In re J.C.

• Citation: 750 S.E.2d 634,232 W.Va. 81
• Decision Date: 17 October 2013
• Docket Number: No. 13–0109.,13–0109.
• Court: Supreme Court of West Virginia
• Parties: In re J.C.

232 W.Va. 81

750 S.E.2d 634

In re J.C.

No. 13–0109.

Supreme Court of Appeals of

West Virginia.

Submitted Sept. 24, 2013.

Decided Oct. 17, 2013.

Syllabus by the Court

1. “ ‘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 differently, and it must affirm a finding if the circuit court's account of the evidence is plausible in light of the record viewed in its entirety.’ Syl. Pt. 1, In Interest of Tiffany Marie S., 196 W.Va. 223, 470 S.E.2d 177 (1996).” Syl. Pt. 1, In re Cecil T., 228 W.Va. 89, 717 S.E.2d 873 (2011).

2. “ ‘When an abuse and neglect petition is brought based solely upon a previous involuntary termination of parental rights to a sibling pursuant to West Virginia Code § 49–6–5b(a)(3) (1998), prior to the lower court's making any disposition regarding the petition, it must allow the development of evidence surrounding the prior involuntary termination(s) and what actions, if any, the parent(s) have taken to remedy the circumstances which led to the prior termination(s).’ Syllabus Point 4, In re George Glen B., Jr., 205 W.Va. 435, 518 S.E.2d 863 (1999).” Syl. Pt. 4, In re George Glen B., Jr., 207 W.Va. 346, 532 S.E.2d 64 (2000).

3. “ ‘ “ ‘Termination of parental rights, the most drastic remedy under the statutory provision covering the disposition of neglected children, W.Va.Code, 49–6–5 [1977] may be employed without the use of intervening less restrictive alternatives when it is found that there is no reasonable likelihood under W.Va.Code, 49–6–5(b) [1977] that conditions of neglect or abuse can be substantially corrected.’ Syllabus Point 2, In re R.J.M., 164 W.Va. 496, 266 S.E.2d 114 (1980).” Syllabus point 4, In re Jonathan P., 182 W.Va. 302, 387 S.E.2d 537 (1989).' Syl. Pt. 1, In re Jeffrey R.L., 190 W.Va. 24, 435 S.E.2d 162 (1993).” Syl. Pt. 6, In re Isaiah A., 228 W.Va. 176, 718 S.E.2d 775 (2010).

4. “ ‘[C]ourts are not required to exhaust every speculative possibility of parental improvement ... where it appears that the welfare of the child will be seriously threatened....’ Syl. Pt. 1, in part, In re R.J.M., 164 W.Va. 496, 266 S.E.2d 114 (1980).” Syl. Pt. 4, in part, In re Cecil T., 228 W.Va. 89, 717 S.E.2d 873 (2011).

5. “ ‘Where there has been a prior involuntary termination of parental rights to a sibling ... the legislature has reduced the minimum threshold of evidence necessary for termination where one of the factors outlined in West Virginia Code § 49–6–5b(a) (1998) is present.’ Syllabus Point 2, In re George Glen B., Jr., 205 W.Va. 435, 518 S.E.2d 863 (1999).” Syl. Pt. 3, in part, In re George Glen B., 207 W.Va. 346, 532 S.E.2d 64 (2000).

Bernard R. Mauser, Esq., Lewisburg, WV, Sutton, WV, Attorney for Petitioner Christina C.

Patrick Morrisey, Esq., Attorney General, Charleston, WV, Lee A. Niezgoda, Esq., Assistant Attorney General, White Hall, WV, Attorneys for Respondent West Virginia Department of Health and Human Resources.

Clinton R. Bischoff, Esq., Summersville, WV, Guardian Ad Litem for J.C.

David Karickhoff, Esq., Sutton, WV, Attorney for Respondent Allen C.

PER CURIAM:

This case is before this Court upon the appeal of the petitioner, Christina C., from the Circuit Court of Braxton County's January 3, 2013, order terminating her parental rights to her child, J.C.¹ The petitioner asserts that the circuit court erred in concluding that the facts and circumstances that gave rise to the abuse and neglect proceedings could not be substantially corrected in the foreseeable future; in denying her a post-adjudicatory improvement period; and in terminating her parental rights. Based upon the record, the parties' briefs, and the arguments presented, we find no error. Accordingly, we affirm both the denial of an improvement period and the termination of the petitioner's parental and custodial rights to J.C.

