                                STATE OF WEST VIRGINIA

                              SUPREME COURT OF APPEALS


                                                                                   FILED
In Re: M.A.                                                                        June 28, 2013
                                                                              RORY L. PERRY II, CLERK
                                                                            SUPREME COURT OF APPEALS
No. 13-0228 (Taylor County 12-JA-11)                                            OF WEST VIRGINIA




                                 MEMORANDUM DECISION

        Petitioner Mother’s appeal, by counsel Karen Hill Johnson, arises from the Circuit Court
of Taylor County, wherein the circuit court terminated her parental rights to M.A. by order
entered February 7, 2013.1 Petitioner also appeals the June 22, 2012 order ratifying the West
Virginia Department of Health and Human Resources’ (“DHHR”) application for emergency
custody. The DHHR, by counsel Lee A. Niezgoda, has filed its response in support of the circuit
court’s order. The guardian ad litem, Mary S. Nelson, has filed a response on behalf of the child
supporting the circuit court’s order.

       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 is appropriate under Rule 21 of the Rules of Appellate
Procedure.

        On June 22, 2012, the DHHR filed a petition seeking emergency custody of M.A., who
was born to petitioner and her husband the prior day. The DHHR received a referral from medical
personnel at the hospital who were concerned that the parents were not capable of caring for an
infant due to mental illness and/or intellectual limitations. Additionally, it was alleged that
Respondent Father threatened a Child Protective Services (“CPS”) investigator, making it clear
that service providers and CPS employees were not allowed in their home. At this time, the
parents resided in a two-bedroom home with Respondent Father’s family, including his father,
step-mother, and mother. On June 25, 2012, the DHHR filed an abuse and neglect petition
alleging that petitioner was unable to care for, support, and address the child’s basic needs.
Further, the DHHR alleged that it could not provide services because of Respondent Father’s
verbal threats to workers and refusal to allow CPS access to the home. A preliminary hearing was
held on July 3, 2012, during which petitioner and Respondent Father waived their rights to a
preliminary hearing and acquiesced to the DHHR retaining custody of M.A. Following the
preliminary hearing, petitioner was granted supervised visitation with M.A.

       1
        The proceedings below also concerned another of petitioner’s children, M.N. However,
petitioner raises no argument concerning any of the circuit court’s decisions with regard to her
parental rights to this child, and the Court, therefore, will not address any orders regarding M.N.
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         An adjudicatory hearing was originally scheduled for July 25, 2012, but both parents
requested continuances because they were awaiting psychological evaluations. During a
September 17, 2012, review hearing, the circuit court was advised that the parents’ psychological
evaluations were complete but still needed to be provided to members of the Multi-disciplinary
Team (“MDT”). On October 25, 2012, the circuit court held an adjudicatory hearing wherein
petitioner’s medical records relating to her past treatment for mental health issues were admitted.
The psychologist who performed petitioner’s psychological evaluation provided testimony,
diagnosing her with borderline intellectual functioning, and personality disorder not otherwise
specified with features of borderline personality disorder. The psychologist also identified
problems with petitioner’s primary support group, her social support group, economic problems,
and a dysfunctional living environment. Further, the circuit court heard testimony from a
visitation supervisor, Sarah Price, who testified to her opinion that petitioner and Respondent
Father would need twenty-four-hour supervision to have M.A. in their home, and that the parents’
living situation created a problem in terms of caring for the child. The circuit court thereafter
adjudicated petitioner as an abusing parent based on her inability to properly care for the child. In
November of 2012, the circuit court held a dispositional hearing during which both the DHHR
and guardian sought termination of petitioner’s parental rights. The circuit court ultimately
terminated petitioner’s parental rights after finding that there were no services that could be put in
place to rectify the conditions of abuse and neglect. It is from this 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).

        To begin, the Court finds no error in regard to petitioner’s argument that the circuit court
erred in ratifying the DHHR’s application for emergency custody of M.A. Simply put, whether or
not the circuit court erred in allowing M.A. to remain in the DHHR’s custody throughout this
proceeding had no bearing on the circuit court’s ultimate termination of parental rights. Even if
there was not a sufficient showing as to an “[i]mminent danger to the physical well being of the
child” at the time the emergency custody petition was filed as required by West Virginia Code §

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49-6-3(a)(1), the DHHR was not precluded from proceeding on a petition regarding the
conditions of abuse and/or neglect present at that time. In fact, West Virginia Code § 49-6-3(a)
makes it clear that temporary custody of a child due to imminent danger is not a prerequisite for
termination. That code section states that, upon a petition’s filing, a circuit court

       may order that the child alleged to be an abused or neglected child be delivered for
       not more than ten days into the custody of the state department or a responsible
       person found by the court to be a fit and proper person for the temporary care of
       the child pending a preliminary hearing.

