                             STATE OF WEST VIRGINIA

                           SUPREME COURT OF APPEALS


In Re: C.S.                                                                         FILED
                                                                                  June 16, 2014
No. 14-0051 (Cabell County 12-JA-25)                                           RORY L. PERRY II, CLERK
                                                                             SUPREME COURT OF APPEALS
                                                                                 OF WEST VIRGINIA


                               MEMORANDUM DECISION
        Petitioner Mother, by counsel David R. Tyson, appeals the Circuit Court of Cabell
County’s November 6, 2013, order terminating her parental rights to the child, C.S. The West
Virginia Department of Health and Human Resources (“DHHR”), by counsel Michael L.
Jackson, filed its response in support of the circuit court’s order. The guardian ad litem, Robert
E. Wilkinson, filed a response on behalf of the child supporting the circuit court’s order and filed
a supplemental appendix. On appeal, petitioner alleges that the DHHR failed to make reasonable
efforts to achieve reunification of the family and that the circuit court erred in finding there was
no reasonable likelihood she could substantially correct the conditions of abuse and neglect in
the near future.

        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 March of 2012, the DHHR filed an abuse and neglect petition alleging that petitioner
struck her child in the head and otherwise engaged in domestic violence with the father in the
child’s presence. The petition also alleged that petitioner was criminally charged with domestic
battery on the child as a result of the incident. Petitioner ultimately stipulated to abuse and
neglect insofar as she engaged in domestic violence in the child’s presence and had become
incarcerated, leaving her unable to provide the child with suitable care. Petitioner was granted a
post-adjudicatory improvement period on August 8, 2012.

        The DHHR alleges that thereafter, on March 13, 2013, petitioner was charged with
possession with intent to distribute a controlled substance, specifically amphetamines, and with
making a false statement to law enforcement. These were new charges for which petitioner was
again incarcerated. Thereafter, a notice of intent to terminate petitioner’s parental rights was filed
and the matter was set for disposition.

        On October 30, 2013, the circuit court held a dispositional hearing, finding that petitioner
had been incarcerated for the majority of the case and could not provide the child with a safe and
suitable home. At the time of the hearing, petitioner was on home incarceration for unrelated
criminal charges and was living in the home of persons deemed unfit to be around children. The

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circuit court then terminated petitioner’s parental rights. It is from the dispositional order that
petitioner appeals.

       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 circuit court terminating petitioner’s parental rights. To begin, it is clear that the
DHHR made reasonable efforts to reunify petitioner with the child. Petitioner’s argument on this
issue is premised upon an alleged failure by the DHHR to enter the unified child and family case
plan (“Plan”) within thirty days of the inception of the improvement period, as required by West
Virginia Code § 49-6D-3(a). However, the record is clear that the Plan was entered on June 26,
2012, approximately two months prior to the circuit court awarding her an improvement period.
As such, petitioner’s argument on this issue is without merit.

        Petitioner additionally alleges that the DHHR failed to make reasonable efforts at
reunification because the Plan did not address any services designed to remedy her alleged
psychological issues. While it is true that the circuit court’s dispositional order included a finding
that petitioner “suffers from untreated significant mental illness,” there is no evidence in the
record to support this finding or the allegation that the DHHR failed to offer services designed to
remedy this condition. In fact, the only evidence in the record regarding petitioner’s alleged
mental health issues indicates that she does not suffer from any psychosis. The guardian’s
supplemental appendix includes a forensic psychiatric evaluation performed on petitioner in
regard to one of her pending criminal actions and submitted to the circuit court in the abuse and
neglect proceeding as evidence at disposition. In that evaluation, it was noted that the mental
health issues with which petitioner presented were the result of malingering.

        Further, petitioner’s alleged mental health issues did not form the basis of the DHHR’s
petition for abuse and neglect and, accordingly, were not one of the subject conditions of abuse
and neglect that petitioner needed to remedy in order to achieve reunification with the child. It is
undisputed that the DHHR provided other services designed to remedy the underlying conditions
of abuse and neglect, including parenting and adult life skills classes. As such, we find that the



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DHHR did make reasonable efforts to achieve reunification, and the circuit court did not err in
finding the same.

        As to the circuit court’s finding that there was no reasonable likelihood that the
conditions of abuse and neglect could be substantially corrected, the Court finds no error in this
regard. Petitioner argues that she was cooperating with services and sought help to remedy the
conditions of abuse and neglect, but provides no evidence in support thereof.1 At disposition, the
circuit court noted that petitioner failed to complete the terms of her Plan, had been incarcerated
for the majority of the approximately one and a half years that the case was pending, and the
conditions of abuse and neglect present at the case’s inception were still present. Further,
petitioner had no suitable home for the child because she was then residing with her mother and
stepfather as a condition of her home incarceration. According to the circuit court, petitioner
reported that her mother abused her as a child and manufactured methamphetamines.

       Pursuant to West Virginia Code § 49-6-5(b)(3), when a parent has

       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[,]

then there is no reasonable likelihood that the conditions of abuse or neglect can be substantially
corrected. Based upon the circuit court’s findings outlined above, it is clear that petitioner failed
to follow through with the Plan and that the conditions of abuse and neglect continued to persist
throughout every stage of the proceedings below. In fact, it is undisputed that during the
pendency of the proceedings below, petitioner was charged with multiple crimes related to her
ongoing issues with substance abuse. As such, the circuit court did not err in finding that there
was no reasonable likelihood the conditions of abuse or neglect could be substantially corrected,
or in finding that termination was necessary for the child’s welfare. Pursuant to West Virginia
Code § 49-6-5(a)(6), circuit courts are directed to terminate parental rights upon these findings.

     For the foregoing reasons, we find no error in the decision of the circuit court and its
November 6, 2013, order is hereby affirmed.


                                                                                          Affirmed.




       1
         Petitioner’s appendix contains only the order accepting the father’s voluntary
relinquishment of parental rights, the dispositional order terminating her parental rights, and the
circuit court docket sheet for the abuse and neglect proceeding.
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ISSUED: June 16, 2014

CONCURRED IN BY:

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




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