I. Factual and Procedural Background

On July 20, 2012, J.C. (“the child” or “J.C.”) was born to the petitioner, Christina C. (“the mother”), and her estranged husband,² respondent Allen C. (“the father”).³ On July 23, 2012, the respondent, the West Virginia Department of Health and Human Resources (“the Department”), filed a verified Petition to Institute Child Abuse and Neglect Proceedings (“the Petition”) in the Circuit Court of Braxton County against the mother and the father. The Petition was based, in part, upon West Virginia Code § 49–6–5b(a)(3) (2009) ⁴ given the prior involuntary termination of the mother's custodial and parental rights to three other children in 2006. ⁵ The Petition also alleged that the mother took Suboxone⁶ throughout her pregnancy; that she had an extensive history with controlled substances; that the father was aware of her history; and that the mother and the father had a history of domestic violence in the home—the latest incident occurring in March 2012.

On the same day that the Department filed its Petition, the circuit court entered an Initial Order Upon Filing of Petition in which it, inter alia, transferred custody of J.C. to the Department and set the preliminary hearing for July 31, 2012, for the purpose of determining whether conditions existed that required the immediate removal of the child. The Department placed J.C. with foster parents, and he has lived with the same foster parents throughout this proceeding.

The mother waived the preliminary hearing. Thereafter, the circuit court found that due to the prior termination of the mother's parental rights to her three other children, imminent danger existed at the time of the removal of J.C., who was ordered to remain in both the legal and physical custody of the Department.⁷ The circuit court set the adjudicatory hearing for August 30, 2012.

During the August 30, 2012, adjudicatory hearing, the mother admitted the allegations in the Department's Petition. She further admitted telling the Department's Child Protective Services (“CPS”) worker, Marta Ware, that she was currently prescribed and taking Suboxone and that she took it throughout her pregnancy.⁸ The mother also admitted that she and the father have a history of domestic violence in the home and that the most recent incident occurred in March 2012, while she was pregnant with J.C. It was after this incident that the parties separated.⁹ It is undisputed that the mother's parental rights to three other children were involuntarily terminated by the Circuit Court of Webster County in 2006. The circuit court accepted these admissions, adjudicated the mother as an abusive and neglectful parent, and took her motion for a post-adjudicatory improvement period under advisement. The circuit court awarded the mother weekly, two-hour, supervised visits with J.C. The disposition hearing was scheduled for September 19, 2012.

During the disposition hearing, CPS worker Ware testified since the inception of this proceeding, the mother had been compliant with services and had participated in the supervised visitation. Ms. Ware further testified that while the mother had tested positive for Suboxone at the beginning of the case, her drug screens had been negative since approximately August 8, 2012, although she was not undergoing any substance abuse treatment. When questioned regarding the mother's economic situation, Ms. Ware testified that the mother had no income, that she did not think that she was employed, and that she did not know how the mother sustained her household or where she got money for food. Notwithstanding this testimony, and based solely on the mother's participation in services since the initiation of the instant proceedings, Ms. Ware stated that she would “not object to an improvement period[.]”

The record reflects that the circuit court then questioned CPS worker Ware concerning the prior involuntary termination of the mother's rights to three other children, as follows:

Q. Ma'am, just how much investigation and review of the Webster County case have you done?

A. Not a lot, sir. I have no copy of the disposition—

Q. Well, don't you think that might be an appropriate thing to do?

A. Yes.

Q. Because, I mean, I was the trial judge in that case.

A. Yes.

Q. And if you look to my order ... or at the finding of abuse and neglect, the parties ¹⁰ were engaged in domestic violence, excessive corporal punishment; the respondent parents were requiring their children to go out and beg for money because they didn't have money to live on. That's the same condition we have here today. They required their children to rear the other children, and as an aside to that, I suspected at the time, subsequent to this Court's finding, one of the individuals that the daughter was being required to go beg from was sexually assaulting the daughter, and has been criminally convicted of that, as well as the drug use at the time of the dispositional hearing. So how can you come in here and say that you recommend—when we have the mother in the same situation, she has no income, we don't know how she's living, and that was the same thing that happened in 2005 in Webster County. How do you do that? I mean, how do you not read that [disposition] order?

A. Just neglect o[n] my part, Your honor, I'm sorry.

(Footnote and emphasis added.).

During the disposition hearing, an effort was also made to determine exactly how the mother supported herself. The mother testified...