                             STATE OF WEST VIRGINIA
                           SUPREME COURT OF APPEALS
                                                                                    FILED
In re L.L. and H.L.                                                            February 15, 2019
                                                                                EDYTHE NASH GAISER, CLERK
                                                                                SUPREME COURT OF APPEALS
No. 18-0900 (Nicholas County 17-JA-151 and 17-JA-152)                               OF WEST VIRGINIA




                               MEMORANDUM DECISION
        Petitioner Mother A.R., by counsel Joseph M. Mosko, appeals the Circuit Court of
Nicholas County’s September 12, 2018, order terminating her parental rights to L.L. and H.L.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”), Denise N. Pettijohn, filed a response on behalf of the children also in support of the
circuit court’s order. On appeal, petitioner argues that the circuit court erred in 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.

       In November of 2017, the DHHR filed a child abuse and neglect petition alleging that the
children were abused and neglected due to the father’s substance abuse. The petition was
amended later in November of 2017 to include allegations against petitioner, who had not been
located and was believed to be homeless.

        The circuit court held an adjudicatory hearing in January of 2018. The DHHR moved the
circuit court to amend the petition to include an allegation that petitioner failed to provide for her
children and failed to visit them, constituting abuse and/or neglect. Petitioner informed the
circuit court that she was willing to stipulate to the allegations against her. The circuit court
accepted her stipulation and adjudicated her as an abusing parent.

       Later in January, the circuit court granted petitioner an improvement period based on a
multidisciplinary team (“MDT”) recommendation. The terms and conditions included that

       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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petitioner participate in supervised visitation; submit to random drug and alcohol screens; remain
free from drugs and alcohol; maintain contact with the DHHR; complete services addressing
parenting, housekeeping, cleanliness, and budgeting; obtain and maintain employment; and
participate in a psychological evaluation and follow all recommendations.

        The circuit court held a dispositional hearing in June of 2018. A Child Protective
Services (“CPS”) worker testified that petitioner tested positive for methamphetamine four times
over the course of the proceedings and refused to submit to drug screens at other times. In fact,
petitioner failed to provide a single negative screen during the proceedings, which prevented her
from visiting with the children. Further, petitioner did not maintain contact with the DHHR and
only “sparingly” participated in adult life skills classes. While petitioner did participate in a
psychological evaluation, she failed to follow through with any of the recommendations,
including long-term inpatient substance abuse treatment with follow-up outpatient treatment.
Petitioner also failed to obtain employment.

        Petitioner testified that she submitted to counseling the day before the hearing and had
housing, but not reliable transportation. Petitioner also admitted to “basically” self-medicating,
and stated that she had last used drugs a “[c]ouple days ago.” After hearing evidence, counsel for
petitioner requested that the circuit court defer its ruling in order to allow petitioner to seek
inpatient substance abuse treatment. However, the circuit court denied the request and found that
there was no reasonable likelihood that petitioner could correct the conditions of abuse and
neglect in the near future given the amount of time since her last visit with the children and her
lack of effort or progress in the proceedings. The circuit court further found that termination of
petitioner’s parental rights was in the children’s best interests. It is from the September 12, 2018,
order terminating her parental rights that petitioner appeals.2

        The Court has previously established the following standard of review in cases such as
this:

                “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



        2
        The father is currently participating in an improvement period and the children are
placed with him in a trial reunification. The permanency plan for the children is reunification
with the father pending the successful completion of his improvement period. The concurrent
permanency plan is adoption by a relative.
                                                 2
       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 argues that the circuit court erred in terminating her parental rights
when she took steps to address the conditions of abuse and/or neglect by maintaining suitable
housing, participating in counseling, and expressing a willingness to participate in long-term
inpatient substance abuse treatment. According to petitioner, “[t]he only outstanding issue with
which [she] needed to grapple was her substance use.” We disagree.

