                             STATE OF WEST VIRGINIA
                           SUPREME COURT OF APPEALS


In re M.K. and S.H.                                                                 FILED
                                                                                 June 24, 2020
No. 19-1141 (Kanawha County 18-JA-287 and 19-JA-414)                            EDYTHE NASH GAISER, CLERK
                                                                                SUPREME COURT OF APPEALS
                                                                                    OF WEST VIRGINIA




                               MEMORANDUM DECISION


         Petitioner Mother S.K., by counsel Elizabeth G. Kavitz, appeals the Circuit Court of
Kanawha County’s October 1, 2019, order terminating her parental rights to M.K. and S.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, Sharon K. Childers,
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 adjudicating her as an abusing
parent of S.H. and in terminating her parental rights rather than imposing a less-restrictive
dispositional alternative.

       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 2018, the DHHR filed a child abuse and neglect petition alleging that petitioner
tested positive for controlled substances while pregnant with M.K. According to the DHHR,
petitioner tested positive for marijuana and methamphetamines twice during her pregnancy, and
the child exhibited withdrawal symptoms after birth. Additionally, the DHHR alleged that
petitioner could not provide a suitable living environment because she lived with individuals who
had significant histories with Child Protective Services. During the preliminary hearing, the
DHHR presented evidence that petitioner admitted to illicit drug use during her pregnancy.
Petitioner was ordered to drug screen at this hearing and produced positive results for

       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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amphetamine, methamphetamine, and marijuana. The circuit court ratified M.K.’s temporary
removal from the home and ordered petitioner to participate in reunification services, including
supervised visitations.

        The circuit court held an adjudicatory hearing in July of 2018 and adjudicated petitioner as
an abusing parent based on the evidence presented at the preliminary hearing. Petitioner did not
testify or present any additional evidence. Later, in September of 2018, the circuit court granted
petitioner a post-adjudicatory improvement period and ordered that she participate in a forensic
parental fitness evaluation, random drug screening, drug treatment and relapse prevention courses,
parenting and adult life skills classes, and supervised visitations as terms of the improvement
period. Petitioner was also required to maintain appropriate housing and employment during her
improvement period.

        Sometime prior to the first review hearing in October of 2018, petitioner was arrested and
incarcerated until mid-December 2018. Once released, petitioner reported that she was eighteen
weeks pregnant with her second child, S.H. In June of 2019, the DHHR filed an amended petition
alleging that petitioner tested positive for controlled substances while pregnant with S.H. The
circuit court held an adjudicatory hearing on the amended petition in July of 2019; however,
petitioner did not appear, but was represented by counsel. The DHHR presented evidence that
petitioner admitted to her caseworker that she used methamphetamine while pregnant with S.H.
The circuit court found, by uncontroverted evidence, that petitioner “admitted to smoking
methamphetamine while pregnant with [S.H.] and tested positive for methamphetamines on two
occasions” and, based on this evidence, adjudicated petitioner as an abusing parent. The circuit
court noted that petitioner was adjudicated as an abusing parent for the same issues regarding M.K.
and, despite the services provided during an improvement period, continued to abuse controlled
substances and exhibit poor decision making. Although petitioner’s formal post-adjudicatory
improvement period expired in March of 2019, the circuit court ordered that reunification services
continue.

         In September of 2019, the circuit court held a dispositional hearing, for which petitioner
appeared, but did not testify. The DHHR presented evidence that petitioner inconsistently
participated in services throughout her improvement period and thereafter. The DHHR case worker
testified that petitioner participated in only “[ten] or [twelve]” drug screens since the beginning of
2019, rather than once per week as directed. The case worker further testified that petitioner did
not have utilities in her home or a known source of income. Regarding substance abuse treatment
and relapse prevention courses, the case worker testified that petitioner left a program prior to
completion because it “was too intensive.” The case worker was aware that petitioner initiated a
new program thereafter, but explained that she had missed two of the four appointments thus far.
Finally, court summaries indicated that petitioner inconsistently attended parenting and adult life
skills classes by failing to confirm session times or simply not answering the door when the service
provider arrived.

