                                                      STATE OF WEST VIRGINIA 

                                                    SUPREME COURT OF APPEALS


In re A.B.
                                                                                      FILED
                                                                                 February 23, 2018
                                                                                 EDYTHE NASH GAISER, CLERK
                                                                                 SUPREME COURT OF APPEALS
No. 17-0891 (Roane County 16-JA-51)                                                  OF WEST VIRGINIA 




                                                          MEMORANDUM DECISION

        Petitioner Mother, A.R., by counsel D. Kyle Moore, appeals the Circuit Court of Roane
County’s September 5, 2017, order terminating her parental rights to A.B.1 The West Virginia
Department of Health and Human Resources (“DHHR”), by counsel Lee Niezgoda, filed a
response in support of the circuit court’s order. The guardian ad litem (“guardian”), Erica
Brannon Gunn, 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 motion for a post-adjudicatory
improvement period and terminating her parental rights.

        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.

        On December 1, 2016, the guardian for the child filed a petition alleging petitioner had a
chronic substance abuse problem that impaired her ability to properly care for the child and
previously led to the involuntary termination of her parental rights to two older children. The
petition further alleged that petitioner received inpatient drug treatment four times, but continued
to abuse drugs, and that petitioner was incarcerated in June of 2016 when she tested positive for
methamphetamine in violation of her probation stemming from a child neglect charge. Finally,
the petition alleged that the child had been exposed to domestic violence between his parents,
with petitioner being the primary aggressor.

        On December 6, 2016, the circuit court held a preliminary hearing. At that time,
petitioner was in a residential drug treatment program in Beckley, West Virginia. The circuit
court granted petitioner supervised visitation with the child, subject to petitioner completing 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).


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residential drug treatment program, her participation in random drug screens, and approval by
the child’s therapist. On January 30, 2017, the circuit court held an adjudicatory hearing.
Petitioner stipulated to chronic substance abuse and domestic violence between her and the
child’s father. Accordingly, the circuit court adjudicated petitioner as an abusing parent.

        On August 31, 2017, the circuit court held a dispositional hearing wherein petitioner
appeared by telephone. Petitioner admitted that she participated in services but only submitted to
three drug screens during the pendency of the case. Petitioner blamed the DHHR for the delay in
setting up drug screens, but also admitted that she failed to provide the DHHR with her work
schedule so that drug screens could be scheduled. She further admitted that of the three screens,
one was positive for methamphetamine and that she had marijuana in her system at the time of
the dispositional hearing. A caseworker testified that petitioner participated in parenting and
adult life skills classes, but failed to comply with drug screens. The circuit court found that
petitioner had a chronic drug abuse problem which led to the involuntary termination of her
parental rights to two older children and that petitioner failed to respond to treatment efforts. The
circuit court further cited petitioner’s psychological examination, which found her prognosis for
improved parenting to be “extremely poor to nonexistent.” Finally, the circuit court found no
reasonable likelihood that petitioner could substantially correct the conditions of abuse and
neglect in the near future and that termination was in the child’s best interests. Ultimately, the
circuit court terminated her parental rights in its September 5, 2017, order.2 It is from the
dispositional order 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). Upon our review, the Court finds
no error in the proceedings below.

       First, petitioner argues that the circuit court erred in denying her motion for a post-
adjudicatory improvement period. Petitioner argues that the DHHR did not make reasonable

                                                            
              2
      The father’s parental rights were also terminated. According to the guardian and the
DHHR, the child is placed in a foster home with a permanency plan of adoption in that home.
                                                               2

 
efforts to reunify her with her child as they delayed setting up drug screens and did not make
efforts to place her and the child into any therapy. Pursuant to West Virginia Code § 49-4-
604(b)(7)(C), the DHHR was not required to make reasonable efforts to preserve the family due
to the involuntary termination of petitioner’s parental rights to two older children. Nevertheless,
the DHHR provided petitioner with services including drug screens, visitation with the child, and
parenting classes, with which petitioner did not fully comply. Moreover, West Virginia Code §
49-4-610(2)(B) provides that in order to be granted a post-adjudicatory improvement period, the
parent must “demonstrate[ ], by clear and convincing evidence, that the [parent] is likely to fully
participate in the improvement period.”

       Here, petitioner was offered services throughout the proceedings, but failed to comply
with consistent drug screens. Petitioner attempted to blame the DHHR for the delay in setting up
drug screens, but also admitted at the dispositional hearing that she failed to give service
providers her work schedule so that the screens could be set up. Despite having completed four
drug treatment programs, petitioner admitted to having a positive drug screen for
methamphetamine during the proceedings and admitted to having marijuana in her system on the
day of the dispositional hearing. Due to her continued drug use and failure to comply with
services, petitioner failed to meet the burden to receive a post-adjudicatory improvement period.
Therefore, we find no error in the circuit court’s denial of petitioner’s motion for a post-
adjudicatory improvement period.

        Next, petitioner argues that the circuit court should have employed a less-restrictive
alternative than termination of her parental rights because the DHHR did not make reasonable
efforts to reunify her with her child. We disagree. As noted above, the DHHR was not required
to make reasonable efforts to preserve the family under these circumstances. Further, 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. West Virginia Code § 49-4-604(c)(3) provides that no reasonable likelihood that the
conditions of abuse or neglect can be substantially corrected exists when “[t]he abusing parent . .
. ha[s] not responded to or followed through with a reasonable family case plan or other
rehabilitative efforts[.]”

       We have also held as follows:

               “Termination 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).




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         As discussed above, the DHHR provided petitioner services, although she failed to
comply with consistent drug screens and continued to use drugs throughout the proceedings.
Further, due to her failure to drug screen, petitioner was unable to visit with the child.
Ultimately, the circuit court found that termination of petitioner’s parental rights was the least-
restrictive disposition because there was no reasonable likelihood that petitioner could correct the
conditions of abuse and neglect in the near future and termination was necessary for the child’s
welfare. West Virginia Code § 49-4-604(b)(6) provides that circuit courts are to terminate
parental rights upon such findings. Accordingly, we find no error in the circuit court’s decision
to terminate petitioner’s parental rights.

      For the foregoing reasons, we find no error in the decision of the circuit court, and its
September 5, 2017, order is hereby affirmed.


                                                                                         Affirmed.

ISSUED: February 23, 2018


CONCURRED IN BY:

Chief Justice Margaret L. Workman
Justice Robin Jean Davis
Justice Menis E. Ketchum
Justice Allen H. Loughry II
Justice Elizabeth D. Walker
 

 




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