        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
children’s welfare. According to West Virginia Code § 49-4-604(c)(3), a situation in which there
is no reasonable likelihood the conditions of abuse and neglect can be substantially corrected
includes one in which

       [t]he abusing parent or parents have 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 could
correct the conditions of abuse and/or neglect in the near future. Here, petitioner failed to provide
a single negative drug screen throughout the entirety of the proceedings. In fact, petitioner
testified that she last used drugs a “couple days” before the dispositional hearing. Petitioner’s
failure to provide negative drug screens below resulted in her inability to visit with the children.
Indeed, the record establishes that petitioner saw her children one time in the last two years. We
have previously noted “that the level of interest demonstrated by a parent in visiting his or her
children while they are out of the parent’s custody is a significant factor in determining the
parent’s potential to improve sufficiently and achieve minimum standards to parent the child.” In
re Katie S., 198 W.Va. 79, 90 n.14, 479 S.E.2d 589, 600 n.14 (1996)(citing Tiffany Marie S., 196
W.Va. at 228 and 237, 470 S.E.2d at 182 and 191; State ex rel. Amy M. v. Kaufman, 196 W.Va.
251, 259, 470 S.E.2d 205, 213 (1996)). Moreover, petitioner failed to comply with several other
aspects of her improvement period. She did not maintain contact with the DHHR, only sparingly
participated in adult life skills classes, and failed to obtain employment. Although petitioner
argues that she participated in counseling, she only sought out this service one day prior to the
dispositional hearing. As such, it is clear that petitioner failed to abide by the family case plan.

       While petitioner suggests that the circuit court should have deferred its ruling to allow her
more time to enroll in inpatient treatment, we have previously held that




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               “[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 foregoing, we
find that the circuit court did not err in terminating petitioner’s parental rights.

        Lastly, because the proceedings regarding the father remain ongoing, this Court reminds
the circuit court of its duty to establish permanency for the children. Rule 39(b) of the Rules of
Procedure for Child Abuse and Neglect Proceedings requires:

       At least once every three months until permanent placement is achieved as
       defined in Rule 6, the court shall conduct a permanent placement review
       conference, requiring the multidisciplinary treatment team to attend and report as
       to progress and development in the case, for the purpose of reviewing the progress
       in the permanent placement of the child.

       Further, this Court reminds the circuit court of its duty pursuant to Rule 43 of the Rules
of Procedure for Child Abuse and Neglect Proceedings to find permanent placement for the
children within twelve months of the date of the disposition order. As this Court has stated,

               [t]he [twelve]-month period provided in Rule 43 of the West Virginia
       Rules of Procedures for Child Abuse and Neglect Proceedings for permanent
       placement of an abused and neglected child following the final dispositional order
       must be strictly followed except in the most extraordinary circumstances which
       are fully substantiated in the record.

Cecil T., 228 W.Va. at 91, 717 S.E.2d at 875, syl. pt. 6. Moreover, this Court has stated that

               [i]n determining the appropriate permanent out-of-home placement of a
       child under W.Va.Code § 49-6-5(a)(6) [1996] [now West Virginia Code § 49-4-
       604(b)(6)], the circuit court shall give priority to securing a suitable adoptive
       home for the child and shall consider other placement alternatives, including
       permanent foster care, only where the court finds that adoption would not provide
       custody, care, commitment, nurturing and discipline consistent with the child’s
       best interests or where a suitable adoptive home can not be found.

Syl. Pt. 3, State v. Michael M., 202 W.Va. 350, 504 S.E.2d 177 (1998). Finally, “[t]he guardian
ad litem’s role in abuse and neglect proceedings does not actually cease until such time as the
child is placed in a permanent home.” Syl. Pt. 5, James M. v. Maynard, 185 W.Va. 648, 408
S.E.2d 400 (1991).



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       For these reasons, we find no error in the decision of the circuit court, and its September
12, 2018, order is hereby affirmed.


                                                                                        Affirmed.

ISSUED: February 15, 2019


CONCURRED IN BY:

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




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