In re J.F.

FILED

February 1, 2022

EDYTHE NASH GAISER, CLERK

STATE OF WEST VIRGINIA SUPREME COURT OF APPEALS

SUPREME COURT OF APPEALS OF WEST VIRGINIA

In re J.F.

No. 21-0576 (Wood County 19-JA-243)

MEMORANDUM DECISION

Petitioner Mother J.S., by counsel Debra L. Steed, appeals the Circuit Court of Wood

County’s June 22, 2021, order terminating her parental rights to J.F. 1 The West Virginia

Department of Health and Human Resources (“DHHR”), by counsel Patrick Morrisey and Lee

Niezgoda, filed a response in support of the circuit court’s order. The guardian ad litem, Keith

White (“guardian”), filed a response on behalf of the child in support of the circuit court’s order.

Intervenor Foster Parents B.B. and M.B., by counsel Michael D. Farnsworth, filed a response

also in support of the circuit court’s order. On appeal, petitioner argues that the circuit court

erred in terminating her parental rights when she was compliant with the terms and conditions of

her improvement period and without imposing a less-restrictive alternative disposition.

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 December of 2019, the DHHR filed an abuse and neglect petition against petitioner

alleging that she gave birth to J.F. after her parental rights to other children had been previously

involuntarily terminated in 2013 and 2015. According to the DHHR, petitioner admitted to using

marijuana during her pregnancy with J.F. and explained that the father was currently

incarcerated. According to a worker, petitioner blamed an ex-boyfriend for her prior

terminations. The DHHR concluded that petitioner had not had a change in circumstances and

filed the instant petition. Thereafter, petitioner waived her preliminary hearing.

1

Consistent with our long-standing practice in cases with sensitive facts, we use initials

where necessary to protect the identities of those involved in this case. See In re K.H., 235 W.

Va. 254, 773 S.E.2d 20 (2015); Melinda H. v. William R. II, 230 W. Va. 731, 742 S.E.2d 419

(2013); State v. Brandon B., 218 W. Va. 324, 624 S.E.2d 761 (2005); State v. Edward Charles

L., 183 W. Va. 641, 398 S.E.2d 123 (1990).

1

The circuit court held an adjudicatory hearing in February of 2020, and petitioner

stipulated to the allegations contained in the petition. The circuit court accepted petitioner’s

stipulation, adjudicated her as an abusive and neglectful parent, and granted her a post-

adjudicatory improvement period. The terms of petitioner’s improvement period required her to

attend supervised visits, submit to drug screens, participate in parenting education and adult life

skills classes, obtain suitable and stable housing and employment, attend narcotics/alcoholics

anonymous meetings, maintain sobriety from drugs and alcohol, stay in touch with the DHHR

workers and providers, and attend all hearings and multidisciplinary team meetings. 2

In September of 2020, the court held a review hearing on petitioner’s progress wherein

the parties agreed to begin reunification with petitioner and J.F. In turn, the court extended her

post-adjudicatory improvement period. However, on September 15, 2020, a few hours after

petitioner exercised her first unsupervised home visit with the child, she engaged in domestic

violence with the father. As a result, the DHHR filed an amended petition on September 25,

2020, alleging that law enforcement officers reported finding both petitioner and the father with

bloodied faces and obvious injuries. The officers noted that petitioner’s breath smelled of alcohol

and that she claimed the father hit himself. The father told police that petitioner “drinks a lot”

and had been drinking that day when the couple had an argument at dinner. The father reported

that petitioner threw his plate of food on the floor and he poured petitioner’s beer over her. The

father stated that petitioner repeatedly hit him on the head, and he bit her arm in self-defense.

After interviewing petitioner and observing the crime scene, officers determined that petitioner

was the primary aggressor and arrested her. Thereafter, the father requested that the domestic

battery charge be dismissed due to the ongoing child abuse and neglect matter. He also failed to

prosecute the domestic violence petition he filed against petitioner. The father reconciled with

petitioner, and the couple continued living together. The DHHR concluded that petitioner

engaged in domestic violence with the father and that the father failed to protect the child by

requesting the criminal charges against petitioner be dismissed.

In February of 2021, the circuit court held a combined adjudicatory and dispositional

hearing, wherein petitioner stipulated to engaging in domestic violence with the father.

Thereafter, the court accepted the stipulation, adjudicated petitioner as an abusing parent on the

new allegation and granted her a post-dispositional improvement period against the request of

the DHHR. At a review hearing held in May of 2021, the DHHR reported that petitioner was

pregnant and was overall compliant with the terms of her improvement period. The circuit court

ordered that services for petitioner continue but noted that the statutory time limits contained in

West Virginia Code § 49-4-605(a)(1) had been surpassed. 3

2

The father was released from incarceration in June of 2020 and moved in with petitioner.

