                                                      STATE OF WEST VIRGINIA
                                                    SUPREME COURT OF APPEALS
                                                                                     FILED
In re L.A., H.A.-1, and H.A.-2                                                  November 19, 2018
                                                                                 EDYTHE NASH GAISER, CLERK
No. 18-0490 (Roane County 16-JA-3, 16-JA-4, and 16-JA-5)                         SUPREME COURT OF APPEALS
                                                                                     OF WEST VIRGINIA 




                                                          MEMORANDUM DECISION
        Petitioner Mother A.A., by counsel Jeffrey A. Davis, appeals the Circuit Court of Roane
County’s April 19, 2018, order terminating her parental rights to L.A., H.A.-1, and H.A.-2.1 The
West Virginia Department of Health and Human Resources (“DHHR”), by counsel Brandolyn N.
Felton-Ernest, filed a response in support of the circuit court’s order, along with a supplemental
appendix. The guardian ad litem (“guardian”), Leslie L. Maze, filed a response on behalf of the
children in support of the circuit court’s order, along with a supplemental appendix. On appeal,
petitioner argues that the circuit court erred in denying her an opportunity to meaningfully
participate in a post-adjudicatory improvement period and making an “impossible condition” a
requirement of petitioner’s post-adjudicatory improvement period. Petitioner also argues that she
was denied effective assistance of counsel.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.

        On February 12, 2016, the DHHR filed an abuse and neglect petition against petitioner
alleging that petitioner’s substance abuse and mental health issues caused her to neglect the
children. The DHHR alleged that petitioner admitted to using marijuana while the children were
in her care and overdosing on Depakote in 2014. Further, the DHHR alleged that petitioner
inflicted physical and emotional injury on the children. Specifically, the oldest child disclosed to
                                                            
              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). Additionally, because two of the children share the same
initials, they will be referred to as H.A.-1 and H.A.-2, respectively, throughout this memorandum
decision.
              2
        Petitioner does not raise a specific assignment of error regarding the termination of her
parental rights.
               

                                                                   1
 
the guardian that petitioner had thrown her on the floor, left marks on her body from spankings,
and held her head under water in the bathtub as punishment. On March 15, 2016, the circuit court
held a preliminary hearing. The circuit court found that the evidence showed that petitioner’s
substance abuse issues impaired her ability to parent the children and that she had physically
abused one or more of the children.

        On May 2, 2016, the circuit court held an adjudicatory hearing. The circuit court found
that petitioner had a history of mental health issues for which she was not receiving treatment.
The circuit court also found that petitioner’s untreated mental health issues, use of marijuana,
and physical abuse of the children constituted abuse and neglect. Petitioner admitted to using
marijuana while the children were in her care and overdosing on her medication in 2014.
Petitioner was adjudicated as an abusing parent.

       On August 18, 2016, the circuit court held a status hearing at which it granted petitioner’s
motion for a post-adjudicatory improvement period. The circuit court found that petitioner
“acknowledges her mental health issues were a contributing factor to the abuse and neglect
suffered by the [i]nfant [r]espondents.” The circuit court ordered petitioner to participate in a
personality assessment and ordered the DHHR to assist in providing petitioner’s mental health
assessment and treatment. The matter was scheduled for a sixty-day review in October of 2016.

         In September of 2016, two separate criminal indictments were returned against petitioner
on charges unrelated to these proceedings. Petitioner was indicted for the felony crime of
unlawful wounding. The incident that led to that indictment involved a “fit of ‘road rage’” in
which petitioner “wounded an individual with a tire tool.” She was also indicted for the felony
crime of wanton endangerment. The incident that led to that indictment involved petitioner firing
multiple shots from a pistol and pointing a loaded gun at a neighbor. Petitioner was incarcerated
for approximately one month following the incidents until she posted bond. In October of 2016,
the DHHR moved to terminate petitioner’s post-adjudicatory improvement period and suspend
visitation with the children. The circuit court took judicial notice of the indictments returned
against petitioner, scheduled a hearing on the DHHR’s motion, and suspended visitation between
petitioner and the children. On December 21, 2016, the circuit court held a hearing at which
petitioner moved to continue the matter in order to participate in an inpatient mental health
treatment program. There were no objections to petitioner’s motion and the circuit court granted
the same.

        On March 15, 2017, the DHHR filed a motion to terminate petitioner’s post-adjudicatory
improvement period and her parental rights. In its motion, the DHHR argued that on August 18,
2016, petitioner was granted a six-month post-adjudicatory improvement period and was then
indicted on criminal charges in two unrelated cases in September of 2016. The DHHR further
argued that the matter was continued in December of 2016 for petitioner to seek inpatient mental
health treatment; however, the DHHR had not received any evidence of petitioner seeking said
treatment. Lastly, the DHHR argued that petitioner demonstrated violent behaviors during her
post-adjudicatory improvement period.




