1 

### STATE OF WEST VIRGINIA SUPREME COURT OF APPEALS

In re A.U. Jr

. , A.U., J.F., and T.F.

No. 20

- 0 563 ( Kanawha County 19

- JA

- 156, 19

- JA

- 157, 19

- JA

- 158, and 19

- JA

- 337 )



### MEMORANDUM DECISION

Petitioner Mother L .F.
, by counsel Eliza bet h G. Kavitz

, appeal s the Circui t Court of Kanawha County’s June 2 9
, 20 20 , order terminating h er parental rights to A.U. Jr

. , A.U., J.F., and T.F

. 1 The West Virginia Department of Health and Human Resources (“DHHR”), by counsel Pat rick Morrisey and S

. L

. Eva ns , f iled a respon se in support of the circuit court’s order

. The guardian ad litem

, Matthew Smith

, filed a response on the chil d ren ’s behalf in support of the circuit court’s order

. On appeal, petitioner argues that the circuit court erred in terminati ng her
par ental right s wit hout first assuring her learning difficulties were accommodated during reunification services.

Thi s Court has considered the parties’ briefs and the record on appeal. The facts and legal arguments are adequately presented, and t he decisional process would no t be si gnificantly aided by oral argument. Upon consideration of the standard of review, the bri efs, and the record present ed, the Court finds no substantial question of law and no prejudicial error. For these
reasons, a memor and um decision affirm ing th e c ircuit court’s order is appropriate under Rule 21 of the Rules of Appellate Procedure.

In March of 2019, the DHHR filed a child abuse and neglect petition that detailed a history of referrals and the current abuse and ne gle ct of A .U. Jr., A.U., J .F. The D HHR fi rst alleged that petitioner had an “ open case ” since February of 2017, when it substantiated allegations that petitioner failed to prov ide necessary supervision to the children. Additionally, the DHHR alleged that peti tio ner was aware that then twelve

- year

- old A.U. was “ acting out sexually and inappropria tely ” toward nine

- year

- old A. U. Jr. and that she failed to see k services for the childre n. Further, the DHHR a lleged that in August of 2018, it received a nother referra l

1 Con sis tent with our l ong

- stan d ing practice in cases with sensitive facts, we use initials where necessary to protect the ident i ti es of those involved in this case. See In re K.H.
, 235 W. Va . 254, 773 S .E.2d 2 0 (2015); Melinda H. v. William R. II , 230 W. Va . 7 31, 742 S.E.2d 419 (2013); State v. Brandon B. , 218 W. Va. 324, 624 S.E.2d 761 (2005); State v. Edward Ch arles L. , 183 W. V a

. 641, 3 98 S.E .2d 123 (1990). 

### FILED November 8, 2021

EDYTHE NASH GAISER, CLERK
SUPREME COURT OF APPEALS
OF WEST VIRGINIA2 c once rnin g petitioner ’ s abuse of controlled substances, fail ure to car e for the children, and fail ure to maintain an appropriate home fo r the children. Upon investi gation, a DHHR worker observed petitioner ’ s home to be in an unliv able condition. The DHHR a l leged th at pe ti tioner a dmitted to using Suboxone without a valid pres cripti on , admitted that her boyfriend also used Suboxone without a valid prescription, and admitted that the children were truan t . The DHHR also alleged that peti tione r ’ s boyfriend ha d be en arr ested for domestic violence against petitione r. Finally, the DHHR n oted that petitioner was five months pregnant and that she ad mitted to inconsistent prenatal care despite having a “ high

- risk ” pregna ncy. Petitioner waived her preliminary heari ng

. In May of 2019, following the birth of T.F., t he DHHR filed an amended peti tion , naming T.F. as an infant respondent in the proce edings. The DHHR alleged that

, while petitioner was preg nant with T.F., petitioner test ed positive for amphetamines

, methamp het amines , and admitt ed to using heroin, Adderall

, and Suboxone

. The circuit court conven ed for an adjudicatory hearing later that month , and petitioner stipulated to the allegations in the pe tition

. The circuit court accepted petitioner ’s stipulat ion and adj udicated her as an abusing paren t. Thereafter, petitioner moved for a post

- adj udicatory improvement period , which the c ircuit court granted. The terms of petitioner ’s i mprovement peri od required that she par ticipate in random dr

ug screening, par enting a n d adult life s kills classes, super vised visitation, a paren tal fitness evaluation, and domestic violence counseling

.

