                             STATE OF WEST VIRGINIA
                           SUPREME COURT OF APPEALS

                                                                                    FILED
                                                                                 June 24, 2020
In re S.P.                                                                      EDYTHE NASH GAISER, CLERK
                                                                                SUPREME COURT OF APPEALS
No. 20-0017 (Randolph County 19-JA-76)                                              OF WEST VIRGINIA




                               MEMORANDUM DECISION


        Petitioner Mother C.W., by counsel Steven B. Nanners, appeals the Circuit Court of
Randolph County’s December 12, 2019, order terminating her parental rights to S.P. 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, Heather M. Weese, 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
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 July of 2019, the DHHR filed a child abuse and neglect petition alleging that petitioner
abused controlled substances while pregnant with S.P. and tested positive after the birth of S.P. in
July of 2019 for her prescribed buprenorphine, as well as unprescribed tetrahydrocannabinol
(“THC”) and benzodiazepines. S.P. was born three-months premature and required four to six
weeks of hospitalization following her birth. According to the DHHR, petitioner also tested
positive for methamphetamine, buprenorphine, and THC in June of 2019. Further, the DHHR
alleged that petitioner’s parental rights to three other children were previously terminated. In one
prior abuse and neglect proceeding, filed in 2012, the DHHR alleged that petitioner struggled with
substance abuse disorder, domestic violence in her relationships, and deplorable housing
conditions. Ultimately, petitioner relinquished her parental rights to an older child after she failed

       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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to complete services in that case. Again, in 2016, the DHHR alleged that petitioner’s ability to
parent was negatively affected by her substance abuse and that she exposed two older children to
deplorable housing. Following that second petition, petitioner failed to participate in the
proceedings and her parental rights to those children were involuntarily terminated.

        The circuit court convened for an adjudicatory hearing in August of 2019, and petitioner
stipulated to the allegations that she tested positive for controlled substances in July of 2019.
Petitioner also stipulated to her past substance abuse history and prior terminations of her parental
rights. Upon these stipulations, the circuit court adjudicated petitioner as an abusing parent as to
S.P. Thereafter, petitioner moved for a post-adjudicatory improvement period, while the DHHR
moved to terminate her parental rights.

         In December of 2019, the circuit court held the final dispositional hearing. Petitioner
testified regarding parenting classes, counseling, and drug screening that she organized and
participated in during the proceedings. The DHHR opposed petitioner’s motion for a post-
adjudicatory improvement period and relied on evidence presented at prior hearings in support of
its motion to terminate petitioner’s parental rights. Petitioner was drug screened twice on the day
of the dispositional hearing and tested positive for her prescription medications. However, the
circuit court stated that “her speech has been very difficult to understand in testimony today. It
appears to the [circuit c]ourt today that [petitioner], based on her speech and demeaner, is impaired
from her prescription medications.” Ultimately, the circuit court found that “there ha[d] not been
any change of circumstances between the 2012, 2016 and 2019 abuse and neglect cases.” The
circuit court noted a recent criminal case wherein petitioner was unwilling to participate in
community corrections and drug treatment as an alternative sentence to incarceration. The court
further noted petitioner’s June of 2019 drug screen that was positive for methamphetamine.
Moreover, the circuit court found that petitioner made “little to no effort until the last month to
participate in services” and, as such, found that she did not present clear and convincing evidence
that she would fully participate in an improvement period. Finally, the court found that there was
no reasonable likelihood that the conditions of abuse and neglect could be substantially corrected
in the near future and that it was necessary for the child’s welfare to terminate petitioner’s parental
rights. Accordingly, the circuit court terminated petitioner’s parental rights by its December 12,
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


       2
        According to the parties, the child’s father is currently participating in services. The
permanency plan for the child is reunification with her father with a concurrent plan of adoption
by her current foster placement.
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       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 denying her motion for a post-
adjudicatory improvement period. She avers that her testimony demonstrated, by clear and
convincing evidence, that she was likely to fully participate in an improvement period. Petitioner
testified that she signed up for counseling, completed a parenting class and enrolled in another,
provided negative drug screens, and took her medications as prescribed. However, upon our review
of the record, we find that petitioner is entitled to no relief.