        Ultimately, the circuit court found “that despite being given an improvement period,
[petitioner] ha[d] not rectified the circumstances which led to the filing of the petition in this
matter. During the course of this case, [petitioner] did not consistently participate in drug screens,
drug treatment, or parenting [classes].” The court also noted that petitioner missed “a significant

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number of visits [with her children] because of her failure to drug screen regularly” and, as a result,
had “not had the opportunity to bond with either of her children.” Based on petitioner’s failure to
follow through with rehabilitative services, the circuit court concluded that there was no reasonable
likelihood that the conditions of abuse and neglect could be corrected in the near future and that
termination of petitioner’s parental rights was in the children’s best interests. Accordingly, the
circuit court terminated petitioner’s parental rights and denied post-termination visitation by its
October 1, 2019, order. Petitioner now appeals that order. 2

       The Court has previously held:

               “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 review, this Court finds no
error in the proceedings below.

        On appeal, petitioner argues that the circuit court erred in finding that she was an abusing
parent and that S.H. was an abused child. Petitioner asserts that the DHHR failed to present clear
and convincing evidence that she abused S.H. We find this argument unpersuasive.

       Regarding adjudication, this Court has held

                 “[West Virginia Code § 49-4-601(i)], requires the [DHHR], in a child abuse
       or neglect case, to prove ‘conditions existing at the time of the filing of the petition
       . . . by clear and convincing [evidence].’ The statute, however, does not specify any
       particular manner or mode of testimony or evidence by which the [DHHR] is
       obligated to meet this burden.” Syllabus Point 1, In Interest of S.C., 168 W.Va. 366,
       284 S.E.2d 867 (1981).

Syl. Pt. 1, In re Joseph A., 199 W. Va. 438, 485 S.E.2d 176 (1997) (citations omitted). West
Virginia Code § 49-1-201 defines an “abusing parent” as a “parent . . . whose conduct has been
adjudicated by the court to constitute child abuse or neglect as alleged in the petition charging


       2
       The respective fathers of the children also had their parental rights terminated below.
According to the parties, the permanency plan for the children is adoption in their current foster
placement.
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child abuse or neglect.” Additionally, an “abused child” is one “whose welfare is harmed or
threatened by . . . [a] parent . . . who knowingly or intentionally inflicts, attempts to inflict, or
knowingly allows another person to inflict, physical injury or mental or emotional injury, upon the
child or another child in the home.” Id. Here, the DHHR presented testimony that petitioner tested
positive for methamphetamine while pregnant with S.H. and that petitioner admitted to the same.
Moreover, petitioner produced no contradictory evidence at the adjudicatory hearing or at any time
thereafter.

               Because the purpose of an abuse and neglect proceeding is remedial, where
       the parent or guardian fails to respond to probative evidence offered against him/her
       during the course of an abuse and neglect proceeding, a lower court may properly
       consider that individual’s silence as affirmative evidence of that individual’s
       culpability.

Syl. Pt. 2, W. Va. Dep’t of Health & Human Res. ex rel. Wright v. Doris S., 197 W. Va. 489, 475
S.E.2d 865 (1996). The record is devoid of any evidence to contradict the circuit court’s findings
that petitioner abused controlled substances while pregnant with S.H. Therefore, we find no error
in the circuit court adjudicating petitioner as an abusing parent in regard to S.H.

        Petitioner next argues that the circuit court erred in terminating her parental rights rather
than imposing a less-restrictive dispositional alternative. According to petitioner, a disparity
existed in the DHHR’s recommendations to the circuit court in that its written opinion
recommended petitioner be provided continued reunification services, but the case worker’s
dispositional hearing testimony recommended termination of parental rights. Petitioner also argues
that the circuit court incorrectly considered her refusal to relinquish her rights to M.K. in deciding
to terminate her parental rights.