W.Va. Code § 49-6-3(a) (emphasis added). That language illustrates that circuit courts have
discretion in transferring custody of the child if certain findings are made and it does not require
such transfer in order to proceed with the abuse and neglect action. As such, the circuit court’s
ratification of the emergency petition had no bearing on the ultimate disposition of this case,
especially in light of petitioner’s eventual adjudication as an abusing parent.

        Further, at the preliminary hearing, the circuit court found that continuation in petitioner’s
home was contrary to M.A’s welfare and best interests because of the allegations that petitioner
was unable to care for, support, and address the child’s basic needs. These allegations were
exacerbated by the fact that Respondent Father made threatening statements and refused to allow
service providers into the home in order to ensure the child received proper care. Additionally, the
circuit court noted that petitioner “agree[d] that it [was] in the best interest of her daughter to stay
in the custody of the [DHHR]. . .” during the preliminary hearing. Therefore, it is clear that the
decision to grant the DHHR emergency custody of M.A. was made in accordance with the child’s
best interest and pursuant to our prior holdings, wherein we have stated that “when addressing
custody issues involving children, the best interests of the child trump all other considerations.”
Brooke B. v. Ray, 230 W.Va. 355, --, 738 S.E.2d 21, 27 (2013). Based upon our review, the Court
finds that emergency removal was in the child’s best interest.

        As to petitioner’s allegation that the circuit court erred in terminating her parental rights,
the Court finds no error in this regard. Petitioner’s argument is based on our prior holding that
states as follows:

       Where allegations of neglect are made against parents based on intellectual
       incapacity of such parent(s) and their consequent inability to adequately care for
       their children, termination of rights should occur only after the social services
       system makes a thorough effort to determine whether the parent(s) can adequately
       care for the children with intensive long-term assistance. In such case, however,
       the determination of whether the parents can function with such assistance should
       be made as soon as possible in order to maximize the child(ren)’s chances for a
       permanent placement.

Syl. Pt. 4, In re Billy Joe M., 206 W.Va. 1, 521 S.E.2d 173 (1999). Petitioner erroneously argues
that she was not provided enough services below to sufficiently satisfy the requirement that a

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thorough effort be made to determine if she could care for the child with intensive, long-term
assistance. However, the Court notes that this syllabus point does not require any specific services
be provided, but instead requires only that social services make a thorough effort to determine if a
parent can adequately care for a child with intensive long-term assistance. Petitioner was provided
services in this matter, such as supervised visitation and a psychological evaluation, that allowed
this determination to be made quickly, in accordance with the syllabus point above.

         The circuit court was presented with evidence that, even after she was provided supervised
visitation and instruction over a thirteen-week period, petitioner was incapable of properly caring
for the child. One service provider testified that petitioner was unable to even hold the child
correctly, and a visitation supervisor testified that “[petitioner] needed direct assistance holding
and feeding [M.A.], as well as recognizing cues from [M.A.].” According to this witness,
petitioner required a great deal of prompting and direct assistance with these basic tasks. Further
testimony established that the visitation supervisor had “to remind [petitioner] to support and hold
the neck of the baby, and to hold and feed the baby correctly.” According to this witness,
petitioner required “constant redirection.” Additionally, the parents did not always change the
child’s diaper properly, and petitioner sometimes forgot to wash her own hands prior to or after
diapering the child. Aside from these issues, the parents’ own personal hygiene also caused
concern during visitations.

         Petitioner argues that the circuit court should have taken additional steps to evaluate her
ability to care for the child in light of the visitation supervisor’s testimony that Respondent Father
attempted to control petitioner and the supervisor’s suggestion that petitioner be provided
individual visitation in order to more fully evaluate progress. However, the Court does not agree,
as the evidence shows that petitioner simply failed to retain any of the training she received over
the thirteen weeks of visitation and instruction, and nothing in the record indicates that petitioner
was prevented from properly caring for the child because of Respondent Father’s actions. In fact,
the visitation supervisor testified that she corrected Respondent Father’s attempts to control
visitation by dividing parenting time equally during visitation. The visitation supervisor even
testified that the parents provided care equally during the visitations. Simply put, the record
shows that petitioner lacked the ability to read the child’s cues, as established by provider
testimony that she required prompting to take care of the child’s basic needs. Based on this
evidence and the opinion of the visitation supervisor, the circuit court found that petitioner “does
not have the capacity to adequately parent” the child, and that “there are no services that could be
provided . . ., other than 24-hour a day in-home services, that could ensure the safety and well­
being of [M.A.], and ensure that she is properly cared for.”

