STATE OF WEST VIRGINIA
SUPREME COURT OF APPEALS
FILED
In Re: J.B. March 27, 2014
released at 3:00 p.m.
RORY L. PERRY II, CLERK
No. 13-0728 (Greenbrier County 11-JA-37) SUPREME COURT OF APPEALS
OF WEST VIRGINIA
MEMORANDUM DECISION
The petitioner father, William B. (“the father”), by counsel, Martha J. Fleshman,
appeals from the June 5, 2013, order of the Circuit Court of Greenbrier County terminating
his parental rights to his minor daughter, J.B.1 The West Virginia Department of Health and
Human Resources (“the Department”), by counsel, Angela Alexander Walters, filed a
summary response in support of the circuit court’s order. The guardian ad litem, S. Mason
Preston,2 filed a summary response on behalf of the child and in support of the circuit court’s
order. The father asserts several assignments of error in seeking a reversal of the order
terminating his parental rights.
Upon our review of the parties’ arguments, the pertinent authorities, and because we
find no prejudicial error upon consideration of the applicable standard of review and the
appendix record presented, this matter is proper for disposition pursuant to Rule 21 of the
West Virginia Rules of Appellate Procedure.
On December 7, 2011, the Department filed a verified child abuse and neglect
petition3 against the father. The father stipulated there was probable cause of imminent
1
Consistent with our practice in cases involving sensitive matters, we use the first
name and last initial of the parent and the child victim’s initials. See State v. Edward Charles
L., 183 W .Va. 641, 645 n.1, 398 S.E.2d 123, 127 n.1 (1990); see also W.Va. R. App. P.
40(e)(1).
2
During the pendency of the instant appeal, Mr. Preston retired from the practice of
law, and attorney Jeffrey S. Rodgers was appointed as J.B.’s guardian ad litem. Mr. Rogers
appeared for oral argument before this Court.
3
In addition to J.B., the Department alleged through its petition that her two half-
siblings were also abused and neglected. Consequently, J.B.’s mother and the father of her
half-siblings were also named as adult respondents in the petition. This Memorandum
(continued...)
1
danger at the time J.B. was taken into the Department’s custody due to his failure to
financially support her. The circuit court accepted the father’s stipulation and, by order
entered March 6, 2012, adjudicated J.B. abused and neglected. Thereafter, the circuit court
granted the father’s motion for a post-adjudicatory improvement period, which required,
among other things, that the father: obtain and maintain employment; learn to demonstrate
money management and an ability to separately provide an independent home and pay all
necessary household bills; locate and maintain appropriate and independent housing;4 and
participate in random drug and alcohol screens. The circuit court also gave the Multi-
Disciplinary Team (“MDT”) the authority to grant unsupervised visitation “when agreed
upon by the MDT.” The MDT never gave the father unsupervised visitation.
During the father’s various improvement periods spanning approximately fifteen
months, including his alternative dispositional improvement period,5 the Department’s Child
Protective Services (“CPS”) worker Crystal Stock repeatedly reported concerns to the circuit
court regarding the father’s inconsistent participation in the random drug screens (two of
which were positive) and his failure to secure an independent and suitable home. Ms. Stock
also reported the Department’s continuing concern that the father, who had never been a
primary caretaker for J.B., would not be able to provide her with a safe and stable
environment. While Ms. Stock acknowledged the love between the father and J.B., she also
advised that the father remained “without a stable residence and without a consistent track
record of demonstrating that he has overcome his past problems with addiction.” In her
social summary filed in anticipation of the May 2013 disposition hearing, Ms. Stock reported
3
(...continued)
Decision solely addresses the termination of the father William B.’s parental rights to J.B.
4
The father was living in J.B.’s paternal grandfather’s home.
5
West Virginia Code § 49-6-5(c) (2009 & Supp. 2013) provides, in part, as follows:
The court may, as an alternative disposition, allow the parents or
custodians an improvement period not to exceed six months. . . . At the end of
the period, the court shall hold a hearing to determine whether the conditions
have been adequately improved and at the conclusion of the hearing shall make
a further dispositional order in accordance with this section.
2
the father would likely seek a three-month extension of his alternative dispositional
improvement period, but the Department
cannot help but wonder what will change in three months that hasn’t in
seventeen [months].6 The Department believes that every opportunity has been
afforded to [the father] to demonstrate that he is prepared for the responsibility
of providing a safe, stable, and nurturing environment7 for his daughter[] [and]
has . . . left the MDT members in total doubt about his ability to assume this
responsibility. At this point in a case, there can be no room for such doubt.
It is for this reason that the Department recommends that this matter proceed
to disposition with a recommendation for the termination of [the father]’s
parental rights to his daughter [J.B.]. (Footnotes added.).