                                                2
 
        On April 21, 2017, petitioner filed a motion to reinstate her post-adjudicatory
improvement period.3 In her motion, she argued that, upon her release from incarceration, she
participated in parenting and life skills classes for approximately three weeks. She also argued
that she made attempts to resume visitation with the children, but was denied by the DHHR.
Further, she argued that the DHHR moved to terminate her parental rights “based solely on the
grounds that she had been charged in a criminal matter during said improvement period.” She
also argued that the children were not present during the “alleged incidents giving rise to said
charges.” Petitioner asserted that she had not refused, but was denied the opportunity to fully
participate in the previously granted improvement period.

        On April 9, 2018, the circuit court held a dispositional hearing at which it noted that
earlier that same day, petitioner was sentenced to one to three years of incarceration following
her conviction of attempt to commit wanton endangerment involving a firearm. The circuit court
then heard testimony from petitioner. The DHHR and guardian both moved the circuit court to
terminate petitioner’s parental rights. In its April 19, 2018, order, the circuit court found that
petitioner “clearly acknowledged that she did not successfully complete the improvement
period.” The circuit court also found that petitioner had not visited the children in over a year and
that her sentence of one to three years of incarceration would prohibit visitation during that time.
Finally, the circuit court found that there was no reasonable likelihood that petitioner could
substantially correct the conditions of abuse and neglect in the near future and that termination of
her parental rights was necessary for the welfare of the children. Ultimately, the circuit court
terminated petitioner’s parental rights in its April 19, 2018, dispositional order.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,
              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).

                                                            
              3
         It is unclear from the record whether the circuit court terminated petitioner’s
improvement period or if it expired on its own terms. However, in its dispositional order, the
circuit court referred to her motion as a motion to extend the improvement period. The circuit
court did not specifically rule on the motion in that order.
              4
                  The children remain in the physical and legal custody of their nonabusing father.
                                                               3
 
Syl. Pt. 1, In re Cecil T., 228 W.Va. 89, 717 S.E.2d 873 (2011).

        On appeal, petitioner argues that she was denied “the opportunity to meaningfully
participate in a post[-]adjudicatory improvement period” due to “criminal charges that were
unrelated to her abuse and neglect case.” However, she conversely argues that “[b]y all reports,
she successfully participated in parenting and life skills classes, as well as supervised visits with
her children, before and after said improvement period was granted.” Petitioner fails to cite to the
record to any such “reports” of her participation. In fact, the record is devoid of any evidence
that petitioner substantially complied with the terms and conditions of her post-adjudicatory
improvement period. Conversely, in its April 19, 2018, dispositional order, the circuit court
found that petitioner “clearly acknowledged that she did not successfully complete the
improvement period.”

         Petitioner also argues that visits with the children were suspended without a hearing on
the matter. However, no such hearing was required. Rule 15 of the Rules and Procedures for
Child Abuse and Neglect Proceedings provides that “the court shall consider whether or not the
granting of visitation would interfere with the child’s case plan and the overall effect granting or
denying visitation will have on the child’s best interests.” Here, the circuit court suspended
petitioner’s visits with the children by order entered on October 4, 2016, following petitioner’s
indictments for two violent crimes. There is no evidence in the record to suggest that any other
services were suspended. Considering petitioner’s history of substance abuse, domestic violence,
and physical abuse of the children, as well as her indictments for unlawful wounding and wanton
endangerment, the circuit court did not abuse its discretion by suspending visitation because
visitation was clearly not in the children’s best interests. Based on this evidence, we find that the
circuit court did not deny petitioner a meaningful opportunity to participate in her post-
adjudicatory improvement period and she is entitled to no relief.

        Next, petitioner argues that the circuit court erred in making an “impossible condition” a
requirement of her post-adjudicatory improvement period—her participation in an inpatient
mental health treatment program. In August of 2016, petitioner acknowledged that her mental
health issues were a contributing factor to the abuse and neglect suffered by the children and as a
condition of her improvement period, she was required to participate in a mental health
assessment and treatment. In December of 2016, petitioner moved to continue the matter in order
to participate in an inpatient treatment program, which the circuit court granted. While petitioner
asserts on appeal that she attempted to enter into an inpatient mental health treatment program,
but was allegedly denied admission because her mental conditions were inappropriate for
inpatient treatment, there is no evidence in the record to support her assertion. In fact, in its
March 15, 2017, motion to terminate petitioner’s post-adjudicatory improvement period and
parental rights, the DHHR argues that it did not have any evidence of petitioner’s attempts to
enter into inpatient treatment. Because the record is devoid of any evidence that she attempted to
enter inpatient mental health treatment, we find petitioner is entitled to no relief.

       Finally, petitioner argues that she was denied effective assistance of counsel because
counsel “advised petitioner to agree to a condition of her post[-]adjudicatory improvement period
that was impossible to perform.” However, it is important to note that this Court has never

                                                 4
 
recognized a claim of ineffective assistance of counsel in an abuse and neglect proceeding and
we decline to do so here.

       For the foregoing reasons, we find no error in the decision of the circuit court, and its
April 19, 2018, order is hereby affirmed.


                                                                                      Affirmed.

ISSUED: November 19, 2018


CONCURRED IN BY:

Chief Justice Margaret L. Workman
Justice Elizabeth D. Walker
Justice Tim Armstead
Justice Evan H. Jenkins
Justice Paul T. Farrell sitting by temporary assignment

 
 

 




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