          IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA

                                  January 2016 Term
                                  _______________                             FILED
                                                                           June 16, 2016
                                     No. 15-0708                          released at 3:00 p.m.
                                   _______________                      RORY L. PERRY II, CLERK
                                                                      SUPREME COURT OF APPEALS
                                                                           OF WEST VIRGINIA
                                      IN RE: S.H.

       ____________________________________________________________

                    Appeal from the Circuit Court of Wayne County

                         The Honorable Darrell Pratt, Judge

                              Civil Action No. 14-JA-72


                  AFFIRMED IN PART, REVERSED IN PART,

                    AND REMANDED WITH DIRECTIONS

       ____________________________________________________________

                              Submitted: January 12, 2016

                                 Filed: June 16, 2016


A. Courtenay Craig, Esq.                     Patrick Morrisey, Esq.

Craig Law Office                             Attorney General

Huntington, West Virginia                    S. L. Evans, Esq.

Counsel for the Petitioner                   Assistant Attorney General

                                             Counsel for Respondent DHHR

                                             David R. Tyson, Esq.

                                             Tyson & Tyson

                                             Huntington, West Virginia

                                             Counsel for Intervenors K.W. and C.W.


                                             Alison R. Gerlach, Esq.

                                             Wayne, West Virginia

                                             Guardian ad litem for S.H.



JUSTICE BENJAMIN delivered the Opinion of the Court.

JUSTICE WORKMAN concurs and reserves the right to file a concurring opinion.

JUSTICE LOUGHRY concurs, in part, dissents, in part, and reserves the right to file a

separate opinion.

                             SYLLABUS BY THE COURT


              1.     “In reviewing challenges to the findings and conclusions of the

circuit court, we apply a two-prong deferential standard of review. We review the final

order and the ultimate disposition under an abuse of discretion standard, and we review

the circuit court’s underlying factual findings under a clearly erroneous standard.

Questions of law are subject to a de novo review.” Syl. pt. 2, Walker v. W. Va. Ethics

Comm’n, 201 W. Va. 108, 492 S.E.2d 167 (1997).



              2.     “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 rse Tiffany Marie S., 196 W. Va. 223, 470

S.E.2d 177 (1996).
Benjamin, Justice:



              This appeal arises from abuse and neglect proceedings involving four-year­

old S.H., and her maternal grandmother and guardian, petitioner, M.C.1 Below, S.H. was

adjudicated to have been neglected by M.C. M.C. was granted an improvement period,

but the improvement period was abruptly terminated by the court’s order, and M.C.’s

guardianship of S.H. was subsequently terminated. Upon our review, we find no error in

the conclusion that S.H. was a neglected child and we affirm that determination;

however, we conclude that the termination of M.C.’s improvement period was erroneous,

and we reverse that decision.


                I. FACTUAL AND PROCEDURAL BACKGROUND

              S.H. was born in November, 2011, to mother N.H. and father B.H. S.H.

was born addicted to methadone and marijuana. Shortly after her birth, an abuse and

neglect petition was filed on behalf of S.H. in the Circuit Court of Wayne County. At the

conclusion of that case, S.H.’s parents relinquished their custodial rights to S.H., and her

maternal grandmother, M.C., was declared her legal guardian.




       1
         Because this case involves sensitive facts, we protect the identities of those
involved by using only the parties’ initials. See State ex rel. W. Va. Dep’t of Human
Servs. v. Cheryl M., 177 W. Va. 688, 689 n.1, 356 S.E.2d 181, 182 n.1 (1987); see also
W. Va. R. App. P. 40.


                                             1

             In 2014, the mother, N.H., was arrested for felony third-offense shoplifting.

She entered a guilty plea and was placed on home confinement in M.C.’s home, in which

she and S.H. resided. As part of her home confinement, N.H. was subject to terms and

conditions, including the possibility of random home visits by supervising authorities. On

August 21, 2014, a home confinement officer made such a visit, during which he found

nearly two pounds of marijuana hidden in the closet in N.H.’s bedroom. M.C. and N.H.

initially denied any knowledge of how the marijuana came to be in the closet. S.H. was

not present during the search of the home, as she was visiting the home of the

intervenors, C.W. and K.W., who were M.C.’s neighbors.        Both M.C. and N.H. were

charged with possession of marijuana.



