In re L.L.

In re L.L.

No. 19-0846

STATE OF WEST VIRGINIA SUPREME COURT OF APPEALS

September 23, 2020

(Raleigh County 18-JA-186-B)

MEMORANDUM DECISION

Petitioner Mother A.L., by counsel Carl W. Roop, appeals the Circuit Court of Raleigh County's September 10, 2019, order terminating her parental rights to L.L.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 and a supplemental appendix. The guardian ad litem, Winifred L. Bucy, filed a response on behalf of the child in support of the circuit court's order. On appeal, petitioner argues that the circuit court erred in denying her a post-dispositional improvement period and in terminating her parental rights.²

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 2018, the DHHR filed an abuse and neglect petition alleging that petitioner delivered the child at twenty-five weeks gestation, at which time petitioner tested positive for methamphetamine.³ Upon investigation, petitioner told a DHHR worker that she had been prescribed hydrocodone a few days prior because she had teeth extracted and also took Claritin D, an over-the-counter antihistamine. The petition further alleged that the child's cord blood tested positive for amphetamine and methamphetamine. Petitioner later submitted to another drug screen that was also positive for amphetamine and methamphetamine. Based on petitioner's substance abuse, the DHHR alleged that the child was abused and neglected. Thereafter, the circuit court ratified the DHHR's emergency custody of the child at the preliminary hearing.

At the adjudicatory hearing in October of 2018, petitioner stipulated to abusing the child and moved for a post-adjudicatory improvement period, which the circuit court granted. According to the family case plan, the terms and conditions of petitioner's improvement period required her to submit to random drug screens, visit with the child, participate in parenting and adult life skills education, complete substance abuse treatment, and complete a psychological evaluation and comply with the recommendations thereof.

In July of 2019, the guardian filed a report stating that petitioner had not completed any of the goals of her improvement period. Specifically, the guardian's report indicated that petitioner "failed to fully participate, maintained the attitude she did not need the services, and could deal with the problem without long term drug therapy." The guardian's report further explained that petitioner "fail[ed] to timely obtain a psychological evaluation" and "fail[ed] to adequately utilize the services afforded to her by the [DHHR], including visitation with herchild[]." Importantly, the guardian concluded by stating that, to the extent petitioner did meet any of the criteria of the case plan, it was "achieved to meet her own needs, not the needs of the child[]," given that her compliance was "due to a recent arrest" and her desire to mitigate any sentence associated with that arrest.

The following month, the circuit court held a dispositional hearing, during which petitioner's counsel requested a post-dispositional improvement period, although no written motion was filed. In addressing this request, the DHHR expressed the position that it did not oppose petitioner receiving an additional improvement period; however, it conceded that it would be "very difficult" for petitioner to remedy the conditions of abuse and neglect during an additional improvement period such that she was able to care for the child on her own. According to the record, petitioner admitted that her plan to care for the child was to rely on the child's grandmother, who already had custody of two of petitioner's other children who are not at issue in this appeal. The evidence below also established that the child's grandmother continued to smoke in L.L.'s presence during visits, despite the fact that the child requires oxygen as a result of his medical issues. Because of the grandmother's inability to cease smoking in the child's presence, the guardian asserted that she was not an appropriate caregiver. Based on the evidence from the guardian's report, in conjunction with the representations of counsel at the hearing, the court found that petitioner was not entitled to an additional improvement period because it was not likely that she could correct the conditions of abuse and neglect. The court additionally found that denying the improvement period was in the child's best interests. Further, in regard to the termination of petitioner's parental rights, the circuit court reiterated that the evidence showed that petitioner was unlikely to correct the conditions of abuse and neglect in the near future and that termination of her parental rights was in the child's best interests. Accordingly, the circuit court terminated petitioner's parental rights to the child.⁴ 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 recordviewed 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).

On appeal, petitioner raises several arguments in support of her assignment of error that termination of her parental rights was in error. First, petitioner argues that the circuit court erred in terminating her parental rights without first granting her a post-dispositional improvement period. According to petitioner, the court failed to properly consider her progress in making this determination and, instead, denied the motion upon speculation that she would be unsuccessful. We find, however, that petitioner is entitled to no relief on appeal.

At the outset, we emphasize that the decision to grant or deny an improvement period rests in the sound discretion of the circuit court. See In re M.M., 236 W. Va. 108, 115, 778 S.E.2d 338, 345 (2015) ("West Virginia law allows the circuit court discretion in deciding whether to grant a parent an improvement period."); Syl. Pt. 6, in part, In re Katie S., 198 W. Va. 79, 479 S.E.2d 589 (1996) ("It is within the court's discretion to grant an improvement period within the applicable statutory requirements . . . ."). Further, we have held that a parent's "entitlement to an improvement period is conditioned upon the ability of the [parent] to demonstrate 'by clear and convincing evidence that the [parent] is likely to fully participate in the improvement period.'" In re Charity H., 215 W. Va. 208, 215, 599 S.E.2d 631, 638 (2004). On appeal, petitioner argues that she satisfied this burden by establishing that she completed the MOTHER substance abuse treatment program and obtained a residence. The record shows, however, that petitioner's participation in this treatment program was tied to an arrest that occurred during the proceedings. According to the guardian's report, to the extent that petitioner met any of the case plan's criteria, it "appears to have been achieved to meet her own needs, not the needs of the children" in that her compliance was related to this arrest. Additionally, petitioner's counsel admitted at disposition that petitioner submitted to substance abuse treatment "late in this game." Further, the record shows that petitioner failed to complete any of the terms and conditions of her post-adjudicatory improvement period. Specifically, the guardian's report established that petitioner failed to attend all of her drug screens, complete parenting and adult life skills education, or complete a psychological evaluation and follow all of the recommendations thereof.⁵ The guardian further established that petitioner "failed to fullyparticipate, maintained the attitude [that] she did not need the services, and could deal with the problem without long term drug therapy, opting for the short term." Contrary to petitioner's assertion that she progressed during the proceedings, the evidence shows that she failed to comply with the terms and conditions of her first improvement period.

Pursuant to West Virginia Code § 49-4-610(3)(D), if a parent has previously been granted an improvement period, she must "demonstrate[] that since the initial improvement period, the [parent] has experienced a substantial change in circumstances" and "demonstrate that due to that change in circumstances, the [parent] is likely to fully participate in the improvement period." On appeal, petitioner does not cite to any evidence establishing a substantial change in circumstances that would demonstrate that she was likely to fully participate in a...