Pe titioner su bmitted to a parental fi tness evaluation, and a report was completed and submitted to the circuit court in June of 20 19. T h e e valuator rep orted that petitione r ’s intelligence quotient test score was suggestive of a mild intellectual disability and her

n e urocognit ive screening score “fell in the ‘dementia ’ range

. ” The evaluator suggested that

, while the disability did not precl ude petitioner fr om achiev ing minimally adequate parenting, the disability might make it more difficult for petitioner to mea ningfull y enga ge in services. The evaluator rendered a “highly guarded ” progn osis that petitioner could obtain minimally adequate
p are nting in light of h er chronic sub stance abuse and depende nce, minimization of that use, neglect of h er children ’s basic needs, her de fens iv e responses during the evaluation, and her intellectual limitations. Th e eva luato r re commended many of the s ervice s t he DHHR was a lready providing petitioner . Notably, the evalua tor did not recommend part icular measures t o accommodate petit ioner ’ s mild intellectual disability.

The circuit court held review hearings in July of 2019 and October of 2019. At both hear ing s, the DHHR announced that pet itioner was substan tially compliant with the terms of her improvement period and reques ted that services continue.

The circuit court held a third review hearin g in December of 2019 . The DHHR noted that
pe titioner had diffi cul ty controlling the children during visitation and was discus sing

re unification with the children during visitat ion , w hich had upset A.U. , who stated that she did not want to live with petitioner in the future. Additionally, petitioner submitted to only one

r a ndom drug screen in the preceding two months. When questioned about her failure to comply with random drug s creeni ng, petitioner testified that she had “ been sleeping a lot. ” Petitio ner asserted that she had been diagnos ed with fibr om yalgia and scoli osi s , which caused her chronic pain. When asked how this affected her ability to submit to drug screening, petitio ner st ated that she had not been calling due to the pain

. The circuit court orde red petitioner to provide3 documents related to her diagnosis, and

, i n response t o petitioner ’s oral motion for an extension

, continued the proceedings for sixty days

. There is no evi dence in the record that documents

co ncerning petitioner ’ s alleged diagnoses were p rovided to the circuit court

.

The circuit court convene d f or a subsequent review hearing in February of 2020. The DHHR no ted that co ncerns continued to ar ise during petitioner ’s supervised visitation with the children. A DHHR worker testified that service provide rs “have to inter vene very frequently for differ ent things ” during visitation . The wor ker further explained that petitioner should have progressed to unsupervis ed visitations , but the DHHR could not reco mmend progression based
on t he issues present during the supervised visitations

. The circuit court co ncl u ded that petitioner had not substan tially complied with her improvement period

.

In Jun e of 2020, the circuit court held the final dispositional hear ing. P e titioner ’s visitation supervisor testified that she observed petitioner struggling to “give all of her attention to all of the children ” during visitations and appeared to becom e overwhel med when one of the children would act out. The supervisor reported that “visit s are usually chaotic. [A. U.] and [A.U. Jr

. ] are loud and constantly fighting

. . . . Whe n the kids fight, [petitione r] seems to lose h er focus. She will try to discipline them, but the kid s won ’t listen [,] o r she will get distracted. ” The supervisor noted that petitioner failed to se cure T.K. ’s car seat in the vehicle

, such that it was not

an chored by any means, and that she also forgot to chan ge the child ’s diaper during the visit. The supervis or testified that she did not believe that petitioner could ca re for the children without

a ssistance. The supervisor clarified that visitation becam e m ore difficult after T .K. was born

. Since T.K. ’s birth , petitioner focused her attention on him and had di f ficulty responding to the other three children.

The DHHR ’s case m anage r testified tha t t he DHHR was seeking termination of petitioner ’s parental rig hts. The case manager stated that despite the DHHR ’s provision of services since March of 2019, petitione r coul d not a dequately care for her children. She explained th at pet itioner struggled with disciplining the children and that the visitation supervi sor s would have to intervene with discipline and with general care for the children. Petitioner also “ struggled t o . . . k eep up with day

- to

- day functions

, ” such as keeping
ap pointm ents , and keeping essential items , such as her bus pass and identification car ds

. The

case manager testified that upon petitioner ’s requ est, visit ations with the older children and T.K.

we re split . The parties ag reed that prior to reunification, peti tioner would need to dem onstrate an ability to care for all four children at once du ring visitations ; h owever, when visitations with all four chil dren resumed early in 2020, petitioner exhibited the same issues and had made no progress in that regard.

