In re A.H.

• Decision Date: 25 June 2020
• Docket Number: No. 19-0791,19-0791
• Court: West Virginia Supreme Court
• Parties: In re A.H.-1

In re A.H.-1

No. 19-0791

STATE OF WEST VIRGINIA SUPREME COURT OF APPEALS

June 25, 2020

(Wood County17-JA-328)

MEMORANDUM DECISION

PetitionerMother A.H.-2, by counselEric K. Powell, appeals the Circuit Court of Wood County's August 1, 2019, order terminating her parental rights to A.H.-1.¹The West Virginia Department of Health and Human Resources("DHHR"), by counselLee Niezgoda, filed a response in support of the circuit court's order.The guardian ad litem, Robin Bonovitch, filed a response on behalf of the child in support of the circuit court's order.Petitioner filed a reply.On appeal, petitioner argues that the circuit court erred in permitting a Child Protective Services ("CPS") worker to express an opinion as to petitioner's mental capacity, denying her motion to dismiss the petition, and in finding that she neglected the child.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 December of 2017, the DHHR filed an abuse and neglect petition alleging that petitioner's parental rights to an older child were terminated in April of 2011.According to thecurrent petition, in 2009 the DHHR filed a petition charging that petitioner was "not providing adequate and appropriate care to the [older] child" due to her "mental health issues which inhibited [her] ability to care for the child."The DHHR's current petition went on to explain that, following an improvement period in the earlier proceeding, the circuit court terminated petitioner's parental rights to the older child in 2011 because she"incurred emotional illness, mental illness or mental deficiency of such duration or nature as to render her incapable of exercising proper parenting skills or sufficiently improving the adequacy of such skills."In regard to A.H.-1, the DHHR alleged that "[d]ue to part of the reason for the prior termination being that [petitioner] was low functioning, there is no way to remedy the issue as evidenced by [petitioner's] participation in the last improvement period."The petition finally stated that "[t]here are no additional services to provide [petitioner] in order to provide her with the ability to appropriately parent."Petitioner thereafter waived her right to a preliminary hearing.

In February of 2018, the circuit court held an adjudicatory hearing and admitted into evidence the petition, adjudicatory order, and dispositional order from petitioner's prior abuse and neglect case.The dispositional order from the prior case included the circuit court's specific finding that petitioner's parental rights to her older child were terminated because petitioner"incurred emotional illness, mental illness or mental deficiency of such a duration or nature as to render her incapable of exercising proper parenting skills or sufficiently improving the adequacy of such skills."

The DHHR called one witness, Child Protective Services ("CPS") worker Kylie Pickens.During Ms. Pickens's testimony, the DHHR asked the following: "In your conversations with [petitioner], did she still seem to suffer from any mental impairments?"Counsel for petitioner objected on the grounds that Ms. Pickens was not qualified to answer the question without the DHHR first laying a proper foundation.At that point, the DHHR questioned Ms. Pickens as to her qualifications and training.After this line of questioning, the DHHR again asked Ms. Pickens if she believed petitioner"is . . . able to adequately or appropriately parent the child due to her mental abilities."Counsel for petitioner again objected on the basis that Ms. Pickens is not a medical professional with training in psychology and, thus, not qualified to "giv[e] that diagnosis as to a person's intellect."The circuit court, however, permitted Ms. Pickens to answer, at which point she indicated that petitioner"didn't know . . . what day [a follow-up] appointment [for the child] was" and that she would have to contact a family friend to get the specifics.Ms. Pickens further testified that petitioner"was telling me that she thought the appointment was on either Christmas Eve or Christmas Day."At the close of the DHHR's evidence, petitioner moved to dismiss the petition on the grounds that there was insufficient evidence to support adjudication and that the petition was legally deficient for failing to allege any facts that constituted current abuse or neglect to the child.The circuit court denied the motion.

