                             STATE OF WEST VIRGINIA

                           SUPREME COURT OF APPEALS

                                                                                    FILED
In re: M.C. & G.C.                                                          February 16, 2016
                                                                               RORY L. PERRY II, CLERK
                                                                             SUPREME COURT OF APPEALS
No. 15-0791 (Webster County 14-JA-43 & 14-JA-44)                                 OF WEST VIRGINIA




                              MEMORANDUM DECISION

        Petitioner Father S.C., by counsel Christopher G. Moffatt, appeals the Circuit Court of
Webster County’s June 1, 2015, order terminating his parental rights to M.C. and G.C. 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”), Mary
Elizabeth Snead, filed a response on behalf of the children in support of the circuit court’s order
and a supplemental appendix. On appeal, petitioner argues that the circuit court erred in relying
solely upon a prior termination of his parental rights in terminating his parental rights to the
children at issue herein.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 December of 2014, the DHHR filed an abuse and neglect petition against petitioner. In
that petition, the DHHR alleged that in December of 2014 petitioner’s parole officer and Child
Protective Services (“CPS”) workers (1) found a “baggie of powdery substance that field tested
positive for methamphetamine” in petitioner’s residence that was accessible to the children; (2)
detected the odor of marijuana in the residence; (3) found that a felon, previously convicted of a
drug crime, had stayed at petitioner’s residence overnight, apparently in violation of petitioner’s
terms of parole; and (4) found drug paraphernalia and other evidence of drug use in petitioner’s
home, which included the children’s mother’s admission to “smoking” roxicontin, a controlled
substance, in that home while the children were present. The DHHR further alleged that
petitioner’s parental rights to another child had previously been terminated at a dispositional
hearing held on December 3, 2014, in a separate abuse and neglect proceeding. Thereafter, the
DHHR amended its petition for reasons not relevant to this appeal.

       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.


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        In February of 2015, the circuit court held an adjudicatory hearing. At that hearing,
petitioner stipulated to the allegations as detailed in the abuse and neglect petition filed in
December of 2014. Notably, petitioner admitted that his parental rights were recently terminated
to another child based on abandonment; failure to provide for the child; residential instability;
and failure to participate in multidisciplinary meetings, a psychological evaluation, and court
proceedings. The circuit court denied petitioner’s motion for a post-adjudicatory improvement
period based, at least in part, on evidence that petitioner failed to comply with services in the
prior abuse and neglect proceeding. The circuit court found that petitioner was unlikely to
participate in services in this matter.

        In April of 2015, the circuit court held a dispositional hearing. The DHHR presented the
testimony of a probation officer who drug tested petitioner in April of 2015. According to the
probation officer, while petitioner tested negative on one drug screen, he tested positive for
oxycodone on April 8, 2015, and oxymorphone and hydromorphone on April 14, 2015, without a
valid prescription. Petitioner presented no evidence. At the conclusion of the hearing, the circuit
court found that petitioner failed two drug screens and failed to comply with services in the
recent prior abuse and neglect proceeding. As such, by order entered on June 1, 2015, the circuit
court terminated petitioner’s parental rights to the children. That order expressly addressed
“[S.C.’s] [d]rug [s]creen [r]esults.” The circuit court found that, based on petitioner’s failure to
comply with services in the recent, prior abuse and neglect proceedings, there was no reasonably
likelihood that petitioner would comply with an improvement period in this matter; that
petitioner failed to establish that he would comply with the terms of an improvement period; and
that no less-restrictive alternative to termination existed. This appeal followed.

       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 asserts that the circuit court erred in terminating his parental rights
to M.C. and G.C. based solely on his prior termination of parental rights to another child.
However, petitioner’s argument is based upon factual assertions not supported by the record

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before this Court. While petitioner correctly notes that a circuit court generally speaks through its
written orders,2 we disagree with his argument that the circuit court’s written termination order
relied solely on the prior termination to support the instant termination. Further, we find no merit
to petitioner’s claim that “[p]etitioner, in effect, could do nothing to save his parental rights” in
the instant proceeding due to his prior termination. Here, in addition to finding that petitioner
failed to comply with services in his prior abuse and neglect proceeding, the circuit court’s
termination order references his drug screens, two of which were positive for controlled
substances, and his failure to establish by clear and convincing evidence that he could comply
with an improvement period. Therefore, the termination order includes findings and conclusions
made by the circuit court at the conclusion of the dispositional in addition to the finding that
petitioner had a prior termination of parental rights. Consequently, we find petitioner’s first
assignment of error to be meritless.

        We also find no merit to petitioner’s assertion that the DHHR failed to satisfy its burden
at disposition of proving that no less-restrictive dispositional alternative existed. This Court has
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 [1977] 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) [1977] that conditions of neglect or abuse can be
        substantially corrected.” Syl. pt. 2, In Re: R.J.M., 164 W.Va. 496, 266 S.E.2d 114
        (1980).

Syl. Pt. 2, In re Dejah P., 216 W.Va. 514, 607 S.E.2d 843 (2004). West Virginia Code § 49-6­
5(b) provides that no reasonable likelihood that the conditions of abuse or neglect can be
substantially corrected exists when

       (1) [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 such 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

       ...

       (3) [t]he abusing parent or parents have not responded to or followed through with
           a reasonable family case plan or other rehabilitative efforts[.]




       2
         See State v. White, 188 W.Va. 534, 536 n.2, 425 S.E.2d 210, 212 n.2 (1992) (stating that
“a court speaks through its orders, [and] we are left to decide this case within the parameters of
the circuit court’s order.”)(citing State ex rel. Erlewine v. Thompson, 156 W.Va. 714, 718, 207
S.E.2d 105, 107 (1973) and State v. Flint, 171 W.Va. 676, 679 n. 1, 301 S.E.2d 765, 768 n. 1
(1983)).
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        In this case, petitioner failed two drug screens during the pendency of the proceedings
below following his admission to issues with controlled substances in his home. Further,
petitioner failed to comply with services in his prior abuse and neglect proceeding, which he
admitted at the adjudicatory hearing. Given the evidence presented in this matter, we find no
error in the circuit court’s ruling that terminated petitioner’s parental rights to these children.

       For the foregoing reasons, the circuit court’s June 1, 2015, termination order is hereby
affirmed.
                                                                                     Affirmed.

ISSUED: February 16, 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




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