In re Jamie Nicole H.

• Decision Date: 17 June 1999
• Docket Number: No. 25800.,25800.
• Citation: 205 W.Va. 176,517 S.E.2d 41
• Parties: In the Interest of JAMIE NICOLE H. and Thomas Alvin H.
• Court: West Virginia Supreme Court

517 S.E.2d 41

205 W.Va. 176

In the Interest of JAMIE NICOLE H. and Thomas Alvin H.

No. 25800.

Supreme Court of Appeals of West Virginia.

Submitted May 4, 1999.

Decided June 17, 1999.

G. Ernest Skaggs, Esq., Skaggs & Skaggs, Fayetteville, West Virginia, Attorney for Dorothy H.

Kevin Duffy, Esq., Clay, West Virginia, Attorney for Stanley L.K.

Barbara L. Baxter, Esq., Assistant Attorney General, Charleston, West Virginia, Attorney for Department of Health & Human Resources.

William C. Garrett, Esq., Gassaway, West Virginia, Guardian ad Litem. WORKMAN, Justice:

Dorothy H.¹ appeals from the July 14, 1998, order of the Circuit Court of Braxton County terminating her rights to her minor children, Jamie H., who is currently eleven years old, and Thomas H., who is currently ten years old. Appellant asserts error with regard to the trial court's refusal to grant an extension of the ninety-day post-adjudicatory improvement period. In addition, Appellant maintains that the trial court, in refusing to extend the post-adjudicatory improvement period, wrongly relied on her failure to comply with certain improvement period objectives which had no bearing on her parental fitness. After carefully reviewing Appellant's assertions of error against the record in this matter, we conclude that the lower court did not error in terminating Appellant's parental rights or in denying an additional improvement period.

The most recent charges of neglect² were instituted on December 19, 1997, when the Department of Health and Human Resources ("DHHR") filed a petition pursuant to West Virginia Code § 49-6-1 (1998), charging Appellant with "refusal, failure and inability to supply the infant children with necessary food, clothing, shelter, supervision, medical care and education."³ On this same date, the trial court entered an order temporarily transferring custody to DHHR. On December 29, 1997, Appellant waived the preliminary hearing and moved for a sixty-day improvement period, which the trial court granted.

At the adjudicatory hearing, held on February 2, 1998, Appellant admitted to multiple instances of neglect that were alleged in the petition.⁴ The trial court concluded that Jamie and Thomas H. were neglected, but recognized that there were no allegations of physical abuse. Appellant moved for a ninety-day improvement period to run from the December 29, 1997, hearing. While the lower court denied this request, it did grant a ninety-day improvement period which commenced on February 2, 1998. During the improvement period, Appellant was to achieve the following goals:

(1) To maintain housing for the children;

(2) To undergo a psychological evaluation and obtain counseling;

(3) To work toward her GED;

(4) To obtain employment;

(5) To maintain an alcohol-free environment for the children without negative social behaviors.

During the post-adjudicatory improvement period, Appellant was incarcerated on two separate occasions. First, she was incarcerated from April 11, 1998, until April 23, 1998, for petit larceny. Within less than a full week of her release from jail, Appellant was arrested for battery and revocation of probation and then incarcerated on those charges from April 29, 1998, until May 15, 1998. At the dispositional hearing held on June 22, 1998,⁵ Appellant's parental rights were terminated.⁶ Appellant moved for a sixty-day extension of the post-adjudicatory improvement period based on a pattern of improvement and cooperation.⁷ The trial court denied this motion, determining that it was too little, too late.⁸ In her prayer for relief, Appellant seeks a remand of this matter to the circuit court.

I. Standard of Review

In syllabus point one of In re Tiffany S., 196 W.Va. 223, 470 S.E.2d 177 (1996), we set forth the standard of review for abuse and neglect cases:

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.

