                            STATE OF WEST VIRGINIA

                          SUPREME COURT OF APPEALS


In re: A.H.                                                                       FILED
                                                                              January 8, 2018
No. 17-0816 (Wayne County 17-JA-057)                                         EDYTHE NASH GAISER, CLERK
                                                                             SUPREME COURT OF APPEALS
                                                                                 OF WEST VIRGINIA


                              MEMORANDUM DECISION
        Petitioner Mother N.H., by counsel Michael A. Meadows, appeals the Circuit Court of
Wayne County’s August 10, 2017, order terminating her parental rights to A.H.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. The guardian ad litem (“guardian”), Melia Atwell
Adkins, 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 terminating her parental rights without first
granting an improvement period.

        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 May of 2017, the DHHR filed an abuse and neglect petition against petitioner and
A.H.’s father. The DHHR alleged that at the child’s birth, both petitioner and the child tested
positive for marijuana. The DHHR alleged that petitioner had a history of drug abuse, which led
to the involuntary termination of her parental rights to two older children in January of 2016. The
DHHR noted that she was not successful in the numerous times she attempted substance abuse
treatment and could not maintain sobriety. The DHHR alleged that A.H. was petitioner’s second
child to be born “drug exposed” and that petitioner reported a ten-year-long addiction to opiates
and other drugs, including use of heroin, Suboxone, and marijuana. Further, petitioner and the
father lived in a recreational vehicle (“RV”) next to the father’s mother’s home. An extension
cord connected to the home provided electricity for the RV, but the parents had to go into her
house to use the kitchen or bathroom and to obtain water. The DHHR alleged aggravated
circumstances existed due to the prior involuntary termination of petitioner’s parental rights to
two older children and that impending and present dangers existed as a result of one or both

       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).


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caregivers’ lack of parenting knowledge, skills, or motivation which affected child safety; that
the caregivers’ drug and/or alcohol abuse was pervasive and threatened child safety; and, that
one or both caregivers could not control their behavior. Later in May, petitioner and the father
waived their preliminary hearing.

        The circuit court held an adjudicatory hearing in June of 2017. Petitioner was not present
but was represented by counsel. According to petitioner’s counsel, petitioner was attending a
medical appointment and the father, who was also absent, had chosen to drive her to the
appointment. The circuit court denied the parents’ motions to continue and heard evidence. The
circuit court found that petitioner had not been in contact with the social worker since the
preliminary hearing, failed to appear at a scheduled multidisciplinary team (“MDT”) meeting,
failed to obtain random drug screens, and did not participate in supervised visits with the child.
Further, the circuit court found that there was clear and convincing evidence that the child was
abused and neglected by the parents based upon their substance abuse issues, by the child being
born addicted to drugs, and by the parents’ failure to cooperate with the DHHR. Accordingly, the
circuit court adjudicated petitioner as an abusing parent and rescinded supervised visits until she
made an appearance before the circuit court and cooperated with the DHHR.

        In August of 2017, the circuit court held a dispositional hearing. Petitioner requested a
post-adjudicatory improvement period and testified that she had missed the adjudicatory hearing
because her primary care physician referred her to a specialist for pain in her hands. Petitioner
stated that the test she underwent on the day of the adjudicatory hearing revealed that she had
carpal tunnel syndrome. When asked why she had not been in contact with the CPS worker,
petitioner testified that she had tried to make a few telephone calls, but experienced difficulty
contacting someone when their CPS worker was changed. Further, petitioner also alleged that the
new CPS worker had the wrong phone number for petitioner and the father. However, on cross-
examination, petitioner admitted that she had been in and out of town working on construction
jobs. Despite testing positive for marijuana immediately prior to the hearing, petitioner stated
that she did not test positive for opiates, as she did at her first hearing, because the marijuana was
helping her “come off” the other drugs. Petitioner testified that she wanted to obtain sobriety in
order to be a mother to her children, attend school, and succeed in life. After hearing petitioner’s
testimony, the circuit court found that petitioner failed to cooperate with the DHHR, failed to
stay in touch with her attorney, failed to stay in touch with the CPS worker, and failed to
participate in drug screens. Further, the circuit court noted that petitioner put a very minor
elective medical procedure and potential employment opportunities before the custody of the
child. The circuit court also found that petitioner continued to abuse drugs. Finally, the circuit
court found that there were aggravating circumstances in the case due to petitioner’s prior
involuntary termination of her parental rights to two older children. Ultimately, the circuit court
found that there was no reasonable likelihood that petitioner could correct the conditions of
abuse. The circuit court also found petitioner seemed to lack the desire to correct the conditions.
Finding that the child needed stability and permanency, and that termination was necessary for
her welfare, the circuit court denied petitioner’s motion for a post-adjudicatory improvement




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period and terminated her parental rights.2 It is from this dispositional order dated August 10,
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).