             For a one-week period following M.C. and N.H.’s arrests, S.H. stayed with

C.W. and K.W. while Child Protective Services (“CPS”) investigated the situation. S.H.

was returned to the home of her grandmother on August 28, 2014. On September 10,

2014, the Department of Health and Human Resources (“Department”) filed an abuse and

neglect petition naming M.C., N.H., and B.H. as respondents. S.H. was removed from

M.C.’s home and placed in the custody of C.W. and K.W.



             The court held an adjudicatory hearing on October 31, 2014, at which time

S.H. was found to be a neglected child because M.C. allowed marijuana to be in the home




                                            2

she shared with the child.2 M.C. moved for a post-adjudicatory improvement period

pursuant to W. Va. Code § 49-4-2 (2015). Neither the Department nor S.H.’s guardian ad

litem objected to an improvement period and the motion was granted. By order entered

December 4, 2014, M.C. was placed on an improvement period, with supervised

visitation.3 The family case plan prepared by the Department for M.C.’s improvement

period required M.C. to continue to abstain from illegal drugs and to provide a safe, drug-

free home for the child. Additionally, the family case plan required M.C. to undergo

random drug screens to detect the use of illegal or illicit drugs. M.C. was also required to

participate in parent education and such other services as deemed necessary.



              Shortly after the adjudicatory hearing, M.C. was indicted by the grand jury

on a felony charge of possessing marijuana with the intent to deliver. See W. Va. Code §

60A-4-401 (2011).      M.C. entered into a plea agreement with the State whereby she

entered a guilty plea to one count of misdemeanor possession of greater than fifteen




       2
          The father, B.H., was found to have neglected S.H. by not exercising his
parental responsibilities, by being incarcerated, by not supporting his daughter, by not
developing a relationship with the child, and by questioning the paternity of S.H. The
mother was found to have neglected S.H. because of her substance abuse and her inability
to care for the child because of incarceration. Both parents’ parental rights have been
terminated.
       3
          M.C. had previously been receiving unsupervised overnight visitation in her
home with the child. The court altered this visitation, by requiring it to be supervised, in
light of M.C.’s recent indictment on a felony drug charges.


                                             3

grams of marijuana on February 20, 2015.4 She was sentenced to ninety days in jail, but

her jail sentence was suspended and M.C. was placed on probation for two years.



             M.C.’s improvement period was reviewed on February 20, 2015.5 At the

hearing, the Department reported to the court that M.C. continued to work with her parent

educator and was actively participating in those services, with no absences. M.C. had

attended all her visitations with the child and the Department stated that it had no

concerns with these visitations. S.H. and M.C. interacted well and appeared to have a

loving and appropriate relationship. The Department also told the court that all thirty-

five of M.C.’s drug screens were negative for the presence of illegal or illicit drugs. In

addition, the court was told that M.C.’s home was properly and adequately maintained

and furnished. In all respects, M.C. was in full compliance with all the terms and

conditions of her improvement period as well as any requests of service providers.



             The Department’s proposed plan for S.H. involved returning her to the

home of M.C. for continuation of an in-home improvement period.             The proposal

permitted M.C. to have physical custody of S.H. while the Department retained legal

custody of S.H. Services would continue to the home. In addition, the Department

      4
         M.C. claimed that she had used marijuana to relieve lingering pain she
experienced after an accident.
      5
          M.C.’s criminal proceeding was before a different judge than the judge handling
the instant abuse and neglect proceeding.


                                            4

recommended that S.H. regularly visit with C.W. and K.W., inasmuch as they and the

child had a strong bond. S.H.’s guardian ad litem agreed with the recommendation of the

Department to return the child to M.C. as part of the continued improvement period.



              The court found that M.C. had “been substantially compliant with the terms

and conditions of her improvement period.” However, the court determined that M.C.

had not corrected the circumstances that led to the filing of the petition and that it was not

in the child’s best interests to be returned to M.C.’s home. Without a motion being filed

by any party, the court terminated M.C.’s improvement period. S.H. has since resided in

the home of C.W. and K.W., with the Department having legal custody of the child.6



              On April 7, 2015, M.C. filed a motion pursuant to Rule 60(b) of the West

Virginia Rules of Civil Procedure, seeking relief from the termination of the

improvement period. After a hearing was held, the motion was denied by order entered

April 16, 2015.



              On June 5, 2015, the circuit court held a dispositional hearing. The court

decided that M.C. had failed to provide a safe and stable home for the child and that there


       6
         While the order terminating M.C.’s improvement period likewise terminated her
visitation, on September 14, 2015, this Court directed the circuit court to enter an order
reinstating M.C.’s supervised visitation with the child pending this appeal. The circuit
court entered the order reinstating visitation on November 24, 2015.