Pe tition er disagreed tha t she had d ifficulty managing the children during visitatio n. She f urther testified that she had an a ppropriate home for the chi ldren

. Petitioner stated that she maint ained employment and worked near ful l

- tim e hours , which were expected to increase. Fi nally, petitioner requested further opportunity to participat e in services and to demon strate her ability to pare nt.

Ultimately, the circuit court found that petitioner had been unable to show the
resp onsibility needed to be a parent, as evidenced by h er failure to participate in drug s creens for4 multiple months dur ing the proceeding s, ina bility to mix formula for infant T.K., calling A.U. “a liar during a supervised visi tation

, ” purchasing the wrong si ze diapers for T.K., and failing to buckle the infa nt ’s car sea t on multiple occasions. I t decided that petitioner l ack ed the capacity and ab ility to understand her deficiencies in parenting. The court furt h er found that the DHHR had exhaus ted all efforts to reunify petitioner with the children. Finally, t he ci rcuit court found that there was no reasonable likelihood th at the conditions o f abus e and neglect could be substantially corrected in the near future and that terminati on of pe titioner ’s parental rights was

neces sa ry for the welfare of the children. Petitioner now appeals the circuit court’s June 29
, 202 0 , order t hat terminates h er parent al rights to the child ren. 2

T he Court has previou sly held :

“Although conclusions of law reached by a circu it cou rt are subject to de

novo revi ew, when an action, such as an a buse a nd neglect case, is tried u po n the f acts w itho ut a j ury, th e circuit court shall make a determination ba sed upon the evidenc e and shall make fin dings of fact and conclusions of law a s to w hether such child is abused or neglected. These findings shall not b e set aside by a reviewing co u rt unl ess cl earl y er ro neous. A finding is clearly e rroneous when, altho ugh there is evidence t o support the findin g, the reviewing court on the entire

e videnc e is left with the definite an d firm conviction that a mistake has b een committed. Ho wever, a r ev i ewing cour t may not ov erturn a finding simply becau se it would have dec ide d the case different ly, and it must affi rm a finding if the circuit court’s ac count of the evidence is plausible i n light of the record viewed in its en tirety.” Syl. Pt. 1, In In t er e st of Tiff an y Ma rie S. , 196 W .Va. 223, 470 S.E.2d 1 77 (1996).

Syl. Pt . 1
, In re Cecil T

., 22 8 W. Va. 89, 717 S.E .2d 873 (2011).

On appeal, petition er arg ues that the circuit court err ed in term inating her parental rights without first considering w het her the DHHR pro vided her reasona ble accommodations in accord ance with the Americans with Disa bilities Act. 3 Petit ioner re lies on her parental fitness evaluat ion to prove that she had a “ mild intellectual disability

, ” which required reasonable accommoda t io n from the DHHR

. She a sserts that West Virginia Code § 4 9

- 4

- 604(c)(5) requires circuit court s to consider whether the DHHR provided reasonable accommodations when the
court finds that the parent is “ presently unwilling or unable to provide adeq uate ly fo r t he child ’ s needs

. ” Pet itioner correctly s tates the circuit court made no finding in this regard.

2 The father s ’ respective parental rights have bee n terminated below . Ac cording to the parti es , the si blings have been s eparated. T he permanency plan for A.U. Jr

. and T.K. is adoption in their respective fos ter placements. Th e permanen cy pla n for A.U. is legal guardianship with her paternal grandmother. Finally, the p ermanency plan for J.F. is continuation in his current pla cement.

