In re J.s.-1, J.s.-2, J.s.-3, & J.s.-4

• Decision Date: 06 September 2016
• Docket Number: No. 16-0334,16-0334
• Court: West Virginia Supreme Court
• Parties: In re: J.S.-1, J.S.-2, J.S.-3, and J.S.-4

In re: J.S.-1, J.S.-2, J.S.-3, and J.S.-4

No. 16-0334

STATE OF WEST VIRGINIA SUPREME COURT OF APPEALS

September 6, 2016

(Clay County15-JA-42, 15-JA-43, 15-JA-44, & 15-JA-45)

MEMORANDUM DECISION

PetitionerMother J.S.-5, by counselBarbara Harmon-Schamberger, appeals the Circuit Court of Clay County's February 22, 2016, order terminating her parental rights to J.S.-1, J.S.-2, J.S.-3, and J.S.-4.¹The West Virginia Department of Health and Human Resources("DHHR"), by counselLee Niezgoda, filed its response in support of the circuit court's order.The guardian ad litem ("guardian"), Michael W. Asbury Jr., filed a response on behalf of the children also in support of the circuit court's order.On appeal, petitioner alleges that the circuit court erred in terminating her parental rights upon erroneous findings about a prior abuse and neglect proceeding and that the conditions of abuse and neglect could not be substantially corrected.Further, petitioner argues that the circuit court erroneously shifted the burden of proof from the DHHR and that the guardian failed to satisfy his obligations in representing the children.

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 July of 2015, the DHHR filed an abuse and neglect petition against the parents and alleged that their drug abuse impaired their ability to properly parent the children.Specifically, the DHHR alleged that petitioner abused drugs during her pregnancy with J.S.-4.At the time of J.S.-4's birth, the child tested positive for diazepam, Oxycodone, and THC.Shortly after the child's birth, petitioner tested positive for methamphetamines, opiates, benzodiazepines, amphetamines, Oxycodone, and Suboxone, and petitioner could not provide valid prescriptions for any of these substances.Further, the DHHR alleged that the parents failed to provide thechildren with a suitable home.The parents waived their right to a preliminary hearing that same month.

During an adjudicatory hearing in August of 2015, the parents stipulated to the allegations in the petition, and the circuit court found them to be abusing parents.Following the stipulations, the DHHR provided the parents with various services, including parenting instruction, life skills training, and transportation services.The DHHR also offered the parents drug treatment and rehabilitation on several occasions.Although the parents initially complied with services, they began to miss appointments for services in September of 2015 and repeatedly tested positive for drugs or avoided or refused to submit to drug screens throughout the remainder of the proceedings.The parents also refused to enter drug treatment programs.Additionally, petitioner continually refused to submit to the psychological evaluation she requested, which resulted in rescheduling the same four times.Further, due to repeated positive drug screens, both parents missed several opportunities to visit with the children, as visitation was predicated on repeated negative screens.In regard to her noncompliance with services, petitioner repeatedly informed members of the multidisciplinary team that she believed she had "stage 3 cancer," although it was later revealed that no such diagnosis was ever made.

In November of 2015, petitioner entered a detoxification facility for six days and tested positive for illicit drugs on November 10, 2015.From this point until the final dispositional hearing, petitioner continued to abuse drugs and ultimately tested positive for illicit drugs as late as December 15, 2015, just one week prior to the final dispositional hearing.

In December of 2015, the circuit court held a dispositional hearing, during which it found there was no reasonable likelihood that petitioner could substantially correct the conditions of abuse and neglect because of her continued drug abuse and failure to accept responsibility for her actions.Ultimately, the circuit court terminated petitioner's parental rights to the children.It is from the dispositional order that petitioner appeals.

The Court has previously established the following standard of review:

"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).Upon our review, the Court finds no error in the proceedings below.

To begin, the Court finds no error in regard to petitioner's first assignment of error, wherein she alleges that the circuit court improperly applied a stricter standard at disposition than allowed by law.Petitioner bases this claim solely upon the circuit court's finding at the dispositional hearing that she failed to correct the conditions "out of which the prior abuse and neglect have arisen[.]"According to petitioner, this finding establishes that the circuit court improperly applied the following standard to disposition:

[w]here there has been a prior involuntary termination of parental rights to a sibling, the issue of whether the parent has remedied the problems which led to the prior involuntary termination sufficient to parent a subsequently-born child must, at minimum, be reviewed by a court, and such review should be initiated on a petition pursuant to the provisions governing the procedure in cases of child neglect or abuse set forth in West Virginia Code §§ 49-6-1 to -12 (1998).Although the requirement that such a petition be filed does not mandate termination in all circumstances, 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.

In re Kyiah P., 213 W.Va. 424, 427, 582 S.E.2d 871, 874(2003)(quoting Syl.Pt. 2, In the Matter of George Glen B., 205 W.Va. 435, 518 S.E.2d 863(1999)).The Court, however, does not agree.

In support of her argument, petitioner claims that she has never been involved in an abuse and neglect proceeding.She further cites solely to one line of the dispositional hearing transcript, wherein the circuit court found there was no reasonable likelihood that petitioner could correct the conditions "out of which the prior abuse and neglect have arisen . . . ."To be clear, this is the lone evidence upon which petitioner bases this assignment of error.However, a review of the record shows that the circuit court was clearly familiar with the history of the abuse and neglect proceeding, and there is no evidence to indicate that the circuit court imposed the dispositional standard above regarding disposition in abuse and neglect cases that concern a prior involuntary termination of parental rights.Moreover, the circuit court's orders in this matter, including the dispositional order, are entirely devoid of any reference to a prior involuntary termination of petitioner's parental rights to older children or any prior abuse and neglect proceeding involving petitioner.As we have held many times, "[i]t is a paramount principle of jurisprudence that a court speaks only through its orders."Legg v. Felinton, 219 W.Va. 478, 483, 637 S.E.2d 576, 581(2006).SeeState v. White, 188 W.Va. 534, 536 n. 2, 425 S.E.2d 210, 212 n. 2(1992)("[H]aving held that a court speaks through its orders, we are left to decide this case within the parameters of the circuit court's order."(citations omitted));State ex rel. Erlewine v. Thompson, 156 W.Va. 714, 718, 207 S.E.2d 105, 107(1973)("A court of record speaks only through its orders[.]"(citations omitted)).As such, we find no error in regard to petitioner's first assignment of error.

Next, the Court finds no error in the circuit court's determination that there was no reasonable likelihood petitioner could substantially correct the conditions of abuse and neglect.In support, petitioner argues that the circuit court erred in making this finding because she obtained a fit home, was "inordinately distressed by having her children removed and laboring under the misapprehension that she was in stage 3 cancer[,]" and her psychological evaluation was not completed in order to implement the recommendations into a family case plan.The Court, however, finds that these arguments are without merit.While it may be true that the circuit court found that petitioner had obtained suitable housing, the record is clear that petitioner made no progress in correcting the other conditions of abuse and neglect in the home.Specifically, the circuit court found that petitioner continued to abuse drugs throughout the proceedings and made little effort to curb her abuse, including her failure to submit to drug treatment and the fact that she was able to remain in...