In re A.J.

Decision Date12 May 2022
Docket Number21-1009
PartiesIn re A.J., K.J., and C.J.
CourtSupreme Court of West Virginia

(Kanawha County 21-JA-1, 21-JA-2, and 21-JA-3)

MEMORANDUM DECISION

Petitioner Grandmother S.J., by counsel Rebecca Stollar Johnson, appeals the Circuit Court of Kanawha County's November 18, 2021 order denying her motion to reconsider the termination of her guardianship rights to A.J., K.J., and C.J.[1] The West Virginia Department of Health and Human Resources ("DHHR") by counsel Patrick Morrisey and Mindy M. Parsley, filed a response in support of the circuit court's order. The guardian ad litem, Jennifer N. Taylor, filed a response on behalf of the children also in support of the circuit court's order. On appeal, petitioner argues that the circuit court erred in finding that she had not successfully completed her post-adjudicatory improvement period and in terminating her guardianship rights.

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 January of 2021, the DHHR filed a child abuse and neglect petition against the children's parents and petitioner, the children's legal guardian, citing substance abuse, a lack of stable housing, and educational neglect. The DHHR alleged that petitioner had a history of drug abuse and that the children had been living in hotels because they lacked a permanent home. According to the petition, the children spent the night in a vehicle on at least one occasion. The DHHR further alleged that the children were truant from school on multiple occasions.

Later that month, the circuit court held a preliminary hearing during which a Child Protective Services ("CPS") worker testified as to the children's disclosures regarding substance abuse, truancy, lack of adequate food, and a transient lifestyle that the children experienced in petitioner's care. Petitioner testified on her own behalf and noted that she had custody of the children because "all four of the parents were really bad drug users." Petitioner further admitted that she lacked a permanent residence for the children and acknowledged that the children did not attend school because she had vehicle troubles and she did not understand how to access their classes remotely using technology. She objected to the removal of the children from her custody and requested services be provided to her. The court found probable cause that the children were abused or neglected because petitioner placed the children in a "transient lifestyle without adequate food or permanent shelter and caused them to be truant from school and exposed to substance abuse." However, the court did order the DHHR to provide petitioner with services, including parenting and adult life skills classes, bus passes, and random drug screens. The court also granted petitioner visitation with the children contingent on negative drug screens.

In February of 2021, the guardian ad litem filed a report indicating that petitioner tested positive for methamphetamine earlier that month, despite her participation in services. Later that month, the circuit court held an adjudicatory hearing wherein the DHHR moved the court to take judicial notice of the CPS worker's testimony at the preliminary hearing. The court granted the DHHR's motion, and no other party offered any testimony or evidence disputing the allegations in the petition. As a result, the court found clear and convincing evidence that petitioner was an abusing and neglectful guardian.

The court held an adjudicatory hearing regarding the children's parents in April of 2021. At the hearing, petitioner motioned for a post-adjudicatory improvement period, requested that the court change her service providers, and sought increased visitation with the children. The court found that petitioner was complying with her services and granted her motion for an improvement period. The court further granted the DHHR and guardian ad litem discretion to increase petitioner's visitation.

The DHHR filed a court summary in May of 2021 indicating that petitioner had been largely compliant in services and that petitioner had tested negative on all her recent random drug screens. However, the DHHR noted that petitioner had ended some of her visits with the children early and had failed to provide adequate food or sustenance for the children during the four-hour visits. The DHHR also noted that petitioner had not yet secured housing or employment. Petitioner reported to service providers that she had been staying with "a new guy" that she had only known for a matter of days. Petitioner was also relying on a service provider for transportation to and from her services, despite receiving a bus pass. Ultimately, however, the DHHR recommended that petitioner's improvement period continue.

The DHHR filed another court summary in August of 2021 indicating that petitioner had been participating in drug screens and noted that petitioner tested positive for methamphetamine and amphetamine on one screen in June of 2021 and methamphetamine on another screen in July of 2021. Further, the DHHR noted that petitioner's phone appeared to be off in June of 2021 and petitioner was not participating in adult life skills or individualized parenting classes. The DHHR explained that petitioner had been participating in some visits with the children but continued to end visits prematurely. In fact, only one visit occurred in June of 2021 due to petitioner's noncompliance in services that month, and that petitioner cancelled a visit in late July of 2021 due to alleged illness. While petitioner secured adequate housing and employment, the DHHR reported an incident in July of 2021 wherein a CPS worker went to petitioner's residence to deliver a bus pass and observed petitioner's boyfriend, his two children, and two other unidentified persons leaving the apartment, as well as another two unidentified people inside the apartment. The DHHR reported that the unidentified people inside the apartment allegedly attempted to attack petitioner's boyfriend as he was leaving, causing the worker to enter the apartment to intervene. The unidentified individuals then seemed to calm down, gathered their things, and prepared to leave. The worker noted that the persons appeared to be under the influence of drugs. When the worker asked petitioner who the people were, she responded that they were people from "around the area." The worker further noticed that the smoke alarm had been disconnected inside the apartment and informed petitioner that if visits were to resume in the apartment, those individuals could not be around the children and that all safety devices in the home must be properly connected. The DHHR concluded its report by recommending that a dispositional hearing be set, and that petitioner submit to in-home drug screening.

The DHHR filed a further summary report in October of 2021 indicating that petitioner was compliant with services but noted that she tested positive for methamphetamine in late August of 2021. Petitioner claimed that "the methamphetamine result was from her consumption of Red bull." A CPS worker noted that food and drinks will not alter drug screen results. Nevertheless, petitioner told the CPS worker that she had never abused drugs, calling the drugs "some crazy stuff." The DHHR further noted that petitioner was not present for a multidisciplinary team meeting in September of 2021. As a result, the DHHR was recommending termination of petitioner's guardianship rights due to her drug abuse and denial of the same.

Later that month, the circuit court held a final dispositional hearing wherein petitioner moved for a brief continuance "pending [the] results of a hair follicle test" she had taken the same morning that she intended to introduce as evidence. The court denied the motion based upon petitioner's "repeated positive drug screens through these proceedings, and noted her objection." A CPS worker then testified that petitioner had submitted three positive drug screens over the prior months but denied any substance abuse. As a result, the CPS worker explained that she recommended that petitioner's guardianship rights be terminated. Next, petitioner testified that she attributed her positive drug screens to Red Bull consumption and stated that she had stopped consuming the energy drink. She also testified that she had employment and had been maintaining a home and was compliant with all other remedial and reunification services. After hearing testimony, the DHHR moved to terminate petitioner's guardianship rights while petitioner objected and moved for a post-dispositional improvement period. The guardian ad litem joined in the DHHR's motion for termination and objected to petitioner's motion for an improvement period.

After hearing the evidence, the court found that petitioner's "substance abuse and continued denial of same prevents her from being an appropriate guardian for the [] children." The court found that the DHHR "cannot provide any additional services to remedy the conditions of abuse and neglect" and that there was no reasonable likelihood that petitioner could substantially correct the conditions of abuse or neglect in the foreseeable future. As a result, the court denied petitioner's motion for a post-dispositional improvement period and terminated her guardianship rights by its ...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT