                            STATE OF WEST VIRGINIA

                          SUPREME COURT OF APPEALS


In re: J.M. Jr.                                                                  FILED
No. 16-0691 (Clay County 15-JA-66)                                          February 21, 2017
                                                                               RORY L. PERRY II, CLERK

                                                                             SUPREME COURT OF APPEALS

                                                                                 OF WEST VIRGINIA


                              MEMORANDUM DECISION
       Petitioner Mother J.B., by counsel Wayne King, appeals the Circuit Court of Clay
County’s June 8, 2016, order terminating her parental rights to five-month-old J.M. Jr.1 The
West Virginia Department of Health and Human Resources (“DHHR”), by counsel Lee
Niezgoda, filed its response in support of the circuit court’s order. The guardian ad litem,
Michael Asbury, Jr., filed a response on behalf of the child also in support of the circuit court’s
order. On appeal, petitioner alleges that the circuit court erred in terminating her post­
adjudicatory improvement period and 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 December of 2015, the DHHR filed a petition for emergency custody of J.M. Jr., who
was just eight days old. The DHHR alleged that petitioner admitted to using marijuana during
her pregnancy and that her substance abuse affected her ability to appropriately care for her
child. The DHHR also alleged that petitioner failed to provide an appropriate residence. Based
upon these allegations, the circuit court found that an imminent danger existed and placed the
child in the care and custody of the DHHR. Thereafter, the circuit court ordered petitioner to
abstain from using drugs and alcohol and to submit to random drug and alcohol screens. The
circuit court also granted petitioner supervised visitation with her child conditioned upon her
ability to test negative for drugs for two consecutive weeks. Shortly thereafter, petitioner tested
positive for marijuana.

      In January of 2016, petitioner admitted to the allegations of abuse and neglect.
Accordingly, the circuit court adjudicated petitioner as an abusive parent. In addition to


       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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abstaining from drug and alcohol, the circuit court ordered petitioner to comply with services and
to undergo psychological and substance abuse evaluations.

        In March of 2016, the circuit court held a hearing on petitioner’s motion for a post­
adjudicatory hearing during which it heard proffers from counsel that petitioner failed two drug
tests. Counsel also noted that petitioner cancelled multiple parenting and adult life skills classes.
Nevertheless, the circuit court granted petitioner a six-month post-adjudicatory improvement
period. The terms and conditions of petitioner’s improvement period directed her to enter a long-
term drug rehabilitation facility, participate in all services offered by the DHHR, obtain an
appropriate residence, remain drug and alcohol free, and submit to random drug and alcohol
screens. The circuit court also suspended petitioner’s visitation with the child.

        In May of 2016, the circuit court held a dispositional hearing during which the circuit
court heard testimony from petitioner and a DHHR case worker. According to petitioner’s case
worker, petitioner did not participate in parenting or adult life skills, failed ten drug tests, and did
not exercise her visitation rights with her child because petitioner was unable to remain sober.
Furthermore, the circuit court heard evidence that petitioner was not enrolled in a drug
rehabilitation treatment facility. Petitioner testified that she has not visited with her child since
February of 2016, and that she voluntarily left a drug rehabilitation facility. After considering the
testimony and evidence, the circuit court found that there was no reasonable likelihood that
petitioner could correct the conditions of abuse or neglect in the foreseeable future. By order
entered on July 8, 2016, the circuit court terminated petitioner’s parental rights to her child. 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). Upon our review, the Court finds
no error in the proceedings below.

       On appeal, petitioner argues that the circuit court erred in terminating her post­
adjudicatory improvement period. Petitioner asserts that she was given an insufficient amount of



                                                   2


time to correct the conditions of abuse and neglect.2 Specifically, petitioner contends that the
circuit court erred in suspending her visitation with her child because she “should have been
permitted visitation with [her child], even when [she] was under the influence of controlled
substances as long as [she] behaved appropriately with [her child.]” We strongly disagree.
Notably, petitioner does not argue that the circuit court violated any of the statutory time periods
set forth in Chapter 49 of the West Virginia Code for child abuse and neglect proceedings. West
Virginia Code § 49-4-610 sets forth when a circuit court may grant, extend, or terminate an
improvement period. Further, West Virginia Code § 49-4-610(7) requires the termination of an
improvement period “when the court finds that [a parent] has failed to fully participate in the
terms of the improvement period.” Additionally, we have long held that “[i]t is within the court’s
discretion to grant an improvement period . . . [and] it is also within the court’s discretion to
terminate the improvement period . . . if the court is not satisfied that the [parent] is making the
necessary progress.” Syl. Pt. 2, In re Lacey P., 189 W.Va. 580, 433 S.E.2d 518 (1993).

        In petitioner’s case, she failed to fully participate in her post-adjudicatory improvement
period. It is clear from the record that the terms and conditions of her post-adjudicatory
improvement period required her to enter a long-term drug rehabilitation facility, participate in
all services offered by the DHHR, obtain an appropriate residence, remain drug and alcohol free,
and submit to random drug and alcohol screens. While petitioner admitted that she attended a
long-term drug treatment facility, she also admitted that she voluntarily left the facility and had
not returned at the time of the dispositional hearing. The circuit court also heard evidence that
petitioner failed to participate in parenting and adult life skills classes, failed ten drug screens,
and had not visited with her child since approximately February of 2016. As such, it is clear that
petitioner failed to fully participate in her improvement period or make sufficient progress. For
these reasons, we find no error.

        For the foregoing reasons, we find no error in the decision of the circuit court, and its
July 8, 2016, order is hereby affirmed.

                                                                                          Affirmed.

ISSUED: February 21, 2017


CONCURRED IN BY:

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

       2
        Related to this assignment of error, petitioner also argues that the circuit court erred in
terminating her visitation with the child and “incorporates by reference [respondent father’s
argument in Appeal Case No. 16-0732] the said statements on pages 9 to 13 and the supporting
authority.”
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