                             STATE OF WEST VIRGINIA
                           SUPREME COURT OF APPEALS


                                                                                      FILED
In re B.H.
                                                                                   April 28, 2020
                                                                                 EDYTHE NASH GAISER, CLERK
No. 19-0836 (Greenbrier County 18-JA-49)                                         SUPREME COURT OF APPEALS
                                                                                     OF WEST VIRGINIA




                               MEMORANDUM DECISION



        Petitioner Mother A.H., by counsel Carrie F. DeHaven, appeals the Circuit Court of
Greenbrier County’s August 12, 2019, order terminating her parental rights to B.H. 1 The West
Virginia Department of Health and Human Resources (“DHHR”), by counsel Brandolyn N.
Felton-Ernest, filed a response in support of the circuit court’s order and a supplemental appendix.
The guardian ad litem, Michael R. Whitt, filed a response on behalf of the child in support of the
circuit court’s order and a supplemental appendix. On appeal, petitioner argues that the circuit
court erred in terminating her parental rights without 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 September of 2018, the DHHR filed an abuse and neglect petition against petitioner
alleging that her substance abuse impaired her ability to parent the child after Child Protective
Services workers discovered petitioner and her boyfriend overdosed on drugs in a parked vehicle
with the child inside. The DHHR alleged that the child reported being in the car for three hours
before the police arrived. At the adjudicatory hearing in October of 2018, petitioner stipulated that
her ongoing substance abuse negatively impacted her ability to parent, and the circuit court
adjudicated petitioner as an abusing parent. Subsequently, the circuit court granted petitioner a
post-adjudicatory improvement period, the terms of which included completing a parental fitness


       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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evaluation, submitting to regular drug screening, and completing a long-term inpatient drug
rehabilitation program.

         Thereafter, petitioner completed her parental fitness evaluation and attended a short-term
inpatient rehabilitation program. However, petitioner relapsed, and her supervised visitations with
the child were stopped in February of 2019. At the multidisciplinary team meeting held in May of
2019, petitioner stated that she would enroll in another drug detoxification program. However, by
the June 10, 2019, status hearing, petitioner had not entered into such a program and appeared to
be under the influence of drugs at the hearing. Despite this, the circuit court granted petitioner a
post-dispositional improvement period to allow her to complete another drug treatment program.
Thereafter, petitioner refused to enter treatment. On June 28, 2019, petitioner represented to the
circuit court that she would enter into a drug rehabilitation program immediately after the hearing.
Based upon this proffer, the circuit court agreed to permit petitioner to attend the program.

        The circuit court held the final dispositional hearing in July of 2019. Petitioner did not
appear, but counsel represented her. The circuit court noted that petitioner never enrolled in another
drug treatment program, which was a requirement of her post-dispositional improvement period.
The DHHR and the guardian argued that petitioner failed to complete the terms of her
improvement period and moved to terminate petitioner’s parental rights. Based upon the evidence
presented, the circuit court found no reasonable likelihood that the conditions of abuse and neglect
could be substantially corrected in the near future and that terminating petitioner’s parental rights
was necessary for the child’s welfare. Ultimately, the circuit court terminated petitioner’s parental
rights by order entered on August 12, 2019. It is from the dispositional order that petitioner
appeals. 2

       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).




       2
         The father is a nonabusing parent, and the permanency plan for the child is to remain in
his father’s custody.
                                                  2
         On appeal, petitioner alleges that the circuit court erred in terminating her parental rights
instead of imposing a less-restrictive dispositional alternative. In support, petitioner argues that the
child was placed with his father, and, therefore, termination of her parental rights was not the least-
restrictive disposition. We disagree, and note that, on appeal, petitioner cannot establish that the
circuit court’s findings necessary for termination were in error.

        West Virginia Code § 49-4-604(b)(6) permits a circuit court 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 welfare of the
child. Further, pursuant to West Virginia Code § 49-4-604(c)(3), a situation in which there is no
reasonable likelihood that the conditions of abuse and neglect can be substantially corrected
includes one in which “[t]he abusing parent . . . [has] not responded to or followed through with a
reasonable family case plan or other rehabilitative efforts . . . designed to reduce or prevent the
abuse or neglect of the child.” Here, the record supports the circuit court’s finding that there was
no reasonable likelihood that petitioner could substantially correct the conditions of abuse and
neglect, given her untreated addiction and noncompliance during the proceedings. Below,
petitioner stipulated that her drug addiction negatively impacted her ability to parent the child.
Despite this admission, petitioner’s compliance with drug testing was sporadic throughout the
proceedings, and she failed to complete a long-term inpatient rehabilitation program as required
by the terms of her improvement periods. At disposition, petitioner failed to appear, but the DHHR
presented evidence that her supervised visitations with the child were inconsistent and she had not
seen the child since February of 2019. Clearly, petitioner failed to follow through with any
rehabilitative efforts required by her improvement period and, in fact, makes no claim that she
successfully completed the terms and conditions of said improvement periods. Additionally, the
record shows that the child’s welfare required termination of petitioner’s parental rights because
her admitted substance abuse prevented her from properly supervising the child. Therefore,
sufficient evidence was presented to find that there was no reasonable likelihood that petitioner
could correct the conditions of abuse and/or neglect in the near future and that termination of
petitioner’s parental rights was necessary for the child’s welfare.

        While petitioner claims that she should have been granted a less-restrictive disposition
because the child was placed with his nonabusing father, we have previously held that West
Virginia Code § 49-4-604 “permits the termination of one parent’s parental rights while leaving
the rights of the nonabusing parent completely intact, if the circumstances so warrant.” In re Emily,
208 W. Va. 325, 344, 540 S.E.2d 542, 561 (2000). Further, “simply because one parent has been
found to be a fit and proper caretaker for [the] child does not automatically entitle the child’s other
parent to retain his/her parental rights if his/her conduct has endangered the child and such
conditions of abuse and/or neglect are not expected to improve.” Id. Moreover,

               “[t]ermination of parental rights, the most drastic remedy under the
       statutory provision covering the disposition of neglected children, [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 [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).

                                                   3
Syl. Pt. 5, In re Kristin Y., 227 W. Va. 558, 712 S.E.2d 55 (2011). Because the circuit court properly
found that there was no reasonable likelihood that the conditions of abuse and neglect could be
corrected in the near future, a less-restrictive alternative disposition was not warranted. Therefore,
we find no error.

       Accordingly, the circuit court’s August 12, 2019, order is hereby affirmed.

                                                                                           Affirmed.

ISSUED: April 28, 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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