and adult life skills services, and that they were "taking in the information" they were given in those classes. The circuit court continued the improvement periods.

The next review hearing did not occur until nearly seven months later, on June 18, 2018. At this hearing, the DHHR informed the court that Petitioners were no longer complying with services, that they had housing stability issues,6 and that their attendance at supervised visits with the children was "sporadic at best." Despite this turn of events, the circuit court continued Petitioners’ improvement periods, but stated that they would now be on "dispositional improvement periods."7

Before the next review hearing could take place, Petitioner Mother gave birth to G.P. The DHHR removed G.P. and placed him in foster care.8 The DHHR then amended the abuse and neglect petition to add G.P. to these proceedings, again alleging neglect resulting from inadequate supervision. Petitioners waived their preliminary hearing and stipulated to this allegation at the joint adjudicatory/review hearing on September 28, 2018. The court accepted Petitioners’ stipulations. At the same hearing, the circuit court was informed that Petitioners still were not complying with the terms of their improvement

865 S.E.2d 816

periods granted pursuant to the original adjudication involving A.O. and D.P. Despite this, the circuit court again continued those improvement periods and granted a post-adjudicatory improvement period pursuant to the new adjudication regarding G.P.

The next review hearing took place on December 10, 2018. The circuit court was informed at this hearing that Petitioners were "fully compliant" with services. They had met with service providers, obtained suitable housing in an apartment complex, and attended regular visits with the children. In fact, they were doing so well the DHHR increased the number of visits at this time. Further, Petitioner Father had obtained new employment. Relying upon this information, the circuit court extended Petitioners’ improvement periods once again. Another review hearing in January 2019 was similarly positive.

At a review hearing in April 2019, the circuit court heard testimony from a CPS worker that Petitioners were not implementing the parenting skills they learned through the services provided. The court then determined that the parents had "started to improve" but that their improvement had not been sufficient to regain custody of the children; the court set the matter for disposition on August 19, 2019.9

Disposition did not occur in August 2019, and the next hearing was a "review of placement options" conducted on November 25, 2019. At this hearing, the court was again informed that Petitioners were making only minimal progress in their improvement periods, and the DHHR noted its concerns about Petitioner Mother's ability to care for all three children, stating that it did not "feel that the parents are capable of maintaining the consistency that they need to have the children returned to their care." Similarly, the guardian informed the court that visits with the children had been "really chaotic." After considering these statements, the circuit court scheduled disposition for January 17, 2020.

The dispositional hearing did not take place until nearly seven months later, on June 29, 2020. At that hearing, the circuit court heard testimony from the DHHR worker assigned to this case that "[t]he parents are unable to supervise and provide for all three children together." While much of that worker's concern was focused on Petitioner Mother's inability to parent successfully without intervention, she also opined that Petitioner Father was only "a little better." She stated that both parents still needed regular prompting to care for the children.

Michael Brown, a service provider, testified that he observed and supervised several of Petitioners’ visits with the children. He noted that, while Petitioners worked well together, Petitioner Mother was not able to care for the children on her own, which was of concern because she would be expected to be the primary caregiver due to Petitioner Father's employment. Moreover, Mr. Brown testified that he was never able to observe Petitioner Father parenting alone, but that he "would have serious concerns" about Petitioner Father's ability to do so. A different visitation supervisor confirmed this testimony, noting that the visits were generally chaotic. She testified that the visits lacked structure when Petitioner Father was absent, and that while the parents performed better "as a unit,"...

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