During the May 28, 2013, disposition hearing, Ms. Stock expressed these same
concerns. She also testified that it was several months into the instant proceeding before the
Department learned that the father was participating in a Suboxone program, which meant
he had an “opiate issue.”8 She explained the father did not want to have custody or be a
placement option for J.B. at that time and, in fact, did not seek to be a placement option until
after the mother’s parental rights to J.B. were terminated in February 2013. Ms. Stock
testified the father did not meet the Department’s standards in terms of complying with the
random drug screens, which essentially hindered the Department in evaluating whether he
could “maintain a drug-free lifestyle.” During this hearing, the family-based services
provider echoed the problems with random drug testing, including difficulty in locating the
father for the random tests. This provider further indicated that the father was not prepared
to parent J.B. “24/7” without supervision. The father testified concerning his involvement
in J.B.’s life and stated he did not want to “lose her.” He acknowledged his past mistakes
6
This is a reference to the length of time the matter had been pending.
7
In early May 2013, the father advised the MDT that he had found a house to rent, but
it needed renovations before the Department could conduct a home study. CPS worker Stock
testified during the disposition hearing that the father had yet to advise the Department that
it could evaluate this home. She also testified that during the time the father was living with
J.B.’s paternal grandfather, he never contacted the Department to say “this is going to be my
residence, come do a walk-through . . . .”
8
The Suboxone program is a treatment program for methadone addiction. The father
asserts that his failure to submit to the random drug screens was due to his mistaken belief
that the drug screens in the Suboxone program were sufficient and, after being advised they
were not, any other random screens he missed were for good reasons.
3
and recognized his failure to seek custody of J.B. earlier in the proceeding was “not the right
move for [him] to make.” The guardian ad litem advised the circuit court of J.B.’s need for
stability, which the father had been unable to provide for her; the Department’s counsel
reiterated the substantial concerns of the parenting provider and CPS worker Stock.
By order entered June 5, 2013, the circuit court found that J.B. had been in foster care
for fifteen of the last twenty-two months.9 The court further found that the father had failed
to comply with the terms of his improvement periods by failing to provide a stable home, to
maintain contact with the Department and/or service providers, and to comply with random
drug testing. The court also found that the MDT had been unable to recommend
unsupervised visitation due to the father’s lack of suitable housing. The court concluded that
the father had not established a safe and secure home for J.B.; that her need for permanency,
security, stability, and continuity was paramount; and that it was in her best interest to
terminate the father’s parental rights. The circuit court transferred J.B. to the Department’s
adoption unit.10 This appeal followed.
We are asked to review a circuit court’s order terminating parental rights. Our
standard of review in this regard is well established:
“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
9
Although the father contends there is an issue as to whether relative placements are
considered “foster care,” we find the issue irrelevant to our decision in this matter for the
reasons set forth herein.
10
J.B.’s current guardian ad litem filed an update pursuant to Rule 11(j) of the Rules
of Appellate Procedure in which he states that he has met with J.B. and she wishes to be
adopted by her foster parents, who have already adopted her two half-siblings. At this time,
J.B. has been living with her foster parents for approximately twenty-two months.
4
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). As we explained in State ex
rel. Diva P. v. Kaufman, 200 W.Va. 555, 490 S.E.2d 642 (1997), “the above standard of
review requires deference by this Court to the findings of a circuit court in a civil abuse and
neglect proceeding. The critical nature of unreviewable intangibles justify the deferential
approach we accord findings by a circuit court.” Id. at 562, 490 S.E.2d at 649. Indeed, “a
circuit court’s substantive determinations in abuse and neglect cases on adjudicative and
dispositional matters—such as whether . . . termination is necessary—[are] entitled to
substantial deference in the appellate context.” In re Rebecca K.C., 213 W.Va. 230, 235, 579
S.E.2d 718, 723 (2003) (internal citations omitted).
On appeal, the father asserts that the Department never investigated his home situation
to determine whether he was a “reasonably available alternative” placement for J.B.; that his
child support arrearage does not constitute abuse and neglect; that the circuit court erred in
denying his motion for an extension of his alternative dispositional improvement period on
the basis that J.B. had been in foster care for at least fifteen of the last twenty-two months;11
that the circuit court erred in finding that he had failed to establish a safe and secure home
for J.B.; that the Department never conducted a study of the paternal grandfather’s home
where he lived to see if it would be suitable for unsupervised visitation; and that the circuit
court erred in finding that he had not complied with the terms and conditions of his
improvement period by failing to report or remain in contact with the Department and/or
service providers and failing to submit to random drug testing.