        Petitioner’s argument ignores the clear and convincing evidence that she failed to follow
through with a reasonable family case plan. West Virginia Code § 49-4-604(b)(6) (2019) 3 provides
that a circuit court may terminate a parent’s 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 welfare of the children. West Virginia Code
§ 49-4-604(c)(3) (2019) clearly sets forth that there is “no reasonable likelihood that the conditions
of neglect or abuse can be substantially corrected” when

       [t]he abusing parent . . . ha[s] 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.

Here, the evidence shows that the DHHR prepared a family case plan in response to the circuit
court granting petitioner an improvement period. However, despite extensive opportunities to


       3
        Although the Legislature amended West Virginia Code § 49-4-604 effective June 5, 2020,
including renumbering the provisions, the amendments do not impact this case.
                                                  4
participate in services, petitioner failed to complete the terms of the case plan. 4 Petitioner failed to
complete substance abuse treatment and relapse prevention programs, complete parenting and
adult life skills classes, or consistently submit to random drug screening. As a result, petitioner
failed to correct the conditions that threatened the children’s welfare. The conditions were clearly
ongoing as petitioner admitted to using controlled substances while pregnant with S.H. just one
year after subjecting M.K. to the same treatment. Based on this evidence, the circuit court did not
err in finding that there was no reasonable likelihood that the conditions of abuse and neglect could
be corrected in the near future and that termination was necessary for the welfare of the children. 5

        This Court has held as follows:

                “Termination of parental rights, the most drastic remedy under the statutory
        provision covering the disposition of neglected children, [West Virginia Code § 49-
        4-604 (2019)] . . . may be employed without the use of intervening less restrictive
        alternatives when it is found that there is no reasonable likelihood under [West
        Virginia Code § 49-4-604(c) (2019)] . . . 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). The circuit court’s finding that
there was no reasonable likelihood that the conditions of abuse and neglect could be substantially
corrected in the near future is supported by the record and is sufficient to terminate petitioner’s
parental rights without a less-restrictive dispositional alternative. Moreover,

                “[c]ourts are not required to exhaust every speculative possibility of
        parental improvement . . . where it appears that the welfare of the child will be
        seriously threatened, and this is particularly applicable to children under the age of
        three years who are more susceptible to illness, need consistent close interaction
        with fully committed adults, and are likely to have their emotional and physical
        development retarded by numerous placements.” Syl. Pt. 1, in part, In re R.J.M.,
        164 W.Va. 496, 266 S.E.2d 114 (1980).

Cecil T., 228 W. Va. at 91, 717 S.E.2d at 875, syl. pt. 4. Again, one year after the birth of M.K.,
petitioner continued to abuse controlled substances and failed to maintain an adequate home or
obtain gainful employment. The children would not benefit from continued speculation about


        4
         Petitioner briefly argues that her incarceration hindered her improvement period progress
and prejudiced her. However, we remind petitioner that the completion of the terms set forth in the
improvement period was her responsibility. See W. Va. Code § 49-4-610(4)(A). Additionally, we
note that petitioner was provided nearly twelve months to participate in and comply with the terms
of the improvement period, which is twice the amount of time permitted by West Virginia Code §
49-4-610 for a post-adjudicatory improvement period.
        5
         As an aside, petitioner asserts that the circuit court failed to make the findings required by
West Virginia Code § 49-4-604(b)(6) (2019) on the record. However, the findings are clearly set
forth in the circuit court’s order on appeal and are wholly supported by the record.
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petitioner’s potential improvement. The children deserved permanency, and the circuit court did
not err in terminating petitioner’s parental rights to provide that permanency.

      For the foregoing reasons, we find no error in the decision of the circuit court, and its
October 1, 2019, order is hereby affirmed.

                                                                                     Affirmed.

ISSUED: June 24, 2020


CONCURRED IN BY:

Chief Justice Tim Armstead
Justice Margaret L. Workman
Justice Elizabeth D. Walker
Justice Evan H. Jenkins
Justice John A. Hutchison




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