In re H.S., 112118 WVSC, 18-0681

• Party Name: In re H.S.
• Judge Panel: CONCURRED IN BY: Chief Justice Margaret L. Workman Justice Elizabeth D. Walker Justice Tim Armstead Justice Evan H. Jenkins Justice Paul T. Farrell sitting by temporary assignment
• Case Date: November 21, 2018
• Court: Supreme Court of Appeals of West Virginia

In re H.S.

No. 18-0681

Supreme Court of West Virginia

November 21, 2018

Putnam County 17-JA-82

MEMORANDUM DECISION

Petitioner Mother D.J., by counsel Shawn D. Bayliss, appeals the Circuit Court of Putnam County's June 22, 2018, order terminating her parental, guardianship, and custodial rights to H.S.¹ The West Virginia Department of Health and Human Resources ("DHHR"), by counsel S.L. Evans, filed a response in support of the circuit court's order. The guardian ad litem ("guardian"), Maggie J. Kuhl, 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 denying her motion for a post-dispositional improvement period; terminating her parental, guardianship, and custodial rights; and in denying her motion for post-termination visitation.

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 September of 2017, the DHHR filed a petition alleging that petitioner's substance abuse negatively affected her ability to parent the child. According to the DHHR, petitioner exposed the child to unsafe situations and environments and failed to supply the child with the necessary food, clothing, shelter, supervision, medical care, and education. The DHHR also alleged that petitioner and the father of the child were transient and their whereabouts were currently unknown. The DHHR indicated that the paternal grandmother had physical custody of the child, but neither parent had provided her with authority to seek medical treatment for the child.

The circuit court held a preliminary hearing in September of 2017. Petitioner did not appear, but was represented by counsel. The circuit court determined that petitioner was not properly served and rescheduled the preliminary hearing. Petitioner did not appear for the subsequent preliminary hearing in November of 2017, but was represented by counsel. The circuit court found that petitioner was properly served by publication. The circuit court further found probable cause that the child was subjected to abuse and neglect and ordered that his physical and legal custody remain with the DHHR.

In December of 2017, the circuit court held an adjudicatory hearing and petitioner stipulated to the allegations of abuse and neglect contained in the petition. The circuit court adjudicated petitioner as an abusing parent. Petitioner moved for a post-adjudicatory improvement period and offered to enter into inpatient substance abuse treatment in Virginia. The circuit court held petitioner's motion in abeyance, but ordered the DHHR to pay for petitioner's inpatient treatment. The circuit court held a dispositional hearing in January of 2018, and petitioner renewed her motion for a post-adjudicatory improvement period. The circuit court granted petitioner's motion and ordered that she comply with the DHHR's family case plan. The circuit court further ordered petitioner to participate in random drug screening, long-term inpatient substance abuse treatment, and outpatient substance abuse treatment until long-term inpatient treatment was available.

In April of 2018, the circuit court held a review hearing and the guardian moved to revoke petitioner's improvement period. Petitioner did not appear for the hearing, but was represented by counsel. According to the guardian, petitioner discontinued her drug treatment and failed to communicate with the multidisciplinary team ("MDT"). Ultimately, the circuit court found that petitioner failed to comply with the case plan and terminated petitioner's post-adjudicatory improvement period. The case was set for a dispositional hearing.

The circuit court held the final dispositional hearing in June of 2017 and ordered petitioner to drug screen at the outset of the hearing. Petitioner tested positive for benzodiazepine and methadone and admitted to using both substances without a valid prescription for either. Petitioner moved for a post-dispositional improvement period. In support, petitioner proffered that she experienced a substantial change in circumstances on the basis that she had stable housing, employment, would soon have a motor vehicle, and had rejoined a church. The DHHR and guardian moved to terminate petitioner's parental rights.

Ultimately, the circuit court found that petitioner failed to comply with her post-adjudicatory improvement period. Further, the circuit court found petitioner did not demonstrate a substantial change in circumstances that rendered her likely to fully participate in a second improvement period. Accordingly, the circuit court denied petitioner's motion for a post-dispositional improvement period. Additionally, the circuit court found that petitioner habitually abused controlled substances to the extent that her parenting was seriously impaired and had not followed through with the recommended and appropriate treatment to improve her capacity for adequate parental functioning. Therefore, the circuit court concluded that there was no reasonable likelihood that petitioner could substantially correct the conditions of abuse or neglect. The circuit court terminated petitioner's parental, guardianship, and custodial rights and denied her motion for post-termination visitation. The circuit court memorialized its decision in its June 22, 2018, order. Petitioner now appeals that order.^[2]

The Court has previously established the following standard of review: "Although conclusions of law reached by a circuit court are...