                                              5

was no likelihood that M.C. could correct the circumstances of neglect in the reasonably

foreseeable future. The court found that it was contrary to the welfare of S.H. to be

returned to M.C.’s home, citing unsafe conditions in the home and M.C.’s failure to

protect the child. The court concluded that it was in S.H.’s best interests to terminate the

legal guardianship of M.C. over S.H.



                              II. STANDARD OF REVIEW

              This Court has held that

                     [i]n reviewing challenges to the findings and conclusions
              of the circuit court, we apply a two-prong deferential standard of
              review. We review the final order and the ultimate disposition
              under an abuse of discretion standard, and we review the circuit
              court’s underlying factual findings under a clearly erroneous
              standard. Questions of law are subject to a de novo review.

Syl. pt. 2, Walker v. W. Va. Ethics Comm’n, 201 W. Va. 108, 492 S.E.2d 167 (1997).

Specifically with regard to abuse and neglect cases, this Court has held:

              [a]lthough 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.



                                               6

Syl. pt. 1, In re Tiffany Marie S., 196 W. Va. 223, 470 S.E.2d 177 (1996). With these

standards in mind, we now turn to the issues before us.



                                     III. ANALYSIS

              The petitioner in this matter first asserts that the adjudication of S.H. as a

neglected child was unsupported by the facts. The circuit court based this finding upon

the presence of over two pounds of marijuana, of which M.C. admitted ownership and

use of, in the home in which S.H. lived. The circuit court found that M.C. had permitted

marijuana to be in her home and that the marijuana was accessible to S.H.



              A circuit court’s finding of neglect will not be set aside unless it is clearly

erroneous. As we stated in syllabus point 1 of In re Tiffany Marie S., 196 W. Va. 223, 470

S.E.2d 177, “[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.”



              W. Va. Code § 49-1-201 (2015) defines a neglected child as one

                     (A) Whose physical or mental health is harmed or
              threatened by a present refusal, failure or inability of the
              child’s parent, guardian or custodian to supply the child with
              necessary food, clothing, shelter, supervision, medical care or
              education, when that refusal, failure or inability is not due
              primarily to a lack of financial means on the part of the
              parent, guardian or custodian; or



                                              7

                    (B) Who is presently without necessary food, clothing,
             shelter, medical care, education or supervision because of the
             disappearance or absence of the child’s parent or custodian.



             Upon a review of the record and the transcript of the adjudicatory hearing,

we do not find the circuit court’s determination of neglect to be clearly erroneous. While

S.H. appeared to have had adequate food and clothing, the presence of marijuana in the

home posed a present danger for neglect. Although M.C. entered a plea of guilty to a

misdemeanor for possession of the marijuana, the State could have sought a felony

conviction carrying a potential prison sentence. M.C. could have been detained in jail

pending resolution of these criminal charges.



             This Court has upheld findings of neglect and the termination of parental

rights because of the exposure to illegal drug abuse by adults in the home. In In re J.W.,

No. 11-0774, 2012 WL 2948562, at *5 (W. Va. March 12, 2012) (memorandum

decision), this Court affirmed the finding of abuse and neglect (and ultimate termination

of parental rights) based in part upon the presence of capped and uncapped hypodermic

needles in the home, the operation or attempted operation of a methamphetamine

laboratory, all of which created a risk of imminent danger to the children. In the case of

In re D.H., No. 15-0686, 2015 WL 7628730, at *1 (W. Va. November 23, 2015)

(memorandum decision), this Court upheld the adjudication of two children as abused

and neglected based in part upon the findings that the mother was in possession of several

precursors to the manufacture of methamphetamine, various pharmaceuticals, scales,

                                            8

marijuana paraphernalia and evidence of an inactive and active methamphetamine

laboratory. Some of these items were found in the master bedroom. In the case of In re

Aaron Thomas M., 212 W. Va. 604, 575 S.E.2d 214 (2002), the circuit court’s finding

that the continued use of marijuana in a child’s presence constituted abuse was affirmed,

wherein we stated, “We believe that the circuit court was not clearly erroneous in finding

the children were emotionally abused by [the mother’s] repeated drug use in their

presence.” Id. at 609, 575 S.E.2d at 219. In view of our case-law relating to findings of

neglect, and there being a more than adequate factual basis to support the circuit court’s

neglect finding, we affirm that portion of the court’s order.



               We next turn to M.C.’s contention that the circuit court was clearly wrong

by terminating her improvement period.             If the court erred in terminating the

improvement period, the dispositional order terminating M.C.’s guardianship would

likewise be in error.