         West Virginia Code § 49-4-610(2)(B) provides that a circuit court may grant a parent a
post-adjudicatory improvement period when she “demonstrates, by clear and convincing evidence,
that [she] is likely to fully participate in the improvement period.” It is well established that “West
Virginia law allows the circuit court discretion in deciding whether to grant a parent an
improvement period.” In re M.M., 236 W. Va. 108, 115, 778 S.E.2d 338, 345 (2015).
“Additionally, if a parent is unable to demonstrate an ability to correct the underlying conditions
of abuse and/or neglect in the near future, termination of parental rights may proceed without the
utilization of an improvement period.” In re Charity H., 215 W. Va. 208, 216, 599 S.E.2d 631,
639 (2004). Here, petitioner failed to demonstrate that she was likely to fully participate in an
improvement period. As sole evidence in support of her motion, petitioner testified that she was
participating in services. However, her manner of speech and demeanor led the circuit court to
conclude petitioner was impaired during that testimony. The manner of this testimony certainly
affected petitioner’s credibility, and “[a] reviewing court cannot assess witness credibility through
a record. The trier of fact is uniquely situated to make such determinations and this Court is not in
a position to, and will not, second guess such determinations.” Michael D.C. v. Wanda L.C., 201
W. Va. 381, 388, 497 S.E.2d 531, 538 (1997). Though petitioner argues that the DHHR relied
solely on her prior terminations of parental rights, the circumstances of those terminations include
petitioner’s failure to complete an improvement period and to fully participate in the abuse and
neglect proceedings, which are compelling reasons to find that petitioner would not fully
participate in an improvement period in the present case. Accordingly, we find no abuse of
discretion in the circuit court’s denial of petitioner’s motion for an improvement period.

        Finally, even though petitioner asserts the circuit court erred in terminating her rights, she
offers no argument to contradict the circuit court’s decision, choosing instead to focus entirely on
the circuit court’s denial of her improvement period. Nevertheless, we consider the circuit court’s
termination of her parental rights and find no error.

              When an abuse and neglect petition is brought based solely upon a previous
       involuntary termination of parental rights to a sibling pursuant to [W. Va. Code §
       49-4-605], prior to the lower court’s making any disposition regarding the petition,

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       it must allow the development of evidence surrounding the prior involuntary
       termination(s) and what actions, if any, the parent(s) have taken to remedy the
       circumstances which led to the prior termination(s).

Syl. Pt. 4, In re George Glen B., Jr., 205 W. Va. 435, 437, 518 S.E.2d 863, 865 (1999). “Although
the requirement that such a petition be filed does not mandate termination in all circumstances, the
legislature has reduced the minimum threshold of evidence necessary for termination where one
of the factors outlined in [W. Va. Code § 49-4-605] is present.” Id, at 437, 518 S.E.2d at 865, syl.
pt. 2, in part. In this case, it is clear that the conditions that led to the prior terminations of
petitioner’s parental rights were unchanged, as found by the circuit court. Petitioner continued to
abuse controlled substances up until the birth of S.P., as evidenced by her positive drug screen in
June of 2019 while pregnant and her positive drug screen upon the child’s birth. In contrast,
petitioner offered no evidence that she had attempted to remedy her substance abuse problems. In
fact, the circuit court found that petitioner was offered drug treatment during an unrelated criminal
proceeding, but chose to forego treatment. Based on this evidence, the circuit court’s finding that
petitioner experienced no change in circumstances is fully supported by the record and further
supports the finding that there was no reasonable likelihood that the conditions of abuse and
neglect could be corrected in the near future.

               “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)] 3 . . . 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). Based upon these findings, we
find no error in the circuit court’s decision to terminate petitioner’s parental rights.

        Lastly, we note that the child’s father is continuing to participate in services and a final
disposition for the child has not yet been reached. As such, this Court reminds the circuit court of
its duty to establish permanency for the child. 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.




       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.
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Further, this Court reminds the circuit court of its duty pursuant to Rule 43 to find permanent
placement for a child 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 Procedure[] 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 [West Virginia Code § 49-4-604(b)(6) (2019)], 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).

     For the foregoing reasons, we find no error in the decision of the circuit court, and its
December 12, 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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