STATE OF WEST VIRGINIA
SUPREME COURT OF APPEALS
FILED
In re: J.P.-1 October 23, 2017
RORY L. PERRY II, CLERK
No. 17-0482 (Fayette County 16-JA-69) SUPREME COURT OF APPEALS
OF WEST VIRGINIA
MEMORANDUM DECISION
Petitioner Mother J.P.-2, by counsel Joseph M. Mosko, appeals the Circuit Court of
Fayette County’s April 25, 2017, order terminating her parental rights to J.P.-1.1 The West
Virginia Department of Health and Human Resources (“DHHR”), by counsel S.L. Evans, filed a
response in support of the circuit court’s order and a supplemental appendix. The guardian ad
litem (“guardian”), Jennifer M. Alvarez, filed a response on behalf of the child in support of the
circuit court’s order. On appeal, petitioner argues that the circuit court erred in denying her the
opportunity to address the circuit court during the dispositional hearing wherein her parental
rights were terminated.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.
In October of 2016, the DHHR filed an abuse and neglect petition against petitioner.
According to the petition, the DHHR received a referral in April of 2016, which alleged that
petitioner gave birth to a child after abusing controlled substances throughout the duration of her
pregnancy. A Child Protective Services (“CPS”) worker visited petitioner at the hospital and was
informed that she and the child were going to stay at Turning Point, a rehabilitation facility, after
their discharge. The child was suffering from side effects of drug withdrawal, was not eating, had
a feeding tube, and required oxygen to help her breathe. Petitioner’s nurse informed the worker
that petitioner admitted to abusing methamphetamine, benzodiazepines, and marijuana. The
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 the child and petitioner share the same
initials, we will refer to them as J.P.-1 and J.P.-2, respectively, throughout this memorandum
decision.
2
On appeal, petitioner does not specifically challenge the circuit court’s termination of
her parental rights.
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DHHR also alleged that petitioner failed to find suitable housing for herself and the child.
Petitioner was discharged from Turning Point after violating their smoking policy. Petitioner
then moved locations over five times throughout the following months, living with various men
and friends. As a result, the DHHR’s Birth to Three services could not be implemented due to
their inability to contact petitioner. In September of 2016, a service provider informed the CPS
worker that petitioner missed several appointments and was behind in taking the child to the
doctor and maintaining her shots. The DHHR noted that petitioner voluntarily relinquished her
parental rights to another child during prior proceedings. Finally, the DHHR alleged that
petitioner failed a drug screen when she tested positive for a prescription drug not prescribed to
her.
In November of 2016, the circuit court held an adjudicatory hearing, during which
petitioner stipulated to abusing the child. The circuit court granted petitioner a post-adjudicatory
improvement period, which required that she (1) attend a crisis unit program; (2) participate in a
long-term substance abuse treatment program; (3) not be arrested or charged with a crime; (4)
submit to random drug screens; and (5) participate in supervised visitation following the
successful completion of her substance abuse treatment, among other requirements.
In January or February of 2017, petitioner checked into The Mother’s Program, an in
patient rehabilitation center. Less than two weeks later, petitioner informed the program
employees that she was going to a bar and left the premises. Days later, petitioner was arrested
due to driving under the influence of alcohol. Petitioner did not have a valid driver’s license.
In April of 2017, the circuit court held a dispositional hearing. Petitioner was not present
at the beginning of the hearing, but was represented by counsel. Finding that petitioner was
aware of the hearing time, date, and purpose, the circuit court determined that petitioner
voluntarily absented herself from the proceeding and continued without her. At that time, the
DHHR requested to make a proffer regarding the evidence to be presented, should the matter
proceed to a contested hearing. The circuit court permitted the proffer without objection. The
DHHR stated that it provided petitioner with several chances to correct the conditions of abuse
and neglect. However, petitioner failed to comply with the terms of her improvement period.
Petitioner entered multiple rehabilitation programs which she did not complete. Petitioner failed
to accept responsibility for her actions and blamed the CPS worker for her situation. Petitioner
was also arrested for driving under the influence. Petitioner previously denied being intoxicated
at the time of her arrest while in a multidisciplinary team (“MDT”) meeting. The DHHR stated
that petitioner had a serious drug problem, among other issues, that she was unwilling to address
or acknowledge and requested that the circuit court find that there was no reasonable likelihood
that the conditions of abuse and neglect could be corrected and terminate petitioner’s parental
rights. When asked if the presented evidence had been disclosed during discovery, petitioner’s
counsel answered affirmatively and voiced his concern over petitioner’s inability to comprehend
the seriousness of her situation and her difficulty in accepting responsibility for the child.
Shortly after the circuit court began to make findings, petitioner entered the courtroom.
After conferring with her counsel, petitioner requested to address the court. The circuit court
allowed petitioner to speak, at which point she asked a question regarding paperwork concerning
voluntary relinquishment, not termination of her parental rights. Petitioner’s counsel informed
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the circuit court that she had already been advised regarding the paperwork. The circuit court
asked petitioner to sit down and then proceeded to find that there was no reasonable likelihood
that the conditions of abuse and neglect could be substantially corrected in the future and that
termination was necessary for the child’s welfare.3 Following the termination of her parental
rights, petitioner requested to address the circuit court a second time and her request was denied.
It is from the dispositional order dated April 25, 2017, 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).
On appeal, petitioner’s sole argument is that the circuit court failed to provide her with a
meaningful opportunity to speak at the dispositional hearing. We disagree. West Virginia Code §
49-4-601(h) provides that “[i]n any proceeding pursuant to this article, the party or parties having
custodial or other parental rights or responsibilities to the child shall be afforded a meaningful
opportunity to be heard, including the opportunity to testify and to present and cross-examine
witnesses.” Additionally, West Virginia Code § 49-4-604(a)(2) grants respondents in abuse and
neglect proceedings the opportunity to be heard at the dispositional hearing. In this case, contrary
to petitioner’s factual assertion that she was denied the opportunity to address the circuit court,
the record on appeal is clear that the circuit court gave petitioner that opportunity at the
dispositional hearing. Petitioner’s counsel neither presented evidence, nor stated an intention to
present evidence at the dispositional hearing. The record further demonstrates that petitioner did
not object to any evidence the DHHR presented.
Further, despite arriving near the conclusion of her dispositional hearing, the circuit court
provided petitioner a meaningful opportunity to address the court. However, instead of
requesting to testify or present witnesses, petitioner only asked a question about paperwork
regarding voluntary relinquishment of her parental rights, information she had already been
apprised of by her counsel. It was only after requesting yet another opportunity to address the
3
The unknown father’s parental rights to the child were also terminated. According to the
DHHR, the child is placed in a foster home with a goal of adoption therein.
3
court, after termination of her parental rights, that she was denied a second opportunity.
Therefore, based on a thorough review of the record on appeal and the parties’ argument, we find
that petitioner’s assertion that she was not provided an opportunity to address the circuit court at
the dispositional hearing is not supported by the record.
For the foregoing reasons, we find no error in the decision of the circuit court, and its
April 25, 2017, order is hereby affirmed.
Affirmed.
ISSUED: October 23, 2017
CONCURRED IN BY:
Chief Justice Allen H. Loughry II
Justice Robin Jean Davis
Justice Margaret L. Workman
Justice Menis E. Ketchum
Justice Elizabeth D. Walker
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