              W. Va. Code § 49-4-610 (2015) details the imposition of improvement

periods in abuse and neglect cases. It also describes the duties and responsibilities of all

parties to the proceedings, including the role of the Department in providing services to

the parents and children during the improvement period, as well as monitoring the

progress of the participants.




                                              9

              Prior to granting a post-adjudicatory improvement period the party seeking

the improvement period must file a written motion with the court. That party bears the

burden of demonstrating to the court by clear and convincing evidence that he or she “is

likely to fully participate in the improvement period.” W. Va. Code § 49-4-610(2)(B). In

this case, M.C. complied with these requirements and, before the improvement period

was granted, the court made a finding that M.C. was likely to fully participate in the

improvement period.




              At the first review of M.C.’s improvement period, the circuit court found

that M.C. had been in substantial compliance with the terms and conditions of her

improvement period. The record supports this finding. M.C. fully participated in the

improvement period. She remained drug-free, as shown by the many drug screens

undertaken to show the presence of illegal or illicit drugs. She maintained a fit and

proper home for S.H. and N.H. no longer resides in the home. She complied with all

requests of the Department. Both the Department and S.H.’s guardian ad litem agreed

with the proposal to return S.H. to her grandmother’s custody for continuation of an in-

home improvement period.



              Despite M.C.’s complete compliance with the terms of her improvement

period, the court, of its own volition, determined that M.C. could not correct the




                                            10

circumstances of neglect that led to the filing of the abuse and neglect petition.7 The

court’s June 15, 2015, order terminating M.C.’s guardianship of S.H. said, “[t]here is no

reasonable likelihood the grandmother, [M.C.], can correct the circumstances of neglect

in the reasonably foreseeable future.” Upon our review, we find that this conclusion is

wholly unsupported by the court’s findings of fact. Therefore, the termination of M.C.’s

improvement period and guardianship constitutes an abuse of discretion.8 We, therefore,



       7
        With respect to a party seeking to terminate an improvement period, W. Va.
Code § 49-4-610(7) states

              Termination of improvement period. — Upon the motion
              by any party, the court shall terminate any improvement
              period granted pursuant to this section when the court finds
              that respondent has failed to fully participate in the terms of
              the improvement period or has satisfied the terms of the
              improvement period to correct any behavior alleged in the
              petition or amended petition to make his or her child unsafe.

Here, the court acted sua sponte, not upon the motion of a party.
       8
          Our holding today should not be interpreted to suggest that a circuit court lacks
the discretion to terminate an improvement period when a parent or guardian shows
substantial compliance with its terms and conditions. This Court has recognized that “it
is possible for an individual to show compliance with specifics aspects of the case plan
while failing to improve the overall attitude and approach to parenting.” In re Jonathan
Michael D., 194 W. Va. 20, 27, 459 S.E.2d 131, 138 (1995) (internal quotation marks,
alteration, and ellipsis omitted). Moreover, “[t]he assessment of the overall success of
the improvement period lies within the discretion of the circuit court regardless of
whether the individual has completed all suggestions or goals set forth in family case
plans.” Id. (internal quotation marks omitted); see also syl. pt. 4, In re B.H., 233 W. Va.
57, 754 S.E.2d 743 (2014) (“In making the final disposition in a child abuse and neglect
proceeding, the level of a parent’s compliance with the terms and conditions of an
improvement period is just one factor to be considered. The controlling standard that
governs any dispositional decision remains the best interests of the child.”).


                                            11

reverse that portion of the circuit court’s ruling which terminated M.C.’s guardianship,

and remand this matter for reinstatement of M.C.’s improvement period.



                                  IV. CONCLUSION

              We find no error in the circuit court’s adjudication of S.H. as a neglected

child based upon M.C.’s use and possession of marijuana in the home of S.H. However,

because M.C. was in full compliance with the terms and conditions of her improvement

period, the termination of M.C.’s improvement period and guardianship constituted an

abuse of discretion. We reverse the June 5, 2015, order terminating M.C.’s guardianship

of S.H. and the circuit court’s order terminating M.C.’s improvement period. We remand

this case for entry of an order continuing this improvement period and for

implementation of specific visitation by and between S.H. and C.W. and K.W., if the

improvement period includes the Department’s and the guardian ad litem’s proposal to

gradually transition S.H. to the home of her grandmother. The mandate of this Court

shall issue forthwith.



                         Affirmed in part, reversed in part, and remanded with directions.




                                           12