3 See 42 U.S. C. § 12 101

.5 West Virginia Code § 49

- 4

- 604(c) provides a series of disp ositional op tions that a circ uit
court may impose and requires that the circuit court give “ pre ced ence to disposit ions ” in the sequence th at the y are list ed , with termination of parental rights considered the “ mo st drastic ” dispositional alternative

. See S y l. Pt. 5, In re Kristin Y.
, 227 W. Va. 558, 712 S.E.2d 55 (2011)

. Petitioner ’ s argument center s o n the factors th at the circuit court shall include i n its order if it first finds that a parent is “ presently unwi lling or unable to provide adequately for th e child ’ s needs

. ” See W. Va. Code § 49

- 4

- 604(c)(5) . Ho wever, petitioner fails to recognize that t h e circuit
court did no t make th at finding in this case. Rather, the circuit court found th at there was no reasonab le likel ihood that petitioner co uld correct the conditions of abuse and neglect in the near future and tha t termination of parental rights wa s in the children ’ s bes t interests , which is the requi s ite finding to terminate a parent ’ s parental rights under We st Virginia Code § 49

- 4

- 604(c)(6). West Virg inia Code § 49

- 4

- 604(c)(6) d oes not require the circuit court to include the same findings as W es t Virginia Code § 49

- 4

- 604( c)(5) , and , therefore, we find no error in the circuit court ’ s omission of this finding.

Further, w e find that t he circuit court ’ s fin ding that there was no r easona ble likeli hood that the conditions of abuse and neglect could b e substantially corre cted i n the near future is
sup ported by the record

. West Virginia Code § 49

- 4

- 604( d)( 3) provides that such conditions exist when

[t ] he abusing parent o r parents have not responded to or followed through with a reasonable family case p l an or othe r reha bilitative efforts of social, medical, mental health, or other rehabilitative agencies d esigned to reduce or prevent the abuse or neglec t of the child, as e videnced by the continuation or insubstantial diminution of conditions which thre at e ned the he alth, welfare, or life of the child [ren ].

As presented above, the circuit court found tha t pe titioner did not substantially compl y with her i mprovement period du e, in part

, to he r failure to participate in random dr ug screening for a two

mont h p eriod. Mor eover, the circuit court found that petitioner had been unable to show the
resp onsibility need ed to be a parent, as evidenced by her failure t o participate in drug s creens for multiple months during the proceedings, inability to mix formula fo r i nfant T.K. , call ing A.U. “a liar during a supervised visi tation

, ” purchasing the wrong si ze diapers for T.K., and failing to buckle the infant ’s car sea t on multiple oc casions

. D espite instructi on from service pro viders

, petitioner ’ s inadequacies c ontin ue d unab ated and thre at en ed the h ealth and welfare of th e children

.

The circuit court also found that petitio ner lacked the c apacity and a bilit y to unders tand the deficiencies in her parentin g. T h is Cour t has hel d :

“ W here allegations of neglect are made a g ainst pare nts ba sed on intellectual incapacity of such parent(s) and their consequent inability to adequ ately care for their children, term ination of ri ghts should occur only after the social services system makes a thorough effort to determine whether th e parent(s)

can a dequately care for the children with intensive long

- term assistance. I n such6 case, howev er, the determination of whether th e parents can function with such assistance should be made as soon as possible in o rder to maximize the child(ren) ’ s chances fo r a pe rmanent placement.” Syllabus point 4, In re Billy Joe M. , 206 W.Va. 1, 521 S.E.2d 173 (1 999).

Syl. Pt. 4, In re Maranda T. , 223 W. Va. 512, 678 S.E.2d 18 (2009). As we explained in M a randa T. , this holding does not require that the DHHR p r ovide exte nsive long

- term services

. Id . at 519, 678 S.E.2d at 25. Similar to this proceeding, we found i n M a randa T. that fourteen months of services , w ithout benefit, was sufficient to determine whether a parent had the capacity to lea rn the skills nec es s ary to par ent her children. Id

. As stated above, petitioner wa s provided services throughout the fifte en

- month

- long proceedings , whi ch is a sufficient period of time to determ ine whether she could adequately parent her childre n . Accordingly, we find no

er r or in th e circ uit court ’ s decision to terminate p etitioner ’ s parental rights.

Fo r the foregoing reas ons, we find no error in the d ec isi on of the cir cuit court

, and its June 29
, 20 20 , o rder is h ereby affirmed.

Affirme d.

ISSUED : 

### November 8, 2021

CON CURRED IN BY :

Chi e f Justic e Evan H. Jenkins Justice Elizabeth D. Walker Justice Tim Armste a d Justi c e John A. Hutchison J ustice William R. Wooton