                                                      STATE OF WEST VIRGINIA
                                                    SUPREME COURT OF APPEALS
                                                                                               FILED
In re L.A. and K.A.                                                                      February 15, 2019
                                                                                        EDYTHE NASH GAISER, CLERK
                                                                                        SUPREME COURT OF APPEALS
No. 18-0830 (Mingo County 17-JA-95 and 17-JA-96)                                            OF WEST VIRGINIA 




                                                          MEMORANDUM DECISION
        Petitioner Mother T.P., by counsel Jim Pajarillo, appeals the Circuit Court of Mingo
County’s August 16, 2018, order terminating her parental rights to L.A. and K.A.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. The guardian ad litem
(“guardian”), Cullen C. Younger, filed a response on behalf of the children in support of the
circuit court’s order. On appeal, petitioner argues that the circuit court erred in terminating her
parental rights before she completed her parental competency evaluation.

        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 October 3, 2017, the DHHR filed an abuse and neglect petition alleging that petitioner
abused substances and left the younger child in the custody of his father, who petitioner knew to
be an inappropriate caretaker due to his substance abuse and criminal issues. Thereafter, the
circuit court held a preliminary hearing during which the DHHR presented testimony that Child
Protective Services (“CPS”) opened a case in March of 2017 and attempted to provide services
to petitioner and the children’s father.2 However, the parents failed to fully comply with services
and continued to abuse substances. Additionally, CPS specifically directed petitioner not leave
the children alone in the care of their father, but she failed to adhere to those directions.

       On November 29, 2017, the circuit court held an adjudicatory hearing. The DHHR
moved the circuit court to take judicial notice of all prior testimony, findings of fact, and
conclusions of law, which the circuit court granted without objection. Ultimately, the circuit
                                                            
              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).
              2
                  Petitioner and the children’s father were married, but did not reside together.
                                                                   1     
 
court adjudicated petitioner as an abusing parent and granted her a post-adjudicatory
improvement period.

        In February of 2018, the circuit court held a review hearing. During this hearing, the
circuit court was informed by the DHHR that petitioner was inconsistent with her participation in
services. Petitioner missed visits with the children and missed drug screens. Additionally, a
service provider reported that petitioner was not making meaningful progress with her parenting
and life skills classes. The DHHR also informed the circuit court that petitioner was involved in
a domestic violence dispute with her boyfriend. In March of 2018, petitioner completed the first
portion of a parental competency evaluation, as recommended by the multidisciplinary treatment
team. Later in March of 2018, the guardian moved to continue a review hearing in order for
petitioner to complete her parental competency evaluation.

        On April 18, 2018, the circuit court held a dispositional hearing. Petitioner failed to
attend the hearing, but was represented by counsel. Counsel for petitioner moved to continue the
hearing until petitioner completed her parental competency evaluation. However, the circuit
court denied the motion and stated “due to [petitioner’s] intentional nonparticipation, we’re
going forward today with disposition.” The guardian recommended termination of petitioner’s
parental rights due to her failure to fully comply with services. According to the guardian,
petitioner completed the first portion of her parental competency evaluation in March of 2018,
but failed to follow up in order to complete the remainder of the evaluation, despite multiple
appointments being set and missed. Based upon the evidence, the circuit court found no
reasonable likelihood that petitioner could substantially correct the conditions of abuse and
neglect in the near future and that the termination of her parental rights was in the children’s best
interests. Ultimately, the circuit court terminated petitioner’s parental rights in its August 16,
2018, dispositional order. Petitioner now appeals that order.3

              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).


                                                            
              3
       The father’s parental rights were also terminated below. According to respondents, the
permanency plan for the children is adoption by their paternal grandmother.
                                                               2     
 
Syl. Pt. 1, In re Cecil T., 228 W.Va. 89, 717 S.E.2d 873 (2011). Upon our review, this Court
finds no error in the proceedings below.

       In her sole assignment of error on appeal, petitioner argues that the circuit court erred in
terminating her parental rights prior to the completion of her parental competency evaluation. In
support, she contends that her “repeated non-compliance could have been attributed to several
factors in her social and medical history and could have been improved” with certain
recommendations following the parental competency evaluation. We do not find petitioner’s
argument persuasive.

        West Virginia Code § 49-4-604(b)(6) provides that a circuit court may terminate parental
rights upon findings that “there is no reasonable likelihood that the conditions of neglect or abuse
can be substantially corrected in the near future” and that termination is necessary for the welfare
of the child. West Virginia Code § 49-4-604(c)(3) provides that there is no reasonable likelihood
that the conditions of abuse and neglect can be substantially corrected when the abusing parent
has not

       responded to or followed through with a reasonable family case plan or other
       rehabilitative efforts of social, medical, mental health or other rehabilitative
       agencies designed to reduce or prevent the abuse or neglect of the child, as
       evidenced by the continuation or insubstantial diminution of conditions which
       threatened the health, welfare or life of the child[.]

Here, petitioner failed to fully comply with services during the proceedings. The record shows
that petitioner missed visits with the children, missed drug screens, and failed to benefit from
parenting and adult life skills classes. Additionally, while she argues on appeal that the circuit
court prematurely terminated her parental rights before she could complete her parental
competency evaluation, the record shows that petitioner had multiple opportunities to complete
the evaluation, but failed to do so until after her parental rights were terminated.

       Although petitioner also argues that with counseling and psychiatric therapy, she may
have been able to “control or improve the impulses that contributed to her poor decision
making,” this argument is purely speculative and not supported by the record. We have held as
follows:

               “[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. Due to her noncompliance with services
throughout the proceedings, it is clear that there was no reasonable likelihood that petitioner
could substantially correct the conditions of abuse and neglect in the near future and that the

                                                 3        
 
termination of her parental rights was in the children’s best interests. Therefore, we find no error
in the circuit court’s termination of petitioner’s parental rights.

      For the foregoing reasons, we find no error in the decision of the circuit court, and its
August 16, 2018, order is hereby affirmed.


                                                                                         Affirmed.

ISSUED: February 15, 2019


CONCURRED IN BY:

Chief Justice Elizabeth D. Walker
Justice Margaret L. Workman
Justice Tim Armstead
Justice Evan H. Jenkins
Justice John A. Hutchison



 

 

 

 




                                                 4        
 