        Petitioner argues on appeal that the circuit court erred in terminating her parental rights
without first granting her an improvement period. We disagree. The decision to grant or deny an
improvement period rests in the sound discretion of the circuit court. See In re: M.M., 236 W.Va.
108, 115, 778 S.E.2d 338, 345 (2015) (holding that “West Virginia law allows the circuit court
discretion in deciding whether to grant a parent an improvement period”); Syl. Pt. 6, in part, In re
Katie S., 198 W.Va. 79, 479 S.E.2d 589 (1996) (holding that “[i]t is within the court’s discretion
to grant an improvement period within the applicable statutory requirements”). We have also
held that a parent’s “entitlement to an improvement period is conditioned upon the ability of the
[parent] to demonstrate ‘by clear and convincing evidence, that the [parent] is likely to fully
participate in the improvement period . . . .’” In re: Charity H., 215 W.Va. 208, 215, 599 S.E.2d
631, 638 (2004).

        Here, the record establishes that petitioner failed to demonstrate her ability to fully
participate in an improvement period. Throughout the underlying proceedings, petitioner failed
to maintain contact with the DHHR and her attorney. She did not participate in random drug
screens as ordered by the circuit court, nor did she visit with her child. In fact, petitioner testified
that part of the reason she did not keep in touch with her CPS worker was because she traveled
out of town for work. Despite knowing the gravity of the circumstances, petitioner chose to
attend a medical appointment regarding her carpal tunnel syndrome rather than attend her own
adjudicatory hearing. Further, petitioner tested positive for marijuana at the dispositional hearing.
Petitioner’s argument that she would participate in a plan to address her substance abuse is
unpersuasive as petitioner lost her parental rights to two older children based on her substance

       2
       The father’s parental rights were also terminated in the proceedings below. The
permanency plan for A.H. is adoption by an aunt.
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abuse. In fact, petitioner went through prior proceedings for similar circumstances when another
child was born exhibiting symptoms of drug withdrawal. Petitioner attempted to enter drug
rehabilitation programs but ultimately continued to abuse controlled substances, despite being
offered services in the prior proceedings. While petitioner argues that she would successfully
complete an improvement period if given the chance, her actions during both the prior and
instant proceedings show a complete lack of compliance with what was required of her.
Accordingly, we find no error in the circuit court’s decision denying petitioner an improvement
period.

       Moreover, we find no error in the termination of petitioner’s parental rights. West
Virginia Code § 49-4-604(b)(6) provides that circuit courts are to 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 child’s
welfare. Pursuant to West Virginia Code § 49-4-604(c)(3), a situation in which there is no
reasonable likelihood that the conditions of abuse or neglect can be substantially corrected
include one in which

       [t]he 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.

        The record demonstrates that there was no reasonable likelihood that petitioner would
correct the conditions of abuse and neglect. This is petitioner’s second time participating in
abuse and neglect proceedings. Petitioner’s prior involuntary termination of her parental rights
was due in part to her substance abuse. Knowing that her parental rights had previously been
terminated on similar bases, petitioner tested positive at her preliminary and dispositional
hearings, the only two times she screened throughout the proceedings. We have previously held
as follows:

               [w]here there has been a prior involuntary termination of parental rights to
       a sibling, the issue of whether the parent has remedied the problems which led to
       the prior involuntary termination sufficient to parent a subsequently-born child
       must, at minimum, be reviewed by a court, and such review should be initiated on
       a petition pursuant to the provisions governing the procedure in cases of child
       neglect or abuse set forth in West Virginia Code §§ 49-6-1 to -12 (1998) [now
       West Virginia Code §§ 49-4-601 through 49-4-610]. Although the requirement
       that such a petition be filed does not mandate termination in all circumstances, the
       legislature has reduced the minimum threshold of evidence necessary for
       termination where one of the factors outlined in West Virginia Code § 49-6-5b(a)
       (1998) [now West Virginia Code § 49-4-605(a)] is present.

In re Kyiah P., 213 W.Va. 424, 427, 582 S.E.2d 871, 874 (2003) (quoting Syl. Pt. 2, In the
Matter of George Glen B., 205 W.Va. 435, 518 S.E.2d 863 (1999)). Clearly, petitioner failed to
remedy the same issues that led to her prior involuntary termination of parental rights. Further,


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petitioner failed to attempt to have her visitation rights reinstated after having them suspended at
the adjudicatory hearing due to her failure to cooperate with the DHHR. While petitioner argues
that her parental rights should not have been terminated without granting her an improvement
period, we have previously held that

               “[t]ermination of parental rights, the most drastic remedy under the
       statutory provision covering the disposition of neglected children, W. Va.Code [§]
       49-6-5 [now West Virginia Code § 49-4-604] . . . may be employed without the
       use of intervening less restrictive alternatives when it is found that there is no
       reasonable likelihood under W. Va.Code [§] 49-6-5(b) [now West Virginia Code
       § 49-4-604(c)] . . . that conditions of neglect or abuse can be substantially
       corrected.” Syllabus point 2, In re R.J.M., 164 W.Va. 496, 266 S.E.2d 114 (1980).

Syl. Pt. 5, In re Kristin Y., 227 W.Va. 558, 712 S.E.2d 55 (2011). Based on the evidence outlined
above, we agree with the circuit court’s finding that there was no reasonable likelihood that
petitioner would correct the conditions of abuse and/or neglect and that termination was
necessary for the child’s welfare.

      For the foregoing reasons, we find no error in the decision of the circuit court, and its
August 10, 2017, order is hereby affirmed.


                                                                                         Affirmed.

ISSUED: January 8, 2018


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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