The circuit court held an additional adjudicatory hearing in March of 2018, during which petitioner presented testimony from psychologist Kristen Deem, the lead career specialist for Care Advantage, a program that helps young adults with work readiness skills, life skills, and leadership skills.Ms. Deem testified that, despite her progress, petitioner had been continuously enrolled in the program since 2012.The average participant completes the program in less than two years, Ms. Deem explained.According to Ms. Deem, petitioner's inability to pass her high school diploma equivalency tests precluded her from completing the program.Ms. Deem alsotestified regarding petitioner's preparation for having A.H.-1, although this preparation mostly concerned finances and leave from work, not remedying any of the past issues with her inability to properly parent.Petitioner also called as a witness a friend who has known petitioner for thirteen years and has four children of her own.According to the friend, petitioner spent extensive time around her and her children and the friend allowed petitioner to change her children's diapers, prepare bottles for them, and feed, burp, and hold the children as infants.According to the friend, she never noticed any deficiencies in petitioner's parenting and believed that she demonstrated the ability to parent A.H.-1.

Petitioner testified on her own behalf and disputed evidence submitted in the prior abuse and neglect proceeding that established she had problems diapering her older child prior to the termination of her parental rights to that child.According to petitioner, "the foster family would say that [her older child] would come back with a messy diaper," but that "everything was fine when [her parenting teacher] was there."During her testimony, petitioner failed to identify the skills she would need to work on through services in order to regain custody of her child.Petitioner also admitted to abusing alcohol and overdosing on prescribed antianxiety medication, which resulted in her being airlifted to Columbus, Ohio, for emergency medical treatment in December of 2016.

Following the hearing, the circuit court directed the parties to submit proposed findings of fact and conclusions of law.Ultimately, it entered an adjudicatory order in November of 2018, in which it found that petitioner neglected the child.According to the circuit court,

[t]he [c]ourt in the previous case found, among other things, that [petitioner] had failed to successfully complete her improvement period due to the following reasons: . . . [she] had problems dealing with the infant when he was fussy; that [petitioner] struggled feeding the child and got frustrated when he did not like the food; that [petitioner] had money issues and that she struggled with budgeting; that [petitioner] did not obtain her GED [and] struggled with trying to obtain it; that [petitioner] struggled to assemble a bed for the infant; that [petitioner] did not take steps to protect the infant after the infant was hurt on an entertainment system; that [petitioner] struggled with diaper changes; and that [petitioner] lacked a good support system.

Further, the circuit court noted that "the [c]ourt [in the prior proceeding] explained that [petitioner] had 'been receiving visitation four days a week along with intense hands-on parenting services and adult life skills services.'"Despite petitioner's receipt of extensive services, the circuit court noted that, in the prior proceeding, termination was based on concern over "the lack of general parenting knowledge including nutrition, feeding schedules, [and] diapering that [petitioner] was never able to master."Ultimately, petitioner's parental rights to her older child were terminated because petitioner"was not able to safely parent the child," despite the DHHR's having provided "more intense teaching, education and training than the [c]ourt has seen in twenty-five years."

As it relates to A.H.-1, the circuit court found that the DHHR presented testimony that petitioner"was not able to recall her child's pediatrician or appointment date for the child"shortly after her birth.Based on a DHHR worker's conversations with petitioner, the worker "had serious concerns about [petitioner's] ability to parent" the child.The circuit court additionally found that petitioner was hospitalized an extra day after the child's birth because she and the father"got into an argument and he would not come pick her up from the hospital for discharge."The circuit court also considered petitioner's testimony concerning the prior proceeding.According to the circuit court, petitioner testified that, at the time of the prior termination, she"wasn't sure what she needed to adequately care for the [older] child" and, further, that she"didn't know why the [c]ourt terminated her rights."Regarding the issues she needed to address in relation to A.H.-1, petitioner testified that she needed to learn "what they would want me to have as far as in the home for her."Petitioner also testified that she knew how to balance a...