       We have previously found that such extensive services are impossible to provide and not
required by our prior holdings. In re Maranda T., 223 W.Va. 512, 518, 678 S.E.2d 18, 24 (2009).
In Maranda T., we noted that “the service providers opined that the only way to safely reunite
[the child and her mother] would be to place a service provider in the home on a permanent,
round the clock, basis. Such services are neither required by Billy Joe M. nor would further
services benefit a permanent placement finding for Maranda.” Id. 223 W.Va. at 519, 678 S.E.2d
at 25. Further, the psychologist who evaluated petitioner testified that offering petitioner

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assistance in caring for the child would be futile because “[t]he effect that chronic serious mental
illness has on children is not going to be negated by [petitioner] having assistance.” Based on
Maranda T., the assistance petitioner would require is simply unavailable and would ultimately
have proved futile based on expert testimony. As such, the Court finds that the appropriate
thorough effort was made in determining that petitioner could not adequately care for the child
with intensive, long-term assistance. Based upon our prior holdings, it is clear that the circuit
court did not err in proceeding to disposition, as the only services that could ensure the child was
properly cared for would be constant, in-home supervision.

         West Virginia Code § 49-6-5(a)(6), in pertinent part, directs that circuit courts shall,
“[u]pon a finding that there is no reasonable likelihood that the conditions of neglect or abuse can
be substantially corrected in the near future and, when necessary for the welfare of the child,
terminate the parental, custodial and guardianship rights and responsibilities of the abusing parent
. . . .” In the instant case, the circuit court specifically found that petitioner “incurred mental
illness and mental deficiency, of such duration and nature as to render [her] incapable of
exercising proper parenting skills or sufficiently improving the adequacy of such skills.” This
finding is supported by extensive evidence, as outlined above. Pursuant to West Virginia Code §
49-6-5(b)(6), this constitutes a situation in which there is no reasonable likelihood that the
conditions of abuse and neglect can be substantially corrected in the near future. For these
reasons, it was not error to terminate petitioner’s parental rights.

        While petitioner argues that the circuit court improperly relied on medical records
regarding a prior involuntary commitment in deciding to terminate her parental rights, the circuit
court specifically found that petitioner’s medical records “are relevant as they speak to the ability
of [petitioner] to parent the [child], and speak directly to the issues at hand in the instant case.”
Upon our review, the Court agrees. Petitioner’s psychological evaluation revealed an extensive
history of mental health issues that were described as “chronic problems” by her evaluator. In
fact, the psychological evaluation stated that petitioner had between fifteen and twenty past
episodes of either threatened or actual self-injurious behavior, including suicide attempts. This
behavior included drinking hydrogen peroxide, cutting and burning herself, and an attempted
hanging. The evaluation also revealed several psychiatric hospitalizations. As such, the Court
finds that it was not error to rely on petitioner’s prior medical records in reaching disposition, as
they were relevant to her ongoing mental health issues that caused her inability to properly care
for the child.

         Further, the Court finds no merit in petitioner’s argument that the circuit court should have
ordered that petitioner be assessed for medication that would assist her in her ability to care for
the child. Petitioner’s psychological evaluation reflects that, while petitioner has been on mood
stabilizers in the past, she “often is non-compliant with her medications.” The report additionally
stated that petitioner had not taken any psychiatric medication since October of 2011, despite
having been discharged from her most recent hospitalization with prescriptions for medication. In
fact, the psychologist who performed the evaluation testified that she did not expect that petitioner
would be compliant with medications and treatment in the future, based on her past history of
non-compliance. The Court notes that “‘. . . courts are not required to exhaust every speculative

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possibility of parental improvement before terminating parental rights . . . .’ Syllabus point 1, In
re R.J.M., 164 W.Va. 496, 266 S.E.2d 114 (1980).” Syl. Pt. 4, in part, In re Kristin Y., 227 W.Va.
558, 712 S.E.2d 55 (2011). Based on the psychologist’s testimony and our prior holdings, the
circuit court did not err in terminating petitioner’s parental rights without first ordering an
assessment of medication that petitioner believed could help her care for her child.

        Finally, the Court notes that petitioner’s argument as to the circuit court’s failure to
consider the fact that she raised an older child, M.N., until he was eight years old is without merit.
The circuit court’s order clearly includes the relevant information regarding petitioner’s older
child and demonstrates that her care for that child was properly considered prior to termination of
her parental rights to M.A. However, the record also shows that petitioner had assistance from the
child’s father until M.N. was eight years old, at which point petitioner and the father separated
and the child resided with his father. As such, it is clear that petitioner’s prior care for M.N., while
considered by the circuit court, was not dispositive of the issue of her ability to care for M.A.,
especially in light of substantial evidence showing that she lacked the ability to care for the infant.

       For the foregoing reasons, we find no error in the decision of the circuit court, and the
termination of petitioner’s parental rights to M.A. is hereby affirmed.



                                                                                             Affirmed.

ISSUED: June 28, 2013

CONCURRED IN BY:

Chief Justice Brent D. Benjamin
Justice Robin Jean Davis
Justice Margaret L. Workman
Justice Menis E. Ketchum
Justice Allen H. Loughry II




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