3

The DHHR is required to seek termination when a child

has been in foster care for 15 of the most recent 22 months as determined by the

earlier of the date of the first judicial finding that the child is subjected to abuse or

neglect or the date which is 60 days after the child is removed from the home.

(continued . . .)

2

On May 21, 2021, providers visited petitioner’s home where they found twenty-eight

large aquariums filled with fish and many were without lids. The workers found a mother cat and

four kittens with an unchanged litter box causing the home to smell of cat urine. There were also

two dogs, two rabbits, a chameleon, and lots of flies and bugs in the home. The worker noted that

the rabbits had their own room, but there was no bedroom free of animals designated for the

children. A ceiling was also noted to be caving in, and when asked why it was not repaired,

petitioner replied that it was too expensive. When asked about the costs for all of the animals’

food, petitioner answered twelve dollars a month for fish food and did not address the other

animals. Petitioner was defensive when workers asked her to address these concerns and refused

to change anything without the court ordering it. Due to the foul odor and other issues, the

providers moved visits with the children back to their headquarters.

The circuit court held a final dispositional hearing in June of 2021. The court heard

argument that J.F. had been in the foster parents’ care for nearly seventeen months and that there

were no compelling circumstances to extend petitioner’s improvement period beyond the

statutory time limits. Petitioner argued that her pregnancy was a compelling circumstance to

extend the statutory time limits, but the court disagreed, finding that petitioner’s pregnancy was a

choice she made while knowing she had a pending child abuse and neglect action and that her

parental rights to four other children had been previously involuntarily terminated. As such, the

court found that there were no compelling circumstances to extend petitioner’s improvement

period beyond the statutory time frame. The circuit court concluded that although petitioner had

“given the appearance of being compliant with her services,” she had “failed to internalize what

those services intended to achieve.” The court noted that “the test is not whether a parent is

attending appointments and classes but whether the parent has changed his/her behavior to make

them an appropriate parent to have the children safely returned.” The court also noted that

petitioner’s home was unfit and that visitations were stopped due to the home’s poor conditions.

Finally, the circuit court found that there was no reasonable likelihood that the conditions of

abuse and neglect could be corrected in the near future and that termination of petitioner’s

parental rights was in the child’s best interest. It is from the June 22, 2021, dispositional order

that petitioner appeals. 4

The Court has previously established the following standard of review in cases such as

this:

“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,

W. Va. Code § 49-4-605(a)(1).

4

The father’s parental rights were terminated below. The permanency plan for the child is

adoption by his foster family.

3

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).

On appeal, petitioner argues that the circuit court erred in terminating her parental rights

when she was substantially compliant with the terms and conditions of her improvement period

and had been granted the opportunity to continue in her improvement period following the

domestic violence incident with the father. Petitioner contends that the court erred in finding that

she failed to change negative behaviors as she exhibited nine months of positive changes.

According to petitioner, she consistently exercised appropriate visits with J.F., passed all drug

screens, was participating in counseling with a focus on relationships, and attending adult life

skills classes. Had she been able to continue in her improvement period with these services, she

argues, she could have succeeded in reunifying with the child

Petitioner correctly cites that no “rule is more firmly established than that the right of a

natural parent to the custody of . . . her infant child is paramount to that of any other person; it is

a fundamental personal liberty protected and guaranteed by the Due Process Clauses of the West

Virginia and United States Constitutions.” Syl. Pt. 1, In re Willis, 157 W. Va. 225, 207 S.E.2d

129 (1973). However, “[a]lthough parents have substantial rights that must be protected, the

primary goal in cases involving abuse and neglect, as in all family law matters, must be the

health and welfare of the children.” Syl. Pt. 3, In re Katie S., 198 W. Va. 79, 82, 479 S.E.2d 589,

592 (1996). Most importantly, petitioner’s argument wholly disregards that she exhausted the

statutory timeframes for child abuse and neglect matters.

Notwithstanding any other provision of this section, no combination of any

improvement periods or extensions thereto may cause a child to be in foster care

more than fifteen months of the most recent twenty-two months, unless the court

finds compelling circumstances by clear and convincing evidence that it is in the

child’s best interests to extend the time limits contained in this paragraph.

W. Va. Code § 49-4-610(9). According to the record, the court below granted petitioner a post-

adjudicatory improvement period, an extension to that improvement period, and a post-

dispositional improvement period. By the dispositional hearing, J.F. had been in the care of the

intervening foster parents for nearly seventeen months. Therefore, the child’s placement in foster

care exceeded fifteen months and his permanency was delayed beyond the statutory limits.

Further, the court specifically found that no compelling circumstances existed to justify the

extension of petitioner’s improvement period beyond fifteen months and petitioner does not

argue on appeal that such circumstances existed.

