STATE OF WEST VIRGINIA
SUPREME COURT OF APPEALS
FILED
May 23, 2016
In re: T.A. RORY L. PERRY II, CLERK
SUPREME COURT OF APPEALS
OF WEST VIRGINIA
No. 15-1184 (Kanawha County 14-JA-212)
MEMORANDUM DECISION
Petitioner Mother K.E., by counsel Sandra K. Bullman, appeals the Circuit Court of
Kanawha County’s November 18, 2015, order terminating her parental rights to T.A. The West
Virginia Department of Health and Human Resources (“DHHR”), by counsel S.L. Evans, filed
its response in support of the circuit court’s order. The guardian ad litem (“guardian”), W. Jesse
Forbes, filed a response on behalf of the child supporting the circuit court’s order. On appeal,
petitioner argues that the circuit court erred in terminating her parental rights and denying her
request for post-termination visitation.1
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 July of 2014, the DHHR filed an abuse and neglect petition alleging that petitioner
stole a car and attempted to purchase drugs with two-year-old T.A. in the car. The DHHR also
alleged that her drug abuse and criminal activity prevented her from being an appropriate parent.
As a result of the incident, petitioner was criminally charged with child endangerment, grand
larceny, child neglect creating risk of injury, and driving without a license. Petitioner waived her
right to a preliminary hearing in the abuse and neglect proceedings.
In October of 2014, the circuit court held an adjudicatory hearing wherein petitioner
stipulated to the allegations in the petition and moved the circuit court for a post-adjudicatory
improvement period. The circuit court granted petitioner’s request and ordered that petitioner
participate in adult life skills and parenting classes, random drug screening, and supervised visits
with T.A. The circuit court also ordered that petitioner complete a drug rehabilitation program.
Following petitioner’s adjudication, between October of 2014 and June of 2015, the circuit court
held a series of review hearings. The circuit court reviewed summaries and heard which
1
We note that West Virginia Code §§ 49-1-1 through 49-11-10 were repealed and
recodified during the 2015 Regular Session of the West Virginia Legislature. The new
enactment, West Virginia Code §§ 49-1-101 through 49-7-304, has minor stylistic changes and
became effective ninety days after the February 19, 2015, approval date. In this memorandum
decision, we apply the statutes as they existed during the pendency of the proceedings below.
1
testimony indicated that petitioner continued to abuse drugs, failed to participate in random drug
screens, and missed several visits with T.A.
In June of 2015 and August of 2015, petitioner twice moved the circuit court to continue
her previously scheduled dispositional hearings due to her waiting for placement in a drug
rehabilitation facility. The circuit court granted petitioner’s motions and rescheduled the
dispositional hearings.
In November of 2015, the circuit court held a dispositional hearing. The DHHR presented
testimony and petitioner moved the circuit court for a post-dispositional improvement period. At
the close of the hearing, the circuit court found that there was no reasonable likelihood that the
conditions of abuse and neglect could be substantially corrected in the near future. The circuit
court further found that termination of petitioner’s parental rights was in T.A.’s best interests. By
order entered on November 18, 2015, the circuit court terminated petitioner’s parental rights to
T.A. It is from this order petitioner now 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). On appeal, petitioner argues that
the circuit court erred in terminating her parental rights because she successfully completed an
inpatient detoxification program and was on the waiting list for a long-term rehabilitation
program. However, petitioner’s argument is without merit. In petitioner’s case, the circuit court
properly found that there was no reasonable likelihood that she could substantially correct the
conditions of abuse and neglect in the near future. Pursuant to West Virginia Code § 49-4
604(c)(1), there is no reasonable likelihood that the conditions of neglect or abuse can be
substantially corrected when
[t]he abusing parent or parents have habitually abused or are addicted to alcohol,
controlled substances or drugs, to the extent that proper parenting skills have been
seriously impaired and the person or persons have not responded to or followed
through the recommended and appropriate treatment which could have improved
the capacity for adequate parental functioning.
2
It is clear from the record that petitioner stipulated to abusing drugs, and the drug abuse
and criminal activity prevented her from being an appropriate parent. It is also clear from the
record that petitioner did little to correct the problems that led to T.A.’s abuse. Despite the
services offered to petitioner, she failed to participate in any random drug screens and missed
multiple visits with T.A. Case summaries and testimony presented by the DHHR to the circuit
court indicated that petitioner failed to consistently participate in the day report program, or call
in for her drug screens, and visited T.A. while she was under the influence of drugs.
Furthermore, petitioner admitted to failing to fully comply with her improvement period because
she lost her job and continued abusing oxycodone and marijuana. Petitioner also admitted to
missing her drug evaluation for placement in a drug rehabilitation facility because she “got the
dates mixed up” and only completed a drug detoxification program the day before her
dispositional hearing. The circuit court found that petitioner failed to complete drug
rehabilitation, failed to participate in the proceedings, and failed to visit T.A. consistently. As
such, the circuit court correctly determined, based upon the evidence before it, that there was no
reasonable likelihood that petitioner could substantially correct the conditions of abuse and
neglect in the near future. Moreover, the circuit court correctly terminated petitioner’s parental
rights upon these findings, and the further finding that termination was in T.A.’s best interest. In
accordance with West Virginia Code § 49-4-604(b)(6), upon such a finding, circuit courts are
directed to terminate a parent’s parental rights. For these reasons, we find no error in the circuit
court’s termination of petitioner’s parental rights.
Petitioner also argues that the circuit court erred in denying her request for post-
termination visitation. Specifically, petitioner argues that she has a close bond with T.A. and that
her visits with him were “consistent and [went] well.” While petitioner argues that her bond with
T.A. necessitates post-termination visitation, we disagree. Post-termination visitation is a
discretionary action and not compulsory upon the circuit court. We have previously held that
[w]hen parental rights are terminated due to neglect or abuse, the circuit court
may nevertheless in appropriate cases consider whether continued visitation or
other contact with the abusing parent is in the best interest of the child. Among
other things, the circuit court should consider whether a close emotional bond has
been established between parent and child and the child's wishes, if he or she is of
appropriate maturity to make such request. The evidence must indicate that such
visitation or continued contact would not be detrimental to the child's well being
and would be in the child's best interest.
Syl. Pt. 5, In re Christina L., 194 W.Va. 446460 S.E.2d 692 (1995). We have also recognized
that a “close emotional bond generally takes several years to develop . . . [and] the possibility of
post-termination visitation is usually considered in cases involving children significantly older
than [T.A.].” In re Alyssa W., 217 W.Va. 707, 711, 619 S.E.2d 220, 224 (2005). Additionally, the
record on appeal does not demonstrate that petitioner had a close emotional bond with two-year
old T.A. The record indicates that, contrary to petitioner’s argument, T.A. was doing well in his
3
foster placement and did not want to visit with petitioner.2 The circuit court reasonably
concluded that post-termination visits with petitioner would not be in T.A.’s best interest.
Therefore, we find no error in the circuit court’s denial of post-termination visitation between
petitioner and T.A.
For the foregoing reasons, the circuit court’s November 18, 2015, termination order is
hereby affirmed.
Affirmed.
ISSUED: May 23, 2016
CONCURRED IN BY:
Chief Justice Menis E. Ketchum
Justice Robin Jean Davis
Justice Brent D. Benjamin
Justice Margaret L. Workman
Justice Allen H. Loughry II
2
At the March of 2015 review hearing for petitioner’s improvement period, a DHHR
worker testified that T.A. was “doing well in his placement and is getting worse about not
wanting to go to visits with his mother and father.”
4