196 W.Va. at 225-26, 470 S.E.2d at 179-80.

II. Discussion

Appellant argues that the trial court erred in not granting her an extension of the post-adjudicatory improvement period. Related to this assignment is her contention that the trial court abused its discretion in imposing certain conditions with regard to the post-adjudicatory improvement period. Appellant argues that the trial court wrongly focused on her failure to diligently work toward the attainment of her GED and to find gainful employment. To rely on these conditions as a basis for denying her an additional improvement period was error, according to Appellant, since neither of these conditions impact on whether she is a good mother to her children.

Pursuant to West Virginia Code § 49-6-12(g) (1998), a trial court may grant up to a three-month extension of the post-adjudicatory improvement period, provided certain statutory requirements are met. Before a circuit court can grant an extension of a post-adjudicatory improvement period, the court must first find "that the respondent has substantially complied with the terms of the improvement period; that the continuation of the improvement period would not substantially impair the ability of the department [DHHR] to permanently place the child; and that such extension is otherwise consistent with the best interest of the child." W. Va.Code § 49-6-12(g). This Court recognized in In re Katie S., 198 W.Va. 79, 479 S.E.2d 589 (1996), that a circuit court's failure to extend an improvement period is not error where there is no "evidence showing a reasonable likelihood of improvement." Id. at 89, 479 S.E.2d at 599.

The record in this case demonstrates conclusively that Appellant was given more than adequate time to demonstrate whether she could provide a basic level of care for her two minor children. While Appellant claims to have been "making substantial progress toward meeting the conditions of the improvement period," the record in this case reveals otherwise. At the dispositional hearing held on June 22, 1998, Appellant admitted that she did not even begin to attempt to comply with the terms of her family case plan until late in April of 1998.⁹ She further admitted that her efforts were prompted by the approaching date of the disposition hearing.

Appellant's efforts to comply with the family service plan amounted to her attendance at four counseling sessions following her release from jail on May 15, 1998.¹⁰ In addition, Appellant attended six GED classes, with the first class beginning on June 2, 1998.¹¹ Appellant readily admits that she did not have employment or suitable housing¹² for her children by the date of the dispositional hearing. Moreover, as the trial court observed, Appellant spent a good part of her post-adjudicatory improvement period incarcerated.¹³

The circuit court reviewed Appellant's history¹⁴ and her performance during the post-adjudicatory improvement period. The court observed the following:

In this matter, Case 97-JA-5, is not the first occasion that the respondent mother had to come before the Court relative to the care that she was providing to her children.

She was in the Court system as a result of a neglect petition previously filed in this case....

As a result of that encounter, the Department offered a range of services that it's called upon to offer ... and worked with the respondent mother for a period of four years or thereabout.

....

The Court find[s]—I don't believe it's a question of ability. I think it's a question of what ... [Appellant] desires to do with her time, and it appears to the Court that she desires to put what she wants to do ahead of her responsibility to the children.

Her predicament probably wouldn't be as bad had she taken the step of securing support and maintenance for these children.

....

The Court is of the opinion that Dorothy H[.] does not suffer from an inability to understand what is required of her as a mother.

The Court concludes that Dorothy H[.] suffers from a lack of desire to accept the responsibilities for properly rearing and caring for these children.

....

The Court is of the opinion that maybe she shouldn't have—maybe I shouldn't have returned the children to her when they were returned to her the first time, because it's the same pattern.

These children are entitled to know that there is more to life than what they've been exposed to up to now...

....

In this instance, this case is merely a continuation of what these children previously encountered, and the Court is of the opinion that the time for continued improvement periods and continued counseling and continued rendering of service by the Department of Health and Human Resources should be concluded.

Appellant faults the trial court for basing its decision not to extend her post-adjudicatory improvement period on two conditions that were made a part of her family case plan. The specific goals to which she now objects are the securement of employment and working towards the attainment of a GED. Pursuant to West Virginia Code § 49-6D-3 (1998), a family case plan must be developed by the DHHR and submitted to the circuit court. The conditions about which Appellant now complains were developed by the DHHR with her consent and input....