4

Regarding improvement periods, this Court has noted that “[i]mprovement periods are . .

. regulated, both in their allowance and in their duration, by the West Virginia Legislature, which

has assumed the responsibility of implementing guidelines for child abuse and neglect

proceedings generally.” In re Emily, 208 W. Va. 325, 334, 540 S.E.2d 542, 551 (2000). We have

noted that the requirements set forth in West Virginia Code § 49-4-610

are not mere guidelines. . . . The time limitations and standards contained therein

are mandatory and may not be casually disregarded or enlarged without detailed

findings demonstrating exercise of clear-cut statutory authority. Discretion

granted to the circuit court within this framework is intended to allow the court to

fashion appropriate measures and remedies to highly complex familial and inter-

personal issues—it does not serve as a blanket of immunity for the circuit court to

manage abuse and neglect cases as its whim, personal desire, or docket may

fancy.

In re J.G., 240 W. Va. 194, 204, 809 S.E.2d 453, 463 (2018). “Critically, ‘[a] parent’s rights are

necessarily limited . . . [as to improvement periods] because the pre-eminent concern in abuse

and neglect proceedings is the best interest of the child subject thereto.’” Id. (citation omitted).

Finally,

the statutory limits on improvement periods (as well as our case law limiting the

right to improvement periods) dictate that there comes a time for decision,

because a child deserves resolution and permanency in his or her life, and because

part of that permanency must include at minimum a right to rely on his or her

caretakers to be there to provide the basic nurturance of life.

State ex rel. Amy M. v. Kaufman, 196 W. Va. 251, 260, 470 S.E.2d 205, 214 (1996). While

petitioner argues that she should have been given more time, our case law makes it abundantly

clear that a parent’s opportunity to continue to participate in an improvement period is not

upheld to the detriment of the children. Accordingly, we find no error in this regard.

We likewise find no error in the termination of petitioner’s parental rights without

imposing a less-restrictive dispositional alternative. We have previously held as follows:

[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 §§ [49-4-601 through 49-4-610].

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 § [49-4-605(a)] is present.

5

In re Kyiah P., 213 W. Va. 424, 427, 582 S.E.2d 871, 874 (2003) (citation omitted). As

petitioner’s parental rights to four older children had been previously terminated in 2013 and

2015, the evidentiary threshold necessary for termination was reduced, and the evidence

presented at the final dispositional hearing supported termination. On appeal, petitioner simply

asserts that the circuit court should have implemented a less-restrictive dispositional alternative.

However, the evidence below supports a finding that there was no reasonable likelihood that

petitioner could correct the conditions of abuse and neglect in the near future as petitioner failed

to address her issues of domestic violence after nearly eighteen months of services and failed to

show that she could make lasting changes. Furthermore, the circuit court found that petitioner’s

home was unfit for the return of the child.

We also find that termination of petitioner’s parental rights was necessary for the child’s

welfare as J.F. had lived with the intervening foster parents for the entirety of his short life and

deserved permanency and stability. According to West Virginia Code § 49-4-604(c)(6), a circuit

court may terminate parental rights based upon these findings. Further, this court has held the

following:

“[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, and this is particularly applicable to children under the age

of three years who are more susceptible to illness, need consistent close

interaction with fully committed adults, and are likely to have their emotional and

physical development retarded by numerous placements.” Syl. Pt. 1, in part, In re

R.J.M., 164 W.Va. 496, 266 S.E.2d 114 (1980).

Cecil T., 228 W. Va. at 91, 717 S.E.2d at 875, Syl. Pt. 4. Petitioner argues that the circuit court

failed to consider a less-restrictive alternative disposition to the termination of her parental

rights, but this Court has held,

“[t]ermination of parental rights, the most drastic remedy under the

statutory provision covering the disposition of neglected children, [West Virginia

Code § 49-4-604] . . . may be employed without the use of intervening less

restrictive alternatives when it is found that there is no reasonable likelihood

under [West Virginia Code § 49-4-604(d)] . . . 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).

Syl. Pt. 5, In re Kristin Y., 227 W. Va. 558, 712 S.E.2d 55 (2011). As the record supports the

finding that there was no reasonable likelihood that the conditions of abuse and neglect could be

corrected in the near future, we find that a less-restrictive dispositional alternative was not

warranted. Accordingly, we find no error in the circuit court terminating petitioner’s parental

rights to the child.

For the foregoing reasons, we find no error in the decision of the circuit court, and its

June 22, 2021, order is hereby affirmed.

6

Affirmed.

ISSUED: February 1, 2022

CONCURRED IN BY:

Chief Justice John A. Hutchison

Justice Elizabeth D. Walker

Justice Tim Armstead

Justice Evan H. Jenkins

Justice William R. Wooton

7