The appendix record and argument before us reflect that the father did not object to
J.B.’s initial placement with her maternal grandmother12 nor did he seek to be a placement
option for J.B. until the mother’s parental rights were terminated in February 2013. The
record also reflects that the Department did not conduct a study of the paternal grandfather’s
11
West Virginia Code § 49-6-12(l) (Supp. 2013) provides, in part, that
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.
12
Although the father objected when J.B. was later placed for a period of time with his
brother and sister-in-law, with whom he had an acrimonious relationship, such complaints
are not a basis to reverse the termination of the father’s parental rights.
5
home because the father never asked for one and, as the guardian ad litem explained in his
summary response, the MDT never approved unsupervised visitation because it was “never
convinced that [the father] could be a consistent parent to the point where unsupervised visits
would be safe for J.B.” The father’s testimony at the May 2013 disposition hearing shows
that he had not yet established a stable and independent home for J.B. as required by his
improvement period.13 The record further reflects that the father stipulated that there was
probable cause of imminent danger at the time J.B. was taken into the Department’s custody
due to his failure to financially support her.14 Moreover, the length of time J.B. had been in
foster care was but one of several factors considered by the circuit court in denying the
father’s motion to extend his alternative dispositional improvement period and in terminating
his parental rights.15 Further, we do not find “compelling circumstances” that would have
justified yet another extension of the father’s improvement period.16 Lastly, the appendix
record supports the circuit court’s finding regarding the father’s noncompliance with the
random drug screens.17
As we have previously explained,
[a]t the conclusion of the improvement period, the court shall review the
performance of the parents in attempting to attain the goals of the
improvement period and shall, in the court’s discretion, determine whether the
conditions of the improvement period have been satisfied and whether
13
The father testified he had rented a home and had “almost moved in.”
14
While the Department could have sought to amend its petition once additional issues
became apparent, it is clear from our review of the appendix record that the father was fully
aware of the issues and problems he needed to resolve in order to avoid a termination of his
parental rights to J.B. It is equally clear that he was given an extensive amount of time and
services to aid him in resolving those issues during his multiple improvement periods, and
he failed to do so.
15
While West Virginia Code §49-6-5b(a)(1) (2009) requires the Department to seek
termination where a child has been in foster care for fifteen of the most recent twenty-two
months, here, there were multiple bases upon which the circuit court terminated the father’s
parental rights.
16
See supra note 11.
17
As the guardian ad litem stated in his summary response, “[a]fter [the father] failed
his first random screen it was more a game of ‘catch me if you can.’ A number of excuses
why he could not be tested just then.”
6
sufficient improvement has been made in the context of all the circumstances
of the case to justify the return of the child.
Syl. Pt. 6, In Interest of Carlita B., 185 W.Va. 613, 408 S.E.2d 365 (1991). Indeed, “[i]n
making the final disposition in a child abuse and neglect proceeding, the level of a parent’s
compliance with the terms and conditions of an improvement period is just one factor to be
considered. The controlling standard that governs any dispositional decision remains the best
interests of the child.” Syl. Pt. 4, In re B.H., No. 13-0342, 2014 WL 537757 (W.Va. Feb. 5,
2014). Furthermore, “‘courts are not required to exhaust every speculative possibility of
parental improvement . . . where it appears that the welfare of the child will be seriously
threatened . . . .’ Syl. Pt. 1, in part, In re R.J.M., 164 W.Va. 496, 266 S.E.2d 114 (1980).”
Syl. Pt. 4, in part, In re Cecil T., 228 W.Va. 89, 717 S.E.2d 873.
Here, the circuit court found the father had not met or complied with the terms of his
improvement periods, which spanned some fifteen months. As indicated above, the father
had “every opportunity to demonstrate that he [was] prepared for the responsibility of
providing a safe, stable, and nurturing environment for his daughter[.]” Moreover, as J.B.’s
guardian ad litem stated in his summary response, “after seventeen (17) months not one
member of the MDT, except for [the father’s] counsel, could with a clear conscious support
returning J.B. to [the father,]” and termination was the only proper remedy. We agree.
Having considered the parties’ arguments, the appendix record and, most importantly,
J.B.’s best interests, and in giving substantial deference18 to the circuit court’s decision in this
matter, we find no error in the Circuit Court of Greenbrier County’s denial of the father’s
request for an extension of his alternative dispositional improvement period or in its
termination of the father’s parental rights to his child, J.B. Accordingly, the circuit court’s
order entered June 5, 2013, is hereby affirmed.
Affirmed.
ISSUED: March 27, 2014
CONCURRED IN BY:
Chief Justice Robin Jean Davis
Justice Brent D. Benjamin
Justice Menis E. Ketchum
Justice Margaret L. Workman
Justice Allen H. Loughry II
18
See supra In re Rebecca K.C., 213 W.Va. 230, 579 S.E.2d 718.
7